The Protective Commissioner v "D" (No 2) - [2004] NSWCA 477

CITATION: The Protective Commissioner v "D" & Ors (No 2) [2004] NSWCA 477

HEARING DATE(S): Written submissions

JUDGMENT DATE:
21 December 2004

JUDGMENT OF: Mason P at 1; Giles JA at 2; McColl JA at 3

DECISION: (1) Costs order made in Protective Commissioner (No 1) set aside. (2) Protective Commissioner to pay the second respondents' costs of Protective Commissioner (No 1) on a common fund basis. (3) No order as to the Protective Commissioner's costs.

CATCHWORDS: COSTS - PROTECTED ESTATES - Case involving matter of general importance concerning Protective Commissioner's powers.

LEGISLATION CITED: Protected Estates Act 1983 (NSW) s 12, s 28(1)(b)
Supreme Court Rules 1970 (NSW) Pt 76 r 5(3)

CASES CITED: Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) 100 ALR 568; (1991) ATPR 41-114
Baltic Shipping Co v Dillon (1991) 22 NSWLR 1
Holt and Another v Protective Commissioner (1993) 31 NSWLR 227
M v K (unreported, Supreme Court of NSW, 24 April 1989, Powell J, BC8902256)
New South Wales Medical Defence Union Ltd v Crawford (1993) 31 NSWLR 469
The Protective Commissioner v "D" & Ors [2004] NSWCA 216
Re an Incapable Person D [1983] 2 NSWLR 590
Re B [2000] NSWSC 44
RH v CAH and Others [1984] 1 NSWLR 694

PARTIES :
The Protective Commissioner (Applicant)
"D" (First Respondent)
Ors (Second Respondents)

FILE NUMBER(S): CA 40892/03

COUNSEL: S W Balafoutis (Applicant)
First respondent (No appearance)
D Marks (Second respondents)

SOLICITORS: Timothy John Tunbridge (Applicant)
First respondent (No appearance)
McBride Harle & Martin (Second respondents)

LOWER COURTJURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): EQ 39/03

LOWER COURT
JUDICIAL OFFICER : Windeyer J

CA 40892/03
EQ 39/03

MASON P
GILES JA
McCOLL JA
Tuesday, 21 December 2004

THE PROTECTIVE COMMISSIONER v “D” & ORS (NO 2)

Judgment on Costs

1 MASON P: I agree with McColl JA.

2 GILES JA: I agree with McColl JA.

3 McCOLL JA: In The Protective Commissioner v “D” & Ors [2004] NSWCA 216 (“Protective Commissioner (No 1)”) pursuant to s 12 of the Protected Estates Act 1983 (NSW) (the “1983 Act”) the Court directed the Protective Commissioner that he had power to make payments for past gratuitous care out of the estate of a protected person. It ordered that the costs of the application be paid out of the estate of the first respondent (“D”) but gave the parties liberty to apply in relation to that order.

4 In my judgment (with which Mason P and Giles JA agreed) I addressed the question of costs in the following manner at [199]:

1983 Act

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 The Protective Commissioner v "D" (No 2)

Details

AGLC: The Protective Commissioner v "D" (No 2) [2004] NSWCA 477
Case: [2004] NSWCA 477
Decision Date: 21 December 2004

CaseChat Overview and Summary

The Protective Commissioner sought to appeal a costs order made in *The Protective Commissioner v "D" (No 1)*. The dispute concerned the Protective Commissioner's powers and the appropriate costs order to be made following proceedings in which the Commissioner had been involved. The appeal was heard by Mason P, Giles and McColl JJA in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the costs order made in the earlier proceedings, which had been against the Protective Commissioner, should be set aside. This involved a consideration of the Commissioner's role and the principles governing costs orders in matters involving protected estates, particularly where issues of general importance arise.

The Court of Appeal determined that the original costs order was not appropriate. Their Honours reasoned that in circumstances where the Protective Commissioner acts in good faith and raises matters of genuine importance for the court's consideration, particularly concerning the administration of protected estates, it would be unjust to penalise the Commissioner with costs on a standard basis. The court applied the principle that costs should generally follow the event, but recognised exceptions where the public interest or the proper administration of justice warranted a different approach. In this instance, the court found that the Commissioner's actions in the prior proceedings were justified by the need to clarify important legal principles.

Consequently, the Court of Appeal ordered that the costs order made in *The Protective Commissioner v "D" (No 1)* be set aside. The Protective Commissioner was ordered to pay the second respondents' costs of *The Protective Commissioner v "D" (No 1)* on a common fund basis, reflecting the significant public interest and the need for clarity in the law. No order was made as to the Protective Commissioner's own costs.

Orders

Orders of the court

(1) Costs order made in Protective Commissioner (No 1) set aside. (2) Protective Commissioner to pay the second respondents' costs of Protective Commissioner (No 1) on a common fund basis. (3) No order as to the Protective Commissioner's costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	The Protective Commissioner v "D" & Ors (No 2) [2004] NSWCA 477
HEARING DATE(S):	Written submissions
JUDGMENT DATE:	21 December 2004
JUDGMENT OF:	Mason P at 1; Giles JA at 2; McColl JA at 3
DECISION:	(1) Costs order made in Protective Commissioner (No 1) set aside. (2) Protective Commissioner to pay the second respondents' costs of Protective Commissioner (No 1) on a common fund basis. (3) No order as to the Protective Commissioner's costs.
CATCHWORDS:	COSTS - PROTECTED ESTATES - Case involving matter of general importance concerning Protective Commissioner's powers.
LEGISLATION CITED:	Protected Estates Act 1983 (NSW) s 12, s 28(1)(b) Supreme Court Rules 1970 (NSW) Pt 76 r 5(3)
CASES CITED:	Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) 100 ALR 568; (1991) ATPR 41-114 Baltic Shipping Co v Dillon (1991) 22 NSWLR 1 Holt and Another v Protective Commissioner (1993) 31 NSWLR 227 M v K (unreported, Supreme Court of NSW, 24 April 1989, Powell J, BC8902256) New South Wales Medical Defence Union Ltd v Crawford (1993) 31 NSWLR 469 The Protective Commissioner v "D" & Ors [2004] NSWCA 216 Re an Incapable Person D [1983] 2 NSWLR 590 Re B [2000] NSWSC 44 RH v CAH and Others [1984] 1 NSWLR 694
PARTIES :	The Protective Commissioner (Applicant) "D" (First Respondent) Ors (Second Respondents)
FILE NUMBER(S):	CA 40892/03
COUNSEL:	S W Balafoutis (Applicant) First respondent (No appearance) D Marks (Second respondents)
SOLICITORS:	Timothy John Tunbridge (Applicant) First respondent (No appearance) McBride Harle & Martin (Second respondents)

LOWER COURTJURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	EQ 39/03
LOWER COURT JUDICIAL OFFICER :	Windeyer J