Advertiser Newspapers Pty Ltd v Penhall (No 2)

[2021] SASCA 124

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

ADVERTISER NEWSPAPERS PTY LTD & ORS v PENHALL (No 2)

[2021] SASCA 124

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Doyle and the Honourable Justice Livesey)

28 October 2021

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT

CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - SUPPRESSION ORDERS

This is an application for the costs of the appellants' appeal in relation to a suppression order in the nature of a 'take-down order' that had been sought by the respondent shortly before the commencement of his trial on a charge of murder. The Court upheld the suppression order made by the primary judge and dismissed the appeal.

The respondent seeks an order that the appellants pay his costs of the appeal. The appellants oppose any order for costs.

Held, per Doyle and Livesey JJA (Kourakis CJ agreeing):

1.      The appellants are to pay the respondent’s costs of the appeal on the standard basis.

Evidence Act 1929 (SA) s 69A, s 69B, s 69AC; Supreme Court Act 1935 (SA) s 40, referred to.
Advertiser Newspapers Pty Ltd v Penhall [2021] SASCA 76; Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119; Roget v Flavel (1987) 47 SASR 402, considered.

ADVERTISER NEWSPAPERS PTY LTD & ORS v PENHALL (No 2)
[2021] SASCA 124

Court of Appeal – Civil:     Kourakis CJ, Doyle and Livesey JJA

1. KOURAKIS CJ: The starting point in exercising the discretion as to costs conferred by s 69B(3) is the recognition that an application for a suppression order, whether pursuant to s 69A of the Evidence Act 1929 (SA) (the Evidence Act), or in the Court’s inherent jurisdiction, even when contested, does not involve the adjudication of private rights or interests.[1]  No individual has a personal right to be informed of the evidence given in judicial proceedings and no individual has an opposing right to confidentiality over that evidence.  A decision to make, or to decline to make, a suppression order, is not a vindication of one right over the other in the particular circumstances of the case.  The applicant, and such persons withstanding to oppose the application, may contest how the discretion should be exercised, but the power is administrative and procedural in nature and requires the identification of where a single interest, the public interest, lies.  The Court to which the administration of justice in the particular proceedings in which an application is made is, of course, constitutionally and institutionally best placed to evaluate where the public interest lies and to modify and control its proceedings accordingly.  Nonetheless, the Court is assisted, as in most matters, by the evidentiary material and submissions put before it by those who may be affected by its determination. 

   [1]     Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [41]-[42].

2. A similar analysis applies in the case of an application to enjoin publication of collateral prejudicial material in order to prevent a miscarriage of justice.  The accused does not have a private right to the suppression of that material.  Rather, the rights of others to publish are limited by the public interest in the administration of justice.  The function of the court is to delineate that public interest in the particular case.

3. The persons on whom the Evidence Act confers standing, in addition to the applicant, include those persons who have a proper reason to oppose restrictions on the common law, statutory and constitutional freedoms of communication and access to judicial proceedings. At the time of the enactment of s 69A(5) of the Evidence Act the legislature recognised that a representative of a newspaper, or a radio or television station, was such a person. That legislative recognition may need to be revisited in light of the disruption of the traditional news media wrought by the internet and social media. More broadly, s 69A(5)(iv) grants standing to any person who has, in the opinion of the Court, a proper interest in the question of whether a suppression order should be made. Representatives of the news media, and others, may have commercial or other private reasons to advocate for free access to, and the freedom of publication of, court proceedings. However, their standing derives from, and is limited to, the extent to which those private reasons coincide with the public interest in the freedom to publish that information.

4. Section 69AC of the Evidence Act confers a right of appeal against a suppression order or a decision by a court not to make a suppression order (or a variation or revocation thereof) on the applicant, a party to the proceedings in which the order was sought, or a representative of the newspaper or radio or a person who appeared in the proceedings.  A person who did not appear in the primary Court but who has, in the opinion of the appellate Court, a proper interest in the subject matter of the appeal, may be heard if the Court is satisfied that the failure to appear before the primary Court is not attributable to a lack of proper diligence.  On an appeal, the nature of the power is again administrative and based on the public interest rather than an adjudication of private rights and interests.

