Attorney-General for the State of South Australia v Seven Network (Operations) Ltd (No 2) - [2019] SASCFC 53

Supreme Court of South Australia
(Full Court)
ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v SEVEN NETWORK (OPERATIONS) LTD (No 2)
[2019] SASCFC 53
Judgment of The Full Court
(The Honourable Auxiliary Justice Tate, The Honourable Auxiliary Justice Kyrou and The Honourable Auxiliary Justice Niall)
22 May 2019
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS
In Attorney-General for the State of South Australia v Seven Network (Operations) Ltd [2019] SASCFC 36, the Full Court answered questions of law reserved for its determination by the President of the South Australian Civil and Administrative Tribunal (SACAT) in a manner largely consistent with the respondent’s submissions. The questions were reserved pursuant to s 72 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (SACAT Act).
The respondent applied for an order for costs or, in the alternative, an order that the question of costs be reserved for determination by SACAT. The applicant submitted that the Court did not have power to make either of the orders sought by the respondent.
Held, by the Court:
Under s 72 of the SACAT Act, the Full Court does not have power to award costs on a question of law reserved pursuant to that section or to reserve the question of costs for determination by SACAT.
Freedom of Information Act 1991 (SA) s 40; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 57, 71, 72; Supreme Court Act 1935 (SA) s 40(1); Supreme Court Civil Rules 2006 (SA) r 263(1), referred to.
Question of Law Reserved (No 1 of 2018) [No 2] [2019] SASCFC 17; S & AD Basheer Nominees Pty Ltd v Boland (No 2) [2019] SASCFC 35, applied.

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v SEVEN NETWORK (OPERATIONS) LTD (No 2)
[2019] SASCFC 53
Full Court: Tate AJ, Kyrou AJ and Niall AJ
THE COURT:
Introduction and summary

On 25 September 2017, the Ombudsman made a determination under the Freedom of Information Act 1991 (SA) (‘FOI Act’) to release an advice prepared by the then Solicitor-General for South Australia, Mr Chris Kourakis QC, in respect of the third petition for mercy brought by Henry Vincent Keogh.
The applicant applied to the South Australian Civil and Administrative Tribunal (‘SACAT’) pursuant to s 40 of the FOI Act for a review of the Ombudsman’s determination. Pursuant to s 72 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’), the President of SACAT reserved five questions of law for determination by this Court (‘reservation proceeding’).
On 12 April 2019, this Court answered those questions in a manner largely consistent with the submissions of the respondent.[1] Pursuant to leave granted by the Court, the parties have filed written submissions on the costs of the reservation proceeding.
[1] Attorney-General (SA) v Seven Network (Operations) Ltd [2019] SASCFC 36.
It is common ground between the parties that, if this Court has power to make an order for costs of the reservation proceeding, it should order that the applicant pay the respondent’s costs assessed on a party and party basis. However, whilst the respondent contends that this Court has such power, the applicant relies on the recent decision of this Court in S & AD Basheer Nominees Pty Ltd v Boland (No 2)[2] for the proposition that the Court lacks such power. In the alternative, the respondent contends that if this Court does not have such power, it should reserve the question of costs for determination by SACAT.
[2] [2019] SASCFC 35 (‘Basheer’).
For the reasons that follow, we have concluded that this Court does not have power to make an order for costs of the reservation proceeding or to reserve the question of costs for determination by SACAT.
Relevant statutory provisions
Section 40(1) of the Supreme Court Act 1935 (SA) (‘SC Act’) provides:
40—Power of court with regard to costs
(1)Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.
Section 40(1) of the SC Act confers a broad discretion on the Court in relation to costs, subject to express legislative provisions to the contrary. The courts have developed principles as to how the discretion is to be exercised. One such principle is the general rule that costs follow the event, that is, an unsuccessful party is usually required to pay the costs of a successful party. This general rule is reflected in r 263(1) of the Supreme Court Civil Rules 2006 (SA) (‘Rules’).
Part 5 of the SACAT Act is headed ‘Reviews and appeals’ and contains ss 70–73. Section 71 deals with appeals to the Supreme Court, constituted either by a single judge or by the Full Court, against decisions of SACAT. Sub-sections (5) and (6) of s 71 contain the following provisions relevant to costs:
(5)The Supreme Court may, on an appeal, make any interim, ancillary or consequential order that the Court considers appropriate.
(6)The regulations may prescribe scales of costs that are payable in respect of proceedings before the Supreme Court on an appeal under this section (and if a regulation is made under this section then the costs so prescribed will apply in substitution for any costs under the Supreme Court Act 1935).
Section 72 of the SACAT Act, pursuant to which the five questions of law were reserved for determination by this Court, provides as follows:
72—Reservation of questions of law
(1)A Presidential member of the Tribunal may reserve any question of law arising in any proceedings (including on referral to the Presidential member) for determination by the Full Court of the Supreme Court.
