Van Eeden v Protective Commissioner [2005] NSWCA 14 | Case summary

REASONS FOR DECISION Introduction 1 In this case the applicant, Mr Theunis Van Eeden, has sought to review a decision made by the Protective Commissioner on 24 March 2005 not to seek special leave to appeal to the High Court of Australia from a decision delivered by the NSW Court of Appeal on 11 February 2005 dismissing his appeal against an unfavourable judgment in District Court proceedings for damages for personal injury (Van Eeden v Henry [2005] NSWCA 14). As the Protective Commissioner is the manager of Mr Van Eeden's estate he has the power to determine whether the application for special leave to appeal to the High Court should proceed. 2 Ordinarily, the Tribunal does not publish the name of a person who seeks to review a decision of the Protective Commissioner. That practice is not mandatory (see s 126 Administrative Decisions Tribunal Act 1997 (the ADT Act)). In this case no useful purpose is served by following the usual practice of referring to the applicant by initials only because these reasons do not contain any information of a confidential nature which is not already in the public domain and also because it would be artificial to suppress the name of the applicant when it is necessary to refer to published decisions of both the District Court and the Court of Appeal in which he is referred to by name. 3 By virtue of a financial management order made on 24 January 2000, the Guardianship Tribunal committed the management of Mr Van Eeden's estate to the Protective Commissioner under the provisions of the Protected Estates Act 1983. The Guardianship Tribunal had earlier made a similar interim financial management order on 29 July 1999. 4 On 12 March 2001 the Protective Commissioner consented to act as the applicant's tutor in an action for damages for personal injury in the District Court of NSW thereby effectively giving his consent for that action to proceed. The action, which arose out of a motor vehicle collision near Narromine on 9 December 1998 in which the applicant sustained serious injury, was unsuccessful. Details of the applicant's injuries were not provided to the Tribunal but it was common ground that those injuries, which Karpin DCJ described in her judgment as "catastrophic", included brain damage. Presumably, any award of damages to the applicant had he succeeded in his negligence action would have been substantial. 5 The applicant appealed to the NSW Court of Appeal against the decision by Judge Karpin in the District Court to dismiss his claim for damages. It appears that the appeal was lodged on the instructions of the Protective Commissioner who was the applicant's tutor in those proceedings. The appeal to the Court of Appeal was unsuccessful. Costs were awarded against the applicant in both the District Court and the Court of Appeal proceedings. The Protective Commissioner, as the applicant's tutor, is liable for those costs. The Tribunal was informed by the parties that those costs have not been paid because bills have not yet been rendered. It was estimated by the lawyers for the parties that the costs for which the Protective Commissioner is liable as the applicant's tutor in the District Court and Court of Appeal proceedings exceed $50,000. 6 Mr Van Eeden's legal advisers have recommended that special leave be sought to appeal to the High Court from the decision of the Court of Appeal. The Protective Commissioner has declined to give instructions to those legal advisers for the special leave application to proceed. It has been accepted by the parties that the proposed application for special leave to appeal to the High Court against the decision of the Court of Appeal cannot proceed without the Protective Commissioner's support because he is the manager of the applicant's estate. The applicant's interest in the cause of action forms part of his estate. 7 Also, the applicant is in need of a litigation guardian. Rule 21.08.1 of the High Court Rules 2004 stipulates that "[a] person under disability shall commence or defend a proceeding by litigation guardian". If the application to the High Court for special leave to appeal is to proceed the Protective Commissioner must fulfil the role of litigation guardian because there is no other person resident in Australia who is willing and able to act in this capacity. The applicant now lives in South Africa and has no plans to return to Australia. 8 It is not in dispute that it is highly likely that the applicant would have a costs order made against him if an application for special leave to appeal to the High Court were to be unsuccessful. The Protective Commissioner, as the applicant's litigation guardian, would be liable to pay those costs. In effect the Protective Commissioner has been asked to carry the risk of seeking special leave to appeal to the High Court from funds which are generally available to him because the Protective Commissioner is not holding any funds belonging to the applicant upon which he could draw to meet any costs order made against him. 9 This application to review the decision of the Protective Commissioner not to seek special leave to appeal to the High Court was lodged by Mr Young, the solicitor who acted for the applicant in both the District Court and the Court of Appeal proceedings. Mr Dixon (barrister) appeared for Mr Van Eeden at the hearing of this application. Mr Tunbridge (solicitor) appeared for the Protective Commissioner. 