Price v Price

Determination of the leave application

It is convenient to refer first to Ms Price's second ground of challenge to the primary judge's costs order, namely, that his Honour misapplied r 42.1's directive that costs are to follow the event unless it appears that some other order is appropriate.
As to this contention, it must first be concluded that there was no "event" for this purpose. Whether in particular cases the event is taken as a reference to the outcome of proceedings as a whole or the result of determination of particular issues, for there to be an "event" there must have been a contest in which the applicant for costs has succeeded. As McHugh J pointed out in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624; [1997] HCA 6, if there is no hearing on the merits, the rule that costs follow the event is inapplicable. To similar effect, Basten JA said in Nichols at [2] that "where there has been no trial there is no 'event'" (see also at [30] per Payne JA, Meagher JA agreeing). There was no contest or hearing as to the merits here because the orders (other than as to costs) were made by consent. That is not to say that a litigant who obtains consent orders will not ever be entitled to costs. He or she may well be, depending upon an assessment of the conduct of each party (see Minister v Lai Qin referred to at [43] below). Where there is consent, that litigant will not however have the benefit of the presumption created by r 42.1.
If, as the parties in this case agreed should be so, one treats the primary judge's comments made in the course of argument as his reasons for his decision, it is clear that his Honour impermissibly applied the rule embodied in r 42.1. He seems to have referred to it four times (see the emphasised passages in [22] above). The last reference is in the final three sentences of what his Honour said. These appear to constitute his reasons, albeit succinct, for making the costs order. What his Honour said in that last passage was that Ms Price "took too long to recognise" that she should be "renouncing her appointment" and that in those circumstances there was no justification "for departing from the order", which appears to have been a reference to the principle his Honour quoted earlier to the effect that costs ordinarily follow the event. As, for the reasons I have given, there was no relevant "event" for the purposes of this principle, his Honour was in error in applying it.
The primary judge also erred in concluding that Ms Price acted unreasonably. His Honour did not have before him evidence of the factual circumstances which would have enabled him to form a view about that topic.
Taking into account, for the purposes of re-exercising the costs discretion, the further material that is before this Court, I consider that it should be concluded that Ms Price did not act unreasonably and that there should be no order as to the costs of the proceedings. I note in this respect that Ms Price did not contend in this Court that her costs at first instance should be paid by the respondents. She was content that there be no order as to costs.
The following matters are of particular relevance to the reasonableness of Ms Price's conduct and to the unreasonableness of that of the respondents.
First, both the Appointment of an Enduring Guardian and the Enduring Power of Attorney provided for the third respondent to act as guardian and attorney in the event that Ms Price was unwilling or unable to act. There was therefore no need for the respondents to approach the Court (or NCAT) if Ms Price agreed to renounce her position.
Secondly, the respondents had no evidence that Ms Price intended or threatened to exercise any of her powers as guardian or attorney precipitously, or at all. No such threat was contained in her solicitor's letter sent at 3.14pm on Friday 31 January (see [6] above). Moreover, at the hearing before Henry J the next morning Ms Dorter readily proffered on Ms Price's behalf the undertaking referred to in the next paragraph below that she would not so act. Ms Dorter also made the point that her client had not been requested to provide such an undertaking (see [14] above).
Thirdly, at the same hearing Ms Dorter gave on Ms Price's behalf an undertaking that until the further hearing fixed for 6 February 2020 "she will not act, and is unwilling to act" under both appointments. That triggered the third respondent's entitlement under the instruments to act in the interim period. Ms Dorter also expressly indicated to the Court that her client had no objection to the third respondent so acting.
Fourthly, the respondents' commencement of proceeding was precipitous, not affording Ms Price any reasonable opportunity to respond substantively to the respondents' solicitor's letter sent at 5.45pm on Friday 31 January. In light of Ms Price's cooperative conduct before Henry J at the hearing the next morning, it can readily be inferred that at least an interim undertaking not to act (and therefore to permit the third respondent to act as guardian and attorney for the period of the undertaking) would have been forthcoming if that opportunity had been given.
Fifthly, when Ms Price offered on Tuesday 4 February to consent to the relief that the respondents sought concerning the appointments, the respondents failed to accept her entirely reasonable offer to agree that there be no order as to the costs of the proceedings.
Sixthly, the respondents did not obtain under the consent orders made by Pembroke J a good deal of the relief that they had sought in their Summons in the proceedings. In particular, they did not obtain the appointment of the first or second respondents as guardians or attorneys to act with the third respondent, as had been sought in Orders 2 and 5 of the Summons, and they did not obtain Orders 6 to 9 (see [11] above) being injunctions, orders for return of property and identification of acts done under the appointments.
To these circumstances, the principles summarised by McHugh J in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624; [1997] HCA 6 need to be applied: "In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action." (Citations omitted.)
Their application leads to the conclusion that Ms Price should not be ordered to pay the respondents' costs of the first instance proceedings. Ms Price did not act, to use McHugh J's words just quoted, "so unreasonably" that she should pay those costs. In fact, she did not act unreasonably at all.
It is unnecessary in these circumstances to consider whether Ms Price would have been assisted in having this conclusion arrived at by recourse to the observations of Lindsay J in CAC v Secretary, Department of Family and Community Services (No 2), to which I have referred above (see [25]), but which were not brought to the primary judge's attention. It is sufficient to say that those observations do not assist the respondents in the present case because, from their point of view, the proceedings were misconceived. Contrary to their contention that they "had no choice but to commence proceedings" (see [30] above), the issues concerning Mr Price's guardian and power of attorney about which the respondents were concerned could have been resolved without an application to the court (or NCAT) if they had afforded Ms Price the usual pre-action opportunity to consider and indicate her position (see Nichols v NFS at [6]).
As the successful party on appeal, Ms Price sought, and should obtain, an order for the respondents to pay her costs of the proceedings in this Court. I note that her counsel foreshadowed the possibility of an application for an order that these costs be paid on the indemnity basis. If that possibility is to be pursued, that should occur in the normal fashion by a notice of motion being filed within the time prescribed by the UCPR. Ms Price would of course be at risk of paying the costs of that motion if she were unsuccessful.
For these reasons, I propose the following orders: 1. Grant leave to appeal. 2. Set aside the costs order, being Order 6, made by Pembroke J on 6 February 2020. 3. Note that no order is made as to the costs of the proceedings at first instance. 4. Order the respondents to pay the applicant's costs of the proceedings in this Court.
MEAGHER JA: I agree with Macfarlan JA.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (9)

Cited By (7)