R v P (No 2) [2003] NSWCA 360

New South Wales Court of Appeal

CITATION : R v P (No 2) [2003] NSWCA 360 revised - 05/12/2003 HEARING DATE(S) : 24 November 2003 JUDGMENT DATE : 24 November 2003

JUDGMENT OF : Handley JA at 1 DECISION : The application for a stay of the orders of Barrett J is refused. Prayers 2 and 3 of the Notice of Motion of 18 November 2003 is dismissed. The claimant to pay the costs of the hearing today.

CATCHWORDS : Appeal - Application for stay of final orders - Effect on interlocutory orders - ND LEGISLATION CITED : Damages (Infants and Persons of Unsound Mind) Act 1929 Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 CASES CITED : Commissioner of Police v Tanos (1958) 98 CLR 383 In the matter of an application for a writ of prohibition against Mr Justice Marks, Ex Parte The Australian Building Construction Employees' and Builders Labourers' Federation (1981) 55 ALJR 395 R v P (2001) 53 NSWLR 664 PARTIES : R v P FILE NUMBER(S) : CA 41034 of 2003 COUNSEL : N A Nicholls (Claimant) K Andrews (Opponent) SOLICITORS : N/A

LOWER COURT Supreme Court JURISDICTION : LOWER COURT P 29/01 FILE NUMBER(S) : LOWER COURT Barrett J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 41034 of 2003