(2)If a question of law is reserved, the Supreme Court may determine the question and give any consequential orders or directions considered by the Court to be appropriate to the circumstances of the case.
Section 57 of the SACAT Act, which is in pt 4 headed ‘Principles, powers and procedures’, deals with costs orders by SACAT. Section 57(1) provides that, unless otherwise specified in the SACAT Act, a relevant Act, or an order of SACAT under s 57, parties bear their own costs in any proceeding before SACAT. Section 57(2) provides that, unless otherwise specified in a relevant Act, SACAT may make an order for the payment by a party of all or any of the costs of another party if SACAT thinks that it is appropriate to do so after taking into account certain specified matters.
Pursuant to the definition of ‘relevant Act’ in s 3(1) of the SACAT Act, the FOI Act is a ‘relevant Act’ for the purposes of s 57 of the SACAT Act. Section 40 of the FOI Act deals with proceedings in SACAT for review of a determination made under the FOI Act, including a determination made by the Ombudsman. Section 40(8) provides as follows:
(8)In proceedings under this section —
(a) in the case of proceedings commenced by an agency — SACAT must order that the agency pay the other party’s reasonable costs; or
(b) in any other case — SACAT must not make an order requiring a party to pay any costs of an agency unless SACAT is satisfied that the party acted unreasonably, frivolously or vexatiously in the bringing or conduct of the proceedings.
Relevant authorities
In Question of Law Reserved (No 1 of 2018) [No 2],[3] the Court of Criminal Appeal considered whether it had power to make an order for costs when determining a question reserved under s 350(2) of the Criminal Law Consolidation Act 1935 (SA) (‘CLC Act’). Section 351A(1) of that Act — which was in pt 11 headed ‘Appellate proceedings’ — provided that the Full Court ‘may determine a question reserved under [pt 11] and make consequential orders and directions’. The section provided two examples of the types of orders and directions that might be made. The first example was: ‘quash an information or a count of an information or stay proceedings on an information or a count of an information if it decides that prosecution of the charge is an abuse of process’. The second example was: ‘set aside a conviction and order a new trial’.
[3] [2019] SASCFC 17.
Hinton J, with whom Vanstone J and Lovell J agreed, rejected a submission by the accused that s 351A(1) of the CLC Act was broad enough to include an order awarding costs, for a number of reasons. Those reasons included the construction of the words ‘consequential orders and directions’, in respect of which Hinton J stated as follows:
[I]t strains the ordinary meaning of the text to characterise an order awarding costs as an order that is consequential upon the determination of a question reserved. A more natural meaning would be that a consequential order is one that gives effect to the answer given to the question reserved. That is, the consequence is one flowing from the answer to the question. Thus, a consequential order is an order made in relation to the prosecution in which the reserved question arose. Section 351A(2) suggests this to be so, as do the examples provided.[4]
[4] Question of Law Reserved (No 1 of 2018) [No 2] [2019] SASCFC 17 [8] (citations omitted).
Hinton J also relied on two relevant contextual matters. The first was the fact that determination of reserved questions under pt 11 of the CLC Act was ‘adjunctive to the criminal jurisdiction conferred on the District and Supreme Courts’ in respect of which ‘[t]here is no power to award costs’.[5] The second was that s 351B(1) of the CLC Act provided a power to award costs in favour of an accused which applied only where a question was reserved on the application of the Crown on an acquittal. Hinton J concluded that ‘s 351B(1) aside, there is no power to award costs’.[6]
[5] Question of Law Reserved (No 1 of 2018) [No 2] [2019] SASCFC 17 [9].
[6] Question of Law Reserved (No 1 of 2018) [No 2] [2019] SASCFC 17 [15].
In Basheer, this Court dealt with whether s 70 of the South Australian Employment Tribunal Act 2014 (SA) (‘SAET Act’) empowered the Full Court to award costs. That section provides as follows:
70—Reservation of questions of law
(1)A Full Bench of the Tribunal (including a Full Bench of the South Australian Employment Court) may reserve any question of law arising in any proceedings (including on referral to the Full Bench) for determination by the Full Court of the Supreme Court.
(2)If a question of law is reserved, the Supreme Court may determine the question and give any consequential orders or directions considered by the Court to be appropriate to the circumstances of the case.
Section 68(3)(c) of the SAET Act empowers this Court to ‘make consequential or related orders (including orders for costs)’ when the Court has heard an appeal on a question of law against a decision of the Full Bench of the South Australian Employment Tribunal (‘SAET’). Section 67(6) empowers the Full Bench of the South Australian Employment Court to ‘make any interim, ancillary or consequential order that the Full Bench considers appropriate (including orders for costs)’ when the Full Bench has heard an appeal against a decision of the SAET.
