Collins v Attorney General of New South Wales

Judgment 1McCOLL JA: This is an application by Mr Brett Collins for an extension of time to seek leave to appeal from a decision of Johnson J that the respondent, the Attorney General in and for the State of New South Wales, may recover from him its costs of and incidental to proceedings more particularly described below: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal [2010] NSWSC 1363. 2The plaintiff before Johnson J was referred to by the pseudonym "A" because s 162(1) of the Mental Health Act 2007 prohibits the publication of the name of any person to whom a matter before the Tribunal relates except with the Tribunal's consent. "A" was a forensic patient for the purposes of the Mental Health (Forensic Provisions) Act 1990 ("MHFP Act") and, accordingly, as Johnson J found (at [2]) was a person under a legal incapacity by virtue of s 3(1) of the Civil Procedure Act 2005. Mr Collins is, apparently, "A's" primary carer (s 71, Mental Health Act 2007) and was also his tutor for the purposes (at least) of the proceedings below: Uniform Civil Procedure Rules ("UCPR") 7.15(1). 3The proceedings before Johnson J were the hearing of an application by "A" for leave to appeal pursuant to s 77A(1) of the MHFP Act from a determination of the Mental Health Review Tribunal on 11 February 2010. 4Section 77A(1) of the MHFP Act permits a forensic patient who was a party to a proceeding before the Tribunal under that Act to appeal by leave to the Supreme Court from any determination of the Tribunal on a question of law or on any other question. The application before Johnson J was the first such application for leave to appeal brought pursuant to s 77A. 5Three different firms of solicitors had represented "A" in the course of the s 77A application. However, shortly before the matter came on for hearing, the solicitor in the last of those firms filed a Notice of Ceasing to Act communicating that "his instructions had been withdrawn by the plaintiff's tutor on 16 November 2010": primary judgment at [7]. Johnson J, without opposition from the respondent, gave Mr Collins leave to proceed without a solicitor: UCPR 7.14(2). 6The Tribunal is obliged to review the case of each forensic patient every six months: s 46(1), MHFP Act. The s 77A application arose from complaints "A" sought to advance concerning the Tribunal's fourteenth such review. After the s 77A application was filed but before it was heard, a differently constituted Tribunal convened to undertake what, I assume, was the fifteenth review hearing in respect of "A" on 30 September 2010. The Tribunal was informed that "A" and the applicant did not wish to participate in that review but, rather, to proceed with the s 77A application: primary judgment at [27]. 7"A" sought to raise six complaints on his application for leave to appeal: see primary judgment (at [51]). Johnson J refused leave to appeal in respect of all of them essentially because, having regard to the issues they sought to raise and the facility of further review pursuant to s 46 of the MHFP Act, there was no practical utility in the s 77A application: primary judgment at [63] - [75], [80]. 8The respondent sought costs relying, in part, on a letter his solicitors sent to "A's" solicitors on 27 July 2010 which had "communicated a clear way forward, and the lack of practical utility in ["A"] pressing his application for leave to appeal [and] contained an offer that the proceedings be discontinued by ["A"] with no order as to costs"; "A" had not accepted that offer: primary judgment (at [82]). The respondent also sought an order that he be able to recover from Mr Collins any costs "A" was ordered to pay: primary judgment at [83]. 9The primary judge concluded (at [87]) that he should apply the usual rule that costs follow the event: UCPR 42.1. He found, in substance, that having regard to the contents of the 27 July 2010 letter, "A" was on notice of the respondent's position with respect to costs and had the opportunity to discontinue with no costs consequences but had "pressed on ... in circumstances where the outcome of the application was more than reasonably predictable": primary judgment at [87]. His Honour also acceded to the respondent's application that the costs "A" was ordered to pay might be recovered from Mr Collins, saying: "88 In Adams By Her Next Friend O'Grady v State of New South Wales, Rothman J concluded at [7]-[9] that, in the circumstances of that case, it would be a travesty of justice if the State of New South Wales were to pursue the tutor for costs separately and distinctly from the Plaintiff. 89 In my view, the circumstances of that case are remote from those of the present case. Here, the Plaintiff has been represented by three different solicitors during the course of the proceedings, with instructions to the last solicitor being withdrawn by the tutor on 16 November 2010. The Second Defendant has made plain, for some months, the basis upon which the present application for leave to appeal would be opposed, and the Plaintiff has determined nevertheless to proceed with the application. In my view, the Second Defendant's submissions were clearly and identifiably correct and that has been apparent for some time. A consequence of the Plaintiff persisting with this application was that the Tribunal determined not to proceed with the review hearing on 30 September 2010, in circumstances where counsel appearing for the Plaintiff informed the Tribunal that the Plaintiff did not wish to willingly participate in that process (because of this appeal) and, in any event, contended that the review hearing ought be adjourned to ensure that Dr Westmore's report was available. 90 I have taken into account the fact that this is the first application for leave to appeal under s 77A(1) MHFP Act in considering whether an order for costs should be made. Notwithstanding the novelty of the application, I am clearly of the view that the Plaintiff had no reasonable prospect of obtaining leave to appeal in this case. I am satisfied that costs should follow the event, and that there is no good reason why the Second Defendant ought not be able to seek to recover costs from the Plaintiff's tutor." 10The primary judgment was handed down on 26 November 2010 (the "material date"). No notice of intention to seek leave to appeal was filed. The summons seeking leave to appeal should have been filed and served, accordingly, within 28 days after the material date: UCPR 51.10(1)(b). Taking into account that that period ran into the end of the 2010 calendar year during which there would be periods when the registry was closed and time did not run (UCPR 1.11(4)), the summons seeking leave to appeal should at least have been filed by the end of that year. The summons seeking leave to appeal was filed on 30 January 2013, just over two years out of time. 11The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties, bearing in mind that upon the expiry of the time for appealing (or, in this case, seeking leave to appeal), the respondent has "a vested right to retain the judgment": Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (at 459) per McHugh J. The factors identified as relevant to determining how to exercise the discretion are the length of the delay, the reason for the delay, whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 (at [55]) per Basten JA; Chand v RailCorp [2010] NSWCA 233 (at [7]) per McColl JA. 12It is incontrovertible that the delay of just over two years is egregious.