Brougham v Edwards (No 2) - [2024] SASCA 129

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
BROUGHAM v EDWARDS (No 2)
[2024] SASCA 129
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Auxiliary Justice Buss)
1 November 2024
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - OTHER MATTERS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INTEREST ON COSTS
Following the dismissal of the appeal in Brougham v Edwards [2024] SASCA 59, and the High Court’s refusal of the application for special leave to appeal, it is necessary to address the costs of the appeal.
The appeal upheld the appellant’s removal and replacement as the trustee of the Brougham Farm Trust (the Trust). His attempted exercise of powers as trustee to transfer the principal asset of that Trust, the Brougham farm, to himself, remained ineffectual.
The appellant sought an order as to costs, similar to that awarded by the primary judge, that his and the respondent’s costs be paid out of Trust, with those costs to be agreed or taxed on a solicitor/client basis. He contended that there should be no order as to the costs of the first interested party.
The respondent trustee sought an order that the appellant pay his costs of the appeal on a standard costs basis, but that he should otherwise be reimbursed his costs of the appeal from the Trust on an indemnity basis.
The first interested party sought an order that the appellant pay the costs of the respondent and the first interested party on a standard costs basis or, in the alternative, that her costs be paid out of Trust.
The second interested party did not participate in the appeal and made no claim for costs.
Held (the Court):
1. On appeal, the appellant acted in his own self-interest and the costs he incurred were not proper and incidental to the administration of the Trust. The ordinary approach to costs following adversarial litigation applies.
2. The appellant is to pay the costs of the respondent, to be agreed or taxed on a standard costs basis. The appellant is not to be indemnified for adverse costs or for his own appeal costs from Trust.
3.After allowance for the payment of costs by the appellant, the respondent will be reimbursed his costs and expenses incurred on appeal from Trust, to be agreed or taxed on a solicitor/client basis.
4. The approach taken to the joinder of intervenors will be relevant to but not necessarily determinative of the circumstances which the court will take into account when determining whether an interested party should be joined. Similar considerations will remain relevant to and inform the exercise of the court’s discretion as to the costs concerning an interested party under s 40 of the Supreme Court Act 1935 (SA) and r 194.1 of the Uniform Civil Rules 2020 (SA).
5.The role and involvement of the first interested party does not appear to have been questioned by the appellant until the argument on costs. The interested party was not put on notice there may be any issue about her involvement or associated costs.
6.The first interested party addressed matters additional to those raised by the respondent that were of some assistance to the Court. The matters raised by the first interested party did not merely duplicate those raised by the respondent, and did not add unduly to the length and complexity of the case. Nonetheless there was some duplication.
7.An appropriate allowance is that the first interested party recover one half of her costs from the respondent to be agreed or taxed on a standard costs basis.
8.The appellant must pay the costs of the respondent and the first interested party in connection with the resolution of the costs of the appeal, to be agreed or taxed on a standard costs basis.

Administration and Probate Act 1919 (SA) s 69; Crown Proceedings Act 1992 (SA) s 9(2); Judiciary Act 1903 (Cth) s 78B; Legislation Interpretation Act 2021 (SA) ss 3(2), 19; Stamp Duties Act 1923 (SA) s 71CC; Supreme Court Act 1935 (SA) s 40; Supreme Court Civil Rules 2006 (SA) r 89; Trustee Act 1936 (SA) ss 35, 91; Uniform Civil Rules 2020 (SA) rr 21.1, 191.1, 194.1, 211.1, 214.2, 214.4, 218.5, referred to.
Adsett v Berlouis (1992) 37 FCR 201; Attorney General for New South Wales v Metcalfe (1904) 1 CLR 421; Australian Incentive Plan Pty Ltd v Attorney-General (No 2) (2012) 44 VR 661; Bagshaw v Pimm [1900] P 148; Brougham v Edwards [2024] SASCA 59; Brougham v Edwards & Ors [2024] HCASL 269; City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65; Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391; Eastern Districts Azzuri Sports Club Inc v SA Soccer Federation Inc (No 1) (1988) 142 LSJS 121; Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Dobrijevic (No 3) [2017] NSWCA 109; Hamilton v JJR Investment Holdings Pty Ltd (No 2) [2021] SASC 136; Harrington v Coote [2012] SASC 205; Hocking v Southern Greyhound Racing Club Inc (1993) 61 SASR 213; In the matter of Hyde (No 2) [2023] SASC 177; Jeavons v Chapman [2008] SASC 249; Levy v The State of Victoria (1997) 189 CLR 579; Li v Choi [2020] QCA 131; Lippe v Hedderwick (1922) 31 CLR 148; Liverpool City Council v Weir (1984) 58 ALJR 213; Mandalinic v Stone (Liquidator) (No 2) [2023] FCAFC 176; Metropolitan Petar v Mitreski [2012] NSWSC 16; Miller v Cameron (1936) 54 CLR 572; National Bank of Australia v Hokit (1996) 39 NSWLR 377; Nolan v Collie (2003) 7 VR 287; O’Meara v FWV Stanke Holdings Pty Ltd (2007) 250 LSJS 195; Palairet v Carew (1863) 32 Beav 564; 55 ER 222; Pope v Pope [2001] SASC 26; QB4 Capital Pty Ltd v Guardian Securities Ltd [2023] FCAFC 72; Re Beddoe; Downes v Cottam [1893] 1 Ch 547; Re Bubnich; Marian v Bubnich [1965] WAR 138; Re Buckton; Buckton v Buckton [1907] 2 Ch 406; Re Earl of Radnor’s Will Trusts (1890) 45 Ch D 402; Re Lonnex Pty Ltd (in liq); Ex parte McDermott and Potts (No 2) (2019) 57 VR 238; Re Multi-Tech Services Pty Ltd (In liq) (1982) 30 SASR 218; Roadshow Films Pty Ltd v iiNet Ltd (2011) 86 ALJR 205; Rosenthal v Rosenthal (1910) 11 CLR 87; Rouse v IOOF Australia Trustees Ltd (No 3) [1999] SASC 208; The Athenic [1932] WN 10; The Perpetual Executors and Trustees Association of Australia Ltd v Wright (1917) 23 CLR 185; Twist v Tye [1902] P 92; Wales v Vrsecky [2015] VSC 223; Wade v Wade [1903] P 16; Wareham v Marsella (No 2) [2020] VSCA 118; Watson v Ralph (1982) 148 CLR 646; Young v Murphy [1996] 1 VR 279, considered.

