Perla v Cavassa

[2015] NSWSC 1889

Supreme Court

New South Wales

Medium Neutral Citation:

Perla v Cavassa [2015] NSWSC 1889

Hearing dates:

2, 8 December 2015

Decision date:

11 December 2015

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Summons dismissed.

 

(2) Make no order as to costs.

(3) Decline the plaintiff’s application for a certificate under s 6 of the Suitors’ Fund Act 1951 (NSW).

Catchwords:

COSTS – application for judicial review based on failure of Civil and Administrative Tribunal to provide reasons promptly – whether Tribunal should pay plaintiff’s costs of judicial review proceedings – reasons were provided in response to email from party – no reason to commence proceedings – no basis to order Tribunal to pay costs.

COSTS – Suitors’ Fund – not appropriate to grant certificate in circumstances where plaintiff incurred costs as a consequence of conduct of her legal representative – no error of law of Tribunal to warrant grant of certificate

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 5, 61, 62, Sch 6, cl 11
Suitors’ Fund Act 1951 (NSW), s 6

Cases Cited:

Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491

Category:

Costs

Parties:

Elena Perla (Plaintiff)
Flora Cavassa (First Defendant) (Submitting Appearance)
Civil and Administrative Tribunal of NSW (Second Defendant)
NSW Trustee and Guardian (Third Defendant) (Submitting Appearance)

Representation:

Counsel:
P Glissan (Plaintiff)
D Galbraith (Solicitor) (Second Defendant)

    Solicitors:
Pelosi and Associates (First Defendant)
Lea Armstrong, Crown Solicitor (Second Defendant)

File Number(s):

2015/348564

Judgment

Introduction

1. The only outstanding issue in these proceedings, which were commenced by the filing of a summons for judicial review on 26 November 2015, is whether an order ought be made that the Civil and Administrative Tribunal of New South Wales (the Tribunal) pay the costs of Elena Perla, the plaintiff.

2. In order to address this question it is necessary to set out the background to the proceedings and what has occurred since their commencement.

Background

3. The plaintiff, who is 60 years old, is the sole attorney under an enduring power of attorney, executed by her mother, Maria Perla. Mrs Perla lives in an aged care facility. She suffers from Alzheimer’s dementia. Since about 2011 she has been unable to communicate verbally.

The proceedings in the Tribunal

4. On 17 March 2015, the plaintiff’s sister, Flora Cavassa (the first defendant), filed an application in the Guardianship Division of the Tribunal to review the plaintiff’s enduring power of attorney. The first defendant was represented by Mr Restuccia, solicitor, of Pelosi and Associates. The plaintiff, who was represented by Mr Glissan of counsel, opposed the application. The Tribunal heard the application on 24 June 2015 and reserved its decision.

5. On 13 August 2015 the plaintiff received, under cover of a letter dated 7 August 2015 from the Tribunal, a copy of the orders made on 1 July 2015 as follows:

“The Tribunal orders and determines:

1. To carry out a review of the enduring power of attorney made by Mrs Maria Perla on 16 June 2008 which appointed Mr Augusto Perla, Mrs Flora Cavassa and Ms Elena Perla.

2. Not to make any order under section 36 of the Powers of Attorney Act 2003 in relation to the enduring power of attorney

3. To treat the application for a review of the enduring power of attorney as an application for a financial management order under the Guardianship Act 1987.

4. The estate of Mrs Maria Perla is subject to management under the NSW Trustee and Guardian Act 2009.

5. The management of the estate of Mrs Maria Perla is committed to the NSW Trustee.”

6. The copy of the order was endorsed with the following note:

“Important Note: A financial management order suspends any power of attorney. This means any attorney cannot use the power of attorney while the financial management order is in force (see section 50 of the Powers of Attorney Act 2003).”

7. The letter from the Tribunal was accompanied by a “Facts Sheet” which set out, among other matters, information about appeals. It said, in part:

“When must the appeal be lodged?

An appeal must be lodged within 28 days after the person lodging the appeal has been notified of the Tribunal’s decision or 28 days after the person has been provided with the statement of written reasons for the decision (whichever is the later). The Appeal Panel may allow further time to appeal.”

8. By email dated 20 September 2015 the plaintiff terminated Mr Glissan’s retainer as she was concerned about legal costs. Although the plaintiff wanted reasons for the Tribunal’s orders, she took no step at that stage to obtain them.

9. By email dated 5 November 2015, Mr Restuccia (the first defendant’s solicitor) sent an email to the Tribunal, which was copied to Mr Glissan, in the following terms:

“We refer to the above matter which [was] heard by the Tribunal on 24 June 2015.

We note that orders in this matter were made on 1 July 2015, and parties were notified of the orders on 7 August 2015. However, we have not as yet received reasons for the decision, and would be grateful if the Tribunal could advise when it is likely that reasons will be provided.

Mr Paul Glissan, Counsel for Elena Perla, has been copied into this email.”

10. On 23 November 2015, when the plaintiff had still not heard from the Tribunal and had not been provided with reasons, she telephoned the Tribunal’s number and spoke to someone who identified herself as Imogen. Imogen told the plaintiff that the file had been archived; that when Mr Glissan had telephoned “Michelle” to ask for reasons she had told him that reasons would be provided soon; and that she could see that reasons “should have been sent out”.

