Barker v Han

[2025] SASC 161

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

BARKER & ORS v HAN

[2025] SASC 161

Judgment of the Honourable Justice Gray  

19 September 2025

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - OTHER MATTERS - COSTS

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - COSTS

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - RIGHT AND AVAILABILITY OF APPEAL AND REVIEW

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - APPEALS AS TO COSTS

This matter concerns an appeal against a decision of the Senior Judge of the Environment, Resources and Development Court dismissing an application for costs. The appellants complain that the learned Senior Judge having dismissed an application for costs pursuant to s 59(4)(d) of the Community Titles Act 1996 (SA), erred by not proceeding to award costs pursuant to ss 29(6a)-(6b) of the Environment, Resources and Development Court Act 1993 (SA).

The respondent submits that orders as to costs are made on a discretionary basis and appellate intervention is not warranted in the absence of error or manifest injustice.

Held, dismissing the appeal:

1.There was no error in the exercise of the discretion as to costs. The discretion as to costs is a matter for a court to exercise judicially pursuant to the relevant head of statutory power: [26];

2.The Environment, Resources and Development Court was not obliged to consider and make a costs order which was not sought by the appellants in that jurisdiction, in circumstances where that Court is essentially a no costs jurisdiction: [31]-[32], [35]-[36];

3.Procedural fairness requires that, when seeking an order for costs on the basis of misconduct, the party against whom misconduct is alleged must be put on notice of the allegations: [33], [34]; and,

4.Any factual findings made by the learned Judge at first instance were not made with a view as to determining orders as to costs pursuant to ss 29(6a)-(6b): [43].

BARKER & ORS v HAN

[2025] SASC 161

Single Judge Appeal:   Civil

GRAY J:

Introduction

1. This is an appeal against a decision of the Senior Judge of the Environment, Resources and Development Court (‘ERD Court’) in relation to costs.[1]  An appeal lies as of right on a question of law and with permission on a question of fact.[2]

   [1]     As an appeal against an interlocutory order, as to costs, the appeal is to a single Judge of the Supreme Court: Environment, Resources and Development Court Act 1993 (SA) s 30(1).

   [2]     Environment, Resources and Development Court Act 1993 (SA) s 30(2).

   Background and issues in dispute

2. On 4 April 2024, the proceedings in the Environment, Resources and Development Court were set down for a 7-day trial to commence on 14 October 2024.[3]  Further relevant factual background which led to the application for costs, and the procedural history of the matter is set out in the judgment at first instance.  It suffices for the purposes of this appeal to note that various applications were brought in the ERD Court proceedings by Mr Han.  Ultimately, on 14 October 2024, the trial commenced.[4]  Following submissions from the parties concerning the jurisdiction of the Court to make the orders sought, Mr Han made an oral application for permission to discontinue his claim.[5]  That application was granted, and the question of costs was reserved.  The learned Senior Judge at first instance received some oral submissions about the question of costs and then asked the parties to provide written submissions about costs.[6]

   [3]     Han v Barker & Ors (No.2) [2025] SAERDC 1 at [23] (Senior Judge Durrant).

   [4]     The learned trial Judge having dismissed an interlocutory application (brought on 11 October 2024) to adjourn the trial and transfer the action to the Supreme Court: Han v Barker & Ors (No.2) [2025] SAERDC 1 at [29]-[30].

   [5]     Han v Barker & Ors (No.2) [2025] SAERDC 1 at [31] (Senior Judge Durrant).

   [6]     Transcript of Proceedings, Han v Barker & Ors (Environment, Resources and Development Court, ERD-23-000078, Senior Judge Durrant, 14 October 2024).

3. The judgment in respect of costs was delivered on 11 February 2025, and the application for costs under s 59(4)(d) of the Community Titles Act 1996 (SA) (‘CTA’) was dismissed.[7]

   [7]     Han v Barker & Ors (No.2) [2025] SAERDC 1 at [45] (Senior Judge Durrant).

