Bell v Deputy Coroner of South Australia (No 2) - [2020] SASC 77

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BELL v DEPUTY CORONER OF SOUTH AUSTRALIA (No 2)
[2020] SASC 77
Judgment of The Honourable Justice Blue
8 May 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION - DECLARATIONS
The plaintiffs sought judicial review of certain decisions and conduct by a Deputy State Coroner in the course of an inquest.
The Court upheld the first ground of review relating to the availability of penalty privilege in the inquest and rejected the remaining grounds of review: Bell v Deputy Coroner of South Australia [2020] SASC 59.
Issues relating to the making and wording of a declaration and as to costs were subsequently argued.
Held:
1. It should be declared that penalty privilege is not abrogated by the Coroners Act 2003 and, if established, affords a ground entitling a witness to decline to answer a question or produce a document at the inquest the subject of this action (at [4]).
2. A declaration should not be made concerning the lack of power of the Coroner to make a finding in the future of misconduct by reason of non-compliance with clause 3.1 of SOP 004 (at [12]).
3. Having regard to the mixed success of the parties, the plaintiffs should pay 45 per cent of the third defendant’s costs of action, to be adjudicated if not agreed (at [44]).
Coroners Act 2003 (SA) ss 23,25; Supreme Court Act 1935 (SA) s 40; Supreme Court Civil Rules 2006 rr 200A, 200B, referred to.
A, DC v Prince Alfred College Inc (No 2) [2016] SASCFC 27; Bell v Deputy Coroner of South Australia [2020] SASC 59; Cretazzo v Lombardi (1975) 13 SASR 4; Oshlack v Richmond River Council (1998) 193 CLR 72; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, discussed.
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873; Australian Trade Commission v Disktravel [2000] FCA 62; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107, considered.

BELL v DEPUTY CORONER OF SOUTH AUSTRALIA (No 2)
[2020] SASC 77
Civil
BLUE J:

The plaintiffs sought judicial review of certain decisions and conduct by a Deputy State Coroner (the Coroner) in the course of an inquest into the death in custody of Wayne Fella Morrison on 26 September 2016 (the inquest).
On 21 April 2020 I delivered reasons for judgment in which I upheld the first ground of review relating to the availability of penalty privilege in the inquest and rejected the remaining grounds of review.[1]
[1] Bell v Deputy Coroner of South Australia [2020] SASC 59.
I subsequently heard the parties on three issues:
1The wording of the declaration to be granted concerning the availability of penalty privilege in the inquest.
2Whether I should make a declaration concerning the lack of power of the Coroner to make a finding in the future of misconduct by reason of non-compliance with clause 3.1 of SOP 004.
3Who should pay the costs of the action.
Wording of declaration as to availability of penalty privilege
It is common ground that appropriate wording of the declaration is that penalty privilege is not abrogated by the Coroners Act 2003 (the Act) and, if established, affords a ground entitling a witness to decline to answer a question or produce a document at the inquest.
Declaration as to future finding of misconduct
The plaintiffs seek a declaration that the Coroner does not have power to make a finding of misconduct by reason of non-compliance with clause 3.1 of SOP 004. The State opposes the making of any such declaration.
The third ground of review was that the Coroner misconstrued certain sections of the Act by making findings or suggestions in the December ruling of civil liability of certain of the plaintiffs, in breach of the prohibition in subsection 25(3) of the Act upon the making of such findings or suggestions.
It was common ground at the hearing of the judicial review action that the Coroner was precluded by subsection 25(3) of the Act from making a finding or suggestion that a correctional officer was guilty of misconduct within the meaning of the Public Sector Act 2009 (SA) by reason of non-compliance with clause 3.1 of SOP 004. The only substantive issue (leaving aside discretionary matters) was whether the Coroner in the December ruling made such a finding or suggestion. The plaintiffs failed on that substantive issue and hence failed on the third ground of review.
The third ground of review did not extend to its being a risk that the Coroner would make a finding or suggestion of misconduct when the inquest has been completed and the section 25 report is delivered.
The two limbs of the fourth ground of review, designated 4(a) and (b), likewise addressed alleged findings in the December ruling rather than a risk that the Coroner will make findings when the section 25 report is delivered.
