Gaetani v Schiliro (No 2)

1. [1]

   HIS HONOUR: On 22 August 2017, S M Roberts, E Safro and D R Sword, three members of the New South Wales Civil and Administrative Tribunal (“the Tribunal”) determined an application with respect to a review of an enduring power of attorney and a guardianship application by making the following directions:

2. [2]

   By an amended summons filed 23 November 2017 (“the amended summons”), an appeal was brought by Mrs Gaetana Gaetani and Mrs Ysabell Schiliro (collectively, “the plaintiffs”), pursuant to Pt 14 of Sch 6 of the Civil and Administrative Tribunal Act 2013 (NSW). The defendant was Ms Barbara Schiliro (“the defendant”). The following orders were sought:

3. [3]

   During the course of the hearing of the appeal on 9 March 2018, an issue was raised by the Court as to whether the directions imposed a legal obligation. Both parties conceded (in one way or another) that they did not. In the result, the plaintiffs sought leave to further amend their amended summons in order to seek a declaration to the effect that they had no such obligation.

4. [4]

   The Court intimated that, based on the submissions of the parties, it was prepared to grant the amendment and make the orders sought therein. This step ultimately resulted in consent orders being made in the following form:

5. [5]

   Upon the matter bring returned on 17 May 2018, two outstanding issues remained as follows:

   1. (1)

      whether the proceedings before the Court should be determined conclusively by the making of consent orders, subject only to the question of costs; or

   2. (2)

      whether the proceedings should proceed in the Equity Division of the Supreme Court, namely, the Protective List of Lindsay J (again, with the question of costs requiring resolution).

6. [6]

   To facilitate the disposition of those issues a procedure was adopted whereby the plaintiff would produce a draft notice of motion (“the draft motion”). By the draft motion (not being formally before the Court) the plaintiff proposed to seek, inter alia, leave to serve a further amended summons, foreshadowing the orders which would be sought in the Equity Division of the Court and staying the extant proceedings before the Tribunal.

7. [7]

   No further submissions were received, save for a submission from the defendant opposing time to file the draft motion in apparent misunderstanding of the procedure adopted.

8. [8]

   On 17 August 2018, the Court gave judgment in relation to those issues: Gaetani v Schiliro [2018] NSWSC 1279 (“Gaetani v Schiliro No 1”).

9. [9]

   In Gaetani v Schiliro No 1, the Court reached the following conclusions as to the disposition of the matter:

10. [10]

    The Court made the following directions (at [13]):

11. [11]

    This judgment concerns the remaining issue in the proceedings, namely, the issue of costs.

SUBMISSIONS OF THE PARTIES

1. [12]

   On 31 August 2018, the defendant provided written submissions as to costs (subsequently filed on 28 September 2018). Those submissions are short and are extracted below:

2. [13]

   The plaintiffs filed a short submission as to costs on 14 September 2018. Those submissions are extracted below:

3. [14]

   The plaintiffs also made the following submissions in reply to the defendant’s submissions:

THE LEGISLATION AND RULES

1. [15]

   The powers of the Court as to costs are set out in s 98 of the Civil Procedure Act 2005 (NSW) in the following terms:

2. [16]

   Part 42 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) sets out the rules with respect to costs. Rule 42.1 is extracted below:

GENERAL PRINCIPLES

1. [17]

   Before turning to the question of costs in the context of the issues raised on the present application, I will address the general principles associated with costs orders.

2. [18]

   The general principles, with respect to costs orders, were set out in Moseley v AB (No 2) [2017] NSWSC 1812 at [65]-[79], extracted below:

CONSIDERATION

1. [19]

   Both the plaintiffs and the defendant seek costs of the appeal.

2. [20]

   The proceedings before the Court concerned an appeal from a decision of the Tribunal made on 22 August 2017. The Tribunal made the directions extracted at [1] of this judgment.

3. [21]

   The appeal was originally brought by an amended summons which contained five grounds of appeal. By the hearing of the matter the first ground was abandoned. At that juncture, the appeal turned upon various grounds challenging the directions including a ground which contended the Tribunal exceeded its jurisdiction under s 36 of the Powers of Attorney Act 2003 (NSW) in making the directions. Upon the hearing of the appeal leave was given to further amend the summons in the circumstances described above (see Gaetani v Schiliro No 1).

4. [22]

   The defendant’s written submissions on the appeal sought to sustain the orders. It was contended the Tribunal exercised its discretion to adjourn the proceeding to hear an application to replace an appointed Power of Attorney due to a “lack of information” and that it was entitled to make the order (interim in nature) to require the defendant to produce documents. The Court was invited to dismiss the appeal and uphold the “direction” to produce the documents.