10 Given the background to this case, Mr Van Eeden's capacity to maintain this application to review the decision of the Protective Commissioner and to instruct his legal advisers merits some consideration. This application is made to the Tribunal pursuant to s 55(1)(a) the ADT Act which permits an "interested person" to apply to the Tribunal for "a review of a reviewable decision". Questions of competency aside, it is quite clear that Mr Van Eeden is an "interested person" for the purposes of an application under s 55(1)(a). There is no dispute about the fact that the decision which the applicant seeks to review is "a reviewable decision" within the meaning of the ADT Act. These matters are discussed in more detail at [16] to [20] below. 11 The ADT Act does not contain any express provision which stipulates that a person must be mentally competent in order to be an "interested person" for the purposes of an application under s 55(1)(a). Proceedings before this Tribunal are not governed by the Uniform Civil Procedure Rules 2005 which stipulate in Rule 7.14 that "[a] person under legal incapacity may not commence or carry on proceedings except by his or her tutor". 12 It is open to question whether the ADT Act impliedly limits review rights to those "interested persons" who are mentally competent. In view of the fact that it is possible, pursuant to s 55(1)(a) the ADT Act, to review decisions of statutory officials, such as the Protective Commissioner and the Public Guardian, who provide assistance to people with a range of disabilities, it would seem contradictory, in policy terms, to insist that the person who wished to undertake the review had to first establish his or her competency to maintain legal proceedings. A further complication is caused by the fact it would clearly not be possible for a public official, such as the Protective Commissioner, to act as the tutor for a mentally incompetent person who wished to challenge one of his own decisions in this Tribunal. 13 As both Street CJ and Kirby P made clear in Haines v Leves (1987) 8 NSWLR 442, limitations on the capacity of children (and, presumably, adults who are not mentally competent) to maintain legal proceedings are procedural rather than substantive. In the absence of a specific procedural limitation, such as that which appears in Rule 7.14 of the Uniform Civil Procedure Rules 2005, it may be argued that there are no restrictions upon the capacity of children and mentally incompetent adults to maintain proceedings in this Tribunal. Two members of the High Court recently confronted a broadly similar matter when the issue of competency arose in the context of proceedings before a Commonwealth merits review tribunal. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [45], Gummow and Hayne JJ rejected the notion that the Refugee Review Tribunal had to satisfy itself that an applicant was competent before he or she could maintain review proceedings before that Tribunal. 14 On the other hand, it is open to argument that the right to review the decisions of various public officials pursuant to s 55(1)(a) the ADT Act could be abused, and considerable sums of public monies wasted, if people who are not mentally competent to maintain legal proceedings can not be prevented from commencing and conducting those proceedings. It may be argued that the ADT Act gives rise to the implication that an "interested person" must be a mentally competent person because the Tribunal is given the power by s 71(4) of the ADT Act to appoint a person to represent the interests of an "incapacitated person" in any proceedings. Alternatively, however, this power may be characterised as a nothing more than an enabling provision which permits the Tribunal to appoint a person to have the carriage of proceedings when the Tribunal concludes that an "incapacitated person" is unable to conduct those proceedings him or herself. 15 Ultimately, it is unnecessary to determine this point in order to dispose of this case. Mr Tunbridge, the solicitor for the Protective Commissioner, indicated that he did not wish to question Mr Van Eeden's capacity to maintain this application. As Mr Van Eeden's application to review the Protective Commissioner's decision was clearly genuine, as he was legally represented, and as costs were not an issue, there appears to be no impediment to determining the application on its merits. The Tribunal's jurisdiction 16 Section 38(1) of the ADT Act confers jurisdiction on the Tribunal to review a decision made by an administrator in the exercise of a function conferred or imposed by an Act or statutory rule if the particular Act or statutory rule grants the Tribunal jurisdiction to do so. Section 28A(1) of the Protected Estates Act 1983 provides that an application may be made to the Tribunal for review of "a decision" by the Protective Commissioner that "is made in connection with the exercise of the Commissioner's functions" under Division 3 of Part 3 of that Act if that decision is declared by the regulations to fall within the class of decisions that may be reviewed. The relevant regulation does not limit in any way the class of decisions that may be reviewed. Clause 9 of the Protected Estates Regulation 2003 provides that all decisions made by the Protective Commissioner "in connection with the exercise of the Protective Commissioner's functions under Division 3 of Part 3 of the Act" may be reviewed pursuant to s 28A. A number of people, including "the protected person in respect of whose estate the decision was made", may seek review of the Protected Commissioner's decisions in the Tribunal (s 28A(3)). 