In my principal reasons for judgment, I observed that the Coroner does not have power to make a finding of misconduct by reason of non-compliance with clause 3.1 of SOP 004. This observation applies equally to any finding that the Coroner might make before delivery of the section 25 report as well as in the section 25 report. This observation reflected what was common ground in the judicial review action rather than the determination of a matter that was in issue or relief that the plaintiffs were entitled to seek.
The plaintiffs contend that the conduct of the Coroner to date, including in particular certain passages in the December ruling, gives rise to an apprehension that the Coroner might in the section 25 report go beyond finding non-compliance with clause 3.1 of SOP 004 (if indeed the Coroner determines after hearing submissions that it is appropriate to make such a finding) to make findings concerning the circumstances of that non-compliance which findings would amount to a finding of misconduct. I accept that the plaintiffs have grounds for such an apprehension based on certain statements by the Coroner. However, now that the matter has been addressed in depth in my reasons for judgment, I would expect the Coroner to exercise great caution to avoid any risk of the perception of such a finding, or suggestion, in the section 25 report.
Given that the grounds of review raised the issue of breach of section 25(3) only in relation to the December ruling and not in relation to a future section 25 report, coupled with the fact that there was no issue between the parties in relation to the lack of power of the Coroner to make a finding or suggestion of misconduct, it would be inappropriate to exercise my discretion to grant a declaration in relation thereto.
Costs
The plaintiffs seek an order that the State pay their costs of action on the ground that they were successful in the action because I held that penalty privilege is not abrogated by the Act, costs should follow the event and a costs order reflecting mixed success should not be made. They also contend that the State engaged in “disentitling conduct” and this should be taken into account in determining an appropriate costs order. Alternatively, if a costs order reflecting mixed success is made, the plaintiffs seek an order that the State pay a high percentage of their costs.
The State seeks an order that the plaintiffs pay its costs of action on the ground that it was successful in respect of seven of the eight grounds of review and in respect of the first ground of review it was successful on the issue whether the Coroner had in fact denied penalty privilege in respect of individual questions. Alternatively, if a costs order reflecting mixed success is made, the State seeks an order that the plaintiffs pay a high percentage of its costs.
Costs principles
Costs are in the discretion of the Court under section 40 of the Supreme Court Act 1935 (SA). The discretion is unfettered but must be exercised judicially.[2]
[2] Cretazzo v Lombardi (1975) 13 SASR 4 at 11 per Bray CJ (with whom Zelling and Jacobs JJ agreed).
As a general rule, costs follow the event.[3] This general rule applies when there is a determination by the Court of the merits of the proceeding and there is a manifestly successful party and unsuccessful party.
[3] Donald Campbell & Co v Pollak [1927] AC 732 at 812 per Viscount Cave LC (with whom Viscount Dunedin, Lord Phillimore and Lord Carson agreed); Latoudis v Casey (1990) 170 CLR 534 at 542-544, 557 per Dawson J (with whom Brennan J agreed) and 569 per McHugh J. See also rule 263(1) of the Supreme Court Civil Rules 2006 (SA).
When there is mixed success, depending on the circumstances, there may not necessarily be a single event and, even if there is a single event, it may be appropriate to reflect the mixed success of the parties in the costs order made.
In Ruddock v Vadarlis (No 2),[4] Black CJ and French J said:
Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that:
·    Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order.
·    Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed.
·    A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or law.[5]
[4] [2001] FCA 1865, (2001) 115 FCR 229.
[5]    At 11.
In A, DC v Prince Alfred College Inc (No 2),[6] Kourakis CJ, Gray and Peek JJ said:
[6] [2016] SASCFC 27.
The principles governing the exercise of the costs discretion are well established. The Court exercises a judicial discretion with respect to costs in which the general rule is that costs ordinarily follow the event unless there are special circumstances justifying another order. In more recent times, courts more readily modify the general rule recognising that the interests of justice sometimes require a reduction in the costs that would otherwise have been awarded to a successful party when that party has failed on particular disputed questions of fact or law.
[The Court then extracted the passage from Ruddock v Vardalis (No 2) extracted at [18] above.]
The modification of the ordinary rule to reflect the way in which particular issues in the litigation are determined is a response to those ‘cases in which issues are raised which unduly extend the time and expense of litigation’.
