Anderson v Commissioner of Highways (No 2)

The Full Court of the Supreme Court of South Australia considered an appeal by the appellant, Mr. Anderson, against the Commissioner of Highways. The dispute concerned the award of costs following an appeal related to compulsory land acquisition.

The primary legal issue before the Court was whether the general rule that costs follow the event should apply in this specific appeal, or if there were grounds to depart from that rule. This involved determining the nature of the proceedings, the appellant's conduct, and whether the appeal raised a matter of public interest or statutory construction that warranted a different costs order. The Court also had to consider the applicability of section 36 of the relevant Act, which the appellant contended applied to the appeal.

The Court reasoned that while costs generally follow the event, this discretion must be exercised judicially. It found that section 36 of the Act did not apply to the appeal, as the appeal was heard by the Full Court exercising its appellate jurisdiction under the Supreme Court Act 1935 (SA), not by the Land and Valuation Court as defined in the Act. Despite this, the Court accepted that the appeal raised a novel question of statutory construction, not previously decided by an intermediate appellate court. The appellant's principal contention was not considered untenable, and his conduct was not deemed unreasonable. The Court acknowledged that compulsory land acquisition litigation has a unique character, as claimants have no choice but to pursue compensation, and the legislation does not compel them to accept the Commissioner's interpretation of the Act. Therefore, the Court concluded that the appellant should not be penalised in costs for accessing the Court to pursue his right of appeal.

Consequently, the Court made no order as to the costs of the appeal.