Channel Nine SