Channel Nine SA Pty Ltd v Police (No 2)
[2014] SASCFC 119
•30 October 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
CHANNEL NINE SA PTY LTD & ANOR v POLICE & ANOR (NO 2)
[2014] SASCFC 119
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Parker)
30 October 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - NATURE OF PROCEEDINGS - PUBLIC DUTY INVOLVED
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - SUPPRESSION ORDERS
Channel Nine SA and Advertiser Newspapers successfully appealed to a single Judge against a refusal by a Magistrate to revoke or vary a suppression order under section 69A of the Evidence Act 1929 (SA). The Judge set aside the order suppressing publication of the defendant’s and victim’s identities and varied the order suppressing publication of particular evidence the subject of criminal proceedings.
The appellants sought an order that the Police and intervener, V, pay their costs of appeal. The Judge referred the application for costs to be determined by the Full Court.
Held by the Court (Kourakis CJ, Blue and Parker JJ):
1. The rationale for the general rule that the starting point in civil proceedings is that costs follow the event does not apply to an application for a suppression order because the determination of an application for a suppression order cannot be regarded as an adversarial contest in the sense of ordinary civil proceedings (at [47]).
2. Section 69B(3) of the Evidence Act 1929 (SA) confers power to make an order for costs on appeal from a suppression order decision without importing that costs should normally follow the event (at [56]).
3. In the present case, the role of the parties was to assist the Court in determining where the public interest lay (at [63]-[64]).
4. It cannot be said that the appeal was resisted unreasonably by the respondents (at [65]).
5. There should be no order as to costs of the appeal including the costs of the application for costs (at [69]).
Criminal Law Consolidation Act 1935 (SA) – s 352 ; District Court Act 1991 (SA) – s 43; Evidence Act 1929 ss 68, 69, 69A, 69B, 69AB, 69AC, 71; Magistrates Court Act 1991 (SA) – ss 37(1), 40, 42; Statute 23 Henry VIII UK; Statute 3 Henry VII UK; Statute 4 James I UK; Statute 8 Elizabeth UK; Statute of Glouchester 1275 UK; Summary Procedure Act 1921 (SA) – s 189B; Supreme Court Act 1935 (SA) – s 40, 50; Supreme Court Civil Rules (SA) - r 280, 288; Supreme Court of Judicature Act 1873 (SA); Supreme Court of Judicature Act 1875 (SA); Supreme Court of Judicature Act 1890 (SA), referred to.
Australian Crime Commission v NTD8 (No 2) [2009] FCAFC 143; Clarke & Chapman v Hart (1858) 6 HLC 633; 10 ER 1443; Director of Family Services v Campione & Anor (1998) 83 FCR 63; Oshlack v Richmond River Council (1994) 82 LGERA 236; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Re J (An Applicant) (1928) 29 SR (NSW) 20; Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57; Roget & Ors v Flavel (1987) 47 SASR 402; Ruddock & Ors v Vadarlis & Ors (No 2) [2001] FCA 1865; (2001) 115 FCR 229, discussed.
Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1; Australian Competition and Consumer Commissioner v Dataline.Net.Au Pty Ltd & Anor [2006] FCA 1427; (2006) 236 ALR 665; Blue Wedges Inc v Minister for Environment (Heritage and Arts) [2008] FCA 8; (2008) 165 FCR 211; Brown & Ors v Members of the Classification Review Board of the Office of Film & Literature Classification (1997) 145 ALR 464; Channel Nine SA Pty Ltd & Anor v Police & Anor [2014] SASC 69; Channel Seven Pty Ltd & Ors v An Accused & Anor [2008] SASC 246; (2008) 103 SASR 459; Copping v ANZ McCaughan Ltd (1994) 63 SASR 523; Darlinghurst Residents’ Association v Elarosa Investments Pty Ltd & Anor (No 3) (1992) 75 LGRA 214; Friends of Hay Street Inc v Hastings Council (1995) 87 LGERA 44; Gray v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 351; Herald & Weekly Times Ltd v Director of Public Prosecutions & Anor [2002] SASC 422; Jackson v Inhabitants of Calesworth (1785) 1 TR 71; 99 ER 977; John Fairfax & Sons v Police Tribunal (NSW) (1986) 5 NSWLR 465; John Fairfax Group Pty Ltd (Receivers & Managers Appointed) and Anor v The Local Court of New South Wales & Ors (1991) 26 NSWLR 131; Liversidge v Sir John Anderson [1942] AC 206; Mayer v Harte & Ors [1960] 2 All ER 840; Milne v Attorney-General for the State of Tasmania (1956) 95 CLR 460; Phillips v Phillips (1879) 5 QBD 60; Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; R v Tait & Anor (1979) 24 ALR 473; Re Mersey Railway Co (1888) 37 Ch D 610; Richmond River Council v Oshlack & Anor (1996) 39 NSWLR 622; Robert Pilford's Case (1613) 10 CO REP 116a, 77 ER 1102; Russell v Russell (1976) 134 CLR 495; Skelton v Repatriation Commissioner [1999] FCA 181; (1999) 85 FCR 587, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Section 69B(3) of the Evidence Act 1929 (SA), suppression order, costs follow the event, public interest litigation"
CHANNEL NINE SA PTY LTD & ANOR v POLICE & ANOR (NO 2)
[2014] SASCFC 119Full Court: Kourakis CJ, Blue and Parker JJ
THE COURT:
Channel Nine SA Pty Ltd and Advertiser Newspapers Pty Ltd appealed to a single Judge of this Court against a refusal by a Magistrate to revoke or vary a suppression order under section 69A of the Evidence Act 1929 (SA) (the Evidence Act).
On 30 May 2014, Blue J allowed the appeal, set aside the order suppressing publication of the identity of the defendant and the victim (V) and varied the order suppressing publication of certain evidence in the underlying criminal proceeding.[1]
[1] Channel Nine SA Pty Ltd & Anor v Police & Anor [2014] SASC 69.
The appellants seek an order that the respondent, Police, and the intervener, V, pay their costs of appeal. The application raises questions of general importance as to the approach to the question of the costs of appeals to this Court from decisions making or refusing suppression orders under section 69A. Blue J therefore referred the application for costs to be determined by the Full Court. [2]
[2] Supreme Court Civil Rules (SA) r 280(2).