BROUGHAM v EDWARDS (No 2)
[2024] SASCA 129
Court of Appeal – Civil: Livesey P, Doyle JA and Buss AJA
THE COURT
Introduction

It is necessary to address the costs of the appeal which was dismissed by this Court on 10 May 2024.[1]
[1] Brougham v Edwards [2024] SASCA 59.
The effect of the appeal decision was to reject the challenge made by Mr John Brougham (the appellant) to declarations and orders which upheld his removal as trustee of the Brougham Farm Trust (the Trust) and his replacement by his father, Mr Peter Brougham, and Mr James Edwards (the respondent) as joint trustees on 15 October 2020.
As the appellant’s removal was upheld, his attempted exercise of powers as trustee on 16 October 2020 to transfer the principal asset of the trust, the Brougham farm, as a distribution in specie to himself, remained ineffectual.
Before the appeal, on 10 March 2022 the primary judge ordered that the trial costs of the appellant, the respondent and the interested parties should all be paid out of the Trust. All parties before this Court agreed that as the appeal was dismissed there was no occasion to disturb that order.
The appellant sought a similar order on appeal. He contended that his and the respondent’s costs should be paid out of the Trust, with those costs to be agreed or taxed on a solicitor/client basis. The appellant also contended that there should be no order as to the costs of the first interested party.
The respondent sought an order that the appellant pay his costs of the appeal on a standard costs basis, but that he should otherwise be reimbursed his costs of the appeal from the Trust, on an indemnity basis. The respondent said that he made no submissions about the costs of the first interested party, save that he submitted:[2]
1.Although the first interested party as a beneficiary had a real interest in the due administration of the trust, that interest was wholly advanced by the respondent.
2.The first interested party will get nothing from the trust unless the trustee exercises his discretion in her favour, and so it may seem unfair to leave her out of pocket.
3.Any payment of costs from the Trust will diminish the corpus of the Trust and risk the need for a sale of the Brougham farm. If the appellant was ordered to pay the first interested party’s costs directly the Trust would not be affected and the appellant would “have suffered the usual consequences of adversarial and partisan litigation”.
[2] Written submissions of the Respondent on Costs, [14].
The first interested party sought an order that the appellant pay the costs of the respondent and the first interested party on a standard costs basis. Alternatively, the first interested party sought an order that her costs be paid out of the Trust. The first interested party submitted that the appellant should not be indemnified for adverse costs, nor for the appellant’s own costs, from the Trust.
The second interested party did not participate in the appeal and made no claim for costs. All parties were agreed that there should be no order as to the second interested party’s costs of the appeal.
For the following reasons, the appellant should personally pay the costs of the respondent and one half of the costs of the first interested party, to be agreed or taxed on a standard costs basis. The appellant should not be indemnified for those costs or for his own appeal costs from the Trust.
After allowance for the payment of his costs by the appellant, the respondent should be reimbursed for his costs and expenses incurred on appeal from the Trust, to be agreed or taxed on a solicitor/client basis.
Background - the issues at trial and on appeal
The appellant was appointed the trustee of the Trust by his parents as the appointors under the Brougham Farm Trust Deed. After his mother died and the appellant fell into dispute with his father over the control of the Trust and its principal asset, the Brougham farm, Peter Brougham exercised his powers as appointor to replace the appellant and appoint himself and the respondent as joint trustees.
Mr Peter Brougham and the respondent commenced these proceedings in order to obtain declarations and orders confirming that they were validly appointed as joint trustees and that the appellant was no longer a trustee when he purported to exercise the powers of a trustee and transfer the Brougham farm to himself.
Before the trial, Mr Peter Brougham died. The respondent was appointed executor of the deceased estate of Mr Peter Brougham. The appellant’s sisters, Ms Paula Brougham (the first interested party) and Ms Corenna Sally Brougham (the second interested party) were joined by the respondent, without any opposition from the appellant.
After construing the Brougham Farm Trust Deed, the primary judge upheld the respondent’s appointment and rejected the appellant’s purported transfer. Declarations and associated orders were made.
On appeal, the appellant did not challenge the detailed findings and rulings made by the primary judge regarding these matters, save that he contended that the declarations and orders went beyond the proper scope of a ruling on an application for advice or direction under s 91 of the Trustee Act 1936 (SA) (the Trustee Act) and s 69 of the Administration and Probate Act 1919 (SA). This Court rejected the appellant’s belated attempt to raise new issues about jurisdiction and whether the declarations were impermissibly broad.
This Court also found that it was incumbent upon the appellant to raise his whole case at trial and that it was too late for him to raise new issues about whether the power of appointment exercised by Mr Peter Brougham was a fiduciary power (with the result that it was necessary to consult with beneficiaries including the appellant before it was exercised) as well as whether his appointment of himself as a joint trustee raised the operation of the equitable doctrine of fraud on a power.
Accordingly, the appellant failed. The respondent and first interested party succeeded on appeal.