4. The ERD Court found that the respondents in that Court (being the appellants on this appeal) had sought an order that Mr Han, the respondent on this appeal, pay their costs of the action, including the costs reserved, pursuant to s 59(4)(d) of the CTA.[8]  That factual finding is not challenged on appeal.[9] The appellants contend on appeal that notwithstanding that no application was made by the appellants in the Court below for an order for costs pursuant to ss 29(6a)-(6b) of the Environment, Resources and Development Court Act 1993 (SA) (‘the Act’), the ERD Court should have made an award of costs pursuant to that section.[10] Section 29 of the Act confers power to award costs in particular circumstances. Subsections (6a) and (6b) require a finding of misconduct and consideration of the interests of justice. Those subsections provide:

   (6a) If the Court considers that a party to proceedings before the Court has engaged in misconduct, it may make an order for costs against that party in favour of any other party to the proceedings.

   (6b) However, no order for costs is to be made under subsection (6a) unless the court considers such an order to be necessary in the interests of justice.

   [8]     Han v Barker & Ors (No.2) [2025] SAERDC 1 at [40] (Senior Judge Durrant).

   [9]     Appeal Transcript of 19 June 2025 (‘AT2’) at T11.17-20.

   [10]   Notice of Appeal (FDN 1), ground 2; Appellants’ Written Submissions dated 19 May 2025 (FDN 5) at [15]-[17].

5. The grounds of appeal are as follows:[11]

   [11]   Notice of Appeal (FDN 1).

   1.   The exercise by the learned Judge below of the Court’s discretion as to costs miscarried on the grounds set out below.

   2. In circumstances where the Appellant had invoked the Court’s discretion to award costs of the action, the learned Judge erred in that he dealt with the application for costs on the basis that it could only succeed if the Appellants established that the source of the jurisdiction to award costs was solely s 59(4)(d) of the Community Titles Act 1996 (SA) and that in circumstances where the Court found that the said statutory provision was not a source of power, the application for costs ought be refused.

   3.   Having correctly found:

   3.1.that s 59(4)(d) of the Community Titles Act 1996 (SA) does not empower the Court to make an order for costs of the action; and

   3.2.that s 29(6a) and (6b) of the Environment Resources and Development Court Act 1993 (SA) does empower the Court to make an order for costs of the action;

   the learned Judge erred in not proceeding to determine the application for costs on the basis of the power of the Cout under s 29(6a) and (6b) of the Environment Resources and Development Court Act 1993 (SA).

   4.   Having made the findings set out in paragraphs 8 to 30 and 32 to 38 of the Reasons, the learned Judge erred in:

   4.1.failing to find that the Respondent had engaged in misconduct in the proceedings for the purposes of s 29(6a) of the Environment Resources and Development Court Act 1993 (SA);

   4.2.failing to proceed to exercise the Court’s discretion to award costs of the action, or part of the costs of the action, to the Appellant in the exercise of the power of the Court arising under that provision.

   5.   In the circumstances as found by the learned Judge below, the Court should have exercised it discretion as to costs of the action by:

   5.1.finding that making an order for costs under s 29(6a) was necessary in the interests of justice; and

   5.2.ordering the Respondent to pay the Appellant’s costs of the action below.

6. The learned Senior Judge below found that s 59(4)(d) of the CTA does not empower the ERD Court to make an order for costs of the action.[12]  That finding is not challenged on appeal.

   [12]   Han v Barker & Ors (No.2) [2025] SAERDC 1 at [42] (Senior Judge Durrant).

7. The learned Senior Judge also found that ss 29(6a)-(6b) of the Act empower the Court to make an order for costs of the action. No party challenged that finding on appeal.

8. The learned Senior Judge dismissed the application for costs under s 59(4)(d) of the CTA.[13] That order is the subject of this appeal. The error complained of is that, in making that order, his Honour did not make an order that the appellants pay the respondent’s costs pursuant to ss 29(6a)-(6b).

   [13]   Han v Barker & Ors (No.2) [2025] SAERDC 1 at [45] (Senior Judge Durrant). See Appeal Book (‘AB’) at 136 (Record of Outcome of 11 February 2025 (FDN 75)).

   The parties’ submissions

9. The appellants contend that the exercise of the Court’s discretion to award costs miscarried.[14]          

   [14]   Notice of Appeal (FDN 1), grounds 1 and 2.