The suppression order regime
The general principle is that court proceedings are to be conducted in public and reports of proceedings may be published to the public.[3] This reflects a fundamental principle of open justice in the public interest.[4]
[3] Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J; R v Tait & Anor (1979) 24 ALR 473 at 487 per Brennan, Deane and Gallop JJ; John Fairfax Group Pty Ltd (Receivers & Managers Appointed) and Anor v The Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 140 per Kirby P; John Fairfax & Sons v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476–477 per McHugh JA.
[4] Ibid.
Part 8, Division 2 of the Evidence Act empowers a court to make an order closing the court during proceedings[5] and/or forbidding publication of the identity of a person alluded to or evidence given in the course of proceedings.[6]
[5] Evidence Act 1929 s 69.
[6] Evidence Act 1929 s 69A.
A court can only make a suppression order if satisfied that it is necessary to prevent prejudice to the proper administration of justice or to prevent undue hardship to an alleged victim of crime, a non-party witness or child.[7] In considering whether to make a suppression order, the court is required to weigh the public interest in open justice (militating against a suppression order) against the potential prejudice to the proper administration of justice or undue hardship (militating in favour of a suppression order).[8] The court is not entitled to have regard to the private interests of the parties and undue hardship to a party is not a ground for making a suppression order. When considering whether to make a suppression order, the court is required to balance two competing public interests: the public interest in open justice against the public interest in the proper administration of justice and avoiding collateral hardship to non-parties.
[7] Evidence Act 1929 s 69A(1) and (2)(b).
[8] Evidence Act 1929 s 69A(2).
Suppression orders may be made in criminal, civil, disciplinary or other types of proceedings. The term “court” is broadly defined to include any person acting judicially[9] and encompasses tribunals as well as courts.
[9] Evidence Act 1929 s 68.
An applicant for a suppression order does not need to be made by a party to the proceedings and might be made by any person.[10] While it is contemplated that typically there will be an applicant for a suppression order, there is no requirement that an application be made: a court is empowered to make a suppression order if satisfied of the prerequisites regardless of whether an application is made.[11] If it appears to a court, for example, that prejudice to the proper administration of justice would ensue if an order were not made, it may be expected that the court would consider on its own initiative making an order after hearing submissions from interested persons. Conversely, the mere fact that the parties consent to an order will not result in the making of a suppression order. The court must be independently satisfied that the prerequisite criteria are met and must engage in the public interest balancing exercise mandated by section 69A before it has power to make a suppression order.[12]
[10] Evidence Act 1929 s 69A(5)(a).
[11] Evidence Act 1929 s 69A(2).
[12] Evidence Act 1929 s 69A(1) and (2). Compare the position when a court is considering whether to grant declaratory relief in a private action: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd & Anor [2006] FCA 1427; (2006) 236 ALR 665 at [43]-[59] per Kiefel J; Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1 at [14] and [62]-[63] per Gordon J.
Any person who has a proper interest in the question whether a suppression order should be made,[13] including a representative of a newspaper or radio or television station,[14] is entitled to make submissions and, with the permission of the court, to adduce evidence when a court is considering whether to make a suppression order. This reflects the public interest in the question whether a suppression order should be made.
[13] Evidence Act 1929 s 69A(5)(a)(iv).
[14] Evidence Act 1929 s 69A(5)(a)(iii).
After a suppression order has been made, any person who has a proper interest in the question[15] is entitled to request the court that made the order to review the order and revoke or vary it.[16] A court is required to review a suppression order on its own initiative at the conclusion of the proceedings.[17] Any person who has a proper interest is entitled to appear on a review.[18]
[15] Including the applicant, the parties and representatives of a newspaper or radio or television station.
[16] Evidence Act 1929 s 69A(6).
[17] Evidence Act 1929 s 69AB.
[18] Evidence Act 1929 s 69A(3), (5), and (6).
A right is conferred upon any person with a proper interest[19] to appeal against a decision to make or refuse to make a suppression order or to revoke or vary a suppression order on review.[20] A further appeal as of right to the Full Court of this Court is conferred when the first instance appeal was to another court including if it was appealed to a single Judge of this Court.[21] An appeal court has power to make any order or decision that could have been made in the first instance and may confirm, vary or revoke the order or decision subject of appeal.[22]
[19] Including the applicant, the parties and representatives of a newspaper or radio or television station.
[20] Evidence Act 1929 s 69AC(2).
[21] Evidence Act 1929 s 69B(1).
[22] Evidence Act 1929 s 69B(3)(a) and (b).
Part 8, Division 2 of the Evidence Act makes no provision for the award of costs on an application for a suppression order or on a review of a suppression order. Section 69B(3)(c) empowers an appeal court to make orders for costs. Section 69B(3) provides:
Upon an appeal under this Division, the appellate court—
(a) may confirm, vary or revoke the order or decision subject to the appeal; and
(b) may make any order or decision under this Division that could have been made in the first instance; and
(c) may make orders for costs and orders dealing with any other incidental or ancillary matters.
The application for costs in the present appeal raises issues involving the construction and application of section 69B(3) of the Evidence Act. Before turning to those questions, it is desirable to consider the nature and history of the general power of a court to order costs at common law and under statute.
General power to award costs
At common law, costs were regarded as a head of damages and were recoverable by a successful plaintiff from a defendant as damages in certain causes of action when damages were recoverable.[23] There was no power to award costs in actions other than by way of damages, nor any power to award costs in favour of a successful defendant, nor in proceedings on a writ of error (a common law predecessor of the modern statutory right of appeal).[24] Costs were not discretionary because they were regarded as a head of damages: in modern terminology, they strictly followed the event but only in favour of a plaintiff. There was no power to award costs other than at the end of and for the entire action. There was no power to award costs in criminal proceedings.
[23] Robert Pilford's Case (1613) 10 CO REP 116a, 77 ER 1102; W Blackstone, Commentaries on the Law of England (Sweet Maxwell & Stevens, 1760), 399; W.S Holdsworth, A History of English Law (Methuen & Co Ltd, 2nd ed, 1924) vol 4, 537.