The Court in Basheer (Kourakis CJ, Blue and Stanley JJ) decided that s 70 of the SAET Act did not confer power on the Full Court to make an order for costs for the following reasons:
It can be seen that the power of the Supreme Court to order costs, conferred by s 40(1) of the [SC Act], is subject only to the express provisions of the [SC Act] and the Rules of Court made thereunder and to the express provisions of any other Act whenever passed. Section 70 of the [SAET Act] exhaustively states the powers of the Supreme Court on the hearing of a question reserved. When construed against s 68(3)(c) the phrase ‘consequential orders or directions’ does not include an order as to costs. It follows that s 70(2) of the [SAET Act] is an express provision which modifies the scope of s 40 of the [SC Act]. Accordingly, we accept the submission that s 70 evinces a legislative intention to cover the field of the power of this Court on referral of questions of law. This Court cannot make orders for costs on the referral of questions of law because the determination of those questions does not finally dispose of the matter before the [SAET]. In any event, recent authority of this Court has conclusively excluded s 40(1) of the [SC Act] as a source of power to award costs in these circumstances.[7]
[7] Basheer [2019] SASCFC 35 [14].
The ‘recent authority’ to which the Court referred is Question of Law Reserved (No 1 of 2018) [No 2]. The Court stated that ‘[t]here is no relevant distinction between a referral of a question of law to this Court pursuant to [s 350(2)] of the [CLC Act] and s 70 of the [SAET Act]’.[8] The Court also stated that Questions of Law Reserved (No 1 of 2018) [No 2] was a binding authority which was ‘conclusive of the questions of power given that no other provision in the [SAET Act], or any other Act, expressly confers power on this Court to order costs on the referral of the question of law’.[9]
[8] Basheer [2019] SASCFC 35 [15].
[9] Basheer [2019] SASCFC 35 [15].
Parties’ submissions
As we have already stated, the applicant relies on Basheer for the proposition that this Court does not have power to award costs in relation to the reservation proceeding. The applicant submitted that, as s 70(2) of the SAET Act is in exactly the same terms as s 72(2) of the SACAT Act, the reasoning in Basheer applies in the present case. According to the applicant, as the Court in Basheer concluded that it did not have power to make an order for costs because s 70 of the SAET Act is an exhaustive statement of the Court’s powers on a reserved question of law, it followed that s 72 of the SACAT Act also exhaustively states the Court’s powers.
The applicant contended that the Court in Basheer did not rely on s 68(3)(c) of the SAET Act in support of its conclusion that s 70(2) is an exhaustive statement of the Court’s powers. Rather, so it was said, s 68(3)(c) was referred to in the context of the Court construing the scope of the powers conferred under s 70(2). According to the applicant, the Court in Basheer concluded that the express grant of power in s 68(3)(c) in relation to costs in the context of an appeal, and the absence of such an express power in s 70(2) in the context of a reserved question of law, meant that there is no such power in s 70(2). The applicant submitted that this reasoning also applies to s 72(2) of the SACAT Act because it does not contain an express power to award costs in the context of a reserved question of law, whereas s 71(6) of the SACAT Act contains such an express power in the context of an appeal.
The applicant argued that the construction of the phrase ‘consequential orders and directions’ in s 351A(1) of the CLC Act by the Court of Criminal Appeal in Question of Law Reserved (No 1 of 2018) [No 2] also applies to the phrase ‘consequential orders or directions’ in s 72(2) of the SACAT Act.
Finally, the applicant submitted that, if this Court does not have power to award costs under s 72(2) of the SACAT Act, it does not have power under that section to make an order reserving the question of costs for determination by SACAT. This was said to be because such an order would not be a ‘consequential order or direction’ for the purposes of s 72(2).
The respondent submitted that Basheer is distinguishable for the following reasons. First, the Court’s conclusion in Basheer that s 70 of the SAET Act exhaustively sets out the powers of the Court on a reserved question of law, was based on the presence of the words ‘including orders for costs’ in parentheses in s 68(3)(c) of the SAET Act and the absence of those words in s 70 of the SAET Act. Secondly, as the words ‘including orders for costs’ do not relevantly appear in the SACAT Act, the basis upon which the Court held in Basheer that s 70 of the SAET Act exhaustively sets out the powers of the Court does not apply to s 72 of the SACAT Act.
The respondent contended that the words ‘and give any consequential orders or directions considered by the Court to be appropriate to the circumstances of the case’ in s 72(2) of the SACAT Act are of broad import and there is no indication in s 72 or elsewhere in the SACAT Act that those words ought to be read down to exclude the power to award costs. Accordingly, so it was said, the Court’s discretion to award costs under s 40(1) of the SC Act and r 263(1) of the Rules applies on the hearing of a reserved question of law under the SACAT Act.