10. The appellants submit that having made a number of factual findings[15] the learned Senior Judge in the Court below:[16]

    a.should have found that the respondent had engaged in misconduct in the proceedings for the purposes of s 29(6a) of the Act;

    b.should have exercised the Court’s discretion to award costs of the action, or part of the costs of the action, to the appellants in the exercise of the power of the Court arising under s 29(6a) and (6b) of the Act.

    [15]   Han v Barker & Ors (No.2) [2025] SAERDC 1 at [8]-[30] and [32]-[38] (Senior Judge Durrant).

    [16]   Notice of Appeal (FDN 1), grounds 3 and 4.

11. The appellants’ primary submission is that this Court should re-exercise the discretion on costs based upon the factual findings that the ERD Court made and order that the respondent pay the appellants’ costs of the proceedings below on a standard costs basis to be agreed, or adjudicated if not agreed.[17]  Further, the appellants submit that, if a wider inquiry as to the facts is required, then this Court should remit the matter to the ERD Court.[18]

    [17]   AT2 at T15.34.

    [18]   AT2 at T15.36-7.

12. The respondent, inter alia, contends that costs orders fall within the ERD Court’s discretionary jurisdiction and appellate intervention is only justified where there is a clear error in exercising the discretion or manifest injustice.[19] The respondent contends that the learned Judge below explicitly referenced s 29 of the Act as the basis for its costs discretion in its reasons,[20] and issued a costs order based upon the facts of the case.[21] 

    [19]   Respondent’s Written Submissions dated 29 May 2025 (‘RWS (29 May 2025)’) (FDN 10) at I.1.2, citing House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5 (Dixon, Evatt and McTiernan JJ). Notwithstanding that I have set out in this judgment the central contentions of the parties, I have considered all of the oral and written submissions of the parties, the affidavit evidence and other documents. The respondent was self-represented on the appeal, and I accepted into evidence a number of affidavits. I have however placed no weight upon those aspects of the respondent’s affidavits or submissions which concern matters which, having regard to the manner in which this appeal has been determined, ultimately concerned matters extraneous to the legal issues to be determined between the parties.

    [20]   Han v Barker & Ors (No.2) [2025] SAERDC 1 at [44] (Senior Judge Durrant).

    [21]   RWS (29 May 2025) at 2, paragraph II.

13. The respondent refers to several factual and legal matters which the respondent asserts justify the manner in which the discretion as to costs was exercised.[22] The respondent contends, inter alia, that the appellants have not raised an issue of principle or general importance, and the lower court’s decision does not result in any substantial injustice. The respondent submits that the appellants did not adequately assert s 29 of the Act in the lower court and the grounds of appeal are said to be unfounded.[23]

    [22]   RWS (29 May 2025) at 3-4, paragraph III.

    [23]   RWS (29 May 2025) at 7, paragraph IV.2.

    The decision of the learned Senior Judge

14. The learned Senior Judge held that the respondent relied upon a power to award costs in this case which is contained in s 59(4)(d) of the CTA. [24] The learned Senior Judge sets out the power to award costs pursuant to ss 29(6a)-(6b) of the Act and identifies that this had been raised with the parties.[25] The judgment then states that the application for costs under s 59(4)(d) of the CTA is dismissed.[26]

    [24]   Han v Barker & Ors (No.2) [2025] SAERDC 1 at [40] (Senior Judge Durrant).

    [25]   Han v Barker & Ors (No.2) [2025] SAERDC 1 at [44] (Senior Judge Durrant).

    [26]   Han v Barker & Ors (No.2) [2025] SAERDC 1 at [45] (Senior Judge Durrant).

15. The parties differ in their interpretation of this section of the judgment, in the following way:

    a.The appellants contend that the learned Senior Judge at first instance did not apply ss 29(6a)-(6b) of the Act on the basis that his Honour considered the application for costs was only made pursuant to s 59(4)(d) of the CTA, and therefore his Honour considered that he was only obliged to consider whether there was power to award costs pursuant to s 59(4)(d).[27]

    b.The respondent contends that his Honour applied ss 29(6a) and (6b) and declined to award costs.[28] 

    [27]   Appellants’ Written Submissions dated 22 May 2025 (FDN 9) (‘AWS (22 May 2025)’) at [26]-[30].

    [28]   RWS (29 May 2025) at 2, paragraph II.

