X v Y [2000] NSWSC 952

New South Wales Supreme Court

CITATION : X v Y [2000] NSWSC 952 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3402/93 HEARING DATE(S) : 10 August 2000 JUDGMENT DATE : 10 August 2000

X (P) PARTIES : Mrs Y as Adminstratrix of Estate of Late Mr Y (1D) Lawhouse Pty Ltd (2D) Registrar General (3D) JUDGMENT OF : Hamilton J

J Van Aalst (P) COUNSEL : C J Stevens QC and P Newton (1D) No appearance (2 & 3D) Hardings (P) SOLICITORS : Philip J Beazley (1D) No representation (2 & 3D) CATCHWORDS : APPEAL AND NEW TRIAL [108] - Practice and procedure - Suitors' fund - Discretion to grant indemnity certificate - Principles - Mistake in court system. LEGISLATION CITED : Suitors' Fund Act 1951, s 6(1)(a) CASES CITED : R v Hookham [No 2] (1993) 32 NSWLR 345 DECISION : Grant certificate under Suitors' Fund Act 1951 s 6(1)(a)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 10 AUGUST 2000

3402/93 X v Y

JUDGMENT (See transcript p 264) HIS HONOUR: 1 In this matter I have come to the conclusion that the appeal from the Master ought be allowed. I propose to reserve my reasons for allowing the appeal. 2 The successful appellant/first defendant has asked for the costs of the appeal against the unsuccessful plaintiff and the plaintiff in essence cannot and does not oppose the making of that order in the circumstances but asks for a certificate in relation to those costs under s 6(1) of the Suitors' Fund Act 1951 ("the Act"). At one time certificates under s 6(1)(a) of the Act could be given only where the appellant had been successful on a point of law, but the section was quite some years since widened to permit a certificate where an appellant has been successful, whether on questions of law or fact. The discretion to grant a certificate is a general one and the considerations which may be relevant to the exercise of that discretion will vary from case to case. One important matter that is taken into account in exercising the discretion is whether in effect it can be said that there has been a mistake made in the Court system in the disposition of the matter under appeal: R v Hookham [No 2] (1993) 32 NSWLR 345 per Priestley JA at 346. 3 Whilst I have not yet given my reasons for allowing the appeal, I think it can fairly be said that the circumstances of this case fall within the criterion enunciated by Priestley JA in that case. It is my view that the appropriate exercise of the discretion in this case is in favour of the grant of a certificate. 4 The only other question canvassed during debate on this question is whether the section applies to an appeal from a Master to a Judge within a Division of the Supreme Court. In my view, in light of the definition of "Supreme Court" in s 2(1) and of the provisions of s 2(2), it does so apply and it is appropriate to grant a certificate in respect of proceedings of this nature. 5 There have been some discussions between the parties as to the appropriate form of orders since I first indicated that I proposed to allow the appeal. As a result of that discussion, the orders of the Master that will be set aside consequent upon the allowing of the appeal are orders 3 to 19 inclusive of the orders made on 9 June 1999. There was some discussion yesterday as to whether, indeed, there had been any appeal against orders 1 and 2, but it is unnecessary to investigate that, as the first defendant now acknowledges by counsel that she does not seek to have orders 1 and 2 set aside. Order 20 remains appropriate, and order 21 is spent, but there is no reason to set it aside. 6 The trial of the proceedings is now part heard before me. The proceedings are now to be stood over before me at 9.30am on 1 September 2000 for further directions. There is some possibility that the litigation will be completely settled and, although that is not at the present time certain, the conduct of the proceedings will be able to be reviewed at that time in the light of the progress of those negotiations. 7 Whilst I am able to grant a certificate that will give some relief to the unsuccessful plaintiff in relation to the costs of the appeal, it is not possible under the Act to grant a certificate in relation to the costs of the proceedings appealed from. I have indicated that my provisional view is that, on conventional principles, those costs must be ordered against the unsuccessful plaintiff. However, in view of the pending settlement negotiations, I shall at this time reserve those costs. If it becomes necessary to deal with them, I shall do so in due course. 8 The orders that I make are: (1) Order that the appeal from the Master be allowed. (2) Order that orders 3 to 19 of the Master's orders made on 9 June 1999 be set aside. (3) Order that the plaintiff pay the first defendant's costs of the appeal but have a certificate under s 6(1)(a) of the Suitors' Fund Act 1951 in respect of those costs. (4) Reserve my reasons for allowing the appeal. (5) Reserve the costs of the hearing before the Master. …oOo…