Events following dismissal of the appeal
When the appeal was dismissed, the parties agreed to a stay pending an application for special leave to appeal by the appellant. In the meantime, the parties delivered written submissions on costs. On 10 October 2024, the High Court refused special leave to appeal with costs.[3]
[3] Brougham v Edwards & Ors [2024] HCASL 269, [2]. The High Court found that there was insufficient reason to doubt the correctness of the decision of the Court of Appeal and that it did not raise an issue of general importance.
The role of the appellant on the appeal
The parties were effectively agreed that the appellant was personally liable for the respondent’s costs, and the real issue was whether the appellant should be indemnified for those costs as well as his own costs.
The appellant accepted that the effect of the decision of the primary judge was that, with effect from 15 October 2020, as the former trustee of the trust he could not avail himself of either the trustee’s general law right of indemnity, or the trustee’s indemnity conferred by clause 22 of the Brougham Farm Trust Deed concerning adverse costs or his own costs.
Nonetheless, the appellant relied on the Court’s unfettered discretion under s 40 of the Supreme Court Act 1935 (SA) and r 194.1 of the Uniform Civil Rules 2020 (SA) (the UCR) and contended that the principles applying to a trustee’s indemnity should guide the approach taken to a former trustee. The appellant contended that the effect of the decision under appeal was “similar in principle” to the Court ordering the appellant’s removal. In that kind of case, the Court may order that the trustee’s liability for adverse costs be indemnified from the trust fund and that the former trustee’s costs be paid directly from the trust fund.
The appellant submitted that the Court may make these kinds of orders where it determines that the trustee acted reasonably as well as honestly and not in substance for the trustee’s own personal benefit.
Rather, the appellant contended that the costs were incurred as an incident of the due administration of the Trust, and he was entitled to defend his conduct and be indemnified for the costs of so doing.[4] As for the appeal, the appellant contended that there was a lack of clarity as to the effect of the proceedings and the findings made by the primary judge, together with the terms of the declarations made. Accordingly, it was for the benefit of the Trust to resolve this lack of clarity. The appellant contended that the appeal was therefore “appropriate, reasonable and (indeed, arguably, necessary) to clarify the effect of the proceedings …”.[5]
[4] Metropolitan Petar v Mitreski [2012] NSWSC 16, [109] (Brereton J).
[5] Written submissions of the Appellant on Costs, [17].
These submissions should be rejected.
The onus is on the appellant to demonstrate that the appeal costs and expenses were properly incurred for the benefit of the Trust.[6] Where a trustee seeks advice, a direction, or a determination of an issue relating to the trust, and then appeals that decision, the trustee is ordinarily regarded as being in the same position as any other appellant. If the trustee fails on appeal, the trustee is usually ordered to pay costs personally.[7]
[6] Rouse v IOOF Australia Trustees Ltd (No 3) [1999] SASC 208, [43]–[45] (Lander J); Re Lonnex Pty Ltd (in liq); Ex parte McDermott and Potts (No 2) (2019) 57 VR 238, 247 [32]–[33] (Whelan, McLeish and Hargrave JJA); Wareham v Marsella (No 2) [2020] VSCA 118, [18] (Tate, McLeish and Hargrave JJA).
[7] Re Earl of Radnor’s Will Trusts (1890) 45 Ch D 402, 423 (Lord Esher MR); Rosenthal v Rosenthal (1910) 11 CLR 87, 97-98 (Higgins J); The Perpetual Executors and Trustees Association of Australia Ltd v Wright (1917) 23 CLR 185, 194 (Barton ACJ), 198 (Isaacs, Gavan Duffy and Rich JJ); Lippe v Hedderwick (1922) 31 CLR 148, 154‑155 (Knox CJ, with whom Powers J agreed); Re Bubnich; Marian v Bubnich [1965] WAR 138, 142-143; Australian Incentive Plan Pty Ltd v Attorney-General (No 2) (2012) 44 VR 661, 692-694; Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Dobrijevic (No 3) [2017] NSWCA 109, [34] (Payne JA, with whom Ward and Gleeson JJA agreed); Li v Choi [2020] QCA 131, [50].
There is no reason not to apply the ordinary rule that the unsuccessful appellant should pay the successful respondent’s costs of the appeal.
Whilst determining who was the proper trustee was a question necessarily incidental to the proper administration of the trust, that question was determined by the primary judge. That may explain why the primary judge made the costs orders which he made at the conclusion to the trial.
There was no real lack of clarity about the proceedings, or the declarations and orders made at trial. Indeed, the appellant did not seek to challenge the detailed findings and rulings made by the primary judge. In that sense this was an unusual case.[8] Rather, on appeal the appellant attacked the declarations and orders made by the primary judge by challenging their breadth and by raising new issues which it was said had to be determined on a remittal even though these had never been raised before the primary judge.
[8] Brougham v Edwards [2024] SASCA 59, [55].
Perhaps more importantly, the debate on appeal was ultimately directed to displacing the finding made about the appointment of the respondent as trustee, and this can only have been ventilated in order to give the appellant the opportunity to uphold his distribution and transfer of the Brougham farm, the sole asset of the Trust, to himself.
Whatever might have been said about the uncertainties associated with determining the identity of the proper trustee at trial, on appeal there was no uncertainty and consequently less scope for sympathy to the payment of the appellant’s costs from the trust estate.[9]
[9] Wareham v Marsella (No 2) [2020] VSCA 118, [19]-[20] (Tate, McLeish and Hargrave JJA).
The appellant as former trustee incurred adverse costs as well as his own costs “representing and supporting his own interests and not those of the trust estate”.[10] Those costs were not “proper and incidental to the administration” of the Trust.[11] The proper conclusion is that the appellant was acting in his own self‑interest on the appeal.[12] In these circumstances, the ordinary approach to costs following adversarial litigation applies and the appellant should be ordered to pay the respondent’s costs of the appeal on a standard costs basis, without indemnity from the Trust for those costs or for his own costs.
[10] Miller v Cameron (1936) 54 CLR 572, 579 (Latham CJ).