[24] W.S Holdsworth, A History of English Law (Methuen & Co Ltd, 2nd ed, 1924) vol 4, 537.
In 1275, the Statute of Gloucester, 6 Edward c1, confirmed and extended the power at common law to award costs in favour of a successful plaintiff against a defendant in all causes of action in which damages were recoverable.[25] The Statute gave a right in actions to recover damages in certain real actions– which had not been available at common law – and consequently to costs in such actions. The Statute proceeded on the same rationale for the award of costs as the common law: costs under the Statute were awarded as of right rather than in the discretion of the court and the Statute had no application to defendants’ costs or costs in proceedings on a writ of error.[26]
[25] Ultimately, it was held that the Statute gave a right to costs whenever damages were recoverable, even under legislation enacted after the Statute: Jackson v Inhabitants of Calesworth (1785) 1 TR 71, 99 ER 977.
[26] W.S Holdsworth, A History of English Law (Methuen & Co Ltd, 2nd ed, 1924) vol 4, 537.
In 1487, the Statute 3 Henry VII c 10 gave to the successful party on a writ of error a right to recover costs.[27]
[27] Ibid.
In 1531, the Statute 23 Henry VIII c 15 gave to successful defendants in specific causes of action including trespass, detinue and debt a right to recover costs on non-suit of a plaintiff or verdict against a plaintiff. [28] In 1565, the Statute 8 Elizabeth c 2 extended this right to costs to causes of action generally if the plaintiff delayed or discontinued the action or was non-suited. In 1607, the Statute 4 James I c 3 gave to successful defendants the right to recover costs whenever the plaintiff would have had a right to recover costs if successful.
[28] In 1267, the Statute of Marlborough, 52 Henry III c 6, had conferred a right to recover damages and consequently costs upon defendant tenants the subject of a malicious action in wardship in chivalry: see W.S Holdsworth, A History of English Law (Methuen & Co Ltd, 2nd ed, 1924) vol 4, 538.
As at 1873, in those cases in which costs were recoverable at common law, costs were a right and did not involve a discretion.[29] Costs were only recoverable by a plaintiff or defendant in actions for damages.
[29] Re Foster v Great Western Railway Co (1882) 8 QBD 515 at 520 per Brett LJ.
In equity, the Court of Chancery exercised a general discretion as to both the award and amount of costs by way of inherent jurisdiction.[30]
[30] Jones v Coxeter (1742) 2 ATK 400; 26 ER 642; Andrews v Barnes (1888) 39 Ch D 133 at 138 per Fry LJ who delivered the judgment of the Court.
The Supreme Court of Judicature Act 1873 fused the common law courts and the Court of Chancery into a single Supreme Court of Judicature.[31] The Supreme Court of Judicature comprised of a High Court of Justice, which exercised original jurisdiction, and the Court of Appeal, which had appellant jurisdiction.[32] It created a statutory right of appeal from the High Court to the Court of Appeal,[33] which appeal was by way of rehearing.[34]
[31] Supreme Court of Judicature Act 1873 s 3.
[32] Supreme Court of Judicature Act 1873 s 4.
[33] Supreme Court of Judicature Act 1873 s 19.
[34] Supreme Court of Judicature Act 1873, Schedule (Rules of Procedure), rule 50.
The Supreme Court of Judicature Act 1873 (the 1873 Act) comprehensively addressed costs in civil proceedings. It adopted the approach of the Court of Chancery instead of the common law approach and gave a general power to award costs in civil proceedings at the discretion of the court.[35] Rule 47 of the Rules of Court forming the Schedule to the 1873 Act addressed costs at first instance and provided that:
Subject to the provisions of this Act, the costs of and incident to all proceedings in the High Court shall be in the discretion of the Court…[36]
while rule 52 addressed costs on appeal and provided that:
The Court of Appeal shall have power to make such order as to the whole or any part of the costs of the appeal as may seem just.
[35] Following the First Report of the Commissioners of the Judicature (1868 – 1869) vol 25 p 15: see Oshlack v Richmond River Council (1998) 193 CLR 72 at [33] – [34] per Gaudron and Gummow JJ.
[36] The rule went on to preserve entitlements to costs out of an estate or fund hitherto recognised by Courts of Equity.
The Supreme Court of Judicature Act 1875 (the 1875 Act) made amendments to the 1873 Act. Order 55 of the Rules of Court being the First Schedule to the 1875 Act re-enacted rule 47 and added that, when any action or issue was tried by a jury, costs were to follow the event unless the Judge otherwise ordered. The Supreme Court of Judicature Act 1890 (the 1890 Act) made further amendments to the 1873 Act. Section 5 of the 1890 Act was in similar terms to rule 47 of the 1873 Rules of Court and added that the court has power to determine by whom and to what extent costs are to be paid.
Section 40(1) of the Supreme Court Act 1935 (SA) (the Supreme Court Act) confers on this Court a power to order costs in civil proceedings in similar terms to section 5 of the 1890 Act and similar powers are conferred on the District Court[37] and the Magistrates Court.[38]
[37] District Court Act 1991 (SA) s 42(1).
[38] Magistrates Court Act 1991 (SA) s 37(1).
A right of appeal is conferred upon a party in civil proceedings from a judgment of the Magistrates Court to a single Justice of this Court[39] and from a judgment of a Judge of the District Court or Supreme Court to the Full Court of this Court.[40]
[39] Magistrates Court Act 1991 (SA) s 40.
[40] District Court Act 1991 (SA) s 43 and Supreme Court Act 1935 (SA) s 50.
There is no power to award costs in criminal proceedings in the District Court and Supreme Court at first instance, nor on an appeal to the Full Court of this Court under section 352 of the Criminal Law Consolidation Act 1935 (SA) (the Criminal Law Consolidation Act). There is no general power to award costs in committal proceedings in the Magistrates Court.[41] There is generally power to award costs in criminal proceedings heard summarily in the Magistrates Court[42] and on an appeal to the Supreme Court against a judgment in such a proceeding.[43]
[41] Summary Procedure Act 1921 (SA) s 189B: an exception is made if the court is satisfied that a party has unreasonably obstructed the proceedings
[42] Summary Procedure Act 1921 (SA) s 189.
