In the Matter of an Application by the Honourable John Charles White Pursuant to S86(1) of the Mental Health Act 1963

[1989] TASSC 126

Serial No B48/1989
List “B”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:In the matter of an application by the Honourable John Charles White pursuant to s86(1) of the Mental Health Act 1963 [1989] TASSC 126; B48/1989

PARTIES:  IN THE MATTER OF AN APPLICATION BY THE
  HONOURABLE JOHN CHARLES WHITE PURSUANT
  TO S86(1) OF THE MENTAL HEALTH ACT 1963

FILE NO:  M390/1989
DELIVERED ON:  7 November 1989
JUDGMENT OF:  Cox J

Judgment Number:  B48/1989
Number of paragraphs:  

Serial No B48/1989
File No M390/1989

IN THE MATTER OF AN APPLICATION BY THE HONOURABLE JOHN CHARLES WHITE PURSUANT TO S86(1) OF THE MENTAL HEALTH ACT 1963

REASONS FOR JUDGMENT  COX J

7 November 1989

1. By an application filed on the 11 October 1989 the applicant sought the following orders:–

1That the applicant be appointed as the committee of the estate of Lady Veronica Louise White, pursuant to s86(1) of the Mental Health Act 1963.

2That the applicant be authorised to avoid or purport to avoid the sale by the said Lady Veronica Louise White of a Mercedes 230 SL coupe motor vehicle registered number AE 9575 to P.B. and sC. George of Glen Lusk in Tasmania pursuant to Part V Rule 10(1A) of the Rules of the Supreme Court 1965.

3That P B George, S C George, their servants and agents, the proprietor of the business known as IPEC and all persons served with copies of this order be restrained from selling, charging, encumbering or removing from Tasmania the said motor vehicle.

1. The application came before Underwood J as a matter of urgency on the same day ex parte. It was supported by material which prima facie established that the applicant's mother, aged nearly 81 years, was a patient within the meaning of the Mental Health Act 1963 and that she had recently sold a Mercedes motor car which it appears she no longer drove regularly and for which she had little further use to the Georges for $32,000, a figure which, on the affidavit evidence, could be significantly less than its true value. The evidence as to value was however far from being of any real cogency and consisted of estimates by persons whose qualifications to express such opinions were not established. Other material suggested that it was intended that the car be removed from the State within 24 hours.

1. As his Honour, on the material available to him, had reason to believe that the applicant's mother was a patient within the meaning of the Rules of Court, Part V r1, having regard to the apparent risk of the vehicle being taken out of the State within a few hours, in the exercise of the power given him by r10 of Part V of the Rules of Court, he authorised the applicant to make application as next friend of his mother for an order restraining the claimed purchasers of the vehicle, Mr and Mrs George, from removing the vehicle out of Tasmania and further ordered the Georges and others not to sell or deal with or remove the vehicle from Hobart. He further ordered that the application, affidavit and order be served upon the Georges and adjourned the application until the 16 October 1989.

1. The matter came on for hearing on that day, counsel appearing for Mr and Mrs George. His Honour adjourned the application for an order appointing the applicant his mother's committee, partly because the necessary notice to the patient had not been given, but embarked upon the hearing of the application which sought to extend the interlocutory injunction. He extended it a further two days at the request of the applicant's counsel in order that further affidavit material might be filed. On the 18 October 1989 Underwood J. declined to extend the injunction further and dismissed the application, ordering that the applicant pay the taxed costs of Mr and Mrs George. The basis of the dismissal was that there was inadequate evidence of the existence of the contract, still less of its terms, of any incapacity to understand the nature of it on the part of the patient, of any knowledge by the purchaser of that incapacity, or of any unfair conduct or fraud by the Georges or their agents in their dealings with the patient.

1. On the 30 October 1989 the adjourned application to appoint the applicant as committee of his mother came before me. While reserving my decision on the precise wording of the order and on the full extent of the powers to be granted him I made an order so appointing him and authorising him, pursuant to s86(1)(h) and (j) of the Act, to avoid or purport to avoid any contract entered into by the patient for the sale of the motor vehicle, if so advised, and subject to a requirement that before the issue of any process commencing such proceedings there be counsel's advice that the available evidence in his view was sufficient to justify the issue of process, power to commence and conduct legal proceedings in the name of the patient and on her behalf against Performance Automobiles Pty Ltd, Raymond Payne and the Georges, or any one or more of them, in respect of the valuation and/or sale of the said motor vehicle.

1. I reserved the question of what order for costs as between the applicant and the patient's estate should be made. The order sought by him was that the cost of the application, including that part of the application which came before Underwood J in respect of the injunction, together with solicitors' costs incurred in respect of the motor vehicle which do not seem to directly relate to the application, be paid out of the patient's estate on an indemnity basis and, further, that he be indemnified by the estate in respect of the costs ordered to be paid by him to the Georges pursuant to the order of Underwood J.

1. The power to award costs in proceedings such as these is contained in s12 of the Supreme Court Civil Procedure Act 1932. In O'Rourke v Perpetual Trustees (No 2), unreported, No 45/1987, Underwood J gathered the authorities relevant to applications by trustees and executors for indemnity as to costs properly incurred by them as parties to proceedings. It is clear that they should be fully indemnified in respect of all costs "properly incurred", an expression synonymous with "not improperly incurred" – per Lindley LJ in Re Beddoe Downes v Cottam [1893] 1 Ch D 550 at p558. I see no reason for treating a person succeeding in his application for appointment as committee of a patient any differently.

1. As between the applicant and the respondents to the application for an injunction the learned judge dealing with that application, in the exercise of his discretion, saw it as appropriate that the applicant should bear the latter's costs, rather than that the respondents should bear any part of them themselves. The making of that order does not indicate any lack of bona fides in the application itself. On the material before me I am satisfied that it was prompted by a genuine concern that the patient's interests be protected. If the material hastily assembled to meet the urgency of the situation lacked sufficient persuasiveness to secure a continuation of the interim injunction it does not mean that the action was improperly taken nor the costs of doing so improperly incurred. In my view the applicant should have an indemnity for his costs of and incidental to this application, including those ordered to be paid to Mr and Mrs George out of the patient's estate. It will be a matter for the taxing officer to determine whether or not any particular item was properly incurred and whether or not it was incidental to the application.