Daynes v Public Advocate [2006] VSC 53 (23 February 2006)

Last Updated: 24 February 2006

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No.8432 of 2005

MERLE DAYNES	Appellant
V
THE PUBLIC ADVOCATE	Respondent

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JUDGE:	SMITH J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2005
DATE OF JUDGMENT:	23 February 2006
CASE MAY BE CITED AS:	Daynes v Public Advocate
MEDIUM NEUTRAL CITATION:	[2006] VSC 53

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Practice – costs – successful party in appeal from VCAT – whether costs to be borne by another party to the proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. A. G. Uren Q.C and Mr. J. Levine	Issac Brott & Co.
For the Defendant	Ms. M. Wall	Office of the Public Advocate

HIS HONOUR:

The application of the appellant

1 The appellant, having been successful in her appeal, seeks the cost of the appeal against the respondent, the Public Advocate.

Principles

2 Counsel for the appellant has submitted that the normal exercise of the Court's discretion as to costs is that they be paid to the successful party by the other party to the proceeding as compensation for the expenditure involved in having to take the proceedings in order to obtain its legal entitlement. Counsel submitted that there are no circumstances warranting departure from this longstanding practice.

3 Counsel for the respondent submitted that the discretion as to costs is to be guided by what is just and reasonable. Counsel submitted that in the ordinary case it is just and reasonable that the party that caused the other party to incur the cost of litigation should reimburse the party for the liability incurred^[1]. Counsel submitted, however, that there is no presumption that the successful party should receive costs or that an unsuccessful party should be ordered to pay costs and that it may be appropriate in the proper exercise of discretion to make no order as to costs if both parties have acted reasonably and their conduct continued to be reasonable^[2]. Counsel also submitted that the nature of the proceedings is a relevant matter. I accept those propositions.

Submissions

4 As to the conduct of the respondent, Counsel for the respondent submitted that it did not apply to be appointed guardian of the appellant; that application was made by third person, a social worker. The respondent is a guardian of last resort and had no choice in relation to its appointment. Further the respondent's conduct at and after the hearing was at all-times reasonable. Finally, it was put that the respondent did not oppose the substantive orders sought in the appeal.

5 Turning to the nature of the proceedings, it was submitted for the respondent that the questions of law raised in the appeal did not relate to any act or omission of the respondent and that the respondent could not be held responsible for any failure by VCAT to accord natural Justice. Further, the respondent was powerless to prevent the appeal or settle the proceedings. Initially VCAT was a party to the appeal but ceased to be so by order of the Senior Master made 21 September 2005. Another possible contradictor, the holder of the power of attorney, sought leave to be heard on the appeal but that leave was refused. Counsel for the respondent submitted that it became the sole defendant by default and was a defendant in name only and had agreed to abide by any order of the Court. Counsel submitted that it would not be just and reasonable to order it to pay the costs of the appeal.

6 Counsel for the appellant challenged those arguments by submitting that the respondent was not a mere bystander and had the official benefit of an order appointing a guardian. Counsel also submitted that in the reassessment proceeding before VCAT the Public Advocate attended as a party and as such did not attend as her representative but as a representative of his official interest. Counsel also submitted that as a party to the proceeding, the Public Advocate should put to the tribunal matters which are considered to be relevant to the proper exercise of the tribunal's functions. It was submitted that those matters included submissions as to appropriate procedures. Counsel argued that this is not a difficult thing to do and is something that counsel assisting inquiries and Commissions do all the time. In the present case counsel submitted that the Public Advocate should have taken an active role in respect of the matters which have been found to constitute a denial of natural justice and a failure to comply with the provisions of the tribunal's statute. Counsel argued that, therefore, the Public Advocate bore some responsibility for what occurred. At best it did nothing to persuade the tribunal against taking a course which did not comply with natural justice and the other requirements of its statute. It should have done so and could have done so. Counsel submitted that it was more probable than not that if the Public Advocate had urged compliance with the rules of natural justice, the Tribunal would have acted differently. In support of this argument, reference was made to the issue of proceeding without the evidence of the report of Dr Woodward to the Public Advocate which it was said lent support to the application but which had not been provided to the appellant or the Tribunal. Counsel put that this demonstrated that the Public Advocate was an active participant in the proceeding and that it chose not to do anything to prevent the outcome which the tribunal plainly favoured.

7 As to conduct on the appeal, it was put for the appellant that if the Public Advocate considered that the tribunal had acted properly, it would have been its duty and in its official interest to have defended the Appeal because it was the appellant's guardian and it had no statutory function in relation to her. Counsel argued that it also had a duty and had an interest to defend the appointment itself particularly in view of the fact that it had acted under it.

8 Counsel submitted that the case concerned a clear, significant and unjust failure of the system and the person who is the victim of those failures should not herself be required to bear the costs burden of remedying them.

Analysis

9 This application is not a satisfactory vehicle for exploring the role and obligations of the Public Advocate in a hearing before VCAT of the kind in question. In the end that is not necessary in any event; for assuming that the Public Advocate carried an obligation before VCAT to support Ms Daynes on the natural justice issues, but chose to advance its own interests, I am not persuaded that any of its acts or omissions contributed to the result.

10 A reading of the transcript would suggest that action from the Public Advocate on the issues mentioned is unlikely to have made any difference. The Tribunal took strong control of the proceeding and made it clear that it believed it was following normal procedures and did not need more information on which to determine the matter.

11 As to Dr Woodward’s report, it had not been provided by the Public Advocate because it did not have a copy. It in fact attempted to obtain a copy from the doctor during the hearing but was unsuccessful. The report gave some assistance to Ms Daynes but did not recommend any management change.^[3] The Public Advocate’s conduct in relation to that report did not demonstrate that it was taking a partisan position. It cannot be held responsible for what occurred before VCAT.

12 As to the Appeal, it had no duty to defend the order of VCAT. What it did was to seek to minimise its impact on the cost of those proceedings and in doing so acted reasonably. Thus, in my view, there is no proper basis upon which it would be just or reasonable to order the Public Advocate to pay the costs of this appeal.

13 It is true that this leaves the appellant without recourse to anyone for the costs incurred in an appeal which established that she was denied natural justice by VCAT. Regrettably, what systems are available to reimburse an appellant in that situation will not be available in this case^[4].

Respondent’s application

14 The respondent has sought its costs of the appeal from the appellant. It concedes that such an order can only be made in exceptional circumstances.

15 In this instance, Counsel submitted that the respondent did not dispute the appeal and the appellant could have pursued other avenues such as reassessment - something she in fact did by an application filed shortly after the hearing of this appeal on 6 December 2005. It was argued that this could have been done with no disadvantage to her. Counsel submitted that the result of the successful appeal will be a rehearing which will be the same as a re-assessment.

16 The fact is, however, that the appellant has succeeded and it would not be just or reasonable to order her to pay the costs of a party who had to be joined to the proceedings merely because it was a party to the proceeding below and who did not participate in the hearing.

Conclusion

17 Accordingly, the applications for costs are unsuccessful and no orders for costs will be made.

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^[1] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 567

^[2] Re Minister for Immigration and Ethnic affairs; Ex parte Qin (1997) 186 CLR 62, 65; Oshlack. V. Richmond River [1998] HCA 11; 193 CLR 72, para 40 --41

^[3] See Reasons for Judgment 14.12.05 [19].

^[4] e.g. Appeal Costs Act 1988.