Collins v Attorney General of New South Wales

Reasons for the delay 13Mr Collins advanced two reasons to explain the length of the delay. The first was that as he was unrepresented and not legally qualified, he was unaware he had a right to appeal. The second was that he was engaged in negotiations about the withdrawal of the costs order from shortly after the delivery of judgment until a week before the application for leave to appeal was filed with "politicians and the Attorney General". Accordingly, he contended, he expected the costs order "may be withdrawn and that there would be no need to appeal". This expectation was disabused, he contended, on 23 January 2013 when the Crown Solicitor informed him that his request to have the costs order withdrawn had been denied. At the same time as Mr Collins asserted these negotiations were continuing, he also said that he had incurred delays in seeking to correspond with his lawyers concerning, in substance, the circumstances in which those solicitors had ceased to act in the proceedings. 14The respondent disputed that negotiations concerning the costs orders continued throughout the period for which the applicant contended. Rather he asserted any such negotiations concluded in December 2011 when costs assessments in respect of the s 77A application in the sum of $32,874.50 were entered as a judgment against Mr Collins in the Local Court of New South Wales. Thereafter the respondent took steps to enforce payment of the outstanding amount of that judgment including, most recently in February 2013, securing the issue of a warrant for the applicant's arrest for examination pursuant to s 97 of the Civil Procedure Act 2005. 15The applicant's explanation for the delay is unsatisfactory. It seems remarkable that he was unaware of the facility of an application for leave to appeal bearing in mind that the primary proceedings concerned just such an application, albeit in respect of the Tribunal's decision. There was, for example, no explanation of how he said he suddenly became aware of the availability of an application for leave to appeal prior to filing the leave documents in January 2013. However, even assuming ignorance of that right, that does not justify delay, let alone the period of the delay: Jaffari v Grabowski [2012] NSWCA 425 (at [9]) per Barrett JA; affirmed Jaffari v Grabowski [2013] NSWCA 114 (at [100]) per McColl JA (Ward JA agreeing). As McHugh J said in Gallo v Dawson (at 459), "[l]ack of legal knowledge is a misfortune, not a privilege". 16The alternative proposition that ongoing negotiations between the parties could justify the delay is equally unsound. It is unnecessary to resolve the factual controversy as to how long negotiations between the parties extended. There is no suggestion that the respondent induced the applicant to believe that he would waive the obligation to comply with the time for filing any appellate process. 17Time periods are fixed for steps to be taken in legal proceedings to ensure that they move forward efficiently and do not become stale. The obligation to ensure the just, quick and cheap resolution of the real issues (s 56(1), Civil Procedure Act 2005) is imposed on all parties to civil proceedings, whether or not they are represented and whether or not there are underlying negotiations to resolve the parties' controversy.

Whether there is a fairly arguable case 18The principal focus of Mr Collins' argument concerning the viability of his appeal lies in his assertion that the primary judge fell into manifest error in his costs decision in assuming that Mr Collins had pursued the proceedings contrary to legal advice, in particular that he had withdrawn instruction to "A's" last solicitor. 19Mr Collins relied upon what he contended was "strong evidence" to establish that he had not withdrawn any solicitor's instructions. Rather, he asserted the evidence established that junior counsel who had agreed to represent "A" on the leave application before the primary judge had withdrawn because he was double-booked and that senior counsel similarly engaged had withdrawn because the senior counsel was dependent upon the junior counsel's work to be able to proceed. He complained that the primary judge failed to take into consideration his submission that, rather than withdrawing instructions to "A's" legal representatives, it was they who decided not to proceed with the case. 20Mr Collins also seeks to challenge the primary judge's conclusion that he persisted with the leave application where, in substance, the case was unmeritorious. He sought to rely, in this respect, on an opinion from senior counsel who, he contended, opined that the case had reasonable prospects of success. He also relied upon the inference which he contended could be drawn from the fact that he had legal representatives until a week before the hearing as illustrating that, in their opinions, the case had merit. 21I do not share the applicant's apparent understanding of senior counsel's opinion. The undated opinion appears to have been written in response to the offer in the 27 July 2010 letter to which I have referred. Senior counsel advised that that letter's proposal as to the outcome of the leave application was a practical and appropriate course. As I read senior counsel's advice, he recommended that the next review before the Tribunal proceed on the basis that at that hearing "the issues" (whatever they were) would be fully argued so that, if the Tribunal expressed the same view as to its lack of power (which presumably was said to have some bearing on the extant s 77A application), there would be a reasonable basis for an arguable further s 77A application. 