16. The appellants further contended that, having identified the power to award costs in ss 29(6a) and (6b), his Honour was obliged to exercise the discretion as to costs conferred by those statutory provisions in favour of the appellants.

    Statutory basis of the appeal and relevant principles

17. This appeal is brought pursuant to s 30(1)(a) of the Act.

18. An appeal lies as a right on a question of law and with permission on a question of fact.[29]  The appellants contend that the question of whether the discretion to award costs miscarried is a question of law.[30]  Whilst the question as articulated by the appellants is sought to be framed as a question of law, implicit in the contentions advanced by the appellants is the contention that the learned Senior Judge should have, on the facts of the case, made a finding that the respondent engaged in misconduct and that question suggests a factual inquiry.[31]

    [29]   Environment, Resources and Development Court Act 1993 (SA) s 30(2).

    [30]   Appeal Transcript of 4 June 2025 (‘AT1’) at T7.21.

    [31]   See Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 350, [24] (Gleeson CJ, Gummow and Callinan JJ). See further Stephen Gageler, ‘What is a question of law?’ (2014) 43 AT Rev 68.

19. Notwithstanding that permission may not be required on a question of law, the appellants seeking to review a costs order bear a heavy onus.[32]  A judgment concerning costs is an exercise of judicial discretion.  Appellate intervention will generally only be warranted if the decision at first instance was affected by an erroneous view of the law or the facts, by failure to take relevant considerations into account or by the taking of irrelevant considerations into account; or if the result is plainly unreasonable or unjust.[33]

    [32]   “N” v “A” [2012] NSWCA 318 at [17] (Barrett JA, with Meagher JA agreeing).

    [33]   Maiden v Maiden [1909] HCA 16; (1909) 7 CLR 727 at 739 (Griffith CJ); Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 534 (Aickin J).

20. The interests of finality in litigation and the issue of the resultant delay and further costs to the parties occasioned if there was a need for a remittal are relevant matters to consider in the context of intervention in a decision of a judge at first instance founded upon the exercise of judicial discretion.

21. Given the manner in which the appeal proceeded, full argument was not heard on the question of whether a question of law or fact was raised.  For the reasons given below, having considered the substantive merits of the grounds of appeal, I would dismiss all grounds of this appeal.  It follows that the outcome of this appeal does not depend upon the question of whether or not permission is granted.  In these circumstances it is not necessary that I express a concluded view on whether the appeal is confined to a question of law.

    Consideration in respect of grounds of appeal

    Grounds 1, 2 and 3 – failure to apply ss 29(6a)-(6b) of the Act

22. In my view, an ordinary reading of the judgment indicates that the learned Senior Judge at first instance recognised that there was power to award costs pursuant to ss 29(6a)-(6b), but declined to exercised that power.

23. The judgment does not specify why an application of those sections would lead to there being no award as to costs, and there is no consideration in the judgment of the question of misconduct which is a necessary consideration in applying ss 29(6a)-(6b). However, I do not consider that there is error in such an approach in circumstances where:

    a.The parties were advised by the Court of the power to award costs pursuant to ss 29(6a) and (6b);

    b.The parties were afforded the opportunity to make submissions in relation to costs; and

    c.The appellants advanced no submission concerning ss 29(6a)-(6b). The appellants did not dispute the finding of the learned Senior Judge that the appellants made an application for costs pursuant to s 59(4)(d) of the CTA.[34]  Although the appellants made submissions to the ERD Court concerning the respondent’s conduct, the appellants did not make any submission in that court alleging misconduct on the part of the respondent.  Nor did the appellants in the oral and written submissions before the Court below make a submission referring to the statutory language of “the interests of justice”.[35]

    [34]   Han v Barker & Ors (No.2) [2025] SAERDC 1 at [3] and [40] (Senior Judge Durrant).

    [35]   Environment, Resources and Development Court Act 1993 (SA) s 29(6b).

24. I do not accept that the learned Senior Judge at first instance was obliged to consider and exercise the power to award costs pursuant to ss 29(6a)-(6b) of the Act in the manner contended for by the appellants. It was within his Honour’s discretion not to make an order for costs pursuant to s 29 of the Act. There is no complaint advanced by the appellants that his Honour provided inadequate reasons.

