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. Priestley JA. I agree, the application has been founded on the basis that the Public Trustee succeeded before Master McLaughlin in his application to be removed as a defendant to the proceedings as they were then constituted. That opposition was not a full statement of what it was that the Master did in regard to the Public Trustee's application in the rather more complicated situation which arose as a result of the Master's orders. I do not think that his exercise of discretion as to the costs of the application is one that falls within the class of costs order in respect of which this Court would grant leave to appeal. Sheller JA. I agree that the application for leave to appeal should be refused, with costs. Kirby P. Such is the order of the Court. Summons dismissed with costs. Counsel for the appellant: J R Wilson 2 UNREPORTED JUDGMENTS Solicitors for the appellant: P J Whitehead Counsel for the respondent: R D Wilson Solicitors for the respondent: Stacks: The Law Firm