22The applicant also submitted that the primary judge failed to take into account in making his costs orders what he asserted was bias shown by the Tribunal, the alarming precedent the order would create for other primary carers, the public interest in the proceedings sought to be pursued by the leave application on "A's" behalf (relying in this respect upon issues said to involve the "discrimination of the welfare of mental health consumers within the criminal justice system") and the International Covenant on the Rights of Persons with Disabilities. 23Finally, the applicant submitted that the primary judge failed to give any reasons for rejecting his submissions concerning the making of the adverse costs order. 24The respondent submits that the fact (whether it be true or not) that the applicant withdrew instructions from his solicitors was not the primary basis of the costs order. Rather, he contended, the primary judge's reasons for that order included the fact that the applicant had been represented by three different solicitors during the course of the proceedings, that he had been afforded the opportunity to discontinue the proceedings with no costs consequences, that he had no reasonable prospects of obtaining leave to appeal and that he had been on notice of the basis on which the application would be opposed for some months. 25Next, the respondent submitted that insofar as the primary judge accepted his submission concerning the applicant's earlier representation and the fact that the last solicitor said his instructions had been withdrawn, this was a submission to which the applicant did not respond before the primary judge. Thirdly, the respondent contended that the primary judge was entitled to rely upon the solicitor's statement in the Notice of Ceasing to Act. Insofar as the applicant sought to rely upon the other matters to which I have referred (at [22] above), the respondent submitted that these were not matters upon which the applicant relied when heard on the costs issues in the primary proceedings and, accordingly, were not germane to the primary judge's consideration of the costs issue. 26Finally, the respondent relied upon the substantial prejudice he submitted he had suffered by reason of the lapse of time between the making of the costs order and the filing of the application for an extension of time in which to seek leave to appeal. The respondent contended he was entitled to rely both on a presumption of prejudice and, too, on the steps he had taken to seek to enforce the costs order in the course of which he has incurred costs of the order of $16,500. 27In my view Mr Collins does not have a fairly arguable case which would justify leave to appeal, let alone an extension of time in which to do so. 28It should be noted at the outset that a costs order against "A" was almost inevitable having regard to the failure of his application: UCPR 42.1. The primary judge's order that Mr Collins pay the costs order made against "A" was also almost inevitable because, as "A's" tutor, he was responsible for the proper conduct of the action and for costs purposes is to be regarded as a party: Yakmor v Hamdoush (No 2) [2009] NSWCA 284; (2009) 76 NSWLR 148 (at [44] - [45]) per Giles JA (with whom Ipp and Tobias JJA agreed). 29As the primary judge said (at [86]): "One of the purposes of appointing a tutor is to have a person on the record who is personally liable for costs: Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 113. That means a defendant may enforce a costs order directly against a tutor where the plaintiff is legally incapacitated: Yakmor v Hamdoush (No 2) [2009] NSWCA 284 at [24]-[25], [44]-[45]." 30In Yakmor v Hamdoush (at [23]), the second judgment to which the primary judge referred, Giles JA referred with approval to Buss JA's statement in Farrell v Royal Kings Park Tennis Club (Inc) [2007] WASCA 173 (at [17]) that: "it is well established that if an action brought by a plaintiff under a disability is dismissed, and the defendant is awarded costs, the next friend of the plaintiff is personally liable to the defendant for the costs". See also NSW Insurance Ministerial Corporation v Abualfoul [1999] FCA 433; (1999) 94 FCR 247 (at [27] - [29]) per Sackville J. 31Adams by her next friend O'Grady v State of New South Wales (No. 2) [2008] NSWSC 1394 which the respondent drew to the primary judge's attention was a very different case. The proceedings concerned a claim for damages arising out of what was alleged to be the State's negligence while the plaintiff was in its care at a youth detention facility in allowing her access to a knife which she used to kill a teacher at the facility: see Adams by her next friend O'Grady v State of New South Wales [2008] NSWSC 1257. In Adams, the plaintiff was under a legal incapacity and was represented by her tutor who assumed her care as a foster parent at the request of the State. It is hardly surprising that Rothman J formed the view (at [7] - [9]) to which the primary judge referred. 32Further, Rothman J found (at [8]) that the tutor had not acted unreasonably in commencing the proceedings. In this case, the primary judge concluded that the tutor acted unreasonably in substance in not accepting the 27 July 2010 offer. Contrary to the applicant's apparent understanding of the situation, costs orders are frequently made against parties who unreasonably contest proceedings, even though it might be assumed they had legal advice that they had some prospects of success. The purpose of offers such as that contained in the 27 July 2010 letter is to focus the opponent's attention on the costs risk of continuing with the proceedings - usually to foreshadow an application for indemnity costs - but also to lay the ground for resisting an application for "some other order" under UCPR 42.1. 33Finally I observe that Mr Collins did not seek to resist the costs order on any of the bases referred to (at [22] above) and, accordingly, it cannot be said that his Honour erred in not taking them into consideration. 34I would dismiss the application for extension of time to file the summons for leave to appeal with costs. 35GLEESON JA: I agree with McColl JA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2013