As we have already stated, the respondent argued in the alternative that, if the Court does not have power under s 72(2) of the SACAT Act to award costs, it should reserve the question of costs for determination by SACAT. The respondent submitted that s 57 of the SACAT Act, read together with s 40(8) of the FOI Act, requires SACAT to make an order that the applicant pay the respondent’s costs of the review proceeding before SACAT. According to the respondent, if the SACAT Act displaces this Court’s general power to award costs on the hearing of a reserved question of law, ‘it must be that the proceeding in this Court comes within the scope of s 40(8) of the FOI Act, in that it is part of the review proceeding [before SACAT]’ such that SACAT’s power to award costs is engaged.
Decision
Neither party submitted that Basheer was wrongly decided. Accordingly, we will follow it unless it can be distinguished. In that respect Basheer relevantly stands for two propositions. First, s 40(1) of the SC Act is excluded as a source of power to award costs by the provisions of the SAET Act that confer power to make orders on a reserved question of law. Secondly, a costs order is not a consequential order for the purposes of those provisions.
In our opinion, the reasoning in Basheer applies to s 72(2) of the SACAT Act, with the result that this Court does not have power to make an order for costs under that section.
The key question is the meaning of the phrase ‘give any consequential orders or directions considered by the Court to be appropriate to the circumstances of the case’ in s 72(2) of the SACAT Act. That phrase is relevantly indistinguishable from the phrase ‘make consequential orders and directions’ in s 351A(1) of the CLC Act and the phrase ‘give any consequential orders or directions considered by the Court to be appropriate to the circumstances of the case’ in s 70(2) of the SAET Act.
In Question of Law Reserved (No 1 of 2018) [No 2], it was held that an order for costs is not a ‘consequential order or direction’ for the purposes of s 351A(1) of the CLC Act. In Basheer, the Court described Question of Law Reserved (No 1 of 2018) [No 2] as a recent authority which had ‘conclusively excluded s 40(1) of the [SC Act] as a source of power to award costs in these circumstances’[10] and held that there was ‘no relevant distinction between a referral of a question of law to this Court pursuant to [s 350(2)] of the [CLC Act] and s 70 of the [SAET Act]’.[11]
[10] Basheer [2019] SASCFC 35 [14].
[11] Basheer [2019] SASCFC 35 [15].
Section 72(2) of the SACAT Act is identical to s 70(2) of the SAET Act. It must follow that the Court’s conclusion in Basheer — that the construction of the phrase ‘consequential orders and directions’ by the Court in Question of Law Reserved (No 1 of 2018) [No 2] applied to the similar phrase in s 70(2) of the SAET Act — must also apply to that phrase in s 72(2) of the SACAT Act.

We do not agree with the applicant’s submission that the Court’s conclusion in Basheer that s 70(2) of the SAET Act exhaustively states the powers of the Court on a reserved question of law was independent of its reference to s 68(3)(c) of the SAET Act. That is because the Court’s statement that s 70 evinces a legislative intention to cover the field of the power of this Court on referral of questions of law followed its discussion of s 68(3)(c).
However, our rejection of the applicant’s submission on this issue does not mean that Basheer is distinguishable. That is because the relationship between s 68(3)(c) and s 70 of the SAET Act is similar to the relationship between s 71(6) and s 72 of the SACAT Act. Section 71(6) clearly contemplates that the Court may award costs in an appeal from a decision of SACAT whereas s 72 does not include an equivalent provision regarding costs on a reserved question of law. The absence of any reference to costs in s 72 compared to the express provision in s 71(6) is important contextual support for the proposition that s 72 does not include a power to award costs.
We also note that the phrase ‘consequential orders or directions’ in s 72(2) of the SACAT Act is narrower in scope than the phrase ‘interim, ancillary or consequential order’ in s 71(5). The difference in language between the two provisions and the express reference to costs in s 71(6) provide important contextual support for our conclusion that s 72(2) does not empower the Court to make an order for costs.
Finally, we turn to the respondent’s alternative submission that, if this Court does not have power to award costs under s 72(2) of the SACAT Act, it should reserve the question of costs for determination by SACAT.
We reject this submission. It must follow from our conclusion that s 72(2) of the SACAT Act exhaustively states the powers of the Court in relation to a reserved question of law that the section does not empower the Court to reserve the question of costs for determination by SACAT.
The question of SACAT’s powers to award costs is not a live issue before us. It has not been fully argued before us. Accordingly, we express no view on those powers. In particular, we express no view on whether the reservation proceeding is a separate proceeding or part of the review proceeding before SACAT, and whether SACAT’s powers in relation to costs extend to the costs incurred in the reservation proceeding. These are issues that can be pursued before SACAT. They do not require a prior determination by this Court.
Conclusion
For the above reasons, we are unable to accede to the respondent’s application for a costs order.