5. [23]

   The defendant was correct to submit that the appeal was dismissed and, in a strict sense the plaintiffs were unsuccessful in the appeal; each of those factors weigh in favour of the grant of costs to the defendant.

6. [24]

   However, the actual operative order made by the Court by consent in the disposition of the appeal were, so far as dismissal of the appeal was concerned, in the following terms: “Further amended summons otherwise dismissed” (see at [4] above). The balance of the orders concerned a consent declaration that the directions had “no legal obligation”.

7. [25]

   Without detracting from the extracts of the defendant’s submission set out above and for the purpose of further distilling the issues as to cost, it may observed the defendant contended that the plaintiffs had no right to appeal and that this was not a case where the losing party had succeeded in making good hypothetical issues (and, in fact, the plaintiffs had succeeded in none) because:

   1. (1)

      The plaintiffs had abandoned ground 1 of the appeal in the further amended summons. By abandoning that ground, the appeal was no longer an appeal as of right.

   2. (2)

      The fact that the plaintiffs identified the orders had no legal effect did not reach that “important threshold”.

   3. (3)

      The plaintiffs voluntarily acceded to the request for the documents (in the course of a discussion as to how the documents may be obtained before the Tribunal).

   4. (4)

      The Tribunal had very wide powers and had not been able to sufficiently inform itself as to the issues before it.

   5. (5)

      There was no right to appeal and the plaintiffs had not identified any error of law which would permit them to make an application to the Protective Division of this Court.

   6. (6)

      Notwithstanding consent the orders made in the disposition of the appeal, the plaintiffs were “not even entitled to this” – if the orders were invalid, an internal appeal in NCAT was available. Further, various other directions having been made by the “President of NCAT” meant the Tribunal could serve a summons on a corporation for production of documents (although the significance of this fact was not made clear).

   7. (7)

      The course of action taken by the plaintiffs was unwarranted and the proposed application to keep the matter before this Court would constitute a misuse of power.

8. [26]

   There are some significant difficulties with those contentions (and various other particular submissions advanced by the defendant in favour of a grant of costs to the defendant for the following reasons:

   1. (1)

      The appeal was resolved upon an issue raised by the Court and the discussions between the Court and parties resulting in consent orders: Broke Hills Estate Pty Ltd v Oakvale Wines Pty Ltd (2005) 23 ACLC 1266; [2005] NSWSC 638 at [33]. The defendant did not raise the point that was dispositive of the appeal.

   2. (2)

      The defendant did not contend the orders created no legal obligation (and, in fact, contended to the contrary). It follows that the defendant “succeeded” upon a ground it did not advance in written or oral submissions on the appeal: see for example, Botany Municipal Council v Jackson (1985) 2 NSWLR 1 at 22-23 (per Priestley JA).

   3. (3)

      The defendant did not argue the appeal was incompetent even though, as the plaintiffs correctly submitted, consent to the declaration in the orders implicitly recognised the appeal was incompetent. The defendant’s reliance on r 50.16A of the UCPR is appropriate.

   4. (4)

      It is far too late for the defendant to submit that the plaintiffs were not entitled to a declaration where the issues associated with the appeal and the declaration were fully canvased with the legal representatives of the parties and consent given by the defendant.

   5. (5)

      The defendant’s submissions para 6(b)-(h) as extracted in [12] of this judgment do not assist the defendant in its application for costs when those issues are viewed in the light of (1)-(4) above. Further, some of those submissions were not previously advanced in the proceeding (before submissions made by the defendant on costs – see, for example, para 6(b) and (j) as extracted in [12] above) or the contentions are doubtful (with respect to the submissions in para 6(c) and (d) as extracted in [12] above, accepting that some transcript of the Tribunal proceedings is missing, it would appear the Tribunal sought the document in question and the discussion concerned the means of achieving that end).

9. [27]

   On the other hand, there are factors weighing against the grant of costs in favour of the plaintiff. Ultimately, the plaintiff wholly abandoned the amended summons in the light of absence of the directions of the Tribunal creating no legal obligation, and, in a strict sense, the plaintiff was unsuccessful in the appeal. Further, costs were incurred in relation to the matters giving rise to the judgment in Gaetani v Schiliro No 1 which resulted in conclusions adverse to the approach proffered by the plaintiff (although, in that respect, I would not characterise the plaintiffs further application in the way the defendant did in written submissions).

10. [28]

    The balancing of those considerations with the aforementioned principles and having regard to the provisions of UCPR r 42.1, it is appropriate in order to achieve a fair and just outcome, that each of the parties bear their own costs.

11. [29]

    In the result, the Court orders there shall be no order as to costs.