17 The office of Protective Commissioner is established by s 5 of the Protected Estates Act 1983. Division 3 of Part 3 of that Act, which comprises sections 24 to 28A, is headed 'Management of Estates by Protective Commissioner'. Section 24(1) vests the Protective Commissioner with all functions necessary and incidental to manage and care for the estate of "a protected person" when the management of that estate is committed to the Protective Commissioner. In various circumstances the Supreme Court, the Guardianship Tribunal, the Mental Health Review Tribunal and Magistrates may order that a person become "a protected person" and that the person's estate be managed by the Protective Commissioner. Section 24(2) of the Protected Estates Act, which is expressed to operate without limiting the generality of the functions given to the Protective Commissioner by s 24(1), directs that the Protective Commissioner shall have a number of specific functions. One of those functions is to "bring and defend actions, suits and other proceedings, on behalf of the protected person" (s 24(2)(o)). 18 Chapter 5 of the ADT Act, which is headed 'Process for review of reviewable decisions', sets out procedures for applicants and administrators to follow when this Tribunal has jurisdiction to review a decision of an administrator. Section 48(1) of the ADT Act requires an "administrator" who makes a "reviewable decision" to take reasonable steps to provide an "interested person" with written notice of the "decision" and of the person's right to have the decision reviewed. There are various exceptions to the obligation to provide notice which are set out in s 48(2). 19 A "reviewable decision" is defined in s 8 of the ADT Act to be "a decision of an administrator that the Tribunal has jurisdiction under an enactment to review". "Interested person" is defined in s 4 of the ADT Act to mean "a person who is entitled under an enactment to make an application to the Tribunal for…a review of a reviewable decision…" In this case the applicant, as a "protected person" under the Protected Estates Act, is an "interested person" for the purposes of s 4 of the ADT Act (see s 28A(3) Protected Estates Act 1983). The Protective Commissioner is clearly an "administrator" within the meaning of that term in s 9 of the ADT Act. The decision by the Protective Commissioner not to give instructions to seek special leave to appeal to the High Court from the decision of the NSW Court of Appeal handed down on 11 February 2005 is clearly a "reviewable decision". 20 The applicant was advised of the Protective Commissioner's decision not to seek leave to appeal to the High Court by letter dated 30 March 2005. The following reasons were set out in that letter: Having regard to the District Court and Court of Appeal judgments the Protective Commissioner considers that it is not appropriate to seek leave to appeal to the High Court. As the Protective Commissioner does not hold any funds on your behalf, any future action in this matter would need to be funded by other clients of this office. Even if your solicitor and barrister were prepared to act on a speculative basis there would remain a risk of being required to pay Mr Henry's [the other party's] costs if unsuccessful. 21 The ADT Act creates the presumption that an interested person should first seek internal review of a reviewable decision that the person seeks to challenge before the Tribunal may review the decision. The process of internal review is set out in s 53 of the ADT Act. Section 55(1) of the ADT Act grants an interested person the right to apply to the Tribunal for review of a reviewable decision if a number of pre-conditions are met. One of those pre-conditions is that the interested person has sought an internal review of the decision in question. Section 55(2) of the ADT Act sets out three circumstances in which this Tribunal may permit an interested person to review a decision of an administrator in the Tribunal even thought the internal review process has not been invoked. 22 Those circumstances are not relevant here because the applicant invoked the internal review process in s 53 of the ADT Act. The internal review was conducted by Mr Mark Orr, the Deputy Protective Commissioner, on 19 April 2005. Mr Orr affirmed the Protective Commissioner's decision. 