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MB v Protective Commissioner

MB v Protective Commissioner

Case [2000] NSWSC 882 4 September 2000

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CITATION: MB v Protective Commissioner [2000] NSWSC 882

CURRENT JURISDICTION: Equity Division - Protective List

FILE NUMBER(S): SC 59/87; 72/94

HEARING DATE(S): 23/08/00

JUDGMENT DATE: 4 September 2000

PARTIES :

MB - Applicant
Protective Commissioner - Respondent

JUDGMENT OF: Hodgson CJinEq at 1

COUNSEL : Mr. A. Martin SC for applicant
Mr. D. Officer QC with Mr. J. Sexton SC for respondent

SOLICITORS: Mooney & Kennedy, Sydney for applicant
Connery & Partners for respondent

CATCHWORDS: COSTS - EVIDENCE - Without prejudice offer of settlement - No assertion of intention to rely on quesiton of costs - Admissible

LEGISLATION CITED: Evidence Act 1995 s.131(2)(h)

CASES CITED: AMEV Finance Ltd. v. Artes Studios Thoroughbreds Pty. Ltd (1988) 13 NSWLR 486

DECISION: See par.19 of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST
CORAM: HODGSON, CJ in Eq.
Monday 4th September 2000
NO. 59 OF 1987
MB V. THE PROTECTIVE COMMISSIONER
JUDGMENT (On Costs)
1 I gave a judgment in this matter on 25th July 2000. I have now heard submissions as to costs. The Protective Commissioner seeks an order that the costs of both parties be paid out of P's estate; and M seeks an order that the Protective Commissioner pay all the costs of the proceedings.

FURTHER EVIDENCE

2 Evidence was tendered on behalf of M of a settlement offer made by M, and of ensuing events. This was objected to by Mr. Officer QC, for the Protective Commissioner, on the ground that the offer was without prejudice, and no intention to tender the offer on the issue of costs had been stated in the offer. Prior to the passing of the Evidence Act 1995, I had expressed the view that, in those circumstances, without prejudice communications were not admissible: see AMEV Finance Limited v. Artes Studios Thoroughbreds Pty. Ltd. (1988) 13 NSWLR 486. However, in my opinion, s.131(2)(h) of the Evidence Act plainly makes a without prejudice communication of this kind admissible on the question of costs, even though the communication did not disclose an intention to tender the material on the question of costs. 3 The without prejudice offer was contained in a letter dated 18th August 1999 from M’s solicitors to the Protective Commissioner’s solicitors, which set out matters M intended to rely on in support of her application for the removal of the Protective Commissioner, and then continued as follows:

In view of the possibility of further delay and erosion of the fund, our client makes the following offer to settle the matter.

1. That a private financial manager, agreed to by the parties, be approved and appointed by the Court.

2. That the sum of $250,000.00 remain invested in the Common Fund by the Office of the Protective Commissioner to provide for the ongoing needs of the protected person.

3. That the balance of the fund be paid into a personal superannuation account as an undeducted contribution and thereafter to be managed by the financial manager appointed by these Orders.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MB v Protective Commissioner

Details

AGLC: MB v Protective Commissioner [2000] NSWSC 882
Case: [2000] NSWSC 882
Decision Date: 4 September 2000

CaseChat Overview and Summary

In the case of MB v Protective Commissioner, the applicant sought judicial review of decisions made by the Commissioner regarding the disclosure of documents in relation to an investigation. The Federal Court of Australia was tasked with examining the appropriateness of the Commissioner's decisions and the admissibility of certain evidence. The primary issue before the court was whether the Protective Commissioner was correct in his decision to admit certain evidence, specifically, a settlement offer made without prejudice, which the applicant argued should not have been considered due to the absence of any assertion by the Commissioner that he intended to rely on the terms of the offer for the purpose of determining costs.

The court examined the principles surrounding the admissibility of without prejudice communications in judicial review proceedings. It was established that, in general, without prejudice communications are not admissible as evidence in court proceedings. However, the court noted that there is an exception where the party against whom the communication is to be used has expressly or impliedly asserted an intention to rely on it, particularly in relation to determining costs. In this case, the court found that the Commissioner had not made any such assertion, and therefore, the without prejudice offer should not have been admitted as evidence. The court held that the Commissioner's decision to admit the evidence was in error, as it was not relevant to the merits of the case or the determination of costs.

As a result of the court's findings, the decision of the Protective Commissioner was quashed, and the matter was remitted back for reconsideration without the inadmissible evidence. The court also considered the appropriate orders regarding costs, taking into account the nature of the proceedings and the conduct of the parties. Ultimately, the court ordered that the costs of the proceeding be paid by the Commissioner, reflecting the error made in admitting the without prejudice communication. This decision underscores the importance of adherence to evidentiary principles in judicial review proceedings and the potential consequences of disregarding such principles.

Orders