In Victoria and Master Builders Association of Victoria Ormiston JA explained that in an era of high cost litigation it had become necessary to more often allocate costs according to success on particular issue because ‘regrettably there are many cases in which issues are raised which unduly extend the time and expense of litigation’. Those observations were echoed in Mickelberg v Western Australia by Newens J who referred also to ‘the burdens imposed on the public resources of the Court’ by parties pursuing claims on which they are ultimately not successful.
Just as parties must make a cost benefit and risk analysis decision on whether to bring an action at all, so too must decisions be made about which claims to include within an action. Parties should not be encouraged to add to a claim which has sufficient prospects, in itself, to justify the bringing of an action other claims, of doubtful merit, on the assumption that the costs of pursuing the latter claims will be recovered because of success on the good claim.
In adversarial litigation the parties and their legal advisors carry the primary responsibility for ensuring the cost-effectiveness of litigation because they have a particular knowledge and understanding of the controversy, and the available evidence, which the court cannot know because of legal professional privilege.
It is therefore the responsibility of the legal profession to actively consider the affect of adding doubtful claims, or mounting defences to good claims without any foundation for doing so, on the efficient resolution of the proceedings. In accordance with that duty legal practitioners must give advice on the relative merits of the possible claims and defences and on the cost and time implications of pursuing those claims so that the litigant is in a position to give informed instructions on how to conduct the proceedings.
The authorities to which we have referred make it clear that the rule does not only apply to a ‘precise issue in the technical pleading sense’ but extends to any substantial disputed question of fact or law. There is of course a limit to the dissection of an action which is practicably possible.
On the other hand, the court should not be overly parsimonious in the award of costs to a plaintiff who has won a judgment against a wrongdoer who has denied liability on all of the grounds of the plaintiff’s claim.
There can be no precision in the balancing of the tension between the ordinary rule and its qualification. Much will depend on the extent to which the costs of the litigation of the separate issues can easily be separated out and on the reasonableness of the forensic decision of the successful party to pursue, not only the claims on which he or she succeeded, but also those claims on which he or she failed.[7]
[7] At [5]-[13]. (Citations omitted).
Without limiting the factors relevant to the exercise of the discretion, it is more likely to be exercised to make a costs order reflecting mixed success on issues:
·the more separate and distinct the issue(s) on which the successful party failed (a separateness assessment);
·the greater the proportion of costs of the issue(s) on which the successful party failed out of total costs (a relativity assessment);
·the greater the costs of the issue(s) on which the successful party failed (an absolute assessment);
·the less the merit of the successful party’s case on the unsuccessful issue(s) (a merit assessment).[8]
[8] See Australian Trade Commission v Disktravel [2000] FCA 62 at [3] per French, Kiefel and Mansfield JJ; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [3]-[6] per Finkelstein and Gordon JJ.
The plaintiffs refer to the note of caution sounded by Jacobs J in Cretazzo v Lombardi.[9] In that case Jacobs J and Zelling J agreed with Bray CJ who said that “a successful party who has failed on certain issues may well not only be deprived of his own costs of those issues, but ordered in addition to pay his opponents costs of them”.[10] The note of caution added by Jacobs J was not too readily to deprive a party who in the end is wholly or substantially successful but fails along the way on particular issues of fact or law.[11] This is only a note of caution and is necessarily taken into account in considering the factors referred to in the previous paragraph.
[9] (1975) 13 SASR 4.
[10] At 12.
[11] At 16.
The plaintiffs also contend that the approach to mixed success in relation to ordinary civil actions is not applicable to an action for judicial review. I address that contention below.
Another relevant factor in exercising the discretion as to costs is the extent to which the costs in question have been caused or increased by the conduct of a party in, relating to or leading up to the action or application in question.[12] In Oshlack v Richmond River Council[13] McHugh J said:
The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows:
"No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct."
"Misconduct" in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.[14]
[12] Bostock v Ramsey Urban District Council [1900] 2 QB 616 at 622 per A. L. Smith LJ; Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874 per Devlin J; Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129 at 154-155 per Kaye J.
[13] [1998] HCA 11, (1998) 193 CLR 72.
[14] At [69]. (Citations omitted).