[43] Magistrates Court Act 1991 (SA) s 42(5)(c).
Section 40(1) of the Supreme Court Act and equivalent provisions for other courts provide that costs are in the unfettered discretion of the court.[44] However, the “general rule” in ordinary private civil actions is that costs follow the event. A wholly successful plaintiff absent other factors generally obtains an order for costs against a wholly unsuccessful defendant and vice versa.[45]
[44] Copping v ANZ McCaughan Ltd (1994) 63 SASR 523 at 527 per King CJ (Mohr and Nyland JJ agreeing).
[45] Milne v Attorney–General for the State of Tasmania (1956) 95 CLR 460 at 477 per Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ; Copping v ANZ McCaughan Ltd (1994) 63 SASR 523 at 527-528 per King CJ (Mohr and Nyland JJ agreeing).
The modern rationale for ordering costs in an ordinary private civil action in favour of a successful plaintiff is that the defendant by its conduct infringing the plaintiff’s rights and in defending that infringement in the ensuing action should compensate the plaintiff for the costs incurred as a result.[46] The rationale for ordering costs in favour of a successful defendant is that the plaintiff by instituting and prosecuting an action is responsible for causing the defendant to incur costs and should compensate the defendant for those costs incurred as a result.[47]
[46] Clarke & Chapman v Hart (1858) 6 HLC 633 at 667 (10 ER 1443) per Lord Cranworth; Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at [12]-[13] per Black CJ and French J.
[47] Clarke & Chapman v Hart (1858) 6 HLC 633 at 667 (10 ER 1443) per Lord Cranworth; Re J (An Applicant) (1928) 29 SR (NSW) 20 at 22 per Long Innes J; Mayer v Harte & Ors [1960] 2 All ER 840 at the 848 - 849 per Willmer LJ and 851 per Sellers LJ; Director of Family Services v Campione & Anor (1998) 83 FCR 63 at 68 per Miles, R D Nicholson and Finn JJ.
In Clarke & Chapman v Hart,[48] Lord Cranworth (Lord Wensleydale agreeing) said:
the general principle upon the subject of costs is, and ought to be, that… costs ought never to be considered as a penalty or punishment, but merely a necessary consequence of a party having created a litigation in which he has failed...[49]
in Re J (An Applicant),[50] Long Innes J quoted the above passage and added:
And in my view, the principle is that a person who improperly causes another person to incur expenditure ought to indemnify that person against the consequences of his action.[51]
and in Director of Family Services v Campione,[52] Miles, RD Nicholson and Finn JJ said:
historically,… the courts themselves have responded by applying a consistent rule of practice, if not of law, that ordinarily the losing party is ordered to pay the costs of the winning party. It may be that the practice is incidental to a system adversary in nature in which the spoils of victory include reparations for the price of fighting the war.[53]
[48] (1858) 6 HLC 633; 10 ER 1443.
[49] Ibid at 667.
[50] (1928) 29 SR (NSW) 20.
[51] Ibid at 22.
[52] (1998) 83 FCR 63.
[53] Ibid at 68.
The modern rationale for awarding costs in favour of a successful party is not dissimilar to the original common law rationale.
Costs in proceedings with public interest aspect
When there is a public interest aspect to private civil litigation, courts have on occasion exercised their discretion to make no order as to costs. For example, from time to time on appeals in ordinary private civil actions, no order as to costs is made in favour of the successful party because the matter is of general importance.[54] From time to time, in matters of public importance the High Court grants special leave to appeal on condition that the applicant bears its own costs or undertakes to pay its opponent’s costs of the appeal.[55]
[54] See, for example, Re Mersey Railway Co (1888) 37 Ch D 610 at 619 per Cotton LJ (Lindley and Bowen LJJ agreeing); Liversidge v Sir John Anderson [1942] AC 206 at 283 per Lord Atkin.
[55] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [42] per Gaudron and Gummow JJ.
When there is a contest as to the entitlement to the funds of an estate, often the costs of the parties are ordered to be paid out of the fund rather than by the successful party.[56]
[56] Ibid at [43] per Gaudron and Gummow JJ.
In environmental cases[57] and administrative appeals,[58] courts have on occasions made no order as to costs because the action raised public interest issues.
[57] See, for example, Darlinghurst Residents’ Association v Elarosa Investments Pty Ltd& Anor (No 3) (1992) 75 LGRA 214 per Stein J; Friends of Hay Street Inc v Hastings Council (1995) 87 LGERA 44 per Pearlman J; Blue Wedges Inc v Minister for the Environment (Heritage and the Arts) [2008] FCA 8; (2008) 165 FCR 211 at [73]-[75] per Heerey J.
[58] See, for example, Gray v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 351 at 355 per Burchett J; Brown & Ors v Members of the Classification Review Board of the Office of Film & Literature Classification (1997) 145 ALR 464 per Merkel J; Shelton v Repatriation Commission [1999] FCA 181; (1999) 85 FCR 587 at [12] per Burchett, RD Nicholson and Finkelstein JJ.
In Oshlack v Richmond River Council,[59] Mr Oshlack brought judicial review proceedings against a council and developer challenging the validity of consent by the council to a development application. The challenge was dismissed. Stein J made no order as to costs. Stein J considered that the litigation should not be characterised as ordinary private litigation. Stein J surveyed environmental and public law cases in which courts had exercised a discretion to make no order as to costs against an unsuccessful party. Stein J concluded the survey with the following observations:
As observed in Rundle v Tweed Shire Council [No 2] the so-called ordinary rule of costs following the event of the litigation grew up in an era of private litigation. In Cooper & Wilton I drew attention to the need to distinguish between the nature of private commercial litigation and applications to enforce public law obligations arising under environmental laws…
The authorities mentioned have acknowledged the concept of public interest litigation and that the categorisation of proceedings as such may be a factor which contributes to a finding of special circumstances. However, cognisant of the competing rights of successful respondents being deprived of costs, the [Land and Environment] Court has confirmed that the categorisation of proceedings as public interest litigation of itself is not enough to constitute special circumstances, rather something more is required.[60]
Stein J then turned to the facts of that case and ultimately concluded:
I find the litigation to be properly categorised as public interest litigation. The basis of the challenge was arguable, raising serious and significant issues resulting in important interpretation of new provisions relating to the protection of endangered fauna. … Mr Oshlack had nothing to gain from the litigation other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna. Important issues relevant to the ambit and future administration of the subject development consent were determined…In my opinion there are sufficient special circumstances to justify a departure from the ordinary rule as to costs.[61]
[59] (1994) 82 LGERA 236.
