Barker v Han

Case [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).

    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…

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Barker v Han [2025] SASC 161
Case
[2025] SASC 161
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CaseChat Overview and Summary

Barker and others appealed against a decision of the Senior Judge of the Environment, Resources and Development Court (ERD Court) in relation to costs. The appeal was taken as of right on a question of law and with permission on a question of fact. The appeal concerned the discretion of the ERD Court to award costs under section 59(4)(d) of the Community Titles Act 1996 (SA) and section 29 of the Environment, Resources and Development Court Act 1993 (SA). The respondents argued that the appellants did not raise an issue of principle or general importance, and that the lower court’s decision did not result in any substantial injustice. The respondents submitted that the appellants did not adequately assert section 29 of the Act in the lower court and that the grounds of appeal were unfounded.

The learned Senior Judge dismissed the application for costs under section 59(4)(d) of the CTA and recognised the power to award costs under section 29 of the Act. The parties differed in their interpretation of the judgment, with the appellants contending that the learned Senior Judge did not apply section 29 of the Act, while the respondents argued that the learned Senior Judge applied section 29 but declined to award costs. The appellants contended that the learned Senior Judge should have exercised the discretion to award costs in their favour. However, the court held that it was within the learned Senior Judge’s discretion not to make an order for costs pursuant to section 29 of the Act. The court rejected the contention that the learned Senior Judge was obliged to consider and exercise the power to award costs in the manner advanced by the appellants.

The court held that the learned Senior Judge recognised that there was power to award costs pursuant to section 29 of the Act, but declined to exercise that power. The court did not consider there to be error in such an approach in circumstances where the parties were advised by the Court of the power to award costs pursuant to section 29, the parties were afforded the opportunity to make submissions in relation to costs, and the appellants advanced no submission concerning section 29. The court held that it was within the learned Senior Judge’s discretion not to make an order for costs pursuant to section 29 of the Act. The court rejected the contention that the learned Senior Judge was obliged to consider and exercise the power to award costs in the manner advanced by the appellants.

The court dismissed all grounds of the appeal. The outcome of this appeal does not depend upon the question of whether or not permission is granted. The court did not express a concluded view on whether the appeal was confined to a question of law. The appeal was dismissed, and the decision of the ERD Court was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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 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). 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). 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].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 appealGrounds 1, 2 and 3 – failure to apply ss 29(6a)-(6b) of the Act 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. 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; andc.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). 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. 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]. 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).