5. Section 69A of the Evidence Act contemplates that applications for suppression orders will be made in extant proceedings in which the primary court will, in most cases, have a power to make orders for costs. On the other hand, s 69B of the Evidence Act expressly empowers the Court to make an order for costs on the determination of the appeal. An appeal against the making of a suppression order is a discrete proceeding of a special kind and is not a step in the primary, or any other, proceeding. It is likely for that reason that the conferral of an express power to award costs was thought to be necessary.

6. In primary proceedings in the criminal jurisdiction of the Court, in most cases the prosecutor can be expected to put submissions in support of the public interest in the open justice principle, and in the freedom of information.  In major indictable proceedings, there is no power to order costs for or against the Director of Public Prosecutions, the accused, or any other person who appears on a suppression order application.  In summary proceedings in which there is such a power, the costs are not likely to be significant and costs orders for or against the parties or media representatives are unlikely to be made. 

7. The nature of the matter and the grounds on which standing is accorded to persons other than the parties to the proceedings combine to render the ordinary rule that costs follow the event inapt. The persons who enjoy standing as of right, or by permission of the Court, do so for the purpose of advancing the public interest in the identification of the reasonable limits, if any, of the open justice and freedom of information principles in the particular circumstances of the proceedings in which the application is brought. It follows that in exercising any power to award costs in the first instance proceedings, or pursuant to s 69AC, those persons who act reasonably in the pursuit of that objective should generally not be burdened by a costs order.

8. The above-mentioned considerations also suggest that on more complex applications the public interest would be well served if the Attorney-General were to instruct the Solicitor-General, the Crown Solicitor or other counsel to make submissions to assist the court and to lighten the burden on the parties and other persons with standing.

9. The arguments put by the Advertiser, Mr Penhall and the Director in this case were all reasonably and efficiently put.  However, it is a significant feature of this appeal that the Advertiser undertook from the outset of the appeal not to publish the material the subject of the suppression orders made by the Judge.  The Advertiser brought the appeal as a vehicle to establish a general rule restricting the making of suppression orders with respect to material which was widely available on the internet.  Neither the Director nor Mr Penhall stood to gain any advantage in the determination of what, for them, had become hypothetical questions in a test case.  Their concern for the proper administration of justice in Mr Penhall’s trial could not be affected because of the Advertiser’s undertaking.  Their attendance was, however, necessary in order for there to be a proper contradictor on the appeal in which the Advertiser sought statements of general principle which might benefit its commercial interests in the future.   

10. In those circumstances, the balance of considerations favours making an order that the Advertiser, which was ultimately unsuccessful in establishing the principles for which it advocated on its chosen test case, should pay the costs. 

11. DOYLE AND LIVESEY JJA:     These reasons address the costs of the appeal in Advertiser Newspapers Pty Ltd v Penhall.[2]

    [2]     Advertiser Newspapers Pty Ltd v Penhall [2021] SASCA 76.

12. The appeal related to a suppression order, in the nature of a ‘take-down order’, that had been sought by the respondent (Mr Penhall) shortly before the commencement of his trial on a charge of murder.  The order was opposed by the proprietors of various News Corp Australia publications (namely, Advertiser Newspapers Pty Ltd, Queensland Newspapers Pty Ltd, Herald and Weekly Times Pty Ltd and Nationwide News Pty Ltd).  The primary judge made a take-down order, which was then appealed by these publishers.

13. The Director of Public Prosecutions did not oppose the application for a suppression order.  He appeared as an interested party on the appeal, and put some submissions in support of the order that had been made, but does not seek any order for costs.

14. The Court, by majority, upheld the take-down order made by the primary judge, and dismissed the appeal.

15. The respondent, as the successful party on the appeal, seeks an order that the publisher appellants pay his costs of the appeal.  The appellant publishers oppose any order for costs.  They contend that, in the context of an appeal against a suppression order, there is no general rule that costs follow the event and, indeed, that authority supports the Court making no order as to costs. 