[11] Cf Attorney General for New South Wales v Metcalfe (1904) 1 CLR 421, 428 (Griffith CJ). The appellant cannot claim that he was “encouraged to appeal by the acceptance” of the arguments that this Court has rejected, as was the case in Watson v Ralph (1982) 148 CLR 646, 654 (Gibbs CJ).
[12] Pope v Pope [2001] SASC 26, [33]-[34] (Bleby J, with whom Doyle CJ and Duggan J agreed).
The role of the respondent on the appeal

It was necessary for the respondent as trustee to, in effect, defend his own appointment as well as safeguard the Trust from the claim made by the appellant.
The respondent was entitled to indemnity for the costs and expenses he properly incurred in connection with the performance of his duties and the exercise of his powers as trustee.[13] Similarly, the respondent had an explicit right of indemnity under clause 22 of the Brougham Farm Trust Deed. These rights are recognised by s 35(2) of the Trustee Act and operate where the trustee has not acted unreasonably or improperly.[14]
[13] Re Beddoe; Downes v Cottam [1893] 1 Ch 547, 562; Nolan v Collie (2003) 7 VR 287, [43]-[53]; QB4 Capital Pty Ltd v Guardian Securities Ltd [2023] FCAFC 72, [90].
[14] Palairet v Carew (1863) 32 Beav 564; 55 ER 222; Re Beddoe; Downes v Cottam [1893] 1 Ch 547, 562 (Bowen LJ); Adsett v Berlouis (1992) 37 FCR 201, 212 and 214.
In these circumstances, and to the extent that the respondent’s costs and expenses incurred on appeal are not met by the appellant, the respondent should be indemnified for his costs from the Trust on a solicitor/client basis as explained in r 191.1 of the UCR.[15]
[15] See for example, Re Buckton; Buckton v Buckton [1907] 2 Ch 406 (Kekewich J), and the many cases which have followed it, where costs may ordinarily be viewed as necessarily incurred for the benefit of the trust they may be awarded on a solicitor client or indemnity basis.
The role and costs of the first interested party on appeal
The appellant opposed an order that he pay the costs of the first interested party. The appellant contended that the role of an interested party should be equated to the role of an intervenor under the former rules of court and he relied on the approach Debelle J took to intervenors in City of Burnside v Attorney‑General of South Australia.[16] The appellant cited two authorities in support of the analogy.[17] The appellant also relied on the explanatory note to r 21.1(4) of the UCR, to the following effect:
An interested party may choose not to participate in the proceeding, or to participate only to a limited extent, but this will not affect the proceeding as between applicant and respondent.
The costs rules that apply as between applicant and respondent do not apply as between applicant and interested party. If the interested party does not participate in the proceeding, no costs order will ordinarily be made as between applicant and interested party. Even if the interested party does participate, costs will not necessarily follow the event due to the limited role of an interested party in contrast to the role of a respondent.
[16] City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65, 67-68.
[17] Hamilton v JJR Investment Holdings Pty Ltd (No 2) [2021] SASC 136 (Bochner Aux J); In the matter of Hyde (No 2) [2023] SASC 177 (Kimber J).
The appellant contended that only he and his parents were named as beneficiaries, and the first interested party was merely one of a large number of potential beneficiaries under clause 7 of the Brougham Farm Trust Deed, which referred to any relatives of the appellant and his parents “as defined by s 71CC of the Stamp Duties Act 1923 (SA)”.
The appellant contended that as the first interested party was a mere object of the Trust, she had no rights or powers save for the right to see that the trustee’s discretion was properly exercised. Accordingly, the appellant questioned why it was necessary for the first interested party to be joined or heard in circumstances where the respondent took an adversarial position and any possible beneficial interest was represented, and the objects of the trust would be bound by the outcome.[18]
[18] Written submissions of the Appellant on Costs, [24].
The appellant submitted that though he was required to join the first interested party as a party to the appeal by reason of r 214.4(2)(b) of the UCR, it was entirely a matter for the first interested party regarding the degree to which she participated in the appeal. It could not be said that her participation was necessary to protect any particular interest and her submissions did not go beyond the position taken by the respondent.
The first interested party contended that she had a real interest in the due administration of the Trust and in resisting the appellant’s appeal by which he effectively claimed to have been the trustee and to have properly distributed its main asset to himself.
The first interested party contended that her entitlement to costs should not be determined by her status as an interested party rather than by the fact she was named as a respondent to the appeal. Moreover, she contended that she put submissions on the appeal which were not the same as those put by the respondent, a number of which were accepted by the Court of Appeal.[19]
[19] Written submissions of the first interested party on costs, [19].
The first interested party did not challenge the analogy of an intervenor and cited the example of Mandalinic v Stone (Liquidator) (No 2), where the Full Court of the Federal Court ordered that the costs of an intervenor be paid by an appellant where it found that the intervenor’s arguments were presented both efficiently and were of considerable assistance.[20]
[20] Mandalinic v Stone (Liquidator) (No 2) [2023] FCAFC 176, [4].
Although the appellant questioned the inclusion of the first and second interested parties, that has not been his consistent approach. Neither of the interested parties were named in the original proceedings until after the trial commenced.
On 10 December 2020, senior counsel for the respondent raised the need to give the interested parties notice so as to avoid any complaint about procedural fairness. In response, the primary judge expressed the view that the interested parties - the two sisters of the appellant - ought to have been joined as respondents from the outset.
Although the appellant now questions whether this was necessary, the order made by the court on 12 March 2021 was made without any opposition or qualification from counsel then representing the appellant. The first interested party appeared on 26 May 2021 and advised the court by her solicitor that she had nothing to usefully add to the position of the respondent at trial. The appellant took no technical or other issue with the joinder of the interested parties if they wished to be heard,[21] until it came time for submissions to be made on costs.[22]
[21] Edwards v Brougham, Transcript dated 26 May 2021 (Kourakis CJ), 6.