[60] Ibid at 244.
[61] Ibid at 246.
The New South Wales Court of Appeal overturned Stein J’s decision.[62] However, Stein J’s decision was subsequently upheld by a majority of the High Court. Gaudron and Gummow JJ said:
[62] Richmond River Council v Oshlack & Anor (1996) 39 NSWLR 622.
There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party.
...
As the practice in this Court testifies, an applicant for special leave to appeal may be required to undertake to bear, in any event, an order for the costs of the other party to the appeal. Further, Liversidge v Anderson is a celebrated example of "a matter of very general importance" in which it was not appropriate for the successful party to seek costs.
…As a general rule, wherever an estate or fund is administered by the court, the costs of all necessary and proper parties to the proceedings should be defrayed out of the fund.
...
This background suggests that, in its operation upon litigation under s 123 of the EPA Act, s 69 of the Court Act is not to be narrowly construed. Further, it is applicable to new species of litigation and the discretion it confers is to be exercised so as to allow for the varied interests at stake in such litigation.
...
The present legislative regime apart, the Supreme Court, in its inherent equity jurisdiction, may, on the application of the Attorney‑General for New South Wales, and without any relator, restrain infringement of prohibitions and restrictions imposed under various legislation, not for the benefit of particular individuals, but for the benefit of the public or a section of the public. In so taking proceedings to secure observance of the law, the Attorney‑General represents the public generally. If in a case initiated and actively conducted in this fashion the Attorney‑General fails, any costs awarded against the Attorney‑General will be borne by the public purse. To what degree, it may be asked, should the position be any different where statute has authorised any person, otherwise than as a relator, to institute and conduct such proceedings to secure the observance of legislation enacted for the benefit of the public or a section of the public? More precisely, is there a miscarriage in the exercise of the discretion as to costs conferred by s 69 of the Court Act to leave the costs to lie where they fall, after giving due weight to the countervailing interest of the successful litigant in obtaining an order for its costs and allowing for the other factors taken into consideration by Stein J in this case? The answer must be that, in the present case, there was no miscarriage.[63]
(Footnotes omitted)
and Kirby J said:
Regard may therefore be had to any public interest served by the party which has initiated the litigation, although it is ultimately unsuccessful. … The purpose of the jurisdiction conferred to award costs is to permit the fair allocation of the costs which the parties have necessarily incurred.
...
I agree that it is difficult to define with precision what is meant by "public interest" litigation. Stein J acknowledged this. However, the series of cases to which his Honour referred illustrates, clearly enough, that in this country, as well as in England, New Zealand, Canada and elsewhere a discrete approach has been taken to costs in circumstances where courts have concluded that a litigant has properly brought proceedings to advance a legitimate public interest, has contributed to the proper understanding of the law in question and has involved no private gain. In such cases the costs incurred have occasionally been described as incidental to the proper exercise of public administration. Upon that basis it has been considered that they ought not to be wholly a burden on the particular litigant.[64]
(Footnotes omitted)
[63] [1998] HCA 11; (1998) 193 CLR 72 (Brennan CJ and McHugh J dissented) at [40], [42]-[43], [45], [48].
[64] Ibid at [134] and [136].
In Ruddock & Ors v Vadarlis & Ors (No 2),[65] a Full Court of the Federal Court made no order as to costs against Mr Vadarlis notwithstanding that he was unsuccessful on the appeal. Black CJ and French J surveyed the applicable principles and previous authorities. They said:
It has been argued, in academic commentary, that the general compensatory principle rests upon two alternative rationales. The first is that the successful party is entitled to be compensated for its costs because it has been wronged at the hands of the unsuccessful party. Costs under this rationale function as a species of damages. But that characterisation is not always tenable. Where, for example, declaratory relief is sought because of genuine uncertainty about the interpretation of a document or a statute, it will not explain why the successful party should be reimbursed at the cost of its opponent where the legal issue is novel and has consequences extending beyond the particular litigation. The alternative rationale for the compensation principle is simply that the winner should not have to suffer financially for vindicating its rights. The criticism of this intuitively attractive approach is again that it does not necessarily follow that the obligation to compensate the winner should be imposed on the losing party. For the losing party may have had very good legal grounds for its position and have conducted itself in the litigation in an entirely reasonable way. Where the case is close or difficult and involves no obvious element of fault on the part of the loser the proposition that costs automatically follow the event may work unfairness…
The compensatory principle was long subject to a limited public interest qualification at common law. Historically the Crown neither paid nor received costs in criminal cases albeit this has been abrogated by statute in summary cases. So criminal proceedings instituted by public officials in the name of or on behalf of the Crown were seen as being brought only when the public interest required it. This was the chief rationale for the Crown's immunity from costs…
...
Where an appeal raises a novel question of much general importance and some difficulty the appeal court may decline to order costs against the unsuccessful appellant …
That a proceeding was brought otherwise than for the personal or financial gain of the applicant, and in that sense in the public interest, does not detract from the general proposition that ordinarily costs follow the event and that the primary factor in deciding on the award of costs is the outcome of the litigation. It does not follow that the nature and purpose of the proceedings is irrelevant nor is the history and purpose of the statute conferring the discretion to award costs…[66]
[65] [2001] FCA 1865; (2001) 115 FCR 229.
[66] Ibid at [13], [14], [17] and [18].
In Australian Crime Commission v NTD8 (No 2),[67] a Full Court of the Federal Court made no order for costs against NTD8 who was unsuccessful on the appeal. The Full Court identified the special public interest element in the case as the primary reason for finding that there should be no order as to costs. Black CJ, Mansfield and Bennett JJ said:
There were undoubtedly special public interest elements in this case, as it concerned the possible acquisition under compulsion of law of highly personal and sensitive information about young women or girls in circumstances in which (though quite unintended) there could be harmful consequences to them of both a direct and indirect nature. The consequences, were they to occur, would be the result of the exercise of extraordinary powers. …
As to the second submission, it is true that success was shared although, of course, in the result the appellants were successful. This consideration is entitled to some, if limited, weight in the present case.