16. In support of this submission, counsel for the appellant publishers relied upon the decision of the Full Court in Channel Nine SA Pty Ltd v Police (No 2).[3]In that case, a Magistrate made orders under s 69A of the Evidence Act1929 (SA) suppressing publication of the defendant’s and victim’s identities, and of certain other evidence in the underlying criminal proceeding. Two media organisations (Channel Nine SA Pty Ltd and Advertiser Newspapers Pty Ltd) appealed to a single Judge. The appeal was successful and the single Judge set aside the orders suppressing publication of the identity of the defendant and victim, and varied the order suppressing publication of the other evidence. The media organisations sought an order that the respondent (the Police) and the intervenor (the victim) pay their costs of the appeal. The single Judge referred the application for costs to be determined by the Full Court.

    [3]     Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 (Kourakis CJ, Blue and Parker JJ).

17. The Full Court (Kourakis CJ, Blue and Parker JJ), in a joint judgment, undertook a detailed analysis of the approach to costs in the context of suppression order applications and appeals.  The Court made a number of observations of significance to the present matter.

18. After summarising the legislative regime governing the making of suppression orders under Part 8, Division 2 of the Evidence Act,[4] their Honours noted that the regime does not include any provision for the award of costs on an application for a suppression order, or on a review of a suppression order. However, it does include provision for an award of costs on an appeal from a suppression order. In particular, s 69B(3)(c) provides that the appellate court “may make orders for costs”.

    [4]     Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [5]-[11].

19. The Court then undertook an analysis of its general power to order costs in civil proceedings (including the derivation of the ‘general rule’ in ordinary civil proceedings that costs follow the event),[5] and of the exercise of that power in the context of public interest litigation.[6]

    [5]     Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [14]-[29].

    [6]     Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [30]-[38].

20. The Court next addressed the issue of costs at first instance in suppression order applications, ultimately concluding that there was no reason in that context to apply the general rule that costs follow the event.[7]  Their Honours distinguished suppression order applications from ordinary civil proceedings:[8]

    The issue whether a suppression order should be made in civil proceedings is independent of the underlying dispute between the parties the subject of those proceedings.  It turns on considerations unrelated to that dispute.  It differs also from ordinary interlocutory proceedings, which are related to the ultimate dispute between the parties in that they involve steps – such as pleadings, disclosure of documents and expert reports – ancillary to and affecting the hearing and determination of the ultimate dispute.

    The subject matter of s 69A of the Evidence Act is not the underlying dispute between the parties: rather it is communication to public about judicial proceedings.  This is quintessentially a public matter.  By making a suppression order, a court does not determine or declare pre-existing rights of the parties to the application.  There is no lis between persons who make submissions to the Court whether a suppression order should be made.  The criteria which govern the court’s exercise of discretion whether to make a suppression order are public interest criteria.  The court is required to weigh the competing public interests:  open justice against prejudice to the proper administration of justice or avoiding collateral hardship to a member of the public in determining whether to make a suppression order.  The private interests of the parties to the application are irrelevant to the court’s determination.

    [7]     Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [40], [51].

    [8]     Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [41]-[42].

21. The Court also mentioned some other features of the legislative regime governing suppression orders which further reflected its concern with the public interest (including the standing afforded to media organisations, and the requirements for the reporting and registration of suppressions orders).[9]  Their Honours added that the issue of whether a suppression order should be made does not necessarily arise between the parties to the proceedings at all; the parties will often have no personal interest in whether a suppression order is made, and take no active part in the application that is made.[10]  Further, in determining an application for a suppression order, the process differs from the adversarial contest in ordinary litigation in that the Court’s role is one of determining where the relevant public interest lies, rather than simply determining between the competing positions advanced by parties in relation to their private rights.[11]

    [9]     Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [43].

    [10]   Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [44].

    [11]   Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [45]-[46].