[22] Edwards v Brougham, Transcript dated 2 February 2022 (Kourakis CJ), 3.
Whilst it was theoretically possible for the respondent as trustee to represent all relevant beneficial interests opposed to the appellant, it is unsurprising that they were joined. They appear to have been aware of the proceedings, were the appellants’ only siblings, had a proper interest in the due administration of the trust as potential beneficial objects, and did not oppose joinder.
By r 21.1(4) of the UCR an “interested party” is defined in the following way:
An interested party is a party (whenever joined) who should be given the opportunity to be heard in relation to the proceeding or who must be joined to be bound by the result.
Examples—
In a dispute between landlord and tenant under section 35(3) of the Housing Improvement Act 2016, the Minister is entitled to be heard and must be joined as an interested party under rule 239.1 even though no relief is sought against the Minister and the Minister is not directly or adversely affected.
In a proceeding seeking rectification of the real property Register Book, the Registrar-General may need to be bound by the result even though the Registrar is not directly or adversely affected and no relief is sought against the Registrar. The Registrar would be joined as an interested party.
Notes—
An interested party may choose not to participate in the proceeding, or to participate only to a limited extent, but this will not affect the proceeding as between applicant and respondent.
The costs rules that apply as between applicant and respondent do not apply as between applicant and interested party. If the interested party does not participate in the proceeding, no costs order will ordinarily be made as between applicant and interested party. Even if the interested party does participate, costs will not necessarily follow the event due to the limited role of an interested party in contrast to the role of a respondent.
These Rules do not provide for an intervenor. A person who would have been an intervenor under the Previous Rules will be an interested party under these Rules.
By s 3(2) of the Legislation Interpretation Act 2021 (SA), the rules of court are a “legislative instrument”, and that Act applies to them. The notes to a legislative instrument are to be regarded as editorial notes and do not form part of the instrument.[23]
[23] Legislation Interpretation Act 2021 (SA), s 19.
Nonetheless, the present rules of court do not provide for intervention. The closest they come is the concept of an interested party. As the rules now provide, an interested party is one who should be given the opportunity to be heard or who must be joined so as to be bound by the result. Leaving aside the quite different cases where intervention is explicitly addressed by statute,[24] these conditions are not inconsistent with the practice taken to intervention under r 89 of the former Supreme Court Civil Rules 2006 (SA), as explained in Jeavons v Chapman:[25]
[24] See, for example, the Judiciary Act 1903 (Cth), s 78B and the Crown Proceedings Act 1992 (SA), s 9(2).
[25] Jeavons v Chapman [2008] SASC 249, [11]-[12] (Gray J).
(1)The Court may, on application by a person who wants to intervene in an action, permit intervention on conditions determined by the Court.
(2)An application for permission to intervene must be supported by an affidavit stating –
(a)     the nature of the applicant’s interest in the action (which need not be a legal or equitable interest); and
(b)     the applicant’s object in seeking permission for intervention; and
(c)     the extent of the proposed intervention.
(3)A copy of the application and the supporting affidavit must be served on all parties to the action.
(4)     The Court may permit intervention on conditions it considers appropriate.
(5)The Court may, on application or on its own initiative, vary or revoke an order allowing non-party intervention under this rule.
In contrast to Rule 33.01 of the Supreme Court Rules 1987 (SA),[26] the immediate predecessor to Rule 89, no criteria are laid down as to when an order for intervention may be appropriate. The decision whether to make an order permitting intervention by a non‑party is therefore a matter of discretion, to be determined in all of the circumstances of the case.[27] Ordinarily, however, the following four matters are relevant: whether the intervention is apt to assist the Court in the instant case; whether it is in the parties’ interest to allow the intervention; whether the intervention will occupy time unnecessarily; and whether allowing intervention will add inappropriately to the costs of the proceeding.[28]
[26] Rule 33.01 provided:
Any person:
(a) claiming an interest in the subject matter of proceedings; or
(b)whose claim or defence raises a question of law or fact, in common with the subject proceedings or the decision of which might affect the proceedings; or
(c)claiming that his participation in the proceedings will provide the Court with information relevant to the decision of the case or the choice of a remedy that will not be presented by an existing party, may by application to the Court in the proceedings seek:
(i)permission to intervene; and
(ii)directions.
[27] O’Meara v FWV Stanke Holdings Pty Ltd (2007) 250 LSJS 195, [7].
[28] National Bank of Australia v Hokit (1996) 39 NSWLR 377, 381 (Mahoney P, with whom Waddell AJA agreed). Although the issue in this case concerned the intervention of an amicus curiae these principles are applicable generally.
Under the present UCR, r 211.1 defines “interested party” and “respondent” for the purposes of appellate proceedings as follows:
interested party in an appellate proceeding means a party (whenever joined)—
(a)who was an interested party in the proceeding at first instance unless the party has no interest in the appellate proceeding; or
(b)against whom no relief is sought in and whose interest is not directly and adversely affected by the appellate proceeding but who should be given the opportunity to be heard in relation to the proceeding or who must be joined to be bound by the result;
…
respondent to an appellate proceeding means a party (whenever joined)—
(a)who was an applicant or respondent in the proceeding at first instance, unless the party has no interest in the appellate proceeding; or
(b)against whom orders are sought in, or whose interest may be directly and adversely affected by, the orders sought in the appellate proceeding.
Rules 214.2(2) and 218.5(1) provide:
(2)The appellant must join as a respondent or interested party in the appellate proceeding—
(a) any party to the first instance proceeding unless that party has no interest in the appeal; and
(b) any other person falling within paragraph (b) of the definitions of respondent or interested party in rule 211.1.