25. The appellants contend to the effect that it followed from his Honour recognising that that power was available that his Honour was obliged to consider and exercise that power in the manner advanced by the appellants, and that it was an error of law not to do so.[36]  I reject that contention. 

    [36]   AWS (22 May 2025) at [29]-[30].

26. The jurisdiction to award costs derives from statute,[37] in this case from s 29 of the Act. The power to grant costs is a discretionary decision to be exercised judicially having regard to the statutory head of power. As Kirby J held in Re JJT & Ors; Ex parte Victoria Legal Aid:[38]

    Although the word “costs” may import notions of a general kind from the forms of orders which have been made in courts of law for centuries, such preconceptions must not distract the Court from the task of construction which each statutory provision for costs invokes.  As with any other legislative measures, the law in question must be construed to achieve its identified purposes.  A section empowering orders for costs will be construed in the context of any peculiarities of the legislation in which it appears.

    (citations omitted)

    [37]   Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 120, [134] (Kirby J). See also Wyatt v Albert Shire Council [1987] 1 Qd R 486 at 488 (Andrews CJ, Demack and McPherson JJ); Re Feez Ruthning’s Bill of Costs [1989] 1 Qd R 55 at 90 (McPherson J); Besgrove v Larson [2001] QDC 144; (2001) 22 Qld Lawyer Reps 82 at 83, [3] (Judge McGill).

    [38]   Re JJT & Ors; Ex parte Victoria Legal Aid [1998] HCA 14; (1998) 195 CLR 184 at 200, [41] (Kirby J).

1. The ERD Court is established as a statutory and specialist court, with jurisdiction conferred by the Act.[39] The powers in respect of costs in that Court are contained in s 29.

   [39]   Environment, Resources and Development Court Act 1993 (SA) s 7.

2. The effect of s 29 of the Act is that the ERD Court is primarily a “no costs” jurisdiction, in that costs orders are not ordinarily made in the ERD Court. There is not a general statutory power to award costs.[40] Rather, s 29 establishes that there will generally, in matters where the question of costs is determined by the provisions of that Act, be no costs orders made. There is however power to make costs orders in specific circumstances set out in that section.[41]  In the context of that regime, it would generally be incumbent upon a party seeking a costs order to make the basis of that application clear.[42]  This is particularly so in the context of an application for costs on the basis of an allegation that the Court should consider that a party to proceedings before the Court has engaged in misconduct.[43]

   [40]   At least in respect of matters before the Court pursuant to that Act.

   [41]   See, eg, Environment, Resources and Development Court Act 1993 (SA) ss 29(2)-(3) and (6)-(6a). There is also power in respect of matters under other Acts.

   [42]   Gorman v Gorman [2004] NSWSC 741 at [105] (Barrett J).

   [43]   See Environment, Resources and Development Court Act 1993 (SA) s 29(6a). See also Gorman v Gorman [2004] NSWSC 741 at [105] (Barrett J).

3. Further, whilst this Court may intervene in the exercise of a discretion as to costs if the Court at first instance has acted on an erroneous view of the law,[44] no such error has been identified by the appellants. The exercise of the power pursuant to s 29 of the Act requires a finding of misconduct. His Honour does not make any findings of misconduct in the judgment the subject of this appeal. In my view, given that the appellants did not, in the Court below, suggest that a finding of misconduct should be made, I would not find error in his Honour’s approach in not making findings of misconduct, or in not providing reasons for making no award of costs pursuant to s 29 of the Act.[45] 

   [44]   Maiden v Maiden [1909] HCA 16; (1909) 7 CLR 727 at 739 (Griffith CJ, Barton J agreeing) and 742 (Isaacs J), cf 747 (Higgins J contra).

   [45]   In that regard, I refer either to a finding that there was misconduct, or an express finding that there was no misconduct. See generally Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 534 (Aickin J); Bew v Bew [1899] 2 Ch 467 at 472 (Lindley M.R), 473 (F.H. Jeune and Romer L.J. agreeing); Gorman v Gorman [2004] NSWSC 741 at [105] (Barrett J).