22. The Court said:[12]

    The rationale for the general rule that the starting point in civil proceedings is that costs follow the event does not apply to an application for a suppression order. If a non-party to a proceeding applies for a suppression order, the non-party is in a very different position to a plaintiff who chooses to initiate a proceeding and maintains a large measure of control over its prosecution. A non-party is caught up in a proceeding between the plaintiff and defendant that is not of his or her making. The non-party is not responsible for the institution or existence of the proceeding; nor can it be said that the non-party merely by applying for a suppression order has caused a person who opposes a suppression order to incur costs. The incurring of those costs is a function of the administration of justice in the public interest. A person who opposes a suppression order is not defending a private interest or resisting a personal right asserted against him or her in the sense of a defendant in an ordinary private action. Such a person incurs costs because he or she chooses to participate in the determination of what is in the public interest rather than being compelled to defend a claim against him or her.

    If a representative of the media makes submissions in opposition to a suppression order, that representative is in a very different position to a defendant who defends proceedings in which the plaintiff is ultimately vindicated. The representative is not responsible for the institution or existence of the proceeding; nor can it be said that the representative, merely by opposing a suppression order, has caused a person who seeks a suppression order to incur costs.

    [12]   Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [47]-[48].

23. The Court had earlier noted that, while there was a general power to make costs orders in summary criminal proceedings, there was no equivalent general power in respect of criminal proceedings on indictment.  Having also noted that there was potentially some doubt about the power to make costs orders on first instance suppression order matters given the absence of any conferral of that power under the legislative regime, the Court expressed the view that it would be somewhat anomalous if the general rule that costs follow the event applied in the case of suppression order applications made in summary criminal proceeding, but not in criminal proceedings on indictment, given that there was no reason in principle for a different result.[13]

    [13]   Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [39], [40], [50].

24. Their Honours concluded:[14]

    On the assumption that courts have power to make a costs order on a suppression order application at first instance in civil or summary criminal proceedings, it might be appropriate to make a costs order against a person who applies for a suppression order on manifestly untenable grounds. It might be appropriate to make a costs order against a person making submissions in opposition to a suppression order on manifestly untenable grounds in respect of the additional costs caused by those submissions. However, there is no reason to adopt as a starting point the principle applied in private civil actions that costs follow the event.

    [14]   Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [51].

25. The Court then moved to consider the issue of costs on an appeal against a suppression order decision. Having observed that the starting point was the construction of s 69B(3)(c) of the Evidence Act, their Honours noted that the power in relation to costs under that section, unlike the power under s 40(1) of the Supreme Court Act 1935 (SA) and its equivalents, was not expressed in terms that provided that costs were in the discretion of the Court.[15] Their Honours identified several differences between the general appellate jurisdiction of the Court in civil and criminal matters, and the Court’s special appellate jurisdiction in relation to suppression orders under the Evidence Act.  In their Honours’ view, those differences reflected the paramountcy accorded to the public interest in the latter.[16] Their Honours ultimately concluded that s 69B(3)(c) did not indicate a legislative intention that there should be a general rule that costs follow the event on appeals from suppression order decisions.[17]  Having noted that an appeal from a suppression order decision, like the decision at first instance, fell to be determined by reference to where the public interest lay, the Court considered that even the appellant was not acting in the normal manner of a self-interested litigant seeking to enforce its rights:[18]

    Even the appellant, by invoking the appellate jurisdiction of the court, is not acting in the normal manner of a self-interested litigant seeking to enforce its private rights and interests on appeal but rather is ensuring that the ultimate decision whether it is in the public interest that relevant details of judicial proceedings be published is not affected by error.

    [15]   Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [53].

    [16]   Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [55].

    [17]   Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [56]-[57].

    [18]   Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [58].

1. At this point in its reasons, the Court referred to the decision of Cox J in Roget v Flavel,[19] which had been relied upon by the media organisations in support of a contention that the rationale for the enactment of s 69B(3)(c) must have been that generally an unsuccessful party on a suppression order appeal will pay the costs of the successful party. In that case, the defendants in criminal proceedings in the Magistrates Court had appealed unsuccessfully to the Supreme Court against a refusal by a Magistrate to suppress publication of their names. The successful respondents to the appeal were the informant and the Australian Broadcasting Commission. Cox J ordered that the appellants pay the informant’s costs of the appeal, but not the ABC’s costs. His Honour explained:[20]

   It seems to me that, unless the costs power in s 69b is to be treated virtually as a dead letter, the general principle must normally apply that, at least so far as the Crown and the defendant are concerned, the unsuccessful party to the appeal should pay the other side’s costs.