23 The Tribunal's task, stipulated in s 63 of the ADT Act, is to determine whether the Protective Commissioner has made the "correct and preferable" decision having regard to any relevant factual material and any applicable written or unwritten law. When undertaking this task the Tribunal may exercise all of the functions that are vested in the Protective Commissioner. The Tribunal may affirm, vary or set aside the Protective Commissioner's decision. If the decision is set aside the Tribunal may substitute its own decision for that of the Protective Commissioner, or it may remit the matter to the Protective Commissioner together with any directions or recommendations that it chooses to make. The application to review 24 In this case the applicant seeks to review the decision of the Protective Commissioner not to seek special leave to appeal to the High Court from the decision of the Court of Appeal delivered on 11 February 2005. 25 In the written application to the Tribunal prepared by the applicant's solicitor, Mr Young, the following reasons for the application were recorded: The decision disadvantages Mr Van Eeden as it means he loses his rights to pursue his claim for personal injury compensation arising out of the car accident to the High Court. Mr Van Eeden has legal opinion from 2 senior counsel that he has reasonable prospects of success at the High Court. The evidence 26 Section 58 of the ADT Act requires the administrator whose decision is under review to provide the Tribunal with copies of all relevant documents. The documents which have been filed with the Tribunal by the Protective Commissioner, and which were subsequently tendered in evidence, include the relevant District Court and Court of Appeal decisions and written advice from two barristers, Mr Paul Blacket SC and Mr Stephen Dixon. It appears that both of these advices were obtained at the behest of the applicant's solicitor, Mr Young, and subsequently provided to the Protective Commissioner so that he could take them into account before determining whether to issue instructions to seek special leave to appeal to the High Court. At the hearing of this application Mr Tunbridge tendered, without objection, an affidavit by the Protective Commissioner in which he set out most of the background facts which have been recorded in this document. 27 The applicant did not tender any documents or lead any evidence other than a letter from Moray & Agnew, the solicitors for Mr Van Eeden's third party insurer, to Mr Young. This letter indicates that the other driver in the collision which occurred near Narromine on 9 December 1998, Mr Philip Henry, has lodged an application for special leave to appeal to the High Court against the decision by the NSW Court of Appeal to dismiss his appeal against the decision in the District Court. The applicant indicated that he was otherwise content to rely upon the written advices from Mr Blacket SC and Mr Dixon in pursuing this application to review the Protective Commissioner's decision. 28 The circumstances in which vehicles driven by Mr Van Eeden and Mr Henry collided at Narromine on 9 December 1998 were described at great length by Karpin DCJ in her judgment delivered on 19 December 2003. The action by Mr Van Eeden against Mr Henry and the action by Mr Henry against Mr Van Eeden were heard together in the District Court. As both Mr Van Eeden and Mr Henry were indemnified by their third party insurers in their capacities as defendants in the negligence actions brought against them, separate lawyers acted for them in their roles as plaintiffs and defendants in the one set of consolidated proceedings. Thus, four sets of lawyers acted for the two nominal parties in the case. 29 In her judgment Karpin DCJ recorded that a collision occurred near Narromine on 9 December 1998 between two vehicles travelling in opposite directions on the same unmarked bitumen road during daylight hours in good weather conditions. There were no witnesses to the collision and neither driver was able to give an account of how the accident occurred. At the trial expert witnesses were called by both parties to give opinions about what may have occurred. These experts based their opinions on matters such as skid marks on the road and the point of impact between the two vehicles. 30 Karpin DCJ described her task as follows: There is no dispute concerning the existence of the available physical evidence. The issue for the Court is what inferences can be drawn from those facts, and whether any inferences which can be drawn are sufficient to satisfy the burden of proof resting upon each Plaintiff in their respective cases. Each of the Plaintiffs is faced with the same problem, namely, each bears the onus of proving on the balance of probabilities that the accident was caused, or substantially caused by the negligence of the other party, whether that be by act or omission, and whether that act or omission, if established, was the sole cause, or a causative factor in a series of relevant causal events… Neither Plaintiff is able to give any account of what occurred and the parties very properly reached an agreement that no adverse inference would or could be drawn from the failure to call either Plaintiff… The available physical evidence standing by itself is not capable of constituting proof to the requisite standard which would allow the Court to make a finding in either case as to where responsibility lies. That evidence standing by itself does not provide a solution to the questions posed in the proceedings. Thus, the Court must look to that evidence combined with the evidence of the experts in order to determine whether inferences can be drawn which when combined with the known facts, are capable of discharging the burden of proof to the requisite civil standard. 