Hills v State of Queensland

HIS HONOUR: The judgment given on 4 September 2006 will be varied so that there will be judgment for the plaintiff in the sum of $5,502,793.

On 4 September last I gave judgment for the plaintiff in the sum of $5,390,397. The matter was adjourned for consideration of issues of costs and the appointment of a trustee.

Before going to the trustee question, however, I record that counsel have pointed out some clerical errors in the judgment whereby the judgment sum had not been calculated according to the reasons for judgment. The result is, as I have already pronounced, that the judgment will be varied under the slip rule to the sum of $5,502,793 and the relevant references to figures in the reasons for judgment will be amended accordingly.

In those reasons for judgment I adverted to an argument at the trial as to whether there was a power under section 59 of the Public Trustee Act to appoint anyone other than the Public Trustee as a trustee. The defendant made the submission that there is no power, although, strictly speaking, it was not one that had to be considered for the purposes of the assessment of damages. There was no argument at the trial to the effect that the costs of administering the estate, which were provided by Perpetual Trustees through its witness Mr Gallagher, were not sufficiently indicative of the costs of administering this award under another trustee and in particular the Public Trustee. But the submission needs to be decided now that a trustee is to be appointed.

No authority has been cited in support of the proposition which the defendant had advanced as to section 59. However there is authority which, in my view, well supports what I understand is a not infrequent practice of the appointment of a trustee other than the Public Trustee under this section.

In Phillips v Munro (1957) Qd R 427, Philp J, when considering the predecessor of section 59, which was section 51 of the Public Curator Acts in 1915 to 1956, said at page 430 that the power which is exercised under such provision is part of the exercise of the Court's parens patriae jurisdiction. That remains the case under section 59 and there is, in my view, clearly a power for the Court to appoint another trustee consistently with the terms of the section.

At page 430 Philp J referred to the preference indicated by the section for the appointment of "Public Curator or a trustee company" in preference to a direction that the money go to other persons. So he clearly recognised that it permitted the appointment of someone other than the then Public Curator.

More recently, in Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627 at 633 the High Court seems to have had no doubt that section 59 permitted the appointment of another trustee. This particular point did not arise for consideration in that case. There was no argument that section 59 had not empowered this Court's appointment of Perpetual. But at paragraph 19 in the joint judgment of Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Haydon JJ, it was said:

"The balance of the settlement sum remaining after these payments was described as 'the trust fund' and the respondent was ordered to pay the trust fund to Perpetual as administrator. The direction to pay to someone other than the Public Trustee was again an order of a kind for which s 59(1) provided (by its reference to no payment being made 'to any person other than the public trustee unless the court otherwise directs') but the appointment of Perpetual as administrator was made under the Guardianship Act."

I accept the submission for the plaintiff that there is power under section 59(1) to appoint Perpetual Trustees Limited. The next question is whether it is appropriate to do so. The Public Trustee has been provided with a copy of my judgment. There is no appearance on its behalf. Importantly, it has not appeared to any the submission as to the ambit of the Court's powers under section 59. Nor does it appear today to make a submission that it would not be in the interests of the plaintiff for Perpetual to be appointed.

It is almost inevitably the case that the charges which would be made by Perpetual would be different in some respects from those made by the Public Trustee. It may or may not be the case that the charges which would be made by the Public Trustee in this administration would be lower overall. I am prepared to assume for the moment that that is so.

Nevertheless, it seems to me to be appropriate to appoint Perpetual in this case for these reasons. The first is that, as I have already mentioned, there was no challenge to the reasonableness of its proposed charges by the State of Queensland in the course of the trial. That challenge would have been a relevant one because part of the damages is a substantial allowance for the costs of administration. That indicates that to the extent that there would be some difference between the respective charges of Perpetual and the Public Trustee, the difference is not so great that the State of Queensland thought that it should lead evidence of it in an attempt to minimise the award.

The second thing is that it is not irrelevant that this litigation is between the plaintiff and the State of Queensland and that the Public Trustee is an agency of the State. I do not mean for the moment to suggest that the Public Trustee would not faithfully discharge its responsibilities if appointed. But as a matter of confidence and promoting the relationship between those administering Christopher's estate and those immediately responsible for Christopher's welfare, and in particular his parents, it seems to me in this case to be preferable to appoint someone other than the Public Trustee.

The defendant has made no submission otherwise against the order which is proposed on behalf of the plaintiff and, in particular, an order that the defendant pay to the plaintiff its costs on a standard basis of the proceeding.

There will be an order in terms of that amended draft.