   …

   I have not had the opportunity to consider at leisure whether the case of a television station or newspaper stands differently in principle, and I do not think it is desirable in the circumstances that I should delay these proceedings by reserving judgment in the matter.  My immediate reaction to [the ABC’s] application is that, notwithstanding the fact that newspapers and television and wireless stations are given statutory rights in this scheme, and that the power to make a costs order under s 69b is quite general in its terms, still it would be inappropriate to treat those organisations differently from the parties to the prosecution proceedings.

   …

   I do not want to foreclose the question of the ABC or any other such organisation being awarded costs in certain circumstances but, at least in this case, I think it proper to make no order in favour of the ABC.

   [19]   Roget v Flavel (1987) 47 SASR 402.

   [20]   Roget v Flavel (1987) 47 SASR 402 at 412-413.

2. In rejecting the contention that this decision provided any support for construing s 69B(3)(c) as indicative of an intention to import a general rule that costs follow the event, the Court in Channel Nine SA Pty Ltd v Police (No 2) explained:[21]

   The appellants in the present case adopt the reasoning of Cox J insofar as he made a costs order in favour of the informant but contend that Cox J erred in his reasoning in relation to the application for costs made by the ABC. The appeal in Roget & Ors v Flavel was heard at short notice and Cox J delivered an ex tempore judgment. The decision was given in the context that the former section 69a entitled a court to have regard to undue hardship to a party (as well as a witness or person alluded to in proceedings) if a suppression order was not made. For the reasons given at [54] above, the existence of section 69B(3)(c) is explicable by an intention by Parliament to confer a power to make an order for costs on appeal without importing that costs should normally follow the event. Section 69B(3)(c) has important and considerable work to do in conferring such a power so that it can be exercised in appropriate circumstances, such as when an appeal is brought or resisted frivolously, vexatiously or manifestly unmeritoriously.

   [21]   Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [60].

3. In considering the application for costs against the Police and the victim in Channel Nine SA Pty Ltd v Police (No 2), the Court explained that the suppression order had been sought by the Police, but acting in the public interest.  The Police had no private interest in the order sought; its role was to assist the Court in its determination of where the public interest lay.  On review, the role of the Police remained the same.  And while the victim had an interest in maintaining the order, his personal interest was irrelevant to the outcome of the application, and his role on the review hearing was equally focussed upon assisting the Court to determine where the public interest lay. The Court described the role of the participants in the appeal in similar terms:[22]

   On appeal, the role of the persons appearing before the Court did not change. The appellants themselves are not parties to the underlying proceedings.  They are members of the media and their appeal was brought on the ground that it was in the public interest that details of the identities of V and D be communicated to the public. The Court was assisted by submissions made by the Police and by V in response to the appellants’ submissions.  If the Police and V had taken no part in the appeal, it would have been desirable for the Court to appoint a person or body as amicus curiae to identify and articulate an opposing viewpoint to that put by the appellants.

   [22]   Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [64].

4. The Court acknowledged that it may be appropriate to make an order for costs in a case where an unmeritorious appeal was unreasonably prosecuted, or a meritorious appeal was unreasonably resisted.  However, as that was not the situation in that case, the Court held that it was appropriate that there should be no order as to costs.[23]

   [23]   Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [65]-[66].

5. The Court noted the appellants’ contention that, if the appeal had been unsuccessful, the Police and the victim would have sought an order that the appellants pay their costs of the appeal.  But the Court said that if the appeal had been unsuccessful, it would not have been brought unreasonably and would have served the public interest; and that it would have been appropriate to make no order as to costs against the appellants in that event.[24]

   [24]   Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119 at [67].