31 Ultimately, her Honour decided that it was not possible to conclude that either Mr Henry or Mr Van Eeden had breached the duty of care which each owed to the other as a fellow road user because the requisite inferences could not be drawn in either case. 32 Both parties appealed and the Court of Appeal unanimously dismissed those appeals which were heard together (Van Eeden v Henry; Henry v Van Eeden [2005] NSWCA 14). The main judgment was written by Spigelman CJ. Both Sheller JA and McColl JA agreed with the Chief Justice. In paragraph [16] of his judgment Spigelman CJ noted that neither appellant challenged Karpin DCJ's findings of primary fact or submitted that her Honour had committed any error of law. The Chief Justice stated that "[e]ach appeal was directed to the inferences which her Honour ought to have drawn". 33 Spigelman CJ stated that he was not prepared to interfere with the decision of the trial judge because there was insufficient evidence upon which to draw the inference that either party had breached his duty of care. The Chief Justice stated at [25] to [27]: [25] Each Appellant's submission proceeds on the basis of an assumption that there was no inappropriate conduct, let alone negligence, on the part of that Appellant and, accordingly, that there is a proper basis for an inference that the other party was at fault. [26] The Appellant Henry's case assumes that his own act of applying the brakes and maintaining them for a lengthy period was a proper response to a threat, most likely the fact that the Toyota [driven by Mr Van Eeden] was on the wrong side of the road. The Appellant Van Eeden's case assumes that he was on the correct side of the road and that, accordingly, Mr Henry's conduct in applying and maintaining the brakes was negligent. There is no evidence, or proposition about the ordinary course of events, which can justify either assumption. [27] Even setting aside the assumptions to which I have referred, each Appellant must establish a proper basis for drawing an inference that the application and maintenance of the brakes indicated negligent conduct by the other party. There is an available inference that Mr Henry perceived an emergency, but there is no basis for concluding that, more probably than not, Mr Van Eeden's conduct caused that perception. Even assuming that the perception was accurate, it could have been caused by anything. Nor is there a basis for inferring that Mr Henry's perception, or his reaction to it, was negligent on Mr Henry's part. 34 Mr Blacket SC, who appeared for Mr Van Eeden in both the District Court and the Court of Appeal, prepared a Memorandum of Advice to his instructing solicitor shortly after the Court of Appeal delivered its judgment. In a brief advice Mr Blacket SC recommended that an application be lodged with the High Court seeking special leave to appeal from the decision of the Court of Appeal. Mr Blacket SC did not refer to any specific grounds of appeal but stated that "[a]s Mr Henry is appealing, having regard to the circumstances of the accident Mr Van Eeden should protect his position by appealing". Mr Blacket SC went on to say: In one sense, the circumstances of this accident must connote negligence in some person. Vehicles travelling in opposite directions on a straight road in conditions of good visibility ordinarily do not collide in the middle of the road in the absence of conduct on the part of one or both drivers which leads to the collision. In the circumstances, and it is a simple point, there is a plausible argument that there was negligence on the part of one or both drivers. The Court of Appeal's refusal to draw the inference is in contradistinction to a number of authorities that were put before the Court of Appeal, particularly in England. 35 In his written advice Mr Dixon stated that "I am of the view that there was sufficient evidence on which to conclude that the driving of Henry was negligent". Mr Dixon went on to refer to the fact that he had conferred with Mr Bernard Gross QC who "believes that the Court of Appeal has fallen into fundamental error". Mr Dixon attached a draft Application for Special Leave to Appeal to the High Court, prepared by Mr Gross QC, to his written advice. Mr Dixon concluded his advice with the observation that "Mr Gross believes that there are reasonable prospects of success on the appeal application". Mr Dixon's advice was not signed, or counter signed, by Mr Gross QC. 36 The draft Application for Special Leave to Appeal which was attached to Mr Dixon's advice contains eight grounds upon which it is claimed that the NSW Court of Appeal was in error. Five of the eight appeal grounds are expressed as errors of law. Reasoning 37 Appeals to the High Court of Australia from decisions of a State Supreme Court are provided for by s 73 of the Constitution. The circumstances in which appeals may be made are set out in the Judiciary Act 1903 (Cth). Section 35(1) of the Judiciary Act 1903 (Cth) stipulates that an appeal must not be brought to the High Court from a decision of a State Supreme Court unless the High Court gives special leave to appeal. 