…
(1)Each party who intends to make submissions on the appeal or case stated must prepare written submissions in accordance with 218.6, a chronology in accordance with rule 218.7 and list of authorities in accordance with rule 218.8.
By reason of r 214.2(2) of the UCR, it was necessary for the appellant to join the interested parties to the appeal unless it could be said that they had “no interest in the appeal”.
It was not until the argument on costs that the appellant questioned whether the interested parties had an interest in the appeal.[29] Even then, the appellant did not question whether the first interested party should have been given the opportunity to be heard.[30] In consequence of their joinder, the interested parties were entitled to participate on the appeal, for example, by filing outlines in accordance with r 218.5(1) of the UCR.
[29] Rule 214.2(2)(a) and limb (a) of the r 211.1 of the UCR, definition of interested party.
[30] Rule 214.2(2)(b) and limb (b) of the r 211.1 of the UCR, definition of interested party.
At the hearing of the appeal before this Court, the first interested party took an active role, and the second interested party did not appear. Whilst there was a broadly consistent approach taken by the respondent and the first interested party, the first interested party helpfully raised issues and submissions additional to those raised by the respondent. These included the potential jurisdictional basis for the decision of the primary judge, as well as the appellant’s obligations in the event he had an objection to jurisdiction. The first interested party identified impediments to the new arguments raised by the appellant for the first time on appeal.
Contrary to the submissions he made in connection with costs, when submissions were made by the first interested party before the appeal was heard, the appellant recognised that some were different to those made by the respondent.[31] Some of the submissions advanced by the first interested party were accepted by this Court.[32]
[31] See, for example, the Appellant’s Reply dated 5 September 2022, [2]-[3].
[32] Brougham v Edwards [2024] SASCA 59, [101].
Assuming that an interested party under the present rules is entitled to participate in an appeal, is there any qualification to or restriction on, an interested party’s costs entitlement? In particular, should an analogy be drawn with intervenors and the approach taken to their costs under the former rules of court? The first issue is whether an analogy should be drawn between an intervenor under the former rules of court and an interested party under the present rules. The second issue is whether the principles relating to the costs of an intervenor should be applied to an interested party.
The appellant relied on three cases. The first was City of Burnside v Attorney‑General of South Australia,[33] where Debelle J addressed the principles relating to claims for costs against and by intervenors under the 1987 rules. In the second case relied on by the appellant, Hamilton v JJR Investment Holdings Pty Ltd (No 2), [34] Justice Bochner drew an analogy between intervenors and interested parties for the purposes of determining a joinder application. In the third, In the matter of Hyde (No 2), Kimber J applied City of Burnside v Attorney‑General of South Australia for the purposes of determining costs claims involving an interested party.[35]
[33] City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65.
[34] Hamilton v JJR Investment Holdings Pty Ltd (No 2) [2021] SASC 136 (Bochner Aux J).
[35] In the matter of Hyde (No 2) [2023] SASC 177 (Kimber J).
In City of Burnside v Attorney-General of South Australia the appellant succeeded on appeal in obtaining orders that authorised the sale of land subject to a charitable trust.[36] The Athletics Association of South Australia was granted leave to intervene and opposed the making of the orders at trial and on appeal. The intervenor failed on appeal. The appellant sought costs from the intervenor to the extent that the trial and the appeal were prolonged by the intervention.
[36] City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65, 67-68.
In the course of his reasons, Debelle J explained that the power of the Supreme Court to order intervention in other than Probate and Admiralty actions was of relatively recent origin.[37] Debelle J explained that, as a general rule, an intervenor was not allowed costs even if successful,[38] unless the intervenor’s interest differed from that of other parties to the action.[39] The general practice had been to allow one set of costs so that if the intervenor’s interest was the same as that of another party, the intervenor was expected to adopt the pleadings of that other party.[40] Similar principles applied in Admiralty. An intervenor was only entitled to costs if intervention was necessary to protect the intervenor’s rights.[41]
[37] City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65, 66, citing Re Multi-Tech Services Pty Ltd (In liq) (1982) 30 SASR 218 and Hocking v Southern Greyhound Racing Club Inc (1993) 61 SASR 213, 215, 219-222.
[38] City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65, 67 citing Twist v Tye [1902] P 92, 98.
[39] City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65, 67 citing Bagshaw v Pimm [1900] P 148.
[40] City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65, 67 (Debelle J).
[41] City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65, 67 citing The Athenic [1932] WN 10.
Justice Debelle explained that similar rules applied to matrimonial suits and, as with Probate and Admiralty actions, an intervenor may recover costs when successfully defending an interest which one of the parties, with whom her interests were aligned, had chosen not to defend.[42] Debelle J held that it was appropriate to apply similar rules in cases where intervention was ordered pursuant to the then rules of court:[43]
Thus, generally speaking, a successful intervenor will recover costs only if the intervention was necessary to protect his interest. A successful intervenor is unlikely to recover his costs even if the intervention was well intentioned and proved to be of assistance to the court.[44]
There appears to be no reason why as a matter of general principle an unsuccessful intervenor should not be subject to the general rule that costs follow the event. However, it is not appropriate to apply that general rule without qualification. If a successful intervenor is not entitled to his costs where his interests are adequately protected by an existing party to the action, it would be inequitable for an unsuccessful intervenor to be liable to costs in like circumstances. However, an unsuccessful intervenor might be liable for costs if his intervention has substantially extended the hearing or put the successful party to unnecessary cost.
[42] City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65, 67 citing Wade v Wade [1903] P 16.
[43] City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65, 67-68 (Debelle J).
[44] Liverpool City Council v Weir (1984) 58 ALJR 213, 216.

Apart from determining whether the intervenor’s interest was adequately protected by an existing party, Debelle J held that it might be relevant to consider whether the intervenor assisted the parties and the court in identifying or elucidating the issues. In that event, even if intervention prolonged the hearing the assistance provided by the intervenor might make it inequitable to order the intervenor to contribute to the costs of the successful party.