6. The decision of the Full Court in Channel Nine SA Pty Ltd v Police (No 2) establishes that while the Court has the power to award costs on an appeal from a suppression order costs, the exercise of that discretionary power does not involve any starting point, or general rule, that costs follow the event.  At the same time, and while acknowledging that the Court in that case declined to make any order for costs in favour of the successful media organisation appellants, we do not think that the decision is authority for a (different) starting point, or general rule, that the Court will not make any order for costs unless the unsuccessful party acted unreasonably. It may be accepted that the reasoning in Channel Nine SA Pty Ltd v Police (No 2) suggests that it will often be appropriate to make no order as to costs.  But as the decision of Cox J in Roget v Flavel illustrates, the appropriate approach to costs will ultimately depend upon the circumstances of each particular case. 

7. There are several features of the present case which suggest that the position of the successful party on the appeal (the respondent, Mr Penhall) is distinguishable from that of the successful party on the appeal in Channel Nine SA Pty Ltd v Police (No 2) (the media organisation appellants).

8. The first is that the take-down order in the present case was, at least to some extent, dependent upon the Court’s inherent jurisdiction and the Court’s ordinary appellate jurisdiction.[25]  At first blush this might be said to provide a basis for taking a different approach to costs than that which governs appeals under the Evidence Act.  However, in circumstances where the exercise of the inherent jurisdiction is governed by similar considerations to the exercise of the Court’s suppression order powers under the Evidence Act, and where the parties proceeded on the (assumed) basis that application and appeal in the present case were governed by the Evidence Act, we do not think this is, of itself, a distinguishing feature of much moment.  

   [25]   Advertiser Newspapers Pty Ltd v Penhall [2021] SASCA 76 at [1] (Kourakis CJ), [134], [144] (Doyle JA) and [206] (Livesey JA).

9. Secondly, it is relevant that the take-down order in the present case did not involve any significant intrusion upon the principle of open justice.[26]  The take-down order did not operate to prevent any reporting of the trial of Mr Penhall that was about to commence at the time the order was made, and so did not engage that principle.  That said, the take-down order did involve consideration of the public interest in free speech, and in particular what is sometimes referred to as the public’s ‘right to know’ and the media’s ‘right to publish’.

   [26]   Advertiser Newspapers Pty Ltd v Penhall [2021] SASCA 76 at [1] (Kourakis CJ), [151], [153] (Doyle JA), [206] (Livesey JA).

10. Thirdly, in Channel Nine SA Pty Ltd v Police (No 2) the successful media organisation appellants which sought an order for costs were not parties to the underlying proceedings.  It cannot be said in any direct or clear way that the decision of the Police or the victim to support the making of suppression orders caused the media organisation appellants to incur the costs of the appeal.  They had no private interest in the outcome of those proceedings, and (it may be inferred) intervened on the suppression order issue – and pursued an appeal – because it suited their commercial interests to assist the Court to determine where (in their submission) the public interest lay. 

11. By way of contrast, the successful respondent in the present case, Mr Penhall, was a party to the underlying proceedings.  The suppression orders he sought prior to the commencement of his trial, including the take-down order, were orders sought to safeguard his interest in ensuring that he received a fair trial.  The Court having made the orders sought, the appellant publishers decided to appeal.  By so doing, we think it can fairly be said that they caused the respondent to incur the costs associated with responding to the appeal in order to safeguard his interest in ensuring that he received a fair trial.

12. We do not think that the publisher appellants acted unreasonably in either opposing the suppression orders sought at first instance, or in pursuing the appeal against the take-down order.  To the contrary, we consider that their decision to oppose the making of the orders, and their conduct of the application and appeal more generally, was entirely reasonable. Indeed, this reasonableness was underscored by their indication at the commencement of the hearing of the appeal that they would not seek to reinstate the publications that had been taken down in the event that they were successful in their appeal.

13. At the same time, the publisher appellants acknowledged that they wished to pursue the appeal as something akin to a test case.  In other words, and while not overlooking the public interest that lay at the heart of the application and appeal, it can be inferred that it suited the commercial interests of the publisher appellants to seek a ruling from the Court as to the proper approach to take-down orders.  When a party wishes to pursue litigation as a test case, the Court will often impose cost conditions upon its ability to do so.

14. Bearing all of the above in mind, we consider that it is appropriate to order that the appellant publishers pay the respondent’s costs of the appeal on the standard basis.