THE PUBLIC TRUSTEE v. SKEET [1995] NSWCA 381

THE PUBLIC TRUSTEE v. SKEET SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P, PRIESTLEY JA and SHELLER JA 8 May 1995

[1995] NSWCA 381

COSTS — discretionary nature of orders — removal of party from proceedings — failure to award costs — held: Discretionary decision — necessity to view entirety of proceedings — no point of principle or injustice calling for redress — summons dismissed.

Kirby P. The reason why leave to appeal is necessary in appeals against costs orders is because a large area of discretion is required by decision makers within which they can weigh, often without expressing all of the arguments and matters taken into account, the considerations which lead them to favour one order as to costs rather than another.

The Public Trustee has an argument which has been advanced with vigour and persuasiveness. It is that, having been removed from the proceedings as defendant, it ought to have recovered its costs. However, the provision of costs was within the discretion of Master McLaughlin. The course which the Master took may, or may not, have been the course which I would have taken. But upon one view of the entirety of the proceedings it was a sensible course. The matter is not so plain as to require leave either to deal with an issue of general principle or for the correction of a serious injustice to the Public Trustee clearly calling for redress.

I would refuse leave to appeal and I would order the Public Trustee to pay the opponent's costs of the summons.

I would not follow the course which I originally proposed of waiting untilthe orders of Master Macready, who will be re-visiting this matter tomorrow. Those orders should be made by Master Macready without any reference to the decision of this Court today and solely on the matters that are then before him.