BC v The Public Advocate (No 3)

[2019] SASC 51

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application for Judicial Review)

BC v THE PUBLIC ADVOCATE & ORS (No 3)

[2019] SASC 51

Judgment of The Honourable Justice Stanley

5 April 2019

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - NATURE OF PROCEEDINGS - PUBLIC DUTY INVOLVED

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - OTHER CASES - FAILURE IN PORTION OF A CASE

The plaintiff brought an application for judicial review and a writ of habeas corpus. Ultimately, the Court found that the plaintiff had been unlawfully detained and ordered that his detention be terminated. The Court declined to make any orders on the application for judicial review as the South Australian Civil and Administrative Appeals Tribunal (SACAT) had yet to decide the application for review.

The parties now seek various orders as to the costs of the proceedings.

Held, per Stanley J:

1.  It would be inappropriate to deprive the plaintiff of an order for his costs on the basis that this was public interest litigation. Plainly the plaintiff was seeking to assert his private right.

2.  The Public Advocate was to pay 85 per cent of the plaintiff’s costs on a party/party basis.

Supreme Court Act 1935 (SA) s 40; Supreme Court Civil Rules 2006 (SA) s 263, referred to.
Copping v ANZ McCaughan Ltd (1995) 63 SASR 523; Lyons v Legalese Pty Ltd (No. 2) [2017] SASC 2, considered.

BC v THE PUBLIC ADVOCATE & ORS (No 3)
[2019] SASC 51

STANLEY J:

Introduction

1. In this matter the plaintiff brought an application for judicial review and a writ of habeas corpus.  The plaintiff sought judicial review of decisions of the South Australian Civil and Administrative Tribunal (SACAT) appointing the Public Advocate and his wife BMC as his guardians for limited and discrete purposes.  The plaintiff also sought judicial review of a decision by the Public Advocate to place the plaintiff in the locked dementia unit of the [address suppressed] (the Facility).  Finally, the plaintiff sought the issue of a writ of habeas corpus in relation to his alleged unlawful detention in the locked dementia unit at the Facility. 

2. The defendants to this application were the Public Advocate, BMC, SACAT, and DC, one of the plaintiff’s children.

3. On the hearing of the summons the Public Advocate and BMC opposed the Court granting the relief sought by the plaintiff.  SACAT entered a submitting appearance and the fourth defendant, DC, supported the plaintiff’s application.  Further, the fourth defendant sought an order that the plaintiff be released into his care and custody. 

4. When the matter came on for hearing there was an extant application before SACAT seeking a review of the orders made by SACAT appointing the Public Advocate as the plaintiff’s guardian for the limited purposes of lifestyle and accommodation and appointing BMC as the plaintiff’s guardian for the limited purpose of his healthcare. 

5. After receiving extensive documentary evidence and hearing submissions from the parties, the Court made declarations that the plaintiff had been unlawfully detained and that the decision of the Public Advocate that the plaintiff should live in the dementia unit of the Facility was void and of no effect.  A writ of habeas corpus was issued.  In the exercise of its discretion the Court declined to make any orders on the application for judicial review given that SACAT had yet to decide the application for review. 

6. The parties now seek various orders as to the costs of the proceedings. 

7. The plaintiff seeks an order for costs payable by his wife and the Public Advocate on a party/party basis.  The Public Advocate and SACAT oppose any order as to costs other than that each party bear their own costs.  In the alternative, they submit that the plaintiff is entitled to payment of only part of his costs because he was unsuccessful in obtaining any relief on the application for judicial review.  They submit any order for costs should be made against the Public Advocate only.  DC seeks an order for payment of his costs by the Public Advocate.  In addition, he put a tentative submission that BMC should also pay his costs.  BMC seeks an order that DC pay her costs.  

   Consideration

8. The overarching legal principle in relation to costs is that they are in the discretion of the Court. This position is enshrined in s 40 of the Supreme Court Act 1935 (SA) and r 263 of the Supreme Court Civil Rules 2006 (SA).  The discretion is unfettered but must be exercised judicially.[1] As a general rule, a successful litigant is entitled to an order that costs follow the event.  Nonetheless, an order modifying the operation of the general rule may be made in an appropriate case if it is just to do so.

   [1]    Copping v ANZ McCaughan Ltd [1995] SASC 4917, (1995) 63 SASR 523 at 527-528.