Justice Debelle emphasised that a broad view should be taken about these matters.[45] Debelle J held that an unsuccessful intervenor may be rendered liable for costs if the intervention substantially extended the hearing or put the successful party to unnecessary costs. Relevant considerations would include whether the interest sought to be protected by the intervenor was adequately protected by an existing party, as well as whether the intervenor assisted the parties and the court in addressing the issues.
[45] City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65, 68-69 (Debelle J), otherwise referred to as “a broad axe approach”.
As the appeal had not been unduly prolonged by the intervenor’s participation, Debelle J held that no order for costs would be made against it. However, an order for costs was made in respect of the trial costs, reflecting the half day by which the intervention prolonged the trial.
In the second case relied on by the appellant, Hamilton v JJR Investment Holdings Pty Ltd (No 2), Justice Bochner ordered the joinder of an interested party in circumstances where she was satisfied that the applicant had a relevant interest and should be heard. The case was only concerned with joinder, not costs. It was submitted in that case that an interested party was the “closest equivalent” to an intervenor under the present rules.[46] The approach taken by Brooking J in Young v Murphy to the joinder of beneficiaries was relied on by the applicant for joinder:[47]
Accordingly, if in the proceedings the trustee seeks the execution or administration of the trust in addition to seeking to have the breach of trust redressed, the beneficiaries will or may be necessary parties, since their interests inter se or their rights against the trustee may have to be determined. This is not so if in the proceedings the trustee seeks only to get in the trust fund, or seeks in addition only any account necessary for that purpose. On the other hand, in proceedings for the execution or administration of the trust the interests of the beneficiaries may conflict among themselves and there may in addition be a conflict of interest between the trustee and the beneficiaries with regard to the accounting by the trustee required for the purposes of the general distribution of the trust estate which is asked for in the proceedings. So a distinction is drawn between proceedings which seek merely to get back the trust fund and proceedings for the execution or administration of the trust. The former can be maintained by the trustee without joining the beneficiaries; the latter are or may be incapable of being so maintained.
[46] Hamilton v JJR Investment Holdings Pty Ltd (No 2) [2021] SASC 136, [17] (Bochner Aux J).
[47] Young v Murphy [1996] 1 VR 279, 283-284.
As is clear from this passage, and the reliance placed on Wales v Vrsecky,[48] these were cases concerned with the joinder of beneficiaries as parties, and not merely as intervenors or interested parties, where the interests of one or more beneficiaries may not be properly represented by the trustee or where there is a real conflict between the beneficiaries.
[48] Wales v Vrsecky [2015] VSC 223, [15].
Justice Bochner referred to the notes to r 21.1(4) of the UCR and accepted that an intervenor under the 2006 rules would be regarded as an interested party under the 2020 rules, and that the cases and principles on intervention under the 2006 rules were relevant to whether to join an interested party under the 2020 rules.[49] Her Honour relied on the following passage from Harrington v Coote:[50]
When there are good grounds to join a person as an additional defendant in the action, this course should be followed rather than joining the person as an intervenor.[51] Further, a non-party whose interests are likely to be directly or substantially affected by the outcome of the proceeding should be permitted to intervene, but not merely someone whose interests in the future may be indirectly or contingently affected.[52]
The general principles governing non-party intervention were discussed by Brennan CJ in Levy v The State of Victoria.[53] Intervention may be appropriate in three main situations: where a non-party interest would be affected by a decision in the proceeding; where a non-party interest is likely to be affected by a decision in the proceedings; and where parties to the proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination.
Where intervention is permitted, generally an intervenor has the rights and privileges of a party to tender evidence, to participate fully in the argument and to appeal.[54] However, an intervenor may assert no interest greater than that of the original parties and cannot raise new issues.[55]
[49] Hamilton v JJR Investment Holdings Pty Ltd (No 2) [2021] SASC 136, [42]-[43] (Bochner Aux J).
[50] Harrington v Coote [2012] SASC 205, [8]-[10] (Gray J).
[51] Eastern Districts Azzuri Sports Club Inc v SA Soccer Federation Inc (No 1) (1988) 142 LSJS 121, 125.
[52] Roadshow Films Pty Ltd v iiNet Ltd (2011) 86 ALJR 205, 206.
[53] Levy v The State of Victoria (1997) 189 CLR 579, 600-605 (Brennan CJ).
[54] Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391, 396.
[55] Hocking v Southern Greyhound Racing Club (1993) 61 SASR 213, 215-216 (King CJ).
Justice Bochner recognised that in Levy v The State of Victoria, Brennan CJ was concerned with the Court’s inherent power, and not its rules-based power, but regarded those criteria as also relevant to determining the joinder of an interested party. This was made clear by her Honour’s reliance on the following passage from the decision of the High Court in Roadshow Films Pty Ltd v iiNet Ltd:[56]
In determining whether to allow a non-party intervention the following considerations, reflected in the observations of Brennan CJ in Levy v Victoria,[57] are relevant. A non-party whose interests would be directly affected by a decision in the proceeding, that is one who would be bound by the decision, is entitled to intervene to protect the interest likely to be affected. A non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the outcome of the proceedings in this Court will satisfy a precondition for leave to intervene. Intervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court or their effect upon future litigation.
Where a person having the necessary legal interest can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene, albeit subject to such limitations and conditions as to costs as between all parties as it sees fit to impose.
[56] Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37, [2]-[3]. The Court went on to explain the different approach taken when granting leave for a person to be heard as an amicus curiae.
[57] Levy v State of Victoria (1997) 189 CLR 579, 600-605.