4. The appellants contend on this appeal that the learned Senior Judge at first instance should have made a finding of misconduct because there were factual matters which were referred to in the written submissions of that party in the Court below[46] which the appellants submit on this appeal would justify a finding of misconduct. I find it was incumbent upon the appellants to make an application for costs pursuant to ss 29(6a)-(6b) and to identify the misconduct alleged if the appellants were asking the Court below to make such a finding.[47]

   [46]   AB at 107 (Outline of Respondent’s Submissions in support of an order for costs in favour of the Respondent dated 28 October 2024 (ERD-23-000078, FDN 72)).

   [47]   See further Gorman v Gorman [2004] NSWSC 741 at [105] (Barrett J).

5. I would not find that the Court below considered that the absence of an application for costs by the applicant pursuant to s 29 precluded the ability of the Court to consider the application of ss 29(6a)-(6b), to do so would be to read error into the judgment. Such error is not demonstrated by the Court’s reasons. [48] The Court specifically noted in the judgment that ss 29(6a)-(6b) had been raised with the parties.[49] It is not necessary for that Court, having dealt with the application for costs pursuant to s 59(4)(d) of the CTA, to further explain the reasons for the application of the usual rule in respect of costs, which is that in the ERD Court there is no order as to costs.[50]

   [48]   Bew v Bew [1899] 2 Ch 467 at 472 (Lindley M.R), 473 (F.H. Jeune and Romer L.J. agreeing).

   [49]   Han v Barker & Ors (No.2) [2025] SAERDC 1 at [44] (Senior Judge Durrant).

   [50]   See Bew v Bew [1899] 2 Ch 467 at 472 (Lindley M.R), 473 (F.H. Jeune and Romer L.J. agreeing).

6. The Court below is not necessarily limited in its power to make an award of costs by the absence of an application by the appellants pursuant to that section.[51] That said, it would be unusual, and likely to breach the requirements of procedural fairness, for the Court to make a finding of misconduct and an award of costs pursuant to s 29 in the absence of the Court inviting submissions on such costs before proceeding to make any orders.[52]

   [51]   Gorman v Gorman [2004] NSWSC 741 at [105] (Barrett J).

   [52]   Durham v Collins [1999] SASC 163 at [16]-[17] (Debelle J); Gorman v Gorman [2004] NSWSC 741 at [105] (Barrett J); In the Marriage of Black [1992] FLC 92-287; (1992) 106 FLR 154 at 160 (Nicholson CJ, Ellis and Cohen JJ agreeing); Eure v Tidwell [1995] FLC 92-622; (1995) 121 FLR 369 at 376 (Nicholson CJ).

7. As a matter of procedural fairness, the ERD Court, if it had been inclined, in the context of a general application for costs,[53] to make an award of costs pursuant to s 29 of the Act in the absence of submissions being advanced by the respondent in the ERD Court below concerning misconduct; the ERD Court would have been required as a matter of procedural fairness to put Mr Han on notice that a finding of misconduct was being considered.[54]  This is particularly important in the case of a self-represented litigant. 

   [53]   AB at 65 (Response by First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Respondents dated 11 December 2023 (ERD-23-000078, FDN 15)).

   [54]   Durham v Collins [1999] SASC 163 at [16] (Debelle J); Gorman v Gorman [2004] NSWSC 741 at [105] (Barrett J).

8. Mr Han cannot be said to have been put on notice by the appellants in the Court below of the potential for an award of costs pursuant to s 29 of the Act. No submissions were advanced in the Court below by the appellants concerning s 29 of the Act and the question of misconduct.

9. For the reasons outlined above, just because there was power in the ERD Court to make an award of costs pursuant to s 29 of the Act, does not mean that the Court was obliged to exercise that power and that there is error in a failure to exercise that power in circumstances where there has been no application by the appellants for the power to be exercised.

10. I find no error in the approach of the learned Senior Judge in the Court below.  The approach that his Honour took does not indicate an erroneous view of the law or the facts, a failure to take relevant considerations into account or the taking of irrelevant considerations into account; or that the result is plainly unreasonable or unjust.[55]

    [55]   Maiden v Maiden [1909] HCA 16; (1909) 7 CLR 727 at 739 (Griffith CJ); Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 534 (Aickin J).

11. I would not find appellable error in the approach of the learned Senior Judge at first instance.  I dismiss grounds 1 to 3 of the appeal.