38 Section 35A of the Judiciary Act 1903 (Cth) contains a non-exhaustive set of criteria which the High Court must take into account when determining whether to grant an application for special leave. That section states: In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to: (a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law: (i) that is of public importance, whether because of its general application or otherwise; or (ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and (b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates. 39 In 2001 the Australian Law Reform Commission commented on the application of s 35A of the Judiciary Act 1903 (Cth): The High Court has considered the scope of this discretion over the course of 17 years and has developed substantial jurisprudence on the area. The hallmark of most successful applications for special leave is that they raise a question of law of public importance. Generally, they are cases that raise the question of how a principle of law should be formulated rather than how that principle should be applied. [ALRC, The Judicial Power of the Commonwealth (Report No 92) at p 364] 40 As is widely known in legal circles, the success rate in applications for special leave to appeal to the High Court is not high. In 2003/2004, 54 of 288 (18.75%) applications for special leave were successful (High Court of Australia, Annual Report 2003/2004 , Table 16, p 102). The success rate in special leave applications from decisions of State Supreme Courts was higher than that from decisions of the Federal Court and the Family Court. In 2003/2004, 26% of special leave applications from State Supreme Courts were successful (High Court of Australia, Annual Report 2003/2004 , Table 16A, p 103). These figures relate to success rates in special leave applications only. If special leave is granted the appellant still has to convince the High Court at the hearing of the actual appeal that the court below was in error. In 2003/2004, 60% of civil appeals were successful (High Court of Australia, Annual Report 2003/2004 , Table 20, p 106). 41 Appeals to the High Court from a judgment of a State Supreme Court are "an appeal in the strict sense" meaning that the Court's role "is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given" (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [12]). 42 The proper roles of both the NSW Court of Appeal when hearing an appeal from a decision of the District Court, and of the High Court when considering an appeal from the NSW Court of Appeal, were recently considered by the High Court in Fox v Percy (2003) 214 CLR 118, a case which also involved a head-on collision on a NSW country road. In a joint judgment Gleeson CJ, Gummow and Kirby JJ indicated that an appeal to the NSW Supreme Court from a decision of the District Court pursuant to s 127(1) of the District Court Act 1973 is a rehearing (see s 75A Supreme Court Act 1970), whereas an appeal to the High Court from the Supreme Court is a "strict appeal" which is quite different. Those Justices stated at [32]: Our sole duty in this case is to determine whether error has been shown on the part of the Court of Appeal. This Court is not engaged in a rehearing. As such, it is not this Court's task to decide where the truth lay as between the competing versions of the collision given by the parties. 43 In this case, when deciding whether to grant permission for the proposed application for special leave to proceed, the Protective Commissioner had to take into account the applicant's prospects for success in both the special leave application and on the hearing of the appeal if the special leave application was successful. Like any other potential litigant, the Protective Commissioner was entitled to rely heavily upon his legal advisers when making this decision. Like any other potential litigant, the Protective Commissioner could be expected to take into account the magnitude of the issues at stake and the consequences of losing the special leave application, and the appeal, when making this decision. 44 On the basis of the material which has been provided to the Tribunal it seems that there were shortcomings in the information available to the Protective Commissioner when he made the decision not to proceed with the special leave application. Those shortcomings persist. The written advices from counsel do not refer to the special leave criteria in s 35A of the Judiciary Act 1903 (Cth) and nor do they evaluate the chances of success of any special leave application. It would have assisted the decision-maker to have been informed of those parts of s 35A which would have been relied upon in a special leave application and of any arguments which could have been advanced in response to the anticipated submission from Mr Henry's insurers that because this was essentially a case about the facts and because the decision of the Court of Appeal was unanimous special leave ought not be granted. 