In the third of the cases relied on by the appellant, In the matter of Hyde (No 2), the parties and the court assumed without argument that the approach Debelle J took to costs claims involving intervenors in City of Burnside v Attorney‑General of South Australia should be applied to interested parties.[58]
[58] In the matter of Hyde (No 2) [2023] SASC 177 (Kimber J).
Rule 21.1(4) of the UCR permits joinder where an interested party should be given the opportunity to be heard or must be joined to be bound by the result. These conditions are less prescriptive than earlier rules concerning the joinder of an intervenor, and less prescriptive than the conditions for the exercise of the inherent power discussed by the High Court in cases such as Roadshow Films Pty Ltd v iiNet Ltd.[59] That suggests that the approach taken to the joinder of intervenors will continue to remain relevant but not necessarily determinative of the circumstances which the court will take into account when determining whether an interested party should be joined.
[59] Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37.
Apart from deciding whether the applicant should be a party and not merely an interested party, the court will be concerned to address whether joinder may cause unnecessary duplication, complication, expense or delay. The court will also need to understand the nature of the applicant’s interest and whether it is necessary to hear from the applicant given what the applicant proposes to put to the court and the potential effect of the court’s decision on the applicant. Brennan CJ explained a number of these considerations in Levy v State of Victoria:[60]
… a non-party whose interests would be affected directly by a decision in the proceeding - that is, one who would be bound by the decision albeit not a party - must be entitled to intervene to protect the interest liable to be affected. This, indeed, is the explanation of many of the cases in which intervention has been allowed in probate and admiralty cases and in other cases where an intervenor and a party are privies in estate or interest.
…
The exercise of this Court's jurisdiction to determine controversies between parties is not, and could not be, conditioned on allowing intervention by all those whose interests are susceptible to affection by the Court's judgments. Such a condition would virtually paralyse the exercise of that jurisdiction. The principles of natural justice which control the exercise of curial power must take account of the nature of the jurisdiction to be exercised.
However, where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene. The grant may be limited, if appropriate, to particular issues and subject to such conditions, as to costs or otherwise, as will do justice as between all parties. In that situation, intervention may prevent an error that would affect the interests of the intervenor. Of course, if the intervenor's submission is merely repetitive of the submission of one or other of the parties, efficiency would require that intervention be denied…
(Citations omitted.)
[60] Levy v State of Victoria (1997) 189 CLR 579, 601-604.
As the decision of Debelle J in City of Burnside v Attorney-General of South Australia demonstrates, similar considerations will remain relevant to and inform the exercise of the court’s discretion as to the costs concerning an interested party under s 40 of the Supreme Court Act 1935 (SA) and r 194.1 of the UCR. Whilst analogies might be drawn from similar cases, the unfettered nature of the discretion as to costs, and the need for the court to take a broad approach to the resolution of any claim for costs, necessarily requires that close attention be given to the particular circumstances of the case of the interested party before the court.
In resolving the claim for costs made by the first interested party in this case, the starting point is that joinder was not opposed by the appellant and no attempt was made to render joinder subject to any conditions, whether as to costs or otherwise, at trial or on appeal.
Indeed, the role and involvement of the first interested party appears to have been questioned by the appellant only after the question of costs arose for decision following the trial and the appeal. This is not a case where the first interested party was put on notice by the appellant that there may be an issue about her involvement on appeal, or the costs associated with that involvement.
Next, the respondent trustee opposed the appellant’s appeal and, in that sense, the first interested party took an interest which was similar to, if not the same as, the interest of the respondent.
Finally, however, the submissions made by the first interested party were not the same as the submissions made by the respondent trustee. Additional matters were addressed by the first interested party in a manner that was of some assistance to this Court. This is not a case where it could be said that the involvement of the first interested party merely duplicated the involvement of the respondent, nor that it added unduly to the length and complexity of the case.
Having said that, there was some duplication, and this case is not like the case of Mandalinic v Stone (Liquidator) (No 2), where the separate and distinct interest of the Deputy Commissioner of Taxation was appropriately reflected in an order for costs against the unsuccessful appellant. As the Full Court explained:[61]
Here the intervention of the Commissioner was in our view necessary. At issue was an important question of construction of a statute administered by the Commissioner. The Commissioner is a party to the Supreme Court proceeding. The primary judge and this Court each granted leave to the Commissioner to make oral and written submissions without becoming a party. The appellant did not oppose those orders. The Commissioner agreed to be bound by the outcome of the separate questions in the Supreme Court proceeding. The Commissioner’s arguments were presented efficiently and were of considerable assistance. The Commissioner’s interests in the Supreme Court proceeding are separate and distinct from those of the respondent.
[61] Mandalinic v Stone (Liquidator) (No 2) [2023] FCAFC 176, [4] (Stewart, McElwaine and Button JJ), considering City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65.
In all of these circumstances, it is appropriate to reflect these considerations in an order that the appellant personally pay one half of the costs of the first interested party, to be agreed or taxed on a standard costs basis, without recourse to the Trust.
For essentially the same reasons, the first interested party has no further claim from the Trust for the balance of her appeal costs. By reason of the order made against the appellant, the first interested party has been adequately compensated for her appeal costs having regard to the extent to which her submissions were of assistance to the Court and did not duplicate the submissions of the respondent trustee. The consequence is that the first interested party must bear the balance of her own costs.
Conclusion
The Court will make the following orders as to costs:
1.The appellant is to pay the costs of the respondent and one half of the costs of the first interested party, to be agreed or taxed on a standard costs basis.
2.The appellant is not to be indemnified for adverse costs or for his own appeal costs from the Trust.
3.After allowance for the payment of costs by the appellant, the respondent will be reimbursed his costs and expenses incurred on appeal from the Trust, to be agreed or taxed on a solicitor/client basis.
4.The appellant is to pay the costs of the respondent and the first interested party in connection with the resolution of the costs of the appeal, to be agreed or taxed on a standard costs basis.