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

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.
The defendants to this application were the Public Advocate, BMC, SACAT, and DC, one of the plaintiff’s children.
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.
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.
After receiving extensive documentary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read BC v The Public Advocate (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] SASC 51
Decision Date: 5 April 2019

CaseChat Overview and Summary

In the matter of BC v The Public Advocate (No 3), the plaintiff sought an order for costs against his wife and the Public Advocate. The Public Advocate and the South Australian Civil and Administrative Tribunal opposed the plaintiff's claim for costs, arguing that he should only be entitled to a portion of his costs because he was unsuccessful in obtaining relief on the application for judicial review. The plaintiff also sought an order for costs against his wife, which she opposed. The court was required to exercise its discretion in determining the appropriate order for costs, considering the principles established by case law and statutory provisions.

The court considered the overarching principle that costs are within the discretion of the court and that, as a general rule, costs follow the event. However, the court recognised that it could depart from this general rule in appropriate circumstances. The court acknowledged that the plaintiff had achieved success in part of the proceedings, specifically the application for a writ of habeas corpus, but had been unsuccessful in the application for judicial review. The court also considered the public interest nature of the litigation, but ultimately concluded that this did not preclude an award of costs against the Public Advocate.

The court exercised its discretion and ordered that the plaintiff is entitled to 85 per cent of his costs on a party/party basis. The court rejected the Public Advocate's submission that no order for costs should be made on the basis that this was public interest litigation. The court found that even if the litigation was in the public interest, this did not automatically insulate the Public Advocate from an award of costs against it. The court concluded that it was fair and reasonable that the plaintiff should have 85 per cent of his costs. The court also rejected the plaintiff's wife's application for costs.

The court's final order was that the plaintiff recover from the Public Advocate 85 per cent of his costs on a party/party basis. The court did not make any order for costs in favour of the plaintiff's wife.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 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. 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. 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.