Solicitors:
Plaintiff: by Geoff Williams & Associates
First Defendant: NSW Trustee and Guardian
Second Defendant: Attwood Marshall
File Number(s): 2014/259237
[2]
JUDGMENT
On 18 May 2015 I published Reasons for Judgment (reported as P v NSW Trustee and Guardian [2015] NSWSC 579) in support of orders made, in substantially the terms set out in paragraph [366] of the Reasons, effectively dismissing an appeal by the plaintiff from orders of the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) for the appointment of the NSW Trustee (the first defendant) as financial manager of her protected estate.
In paragraphs [367]-[369] of the Reasons for Judgment, inter alia:
1. I expressed a prima facie view that, having regard to the modest size of the plaintiff's estate, as well as the course of the proceedings, the proper order as to costs seemed to be that no costs orders should be made.
2. I recorded that, in expressing that view, I was mindful that the outcome of the proceedings had been substantially that for which the plaintiff's son (the second defendant) had contended.
Consistently with my stated intention to allow the parties an opportunity to be heard as to costs, the orders made for determination of the appeal included an order to the effect that any party seeking to have the Court make an order for costs in the proceedings do so by written submissions delivered to my chambers on or before 25 May 2015.
The second defendant took up that opportunity by written submissions dated, and filed on, 25 May 2015.
Counsel for the plaintiff responded the following day with written submissions, incorporating a formal application for leave to file submissions, in opposition to the second defendant's application for costs.
At some length, the second defendant's submissions recount the procedural history of the proceedings, attributing delays and adjournments to the plaintiff's side of the record. They invite the Court to award costs by reference to the rule, applied in ordinary civil proceedings, that "costs follow the event". They urge the Court to make an award of costs in favour of the second defendant on the indemnity basis. They note that in some cases (including P v D1 & Ors [2011] NSWSC 257 and JMK v RDC and PTO v WDO [2013] NSWSC 1362) costs orders have been made in proceedings involving an exercise of protective jurisdiction. They set out alternative, subsidiary claims for costs.
The written submissions filed by counsel for the plaintiff take issue with a number of the factual assertions made in support of the second defendant's application.
I am not persuaded by the second defendant's submissions to depart from the general approach taken to questions of costs in protective proceedings.
The "ordinary" rule in protective proceedings (explained by Powell J in CCR v PS (No 2) (1986) 6 NSWLR 622 at 640) is that the Court may exercise its discretion as to costs (for which section 98 of the Civil Procedure Act 2005 provides) not by reference to the rule (embodied in the Uniform Civil Procedure Rules 2005 NSW, rule 42.1) that costs follow the event, but by reference to "what, in all the circumstances, seems proper".
This approach gives due recognition to the following factors, amongst others:
1. the protective jurisdiction of the Court is generally governed by the "welfare principle" (that the welfare and interests of each person in need of protection, here the plaintiff, are the paramount consideration) and an associated concern to ensure that whatever is done, or not done, is done in the interests, and for the benefit, of the particular person in need of protection.
2. the Court needs to be alive to the possibility that private individuals who would otherwise be concerned to act to protect a person in need of protection might be deterred from acting if bound to submit to a costs order on an unsuccessful application made by them to the Court, even though reasonably made.
The first of these factors, in a case such as the present, involving a relatively small estate, militates against any order for costs being made. So far as may be practicable, and just, a protected person's estate should be preserved for his or her benefit.
The second factor lends support to the second defendant's claim for costs insofar as it was only by his intervention that the plaintiff was diverted from her declared intention to divest herself of $100,000 by entry into a transaction which appeared, prima facie, to be improvident.
At least on the plaintiff's side, the current proceedings have poisoned the otherwise good relationship enjoyed by the plaintiff and the second defendant, explaining (in part, if not in whole) her determination to attribute to him base, self-interested motives in his opposition to her predisposition towards a display of generosity in favour of an unrelated friend.
It is not necessary to give air to each side's fiery criticism of the other's conduct of the proceedings. There is no point in doing so. The plaintiff was, in large measure, a cause of problems encountered in conduct of the proceedings; but, having been found incapable of managing her own affairs, she is not readily cast as a bearer of blame. In any event, as the first contested appeal governed by clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act 2013 NSW, it is not altogether surprising that the proceedings followed a course less than entirely smooth.
The jurisdiction of the Court extends to making an order for the payment of costs in a lump sum: Civil Procedure Act 2005 NSW, section 98(4)(c); Hamod v State of New South Wales [2011] NSWCA 375 at [813]-[820]; Zepinic v Châteaux Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [28]-[29], [33] and [36]-[38]; Colquhoun v District Court of NSW [2014] NSWCA 460 at [62]; Colquhoun v District Court of NSW (No 2) [2015] NSWCA 54 at [6]-[8], all citing Harrison v Schipp (2002) 54 NSWLR 738 at [20]-[22].
An exercise of that jurisdiction ordinarily requires that there be some evidentiary foundation for costs quantified in a lump sum order. That is missing in this case.
Nevertheless, I propose to order that the second defendant be paid $5,000 out of the plaintiff's estate on account of his costs. It takes little imagination to accept that his costs, in fact, would have exceeded that amount. On reflection, a small contribution towards his costs can, and should, be made in recognition of his contribution to protection of the plaintiff's estate. The modest size of the plaintiff's estate, and the calls that may need to be made on it, point towards a relatively nominal award of costs. I remain concerned about a need to preserve the plaintiff's estate for her personal use and benefit.
Upon an exercise of protective jurisdiction the Court is enjoined to act "without strife in the simplest and least expensive way": HS Theobald, The Law Relating to Lunacy (London, 1924, page 382). In the very unlikely event that an award of costs quantified at $5,000 might be thought to have exceeded any strict "entitlement" the second defendant may have, it can be justified as an allowance for a family member in recognition of services rendered for the benefit of the plaintiff: Theobald, page 380 and 462; Protective Commissioner v D (2004) 60 NSWLR 513 at 540 [149] - 542 [156].
Accordingly, I make the following order and notation:
1. ORDER that an amount of $5,000 be paid to the second defendant, out of the estate of the plaintiff, on account of costs incurred by him in these proceedings.
2. NOTE that no orders as to costs are otherwise made.
[3]
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Decision last updated: 01 June 2015