Capone v South Australian Police Information Unit (No 2)

[2011] SADC 42

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Appeal Under Freedom of Information Act)

CAPONE v SOUTH AUSTRALIAN POLICE INFORMATION UNIT (No 2)

[2011] SADC 42

Judgment of His Honour Judge Tilmouth

1 April 2011

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - NATURE OF PROCEEDINGS

Whether successful intervener entitled to costs, relevant principles.

Unsuccessful appellant held not liable for costs of successful intervener, in the particular circumstances.

District Court Civil Rules 2006 6 R 89(1), 6 R 263(1) & (2),; Freedom of Information Act 1991 (SA) s 40(8)(a) and (b),; District Court Act 1991 (SA) s 42G; Moore v The Registrar of the Medical Board (No 2) (2002) 219 LSJS 448, referred to.
City of Burnside v The Attorney-General (1994) 63 SASR 65; City of Liverpool v Weir & Ors (1984) 58 ALJR 213, applied.

CAPONE v SOUTH AUSTRALIAN POLICE INFORMATION UNIT (No 2)
[2011] SADC 42

1. In the underlying proceedings, the court delivered judgment dismissing an appeal by Ms Capone against a decision of the South Australian Police Freedom of Information Unit, refusing her access to certain documents.[1]

   [1]    Capone v South Australian Police Information Unit, [2011] SADC 7, 3 February 2011

2. The subject documents comprised essentially communications between police prosecutors concerning an allegation of assault upon her, and the subsequent withdrawal of the charge.  The charge of assault was laid against her former brother-in-law.  By order of a Master of the court, he was given permission to intervene in these proceedings: District Court Civil Rules 2006 6 R 89(1).  The intervener now makes application for costs and it is this issue with which this second judgment deals.  The respondent, although successful, seeks no order as to costs with respect to any party.[2]

   [2]    Written submission 23 March 2011

3. It is true as submitted for the intervener, that in ordinary circumstances “costs follow the event”. This position derives from: 6 DCR 263(1).  The general rule is however, subject to “specific rules to the contrary”: 6 DCR 263(2).  Such an exception appears in s 40(8)(b) of the Freedom of Information Act 1991 (SA)[3] which provides in the case of an appeal by a person under the Act that:

   … the Court must not make an order requiring a party to pay any costs of an agency unless the Court is satisfied that the party acted unreasonably, frivolously or vexatiously in the bringing or conduct of the proceedings.

   This section explains the respondent’s stance on costs.

   [3]    Hereafter the “FOI Act”

4. If however a freedom of information agency unsuccessfully appeals, the court is obliged by s 40(8)(a) to award the responding party’s costs. Either way the section does not touch upon the position of an intervener, as the intervener is neither an agency nor a relevant party. The situation therefore requires consideration at large, set against the stated policy of the FOI Act regarding questions of costs.  Section 40(8) evinces an intention by the legislature to erect a cost free scheme for persons seeking redress in accordance with the policy of the FOI Act.

5. It has been held that a successful intervener is only awarded costs when the interests of the intervening party are not adequately protected by an existing party: City of Burnside v The Attorney-General:[4]

   There appears to be no reason why as a matter of general principle an unsuccessful intervener 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 intervener 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 intervener to be liable to costs in like circumstances. However, an unsuccessful intervener might be liable for costs if his intervention has substantially extended the hearing or put the successful party to unnecessary cost. In such circumstances, the intervener might be liable to pay a portion of the successful party's costs, that portion being determined by the extent to which the hearing has been lengthened by the intervention. Such a rule is consistent with the principle that, generally speaking, an intervener must take the action as he finds it.

   In determining whether the intervener should be liable for costs, the court should adopt a broad axe approach. If the hearing was slightly longer than it would have been but for the intervention, it might not be appropriate to order the intervener to pay costs. It will be a question of fact and degree in every case whether the intervener's participation has resulted in the trial being substantially longer than it would have been but for the intervention. In determining whether the intervener should be liable, it would be appropriate to have regard also to such factors as whether the interest which the intervener sought to protect was adequately protected by an existing party. Depending on the nature of the issues in the action, it might be a relevant factor that the intervener has assisted the parties and the court in identifying or elucidating the issues. It is not unrealistic to suppose that, although the intervention has prolonged the trial, the intervener's participation has been of substantial assistance. In such a case, it might be inequitable to order the intervener to contribute to the costs of the successful party.

   [4] (1994) 63 SASR at 67-68, per Debelle J

6. Moreover as stated in Council of the City of Liverpool v Weir & Ors,[5] an intervener:

   … cannot expect as a matter of course that the unsuccessful party to the litigation in which he has intervened should bear the extra burden of his costs even if his intervention was well intentioned and proved to be of assistance to the court.

   [5] (1984) 58 ALJR 213 at 216

7. Further than that, this was an appeal brought in the Administrative and Disciplinary Division of the District Court. In the exercise of that jurisdiction, no order for costs are to be made “unless the court considers such an order to be necessary in the interests of justice”: s 42G District Court Act 1991 (SA), Moore v The Registrar of the Medical Board (No 2).[6]

   [6] (2002) 219 LSJS 448 at 452-453 [14-17]

8. Applying the above principles to these proceedings, there was nothing in the appellant’s case which was unreasonable, frivolous or vexatious. She did take strong exception to the appearance of the intervener and the content of the submission made on his behalf, which were legitimate matters for her to raise.  It must be acknowledged that the intervener made useful submissions for the assistance of the court, so far as the practice was concerned as to communications between police prosecutors and defence lawyers.  These are detailed at length in the primary judgment.  Such matters were however adequately protected by the respondent, except to a small additional extent with respect to two passages contained in two letters written by his lawyers to police prosecutions.  The time spent on that issue was minor.

9. No sufficient foundation justifying an order for costs in favour of the intervener therefore exists against the unsuccessful applicant.  That being so, the only appropriate order in the circumstances is that there be no order as to costs as between the appellant and the intervener, or as between them and the respondent.