The Protective Commissioner v "D" (No 2)

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.