    Grounds 4 and 5 – failing to make a finding of misconduct and the question of remittal

12. Grounds 4 and 5, to some extent, overlap with Grounds 1 to 3 of the appeal

13. To the extent that grounds 4 and 5 allege that a finding of misconduct should have been made based upon the facts found by the learned Senior Judge,[56] in my view, there may be some utility in considering that issue. This is because the complaint in relation to the failure to find misconduct is illustrative of the difficulty with the manner in which this appeal is framed.  Having said that, I have acknowledged there is some artificiality in considering the complaint that there was a failure to make a finding of misconduct when there was, for the reasons I have articulated above, no obligation to make such a finding.[57]

    [56]   Han v Barker & Ors (No.2) [2025] SAERDC 1 at [8]-[30] and [32]-[38] (Senior Judge Durrant).

    [57]   In effect, in dismissing grounds 1 to 3, for the reasons identified above, grounds 4 and 5 would also fail.

14. The judgment of the Court below is 45 paragraphs long.  The appellants refer on this appeal to a large proportion of the judgment[58] and the appellants’ contention is that, based on those factual findings, a finding of misconduct should have been made by the learned Senior Judge.  It is further contended by the appellants that this Court should re‑exercise the discretion as to costs based upon the factual findings made by the learned Senior Judge at first instance which are recorded in the judgment, and make a finding of misconduct, and find that it is in the interests of justice to make an award of costs.[59]

    [58]   Han v Barker & Ors (No.2) [2025] SAERDC 1 at [8]-[30] and [32]-[38] (Senior Judge Durrant).

    [59]   AT2 at T15.34.

15. There are two reasons why these contentions should be rejected. Firstly, the judgment of the Court below did not contain factual findings at paragraphs [8]-[30] and [32]-[38], which were factual findings made with a view to exercising the discretion to award costs pursuant to s 29 of the Act. It does not follow axiomatically from the factual findings made at paragraphs [8]-[30] and [32]-[38] that the learned Senior Judge was necessarily required to find that the respondent engaged in misconduct and that it is in the interests of justice to make an award of costs. That is an evaluative exercise. There is no error in the learned Senior Judge declining to make that finding.

16. For this Court to make a finding that respondent engaged in misconduct and it is in the interests of justice to make an award of costs would involve evaluative considerations which need to be made based upon all relevant materials, and the parties need to be afforded the opportunity to make submissions based upon such materials.  The respondent is self-represented on this appeal and referred in submissions to a number of matters which occurred during the course of the proceedings in the Court below which the respondent contended were relevant to the exercise of the discretion as to costs.[60]  A finding of misconduct is a serious finding. 

    [60]   See eg AT2 at T6.23-7 and T30.17-36; Respondent’s Written Response to Appellants’ Supplementary Submissions of 10 June 2025 dated 26 June 2025 (FDN 21); Respondent’s Written Submissions on Case Disposition dated 26 June 2025 (FDN 22).  The respondent also sought to rely on further evidence.

17. Second, I consider it would be an erroneous approach to make a finding of misconduct based upon the factual findings made by the learned Senior Judge in the Court below, when those factual findings were not made with a view to a determination of the question of misconduct and submissions were not made in the Court below on the question of misconduct.[61]

    [61]   AT2 at T12.12-26 and T12.37-13.9. See also AB at 107 (Outline of Respondent’s Submissions in support of an order for costs in favour of the Respondent dated 28 October 2024 (ERD-23-000078, FDN 72)).

18. This Court does not have all the relevant evidential material before it such as the transcript of all of the proceedings below.  The appellants did not seek to place that material before this Court.  In my view, it would be procedurally unfair for this Court, in these circumstances, to re-exercise the discretion as to costs, without reviewing all of the material relevant to such a finding, and hearing from the parties.

19. It follows that I would dismiss grounds 4 and 5.  Even if I was otherwise inclined to intervene on appeal, which I am not, the appropriate order would be to remit the matter to the ERD Court.  If permission to appeal was required, the need to remit this matter this is a strong discretionary consideration as to why such permission should not be granted.

    Conclusion

20. For the reasons identified above, I dismiss the appeal.  To the extent that it may be necessary, I would not grant permission to appeal.

21. I will hear the parties as to the costs of this appeal and any further orders.