Consideration of r 42.3 of the Rules
31 The rule provides that, subject to a number of exceptions, the court may not in the exercise of its powers and discretions under s 98 of the Act make an order for costs against a person "who is not a party".
32 The only exception which could apply in the present case is that in r 42.3(2)(g). Perhaps out of order, I first address whether that exception applies.
33 In ex parte Davis at 189 the Chief Justice said that a next friend "is, when appointed, as is said in the old cases upon the subject, a servant of the Court, although liable for the costs of the suit". His Honour continued, "A guardian, in this sense, was very frequently an officer of the Court", and may not have equated a servant of the court with an officer of the court. In Rhodes v Swithenbank at 579 Bowen LJ said that "[t]he only reason that the next friend of an infant is entitled to bind the infant in matters connected with the cause is that he is the officer of the Court to take all measures for the benefit of the infant in the litigation in which he appears as next friend". This was cited by Williams J in Dey v Victorian Railways Commissioners at 113. In New South Wales Insurance Ministerial Corporation v Abualfoul at [29] Sackville J said, referring to these cases, that the next friend "was regarded as an officer of the court appointed to safeguard the interests of the infant" and "derived his or her authority from the court, not the infant, and could be removed if, for example he or she acted improperly or had an interest adverse to that of the infant … ".
34 Under the Rules a tutor need not be appointed by a court order, and in this case the tutor was not appointed by a court order. It may be that the view that a next friend was an officer of the court involved appointment by court order. I have not gone into the appointment of a next friend in earlier times, because even if a tutor is regarded as an officer of the court I do not think that an order that a tutor pay costs would ordinarily be an order made "in the exercise of [the court's] supervisory jurisdiction over its own officers". Such an order would ordinarily not be consequential on or incidental to supervision of the tutor's discharge of his or her office; as I have said, it falls to be made as an incident of the office. Perhaps if a tutor misconducted himself or herself and a costs question thereby arose, r 42.3(2)(g) could be invoked. That is not this case.
35 The question then is whether a tutor, or more specifically the tutor in this case, is "a party" for the purposes of r 42.3. A related question was noted by Sackville J in NSW Insurance Ministerial Corporation v Abualfoul at [34]-[36], but not decided, being whether the District Court's power to award costs between "party and party" authorised a costs order against a next friend. "Party" is not defined in the Act or the Rules.
36 The definition of "opposite party" in the Dictionary to the Rules to mean defendant in relation to a plaintiff and plaintiff in relation to a defendant takes one to what is meant by plaintiff or defendant. In the case of plaintiff it means (in the definition in the Act) a person by whom proceedings are commenced "or on whose behalf proceedings are commenced by a tutor", although there is no corresponding reference to conduct of proceedings by a tutor in the definition of defendant. There is some support in these definitions for a tutor appointed to represent a plaintiff or a defendant being distinct from the party he or she represents.
37 The rules concerning tutors also appear to distinguish between the tutor and the party he or she represents, see for example r 7.15(2) referring to a tutor doing what a party can do, r 7.18(1) and (3) referring to a "party's tutor", and r 7.18(2) -
"(2) In any proceedings concerning a person under legal incapacity who is not a party, the court may appoint a tutor of the person and join the person as a party to the proceedings."
38 It has also been said in a number of cases that a next friend is not a party to the action: Pink v J A Sharwood & Co Ltd (1913) 2 Ch 286 at 289, adopted in New South Wales Insurance Ministerial Corporation v Abualfoul at [29] and Farrell v Royal Kings Park Tennis Club (Inc) at [15]; Dissidomino v Butcher Paull & Calder at [20], also adopted in Farrell v Royal Kings Park Tennis Club (Inc) at [16]. The original statement in Pink v J A Sharwood & Co Ltd was in relation to the next friend's obligation to file an affidavit of documents pursuant to a rule whereby a "party" could be required to give discovery, and it was said that discovery by the next friend could not be ordered. See also Jackson v Roberts (1941) ALR 365, in which it was held that interrogatories could not be administered as to next friend's personal knowledge.
39 Whatever be the position in that respect, in relation to costs some expansion of "party" from the plaintiff or defendant on the record has been recognised, albeit in other contexts. In Law Society of New South Wales v Jackson (1981) 1 NSWLR 730 it was held that the Law Society was a party within s 77(1) of the Legal Practitioners Act 1898 because, although it was not the complainant, it had taken part in the proceedings before the Statutory Committee to which that subsection related by appearing and actively participating. In ACP Magazines Pty Ltd v Motion [2000] NSWSC 1169 a subpoenaed company was held to be a party, principally by reason of a definition having the effect of including within a party a person against whom a claim for relief was made but also in reliance on Law Society of New South Wales v Jackson. In Victoria Legal Aid v The County Court of Victoria [2004] VSCA 113 a subpoenaed entity was regarded as a party to criminal proceedings within s 25 of the Crimes (Criminal Trials) Act 1999 (Vic), principally because of a definition extending to any person served with notice of or attending at a hearing but also because (at [20]) the underlying purpose of providing for orders that practitioners pay costs due to the practitioners' wrongful acts indicated that the power should extend to the costs of a non-litigant.
40 These cases were taken up in In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 879 in holding that a subpoenaed person and company were parties within r 42.3 of the Rules. One reason was that there was a claim for relief within s 22 of the Act and the subpoenaed person and company became parties by force of that provision. The other (at [14]) was that the cases showed that the concept of "party" was not confined to a person on the record in the proceedings.
41 Cases decided on particular statutory provisions or rules provide only limited assistance in the present case. Of more importance, it would be astonishing that, given the established liability of a tutor for costs, it was intended by r 42.3 to exclude the power to make an order for costs against a tutor.
42 Possibly it was thought that a tutor's liability for costs was given effect through an order made against the person under incapacity, which then engaged the tutor's liability, so that the rule did not disturb an established position. That does not seem likely, for at least three reasons. First, orders directly against next friends were known. I have referred to a number of instances. Secondly, as I have indicated the machinery for taxation or assessment and enforcement generally works on an order against the person liable for the costs. Thirdly, the law generally does not permit to be done indirectly what cannot be done directly, which would be the case if an order could not be made against a tutor but the tutor's liability for costs was given effect through an order against the person under incapacity.
43 The preferable view is that it was thought that the rule still permitted an order for costs against a tutor. The restriction on costs orders against non-parties now found in r 42.3 was first introduced in 1993, in Pt 52 r 4(2) of the Supreme Court Rules, and it may be noted that the orders made in Nadine v Protective Commissioner and O'Brien v O'Brien were made when the restriction was in place.
44 In my opinion, a tutor is a party for the purposes of r 42.3. In Catt v Wood (1908) 2 KB 458 rules of a friendly society provided that an arbitration committee could charge "either party" with costs. A member took a dispute to arbitration on behalf of his son, a lunatic, who was also a member. He contended that costs had not properly been charged against him. Kennedy LJ gave a judgment prepared by Farwell LJ, with which he agreed, in which it was held that "party" included a person who claimed on behalf of a member as well as a member who claimed in his own right, and meant (at 473) "all persons who initiate claims, whether they do so for themselves or on behalf of others". So here, in my view, "party" in the rule includes a tutor who commences or carries on proceedings on behalf of a person under legal incapacity.
45 A tutor represents the person under incapacity, and does on the person's behalf in relation to the conduct of the proceedings whatever the person could do. A tutor is on the record at least in the sense that consent to act has been filed. The person under incapacity is named on the record, but cannot do anything for himself or herself. The tutor cannot have any conflicting interest. There is practical identity between the tutor and the represented party in bringing and conducting the proceedings, albeit the name on the record as plaintiff or defendant (in this case, as appellant) is the name of the person under incapacity. The costs liability of the tutor, as an incident to the office, gives legal identity for costs purposes, on the rationale that one of the reasons a tutor is required is that there should be a person answerable for costs. For costs purposes, then, the tutor is to be regarded as a party.