HANDLEY JA

24 November 2003 R v P (No 2) Judgment 1 HANDLEY JA: Mr Nicholls has moved on behalf of the claimant for interlocutory relief pursuant to a Notice of Motion filed on 18 November 2003. The underlying proceedings are an application by the claimant for leave to appeal from a decision of Barrett J in the Protective Jurisdiction on 9 September. His Honour made a final order under s 13 of the Protected Estates Act declaring that the claimant was incapable of managing her own affairs and ordered that her estate be managed by the Protective Commissioner. 2 The application under the Act was brought to facilitate the settlement of proceedings brought by the claimant in the District Court arising out of a motor vehicle accident in June 1979. The claimant's legal advisers, including senior and junior counsel, advised that medical reports dealing with the effect of the accident on the claimant's mental capacity should be served. The claimant gave instructions that they were not to be served. Her solicitor applied for an interim order under the Protected Estates Act to enable the Protective Commissioner to take control of the proceedings. Windeyer J made that order on 6 August 2001 and on 13 December that year this Court dismissed the claimant's appeal from that decision. The judgment of this Court is reported as R v P (2001) 53 NSWLR 664. 3 An application for special leave to appeal to the High Court of Australia was unsuccessful. The proceedings under the Protected Estates Act were then brought to a final hearing. 4 The claimant has applied for leave to appeal from the judgment of Barrett J because she did not appeal as of right within time. The Notice of Motion seeks, as its principal relief, a stay of the orders made by Barrett J on 9 September. An application for a general stay was dismissed by Palmer J on 12 November, but his Honour granted a limited stay to enable the claimant to appeal from Barrett J's orders in her own right. 5 The application before me today seeks the stay which was refused by Palmer J. The urgency of the matter arises out of an application for approval of the settlement of the claimant's action, as required by the Damages (Infants and Persons of Unsound Mind) Act 1929, which is to be heard in the District Court tomorrow. 6 At the outset there is the difficulty that the final orders of Barrett J subsumed the interlocutory orders of Windeyer J. I asked counsel whether an order staying the orders of Barrett J would revive the interlocutory orders of Windeyer J. Mr Nicholls submitted this would not be the result because the interlocutory orders had merged and ceased to have any continuing existence. Mr Andrews submitted to the contrary. Neither counsel were able to refer me to any authority. The only authority of which I am aware is the decision of Sir Anthony Mason in In the matter of an application for a writ of prohibition against Mr Justice Marks, Ex Parte The Australian Building Construction Employees' and Builders Labourers' Federation (1981) 55 ALJR 395. His Honour there said at 396-7: "... the Federation seeks, not a stay of the proceedings in the Commission under the orders made there, but a stay of the orders themselves. Mr Ryan Q.C. frankly concedes that he has been unable to discover any case in which a court has in the exercise of inherent jurisdiction stayed an order as distinct from proceedings. He also concedes ... that there are indeed no proceedings in the Commission on which a stay of proceedings would operate. None the less he argues that where the order sought to be stayed is one which creates rights and does not merely declare rights, the jurisdiction extends to a stay of the order itself. Even so, the Court will be more reluctant to stay an order which, though it creates rights … it does not require a party to do or abstain from doing something. The distinction between a stay of proceedings and a stay of an order or judgment is perhaps not altogether clear ... Speaking generally, the distinction is between a stay of further proceedings in litigation and a suspension of a judgment or order. The fact that O.55, r.10 makes provision only for a stay of proceedings, and then ... indicates that the stay of an order of the kind in question in the exercise of the inherent jurisdiction pending an application for prohibition is at best an exceptional undertaking." 7 The precise situation confronting the Court has not been explored in earlier authorities, but it seems to me that the stay of final orders, that is the suspension of them, must deprive them of continuing legal effect while the stay continues. In these circumstances it seems to me that the necessary result is that continuing interlocutory orders which ceased to have effect when the final orders were made will automatically revive. 8 The continuing interlocutory orders were intended to operate until final orders took effect and to operate subject to those final orders. If those final orders are deprived of continuing legal effect by a stay, it seems to me that the earlier continuing interlocutory orders will automatically revive to avoid any gap between those orders and effective final orders. 9 The situation would be different, of course, if the final orders were set aside on appeal because, in that event, if nothing was said, continuing interlocutory orders would not be revived. 10 If this is so there would be no utility in granting a stay of the orders of Barrett J. In any event the Court could mould any stay so as to revive the orders of Windeyer J. Those orders have already been in force for over two years and were affirmed by this Court and left undisturbed by the High Court. 11 The orders made by Windeyer J were intended to remove the claimant's veto over the conduct of her proceedings. It would be extraordinary for this Court to make orders which would have the effect of nullifying Windeyer J's orders at this stage. The District Court proceedings could have been settled by the Protective Commissioner pursuant to the powers conferred by Windeyer J once the High Court had refused special leave. It was not necessary to obtain final orders before settling the action, although no doubt this was prudent. 12 The Court is naturally concerned that the settlement may in truth not be beneficial to the claimant. Her legal rights are involved and, if the settlement is approved, the action will be at an end. Her rights thereafter will be limited to obtaining the benefit of the judgment. 13 The procedure on an application under the Damages (Infants and Persons of Unsound Mind) Act 1929 for the Court's approval to a settlement is not spelled out in the statute or in rules of Court. 14 In these circumstances the Court is entitled to mould the procedure as it deems appropriate. See Browne v Commissioner for Railways (1935) 36 SR (NSW) 21, 28-9. The judge hearing the application for approval of the settlement could permit the claimant to address the Court as an interested person or intervener. Although the Protective Commissioner is her tutor it is her legal rights that are in question in the application for approval. 15 The general principle referred to in Commissioner of Police v Tanos (1958) 98 CLR 383 at 385-96, would confer on the claimant a right to be heard by the judge before her legal rights are prejudiced or affected by approval of the settlement. There is no need for this to be done with any formality in view of the principle that a court exercising a statutory jurisdiction is entitled to fashion an appropriate procedure. 16 One way or other the District Court will be entitled to receive submissions from the claimant should she choose to appear tomorrow in opposition to an order approving the settlement. The claimant has the affidavit material on which the Commissioner intends to rely and further material has been produced in this Court pursuant to a subpoena. If for any reason the District Court judge were unwilling to allow the claimant to make submissions in opposition to the approval of the settlement, Mr Andrews, counsel appearing for the Protective Commission, has undertaken to the Court that he will call the claimant as his witness in the District Court to allow her to explain her objections to the judge. 17 In these circumstances, both as a matter of power and utility, and as a matter of discretion, I refuse the application for a stay of the orders of Barrett J. Accordingly I dismiss prayers 2 and 3 of the Notice of Motion of 18 November 2003. The claimant will have to pay the costs of the hearing today. **********