9. In this case I consider that the plaintiff is entitled to an order for costs to be paid by the Public Advocate.  I would order that the plaintiff is entitled to 85 per cent of his costs on a party/party basis.  I accept the submission of the Public Advocate that the plaintiff is not entitled to all his costs as he was unsuccessful on the application for judicial review.  However, I consider that from a relatively early stage in the proceedings the matter focussed on the plaintiff’s application for a writ of habeas corpus.  Doing the best I can, I consider that it is fair and reasonable that he should have 85 per cent of his costs.  In reaching this conclusion I reject the submission of the Public Advocate that no order for costs should be made on the basis that this was public interest litigation.  While I accept that public interest litigation can encompass disputes concerning the exercise of the power of the State or the application of a statutory regime,[2] the mere fact that the exercise of the power of the State is under consideration or an agency or instrument of the State is involved will not suffice to warrant characterising a matter as public interest litigation for costs purposes.  Even if it was appropriate to characterise the litigation as being in the public interest, that will not automatically insulate the State party from an award of costs against it.  Much will depend upon the context in which the litigation arises.[3] 

   [2]    Lyons v Legalese Pty Ltd (No. 2) [2017] SASC 2 at [16]-[19].

   [3]    Oshlack v Richmond River Council [1998] HCA 11 at [134], (1998) 193 CLR 72 at 122-123.

10. While the authorities support the proposition that the public interest may converge with that of the individual in cases where the liberty of the subject is at issue,[4] this is not an occasion where the plaintiff should be deprived of his costs on the basis that he had embarked upon public interest litigation.  

    [4]    Ruddock v Vadarlis (No. 2) [2001] FCA 1865 at [25], (2001) 115 FCR 229 at 240-241.

11. In this case the litigation arose on the basis that the plaintiff asserted he was being unlawfully detained against his will.  He submitted that this was due to orders or directions made by agents of the State.  This contention was accepted by the Court.  In those circumstances I consider it would be inappropriate to deprive him of an order for his costs on the basis that this was public interest litigation.  Plainly the plaintiff was seeking to assert his private interest. 

12. In the circumstances where the SACAT entered a submitting appearance and took no part in the proceedings, I consider it would be inappropriate for any order of costs to be made against it.  The order for payment of costs to the plaintiff should be confined to payment by the Public Advocate. 

13. I reject the claim for costs by DC against the Public Advocate, or, for that matter, against BMC.  DC was joined as a defendant to the proceedings by the plaintiff.  Nonetheless, his position was wholly supportive of the plaintiff’s position.  In relation to the application for the issue of the writ of habeas corpus I consider that the submissions made on behalf of DC merely echoed the submissions put by the plaintiff.  It was not clear why DC was joined as a defendant to the action by the plaintiff.  His joinder to the proceedings was not the result of any action by the Public Advocate or BMC.  His role was akin to that of an intervener.  As a general rule, a successful intervener can recover costs only if the intervention was necessary to protect an interest not common with the main parties, but will not recover costs just because the intervention was well intentioned and proved of assistance to the Court.  Where the intervener’s interest is sufficiently alike to that of another party on the record the Court considers it unfair to burden the unsuccessful litigant with a dual costs burden where the two sets of costs are incurred to propound essentially the same successful contention.[5]

    [5]    Dal Pont, Law of Costs, 2^nd ed, 2009 [11.40].

14. In any event, any particular interest that could be claimed by DC primarily concerned the application for judicial review.  That application was unsuccessful.  To the extent that he had a distinct interest in the application for the writ of habeas corpus, his interest was ancillary to the issue of the writ.  It was concerned with what should happen if the Court made the declaration sought.  The submissions he made in that regard were not accepted by the Court. 

15. As I have indicated, DC did not press an application for an order for payment of his costs by BMC with any force.  For the reasons given above in relation to an application by him for an order that his costs be paid by the Public Advocate, I would also decline to make any order that BMC pay his costs. 

16. That leaves the application for costs by BMC.  She seeks an order that DC pay her costs.  I also reject this application.  BMC sought to resist the application for judicial review and the issue of the writ of habeas corpus.  I am not critical of the stance adopted in the proceedings by BMC, but essentially she was unsuccessful in the proceedings concerning the writ of habeas corpus.  While she can claim success in the application for judicial review, that ultimately formed only a small part of the proceedings. I do not consider she is entitled to an award of costs in her favour.  In the exercise of my discretion I would decline to make any order for costs in her favour.

    Conclusion

17. I would order that the plaintiff recover from the Public Advocate 85 per cent of his costs on a party/party basis.