P R A v M A & VCAT & Anor; P R A v M A & State Trustees Ltd (No 2)

[2004] VSCA 50

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 5781 of 2000

P.R.A.

Plaintiff

v.

M.A., VICTORIAN CIVIL &

ADMINISTRATIVE TRIBUNAL & ANOR

Defendants

No. 5883 of 2000

P.R.A.

Appellant

v.

M.A. & STATE TRUSTEES LTD.

Respondents

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[NO.  2]

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JUDGES:	ORMISTON, BATT and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On written submissions, pursuant to directions.
DATE OF JUDGMENT:	7 April 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 50

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COSTS – Administrative law – Appeal and judicial review – Whether administrator under Guardianship and Administration Act liable to pay appellant/plaintiff’s costs – Whether entitled to indemnity out of represented person’s estate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Appellant	Mr D.N.G. Galbally Q.C.	Brett R.E. Ryan
For the First Defendant/First Respondent	Ms C.M. Molyneaux QC Mr G.J. Combes	Ryan Carlisle & Thomas
For the Third Defendant/Second Respondent	Ms G.L. Schoff	Russell Kennedy

ORMISTON, J.A.
BATT, J.A.
BUCHANAN, J.A.:

1. The members of the Court published their reasons for judgment in these two proceedings, one for judicial review (No.5781 of 2000) and the other, an appeal from the above-mentioned Tribunal (No.5883 of 2000), on 4 March 2004.  At that time the Court provided to the parties a draft of the orders which, provisionally, it proposed to make to give effect to the reasons.  It afforded the parties an opportunity to consider the reasons and make written submissions as to costs and as to any entitlement to a certificate under the Appeal Costs Act 1998. It further indicated that the proposed orders were subject to any submission which Mr. Patrick O’Kane, one of the joint attorneys under power, who had not been a party until then, might make after being notified of the reasons. Authentication of the Court’s order has meanwhile been deferred.

1. Mr. O’Kane was duly notified but has not indicated any desire to make any submissions.  The parties (apart from the Tribunal), on the other hand, have provided helpful submissions on the questions of costs and certificates under the Appeal Costs Act. 

1. Having considered those submissions, the Court has concluded:

(a)that, rather than the appeal being dismissed (as proposed in the reasons published), an order that it be allowed better reflects the Court’s reasons, though, having regard to the orders to be made in the judicial review proceeding, no substantive order need be made in the appeal;

(b)that, having regard to the part played in written and oral argument in the Court of Appeal by the defendant/respondent State Trustees, and in particular its support of the order made by the Tribunal on 29 May 2000, it should, along with the defendant/respondent MA, be liable to pay the costs of the successful plaintiff/appellant not only in the judicial review proceeding but also in the appeal.  Compare McDonald v. Guardianship and Administration Board[1];

(c)that, having regard to the part State Trustees played in the proceedings, their outcome, and the nature of the only fund out of which State Trustees might have indemnity, there should be a declaration that State Trustees is not entitled to be indemnified out of the estate as Mrs. A.  Compare McDonald v. Guardianship and Administration Board[2]

[1][1993] 1 V.R. 521 at 536.

[2]At 536.

1. The judicial review proceeding is an appeal within s.3(1) of the Appeal Costs Act (R. v. Marshall ex parte Baronor Nominees Pty. Ltd.[3]) and the Tribunal is a court within s.3(1). Accordingly, both MA and State Trustees are entitled to and should be granted a certificate under s.4 in the judicial review proceeding and the appeal.

   [3][1984] V.R. 211 at 227-8 (reversed without reference to this point in [1986] V.R. 19).

1. The orders of the Court, which will bear the date of and shall take effect on and from 4 March 2004, therefore are:

A.  Proceeding No.5781 of 2000

THE COURT ORDERS THAT:

1.Patrick John O’Kane of Katamatite in the State of Victoria be added as the fourth defendant in this proceeding and that the writ be amended accordingly.

2.The orders made by the Victorian Civil and Administrative Tribunal on 29 May 2000 and 2 June 2000 in proceeding No.G30310 be quashed.

3.The application initiating that proceeding be remitted to the Tribunal to be heard and decided again, with the hearing of further evidence, by the Tribunal in accordance with law.

THE COURT DIRECTS THAT:

4.The Tribunal not be constituted for the re-hearing by either of the members who made the orders referred to in paragraph 2.

THE COURT FURTHER ORDERS THAT:

5.The third defendant be restrained from seeking the approval of the Supreme Court of Victoria of the compromise referred to in paragraph 1 of the order made in this proceeding by the Honourable Mr. Justice Hedigan on 19 June 2000.

6.The plaintiff’s costs of this proceeding, including any reserved costs, be paid by the second defendant and the third defendant.

7.The first and fourth defendants abide their own costs of this proceeding.

8.Pursuant to Rule 36.07 of Chapter I of the Rules, the order made in this proceeding by the Court of Appeal on 19 April 2002 be corrected –

(a)by substituting the expression “leave for consideration of the proceeding by the Court of Appeal” for the expression “leave to appeal” in paragraph 1 and in the entry “Originating Process”; and

(b)by substituting in paragraph 2, first, the expression “This proceeding” for the expression “This appeal” and, secondly, the expression “them, that appeal and this proceeding” for the expression “the appeals, the two appeals.”

9.This order not be authenticated before 19 March 2004.

B.       Appeal No.5883 of 2000

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The appellant’s costs of the appeal, including any reserved costs, be paid by the first respondent and the second respondent.

3.This order not be authenticated before 19 March 2004.

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