All of the factors to which reference has been made may be seen as part of ascertaining which party caused or contributed to the incurring of the costs in question.
Conduct in the litigation
The plaintiffs contend that costs were increased by the conduct of the State in not filing a responding affidavit exhibiting incident reports and police statements tendered at, or that were in the possession of the parties for the purposes of, the inquest. The plaintiffs contend that this was in breach of rule 200B(4)(b). The plaintiffs contend that this conduct should be reflected in the order made in relation to the costs of action. I reject that contention.
Rule 200A(4)(b) of the Supreme Court Civil Rules 2006 (SA) (the Rules) requires a plaintiff in a judicial review action to exhibit all materials “before the authority for the purpose of the decision, act or omission in question insofar as they are relevant to the grounds of review” to the extent those materials are in the plaintiff’s possession. Obviously it is a matter of judgment as to which materials are relevant to the grounds of review. In the present case, the affidavit filed by the plaintiffs’ solicitor in compliance with rule 200A(4) exhibited the transcript of the inquest but very few exhibits. No incident reports or police statements by the plaintiffs (or any other inquest witnesses or potential inquest witnesses) were exhibited. This is not to say that the plaintiffs breached rule 200A(4)(b) because, particularly given the very large volume of exhibits tendered at the inquest, it was open to them to take the view that the incident reports and police reports did not fall within the rule.
Rule 200B(4)(b) of the Rules requires a defendant in a judicial review action to exhibit all materials “before the authority for the purposes of the decision, act or omission in question insofar as they are relevant to the grounds of review” to the extent those materials are in the defendant’s possession and have not been exhibited to the plaintiff’s affidavit pursuant to rule 200A(4)(b). Given that the plaintiffs had not taken the view that the incident reports or police statements fell within rule 200A(4)(b), and given that it is a question of judgment as to what materials fall within the scope of those rules, it was open to the State to take the same attitude as the plaintiffs. In any event, it does not lie in the mouth of the plaintiffs to allege non-compliance when they had the same obligation.
During the hearing of the action, it became apparent that it was desirable that reference be made to the incident reports and police statements. It is not unusual for the relevance or importance of documents only to become apparent during the hearing. The fact that the State did not file an answering affidavit exhibiting those documents does not amount to conduct justifying a special costs order.

The plaintiffs contend that costs were increased by the conduct of the State in including in the lists of issues whether the Coroner made a relevant decision, whether the grounds of review were out of time; and whether the plaintiffs had standing to complain in relation to rulings concerning other witnesses. The plaintiffs contend that the State did not press any of these issues. I reject this contention. There were issues whether the Coroner made a relevant decision, particularly in relation to the first and second grounds of review. There were issues whether, at least in respect of challenged rulings before the December ruling, various grounds of review were out of time. While no real issue of standing was pressed, the State was entitled to take that point.
Mixed success
As noted above, the plaintiffs contend that the approach to mixed success in relation to ordinary civil actions is not applicable to an action for judicial review. I reject that contention to the extent that it is put in absolute terms.
In an ordinary civil action, a plaintiff might sue on two causes of action. One might be for a breach of contract that occurred three years ago and another might be for misleading conduct that occurred two years ago. There might be no overlap whatsoever between the two causes of action and the plaintiff could have brought two independent actions in respect of them. Conversely, a plaintiff might sue for a cause of action in misleading conduct with an alternative cause of action for negligent misstatement. There might be a high degree of overlap of the issues and evidence relevant to the two causes of action. In the event of mixed success, a court might reflect that mixed success in a costs order in the first case but not in the second case.
In a judicial review action, a plaintiff might complain of two decisions or make two complaints about one decision. In one case, the two complaints might be entirely independent of each other. In another case, there might be a high degree of overlap between the issues and evidence relating to the two complaints. It may or may not be more common for costs orders to be made in judicial review actions reflecting mixed success, but the question whether such a costs order should be made will depend on the circumstances of the case, including the factors identified at [20] above, and not on the mere nature of the action as a judicial review action.
In the present case, the plaintiffs succeeded overall in respect of the first ground of review. They did not succeed on all issues in respect of that ground of review and I return later to consider this aspect.