Overall we are persuaded that the special circumstances of this public interest litigation are such that the just and proper order for costs is that there be no order for the costs of the appeal and that there be no order as to the costs of the hearing before the trial judge.[68]
[67] [2009] FCAFC 143.
[68] Ibid at [8], [9] and [10].
In Roe v The Director General, Department of Environment and Conservation for the State of Western Australia,[69] the Western Australian Court of Appeal (Buss JA dissenting) made no order as to costs against Mr Roe notwithstanding that he was unsuccessful on the appeal. Martin CJ (Murphy JA agreeing) surveyed the applicable principles and previous authorities. After observing that a number of decisions involved environment protection or other issues of public interest, Martin CJ said:
Nevertheless, it is clear that these decisions, and others like them, do not lay down a special rule applicable to proceedings brought for the protection of the environment, or more generally on issues of public interest…Rather, the cases affirm the width of the discretion conferred upon a court in relation to costs, and the power of the court to depart from the usual order as to costs in special circumstances… In that context, the fact that the litigation raises issues of public interest will not ordinarily, of itself, be sufficient to establish special circumstances, although it may be relevant to the determination of whether there are special circumstances which justify departure from the usual order.[70]
(Citations omitted)
[69] [2011] WASCA 57(s).
[70] Ibid at [12].
In most cases in which it has been argued, successfully or unsuccessfully, that costs should not follow the event because of public interest considerations, the subject matter of the litigation involves private or commercial rights or interests of at least one party to the litigation. In the case of an application for a suppression order, the public interest is far more pervasive and fundamental.
Costs at first instance on suppression order application
Applications for suppression orders may be, and commonly are, made in criminal committal proceedings in the Magistrates Court and in criminal proceedings in the District Court and Supreme Court. In such proceedings, the court does not have a general power to award costs.[71] Part 8, Division 2 of the Evidence Act does not confer a power to award costs on an application for a suppression order at first instance or on review.
[71] See [25] above.
In civil proceedings in the Magistrates, District and Supreme Courts and in criminal proceedings heard summarily in the Magistrates Court, the court has a general power to award costs. This is because an application for a suppression order is sui generis and because Part 8, Division 2 of the Evidence Act arguably deals in comprehensive terms with the hearing and determination of such applications, it is arguable that the general power of the courts with respect to costs does not apply to an application for a suppression order. However, it is not necessary for the purpose of the present application to determine that question and we proceed on the assumption that relevant courts have power in an appropriate case to make an order for costs on a suppression order application in civil or summary criminal proceedings. On that assumption, there is no reason to apply to a suppression order application “the general rule” in ordinary private actions that prima facie costs follow the event.
The issue whether a suppression order should be made in civil proceedings is independent of the underlying dispute between the parties the subject of those proceedings. It turns on considerations unrelated to that dispute. It differs also from ordinary interlocutory proceedings, which are related to the ultimate dispute between the parties in that they involve steps – such as pleadings, disclosure of documents and expert reports – ancillary to and affecting the hearing and determination of the ultimate dispute.
The subject matter of section 69A of the Evidence Act is not the underlying dispute between the parties: rather it is communication to the public about judicial proceedings. This is quintessentially a public matter. By making a suppression order, a court does not determine or declare pre-existing rights of the parties to the application. There is no lis between persons who make submissions to the Court whether a suppression order should be made. The criteria which govern the court’s exercise of discretion whether to make a suppression order are public interest criteria. The court is required to weigh the competing public interests: open justice against prejudice to the proper administration of justice or avoiding collateral hardship to a member of the public in determining whether to make a suppression order. The private interests of the parties to the application are irrelevant to the court’s determination.
The public interest involved in making a suppression order is further reflected in the fact that section 69A(5) gives standing to any representative of the mass media ‑ a newspaper, radio or television station ‑ to make submissions on the question whether a suppression order should be made. In addition, courts are required to forward a report to the Attorney-General within 30 days of making a suppression order; [72] courts are required to maintain a register, open for inspection by members of the public, of all suppression orders made[73] and the Attorney-General is required to prepare an annual report to Parliament concerning all suppression orders made and the reasons for them.[74]
[72] Evidence Act 1929 s 69A(8).
[73] Evidence Act 1929 s 69A(10) and (11).
[74] Evidence Act 1929 s 71.
The issue whether a suppression order should be made does not necessarily arise between the parties at all. Commonly the plaintiff and defendant will have no personal interest whether a suppression order is made. Commonly, a witness or other member of the public will apply for a suppression order and the only submissions on the question will be made by that member of the public and the media.
The hearing and determination of an application for a suppression order cannot be regarded as an adversarial contest in the sense that ordinary civil proceedings, or even criminal proceedings, comprise an adversarial contest. As observed above, a court is entitled – and may be expected – to act on its own initiative to consider whether to make a suppression order if it is apparent that not doing so would prejudice the proper administration of justice or collateral hardship will be caused to a member of the public. A court is not entitled to make, or not make, a suppression order by reason of the consent of the parties.
The persons supporting or opposing the making of a suppression order, or making submissions as to its terms, do not have a private right on the one hand to publish, or on the other to suppress publication of, court proceedings. They advance competing views of where the public interest lies in the hope that the public interest might coincide with their personal preference rather than as adversaries advancing their own private interests. A court would be greatly disadvantaged if it did not receive the assistance of such persons making submissions, or adducing evidence, relevant to an assessment where the public interest lies.
The rationale for the general rule that the starting point in civil proceedings is that costs follow the event does not apply to an application for a suppression order. If a non-party to a proceeding applies for a suppression order, the non-party is in a very different position to a plaintiff who chooses to initiate a proceeding and maintains a large measure of control over its prosecution. A non-party is caught up in a proceeding between the plaintiff and defendant that is not of his or her making. The non-party is not responsible for the institution or existence of the proceeding; nor can it be said that the non-party merely by applying for a suppression order has caused a person who opposes a suppression order to incur costs. The incurring of those costs is a function of the administration of justice in the public interest. A person who opposes a suppression order is not defending a private interest or resisting a personal right asserted against him or her in the sense of a defendant in an ordinary private action. Such a person incurs costs because he or she chooses to participate in the determination of what is in the public interest rather than being compelled to defend a claim against him or her.