The proceedings in this Court

The relief sought in the summons

11. By summons filed on 26 November 2015, the plaintiff sought orders which included an order in the nature of certiorari that the Financial Management Order made by the Tribunal on 1 July 2015 be quashed; an order, in the alternative, that the decision is void, as well; and an order that the matter be remitted to the Tribunal for determination according to law. The summons named the following as defendants:

1. Flora Cavassa (the first defendant);

2. The Guardianship Division of the Tribunal (the second defendant); and

3. The NSW Trustee (the third defendant).

The attitude of the defendants to the proceedings

12. On 30 November 2015 the NSW Trustee and Guardian filed a submitting appearance. On 1 December 2015 the Tribunal also filed a submitting appearance. By email dated 1 December 2015 Mr Restuccia wrote to Mr Glissan informing him that Ms Cavassa consented to the substantive orders sought in the summons. On the following day, 2 December 2015, Ms Cavassa filed a submitting appearance.

The first return date: 2 December 2015

13. The matter came before me as Duty Judge on 2 December 2015, at which time Mr Glissan, who appeared for the plaintiff, sought orders in terms of the summons. He argued that the fact that the Tribunal had not yet given reasons for its decision make the decision invalid.

14. Section 61 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) provides that a decision takes effect, relevantly, when it is given. Section 5 provides that a decision includes the making of an order. Section 62 of the Act provides for reasons to be given as follows:

“62 Tribunal to give notice of decision and provide written reasons on request

(1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.

(2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.

(3) A written statement of reasons for the purposes of this section must set out the following:

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal’s understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

(4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.”

15. Clause 11 of Sch 6, which applies to matters in the Tribunal’s Guardianship Division, requires the Tribunal to give reasons where it is constituted by at least three members. This obligation applies even if the Tribunal has not been requested to give reasons: cl 11(4), Sch 6.

16. In my view, it cannot reasonably be concluded that Parliament intended that a decision would be void if reasons were not given at the time orders were made. Indeed, I regard the express provisions of s 62 as inconsistent with any such interpretation. Accordingly, I declined to make the orders sought in the summons. However, as the plaintiff was entitled to reasons for the Tribunal’s decision I suggested that Mr Glissan consider amending the summons to add a prayer that the Tribunal provide reasons. He acceded to this course and sought leave to add the following prayer to the summons:

“6A   In the alternative, an order that the Second Defendant comply with its statutory obligation to provide reasons for its decision within 7 days or such longer period as the Court might allow.”

17. I granted leave to amend the summons on 2 December 2015 and stood the matter over before me on 8 December 2015.

The adjourned date: 8 December 2015

18. On the adjourned date, Mr Glissan again appeared on behalf of the plaintiff. Dr Galbraith appeared on behalf of the Tribunal. I was informed that the Tribunal had already provided reasons for its decision under cover of letter dated 1 December 2015 which were received by Mr Glissan on 3 December 2015. It was common ground that the preparation of reasons and their dispatch had not been influenced in any way by these proceedings. I infer that they were prepared and dispatched in response to Mr Restuccia’s email referred to above.

19. Accordingly, for the reasons given above, the plaintiff was not entitled to the relief sought in the summons as filed and the additional prayer was otiose as reasons were provided by the Tribunal in any event.

20. Mr Glissan submitted that the plaintiff ought have an order for costs in her favour “to relieve the plaintiff from the consequences of having to bring the proceedings through no fault of hers”. Dr Galbraith resisted an order that the Tribunal pay the plaintiff’s costs.

21. In the alternative, Mr Glissan sought a certificate pursuant to s 6 of the Suitors’ Fund Act 1951 (NSW).

Consideration

22. The short answer to Mr Glissan’s submission is that the plaintiff did not have to bring proceedings at all. The only requests that she made for reasons, before they were in fact provided, were apparently made by telephone. The first request was made by Mr Glissan at some unstated time; the second was made by the plaintiff when she spoke to Imogen on 23 November 2015. Although the first defendant made a written request by email for reasons, the email was only sent on 5 November 2015. The incontrovertible facts are consistent with the Tribunal’s regarding the written request on 5 November 2015 as able to be complied with by the provision of reasons within 28 days, as in fact occurred. Although the Tribunal was obliged to provide reasons in any event for its decision in the present case (because of cl 11 of Sch 6) it was not required by the Act to do so within any specified time.

23. This Court’s jurisdiction has been invoked for a purpose that could have been, and was, achieved by the sending of an email (by the first defendant). Although the Tribunal was obliged to give reasons, it was not in breach of any time limit by not providing them until 28 days after the first and only written request. In these circumstances, the Tribunal ought not be ordered to pay the plaintiff’s costs.

24. This Court has power under s 6(1)(a) to grant a certificate under the Suitors’ Fund Act. Whether a certificate ought be granted in the present case is a matter of discretion: s 6(5). In Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491, Kirby P outlined the applicable principles that guide the interpretation of s 6. His Honour identified the purpose of the statute as:

“the relief of a party who incurs or becomes liable for costs not through his own decision or conduct but because of some error of law of the court appealed from. . .”

25. The plaintiff has not persuaded me that a certificate under s 6 of the Suitors’ Fund Act ought be granted. The plaintiff has incurred costs (if she is obliged to pay Mr Glissan at all) because of the decision or conduct of her legal representative and not because of some error of law of the Tribunal.

Orders

26. For the foregoing reasons I make the following orders:

1. Summons dismissed.

2. Make no order as to costs.

3. Decline the plaintiff’s application for a certificate under s 6 of the Suitors’ Fund Act 1951 (NSW).

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Decision last updated: 11 December 2015