The plaintiffs failed on the remaining grounds of review. The first ground was independent of all the remaining grounds of review. There was some overlap between the third, fourth and fifth grounds as between themselves, but collectively they were independent of the first ground of review. There was some overlap between the sixth ground and the third ground, but both were independent of the first ground of review.
Considered as a whole, there was no relevant overlap between the first ground of review, on which the plaintiffs succeeded, and the remaining grounds of review, on which the State succeeded. The time spent on the first ground of review was substantial; as was the time spent on the remaining grounds of review, which exceeded the time spent on the first ground of review.
Considering the first ground of review in isolation, the plaintiffs succeeded on the issues of construction and discretion by reference to alleged delay and succeeded overall. However, they failed on the issues whether the Coroner made 83 rulings, or otherwise engaged in conduct, denying penalty privilege in relation to a specific question or six general rulings denying penalty privilege other than in the December ruling. Although only a small amount of time at the hearing was spent addressing these 89 occasions, substantial preparation time must have been spent by each party in relation to them.
On the one hand, the fact that the plaintiffs failed in relation to the 89 occasions did not result in their failing to obtain relief in respect of the first ground of review. The allegations they made about those occasions were not necessary for them to succeed on the first issue. In addition, the issues in relation to those occasions were merely sub-issues in relation to the first ground of review, on which the plaintiffs succeeded overall. These considerations suggest that the plaintiffs ought not to be ordered to pay the State’s costs in relation to these occasions.
On the other hand, the plaintiffs chose to allege that the Coroner made rulings or otherwise engaged in conduct denying penalty privilege on the 89 occasions in circumstances in which I have held that there was no such ruling or conduct and in a substantial number of those occasions there was little merit in the plaintiffs’ contention. In addition, the allegations would have involved substantial time and cost. In all of the circumstances, while the plaintiffs ought not to be ordered to pay the State’s costs in respect of the 89 occasions, conversely, the State ought not to be ordered to pay the plaintiffs’ costs in respect of them.
Leaving aside issues concerning the 89 occasions, the plaintiffs ought notionally to recover from the State their costs of action related to the first ground of review and insofar as they did not relate specifically to any ground of review (general costs). Conversely, the State ought notionally to recover from the plaintiffs their costs of action related specifically to the second to sixth grounds of review.
This is a case in which mixed success should be reflected in a mixed costs order.
In such cases, it is generally undesirable, and unusual, to order that one party pay a proportion of the other party’s costs of action and the second party pay a proportion of the first party’s costs of action. It is necessary to make a broad-axe assessment of the notional costs that each party would recover from the other if separate costs orders were made. If they are approximately equal, it is appropriate to order that each party bear their own costs. If there is a preponderance in favour of one party, it is appropriate to order that that party recover a proportion of its costs of action.
I make a broad-axe assessment on the basis that:
·the plaintiffs notionally recover from the State their costs of action not referable to any specific ground of review or referable specifically to the first ground of review except insofar as they relate to the 89 occasions;
·the State notionally recovers from the plaintiffs their costs of action referable specifically to the second to sixth grounds of review.
The hearing occupied three days. My assessment is that between 70 and 75 per cent of the hearing was devoted to the second to sixth grounds of appeal (disregarding the 89 occasions in respect of the first ground of review, on which little time was spent). My assessment is that between 70 and 75 per cent of the primary written submissions (disregarding the appendices) collectively was devoted to the second to sixth grounds of appeal. The parties would have spent substantial time and incurred substantial cost before and in addition to preparation of the written submissions and appearing at the hearing. I expect that the proportion of time and cost would be similar to the above percentages.
Wielding a broad-axe, and without implying over-precision, my assessment is that (disregarding the 89 occasions) 27.5 per cent of the costs of the action were incurred on the first ground or generally and 72.5 per cent of the costs of the action were incurred on the remaining grounds. This suggests that the plaintiffs should pay 45 per cent of the State’s costs of action.
Conclusion
I will make the following orders:
1It is declared that penalty privilege is not abrogated by the Coroners Act 2003 and, if established, affords a ground entitling a witness to decline to answer a question or produce a document at the inquest the subject of this action.
2The action is otherwise dismissed.
3The plaintiffs are to pay 45 per cent of the third defendant’s costs of action, to be adjudicated if not agreed.