If a representative of the media makes submissions in opposition to a suppression order, that representative is in a very different position to a defendant who defends proceedings in which the plaintiff is ultimately vindicated. The representative is not responsible for the institution or existence of the proceeding; nor can it be said that the representative, merely by opposing a suppression order, has caused a person who seeks a suppression order to incur costs.
The observations of Miles, RD Nicholson and Finn JJ in Director of Family Services v Campione & Anor[75] in a different context are apposite:
The adversarial nature is most obvious in civil actions between private parties. It may be reflected in the proposition that “costs follow the event”. It is not so obvious in some other types of proceedings, for instance, proceedings concerned with the welfare of children and in proceedings that are (or should be) taken, not in the interest of the moving party, but in the public interest. In those sorts of cases it may not be appropriate to view the outcome in terms of winners and losers and the idea that “costs follow the event” might not be applicable.[76]
[75] (1998) 83 FCR 63.
[76] Ibid at 68.
It would be somewhat anomalous if the general rule were that costs follow the event on applications for suppression orders in summary criminal proceedings but not in criminal proceedings on indictment in circumstances in which there is no reason in principle for a different result.
On the assumption that courts have power to make a costs order on a suppression order application at first instance in civil or summary criminal proceedings, it might be appropriate to make a costs order against a person who applies for a suppression order on manifestly untenable grounds. It might be appropriate to make a costs order against a person making submissions in opposition to a suppression order on manifestly untenable grounds in respect of the additional costs caused by those submissions. However, there is no reason to adopt as a starting point the principle applied in private civil actions that costs follow the event.
Costs on appeal against a suppression order decision
Turning to the issue raised on the present application by the appellants for costs of the appeal, the starting point is the proper construction of section 69B(3)(c) of the Evidence Act. Regard is to be had to its wording, structure, context and evident purpose.[77]
[77] Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381 [69] per McHugh, Gummow, Kirby and Hayne JJ.
Section 69B(3)(c) of the Evidence Act relevantly provides that “the appellate court…may make orders for costs...”. It is expressed in terms conferring a power. In contrast to section 40(1) of the Supreme Court Act and its equivalents, it does not provide that costs are in the discretion of the Court.
In the absence of an express power to make an order for costs in Part 8, Division 2 of the Evidence Act, it would have been arguable that section 69B is a comprehensive code covering the field of the powers of an appellate court and an appellate court has no power to award costs on an appeal against a suppression decision.
There is a marked difference between the general appellate jurisdiction of this Court in civil and criminal matters on the one hand and this Court’s special appellate jurisdiction in relation to suppression orders under the Evidence Act on the other hand. For example, appeals in civil proceedings under section 50 of the Supreme Court Act against an interlocutory order of a single Judge to the Full Court[78] and in criminal proceedings under section 352(1)(b)(ii) and (c) of the Criminal Law Consolidation Act effectively against an interlocutory order of a single Judge to the Full Court[79] are generally subject to permission and no appeal lies against a judgment of a Magistrate in a preliminary examination.[80] By contrast, appeals under Division 2 of Part 8 of the Evidence Act are as of right.[81] This reflects the paramountcy accorded by Parliament to decisions on suppression orders being made in the public interest at the highest appellate level. In civil and criminal proceedings, the right of appeal is generally only given to the parties to the proceedings and strangers do not generally have a right to appeal or appear. By contrast, in appeals under Part 8, Division 2 of the Evidence Act, any person with a proper interest in whether the suppression order should be made, including a representative of a newspaper or radio television station, has a right to appeal or appear.
[78] See Supreme Court Civil Rules 2006 (SA) rule 288(1)(a)(i). Permission is also required for an appeal from an order on appeal of a single Judge against an interlocutory order of a District Court Judge or a Magistrate: see rule 288(1)(a)(ii).
[79] Permission is required for an appeal against an interlocutory order of a District Court Judge under the same section. Permission is also required for an appeal against an interlocutory order of a Magistrate: see Magistrates Court Act 1991 s 42(1a).
[80] Magistrates Court Act 1991 s 42(1).
[81] Assuming that the appellant appeared before the primary court or is an applicant, party or media representative: see Herald & Weekly Times Ltd v Director of Public Prosecutions & Anor [2002] SASC 422 at [8]-[9] per Doyle CJ, Lander and Bleby JJ.
Section 69B(3) of the Evidence Act sets out in apparently definitive fashion the powers of an appellate court in contrast to section 50 of the Supreme Court Act which does not define the powers exercisable on appeal. Without the inclusion of section 69B(3)(c), it may well be that an appellate court would not have power to award costs on an appeal against a suppression decision. It follows that the inclusion of section 69B(3)(c) does not indicate a legislative intention that there should be a general rule that costs follow the event.
Given that an application for a suppression order is a creature of statute and is sui generis, there is no reason to attribute to Parliament an intention to import principles applicable to costs in private civil actions. The features of an application for a suppression order identified at [55] above suggest that the approach to costs in private civil actions is no more apposite on appeal than at first instance in relation to a suppression decision.
An appeal under section 69B(3) of the Evidence Act is by way of hearing de novo with the appellate court having power to make any decision that could be made at first instance.[82] Ordinarily, the appellate court will be in as good a position as the court at first instance to assess where on balance the public interest lies. On an appeal against the making of or refusal to make a suppression order, the appellate court is required to form its own view as to the public interest. The fact that a respondent might take no part at the hearing of the appeal will not relieve the appellate court of its function and duty of making that assessment and typically will not shorten – and may indeed increase – the time spent on hearing the appeal. In those circumstances, any submissions made by a respondent are made in the public interest. Even the appellant, by invoking the appellate jurisdiction of the court, is not acting in the normal manner of a self-interested litigant seeking to enforce its private rights and interests on appeal but rather is ensuring that the ultimate decision whether it is in the public interest that relevant details of judicial proceedings be published is not affected by error.