45 As Mr Tunbridge pointed out in his written submissions, it was appropriate for the Protective Commissioner to take account of the fact that he would have put at risk the common fund monies which he controls by virtue of s 55(1)(c) of the Protected Estates Act 1983 had he issued instructions for the special leave application to proceed. A difficulty faced by the Protective Commissioner, however, was that he did not have written advice about the amount of costs that he would be liable to pay as the applicant's litigation guardian if either the special leave application or any subsequent appeal were unsuccessful, and he did not know with any certainty the amount of costs he was already liable to pay by virtue of the costs orders made against the applicant in the District Court and Court of Appeal proceedings. As that information is still not available it is very difficult to evaluate the financial risks associated with lodging a special leave application. 46 On the basis of the limited evidence available to the Tribunal it appears that the issues at stake for the applicant are profound. As has already been noted, whilst the Tribunal was not provided with any information concerning the injuries sustained by Mr Van Eeden in the accident, or his current state of health, Karpin DCJ described those injuries as "catastrophic". In these circumstances it is appropriate for the Protective Commissioner, as the manager of the estate, to actively pursue every reasonable opportunity which may enable the applicant to receive compensation for his injuries. On any view of events, Mr Van Eeden suffered extreme misfortune in being involved in this accident and in not receiving any compensation for his injuries when the undisputed evidence reveals that he was driving his vehicle within the speed limit on the correct side of the road when the collision occurred. 47 The activities which the Protective Commissioner can undertake to advance the applicant's interests are limited by the fact that the Protective Commissioner is not holding any monies on behalf of the applicant from which he may be reimbursed for his expenses. Consequently, any activities undertaken by the Protective Commissioner which require him to expend monies in order to advance the applicant's interests will have a detrimental financial impact upon the many other people whose estates are managed by the Protective Commissioner because that expenditure must be drawn from a common fund. 48 It is estimated that the Protective Commissioner has already incurred a costs liability in excess of $50,000 in advancing the applicant's interests. Mr Tunbridge and Mr Dixon estimated that the Protective Commissioner may incur an additional liability of $15,000 to $20,000, in the role as the applicant's litigation guardian in High Court proceedings, for the costs of the opposing party if the special leave application is not successful. It should be noted that Mr Van Eeden's lawyers have agreed to conduct a special leave application on a 'no win no fee' basis. 49 On the basis of the information available to the Tribunal the correct and preferable decision is to decline to issue instructions to proceed with an application to the High Court for special leave to appeal against the decision of the NSW Court of Appeal. The advice from counsel in support of the special leave application does not touch upon key issues such as the statutory criteria for granting special leave and the prospects for success. In order to responsibly take the risk of initiating High Court proceedings a more detailed analysis of the grounds for attacking the Court of Appeal decision is required. As there is insufficient evidence that there are reasonable prospects for success the risk to the common fund monies held by the Protective Commissioner is too great, especially in view of the fact that those monies will need to be called upon to satisfy the costs orders for which the Protective Commissioner is already liable following the unsuccessful proceedings in the District Court and the NSW Court of Appeal. The Protective Commissioner has already expended more than $50,000 in advancing the applicant's interests. 50 Whilst the Protective Commissioner must always be mindful of the sums which he expends from his common fund, he is given express authority by s 55(1)(c) of the Protected Estates Act 1983 to expend those monies in order to pursue his statutory functions. One of those functions is initiating legal proceedings on behalf of protected persons. In this instance an earlier modest expenditure of those funds may have laid this matter to rest. 51 High Court proceedings are rare. Presumably, advice from experienced counsel recommending High Court proceedings is also quite rare. With the benefit of hindsight it may have been preferable, once the issue of an application for special leave to appeal to the High Court had been raised, for the Protective Commissioner to have issued instructions that experienced senior counsel, of the Commissioner's own choosing, with no prior involvement in the case be briefed to provide written advice concerning the prospects of success in any special leave application and to provide an estimate of the likely amount of any costs order if the application is not successful. That course is still open. 52 The application to review the decision of the Protective Commissioner is not successful. The decision under review is affirmed.

Van Eeden v Protective Commissioner

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