[82] See Channel Seven Pty Ltd and Ors v An Accused and Anor [2008] SASC 246; (2008) 103 SASR 459 at [10]-[11] per Bleby J.
The appellants contend that the rationale for the enactment of section 69B(3)(c) must be that generally an unsuccessful party on appeal will pay the costs of the successful party, absent special circumstances meriting otherwise. The appellants contend that otherwise the manifest purpose of section 69B(3)(c) would be frustrated. The appellants refer to the decision of Cox J in Roget & Ors v Flavel.[83] In that case, defendants in criminal proceedings in the Magistrates Court appealed unsuccessfully to the Supreme Court against a refusal by a Magistrate to suppress publication of their names. The successful respondents to the appeal were the informant and the Australian Broadcasting Commission. Cox J ordered that the appellants pay the informant’s costs of appeal but not the ABC’s costs. Cox J said:
It seems to me that, unless the costs power in s 69b is to be treated virtually as a dead letter, the general principle must normally apply that, at least so far as Crown and defendant are concerned, the unsuccessful party to the appeal should pay the other side’s costs.
[Counsel for the appellants]’s submitted that the power to award costs should be seen as a reserve power to cover exceptional cases; for instance, a frivolous or completely unmeritorious appeal…
An appeal under this suppression scheme is not completely analogous to an appeal under the Justices Act 1921… However, given that the legislation treats a suppression order, or the refusal to make one, as a distinct piece of litigation in itself, at least so far as the appeal provisions are concerned, I think it would emaciate the power that Parliament has expressly given to make orders as to costs if I were to accede to Mr Abbott’s general submission…
I have not had the opportunity to consider at leisure whether the case of a television station or newspaper stands differently in principle, and I do not think it is desirable in the circumstances that I should delay these proceedings by reserving judgement in the matter. My immediate reaction to [the Australian Broadcasting Commission’s] application is that, notwithstanding the fact that newspapers and television and wireless stations are given statutory rights in this scheme, and that the power to make a costs order under s 69b is quite general in its terms, still it would be inappropriate to treat those organisations differently from the parties to the prosecution proceedings.
...
I do not want to foreclose the question of the ABC or any other such organisation being awarded costs in certain circumstances but, at least in this case, I think it proper to make no order in favour of the ABC.[84]
[83] (1987) 47 SASR 402.
[84] (1987) 47 SASR 402 at 412-413.
The appellants in the present case adopt the reasoning of Cox J insofar as he made a costs order in favour of the informant but contend that Cox J erred in his reasoning in relation to the application for costs made by the ABC. The appeal in Roget & Ors v Flavel was heard at short notice and Cox J delivered an ex tempore judgment. The decision was given in the context that the former section 69a entitled a court to have regard to undue hardship to a party (as well as a witness or person alluded to in proceedings) if a suppression order was not made. For the reasons given at [54] above, the existence of section 69B(3)(c) is explicable by an intention by Parliament to confer a power to make an order for costs on appeal without importing that costs should normally follow the event. Section 69B(3)(c) has important and considerable work to do in conferring such a power so that it can be exercised in appropriate circumstances, such as when an appeal is brought or resisted frivolously, vexatiously or manifestly unmeritoriously.
The appellants contend that, if costs of appeals do not generally follow the event, the news media are less likely to exercise their right of appeal and this may be detrimental to the principle of open justice recognised by Part 8, Division 2 of the Evidence Act. Insofar as that contention is put as a factor influencing the construction of section 69B(3), it is of limited weight. The appellants accept that in general terms the media referred to by Parliament in Part 8, Division 2 are commercial entities. The commercial news media have an obvious commercial interest in publishing details of court proceedings. There is no reason to attribute to Parliament an expectation that the media would not exercise their right of appeal unless they had an expectation that they would receive a favourable costs order against a respondent if successful on appeal. This matter is incapable of outweighing the considerations addressed above supporting a construction of section 69B(3) that Parliament did not intend that the general rule should be that costs follow the event on appeal.
Consideration of the present application
At first instance, the Police applied for a suppression order. The Police were acting solely in the public interest and had no private interest in so doing. The Magistrate was required to consider whether to make an order notwithstanding that there was no opposition to the making of the order at first instance. In a real and substantive sense, the role of the Police was to assist the Court.
On the review before the Magistrate, the interest of the Police remained the same: they continued to act in the public interest with no private interest. While V had an interest in details of the proceedings not being published, his private interest was irrelevant and the only purpose of the Magistrate hearing submissions from him was for the assistance of the Court in determining where the public interest lay. In a real and substantive sense, the role of the Police, V and the media applicants for review, was to assist the Court.
On appeal, the role of the persons appearing before the Court did not change. The appellants themselves are not parties to the underlying proceedings. They are members of the media and their appeal was brought on the ground that it was in the public interest that details of the identities of V and D be communicated to the public. The Court was assisted by submissions made by the Police and by V in response to the appellants’ submissions. If the Police and V had taken no part in the appeal, it would have been desirable for the Court to appoint a person or body as amicus curiae to identify and articulate an opposing viewpoint to that put by the appellants.
In some cases, it can be said that an unmeritorious appeal is prosecuted unreasonably by an appellant or that a manifestly meritorious appeal is resisted unreasonably by a respondent. That is not this case. It was apparent that a suppression order of some sort should be made and the real issue was as to its nature and terms. The Police and V did not act unreasonably in making submissions on the appeal, nor in supporting the Magistrate’s conclusion.
This is an appropriate case in which there should be no order as to the costs of the appeal.
The appellants contend that, if the appeal had been unsuccessful, the Police and the intervener V would have sought an order that the appellants pay their costs of appeal. However, if the appeal had been unsuccessful, it would not have been brought unreasonably and would have served the public interest. It would have been appropriate to make no order as to costs against the appellants in that event.
As observed above, the appellants also contend that, unless costs generally follow the event on appeal, the news media are likely to be discouraged from instituting and prosecuting appeals. This is not a compelling reason for exercising the discretion in the present case to make an order that the Police or V pay the appellants’ costs of the appeal.
Conclusion
There should be no order as to the costs of the appeal including the costs of the application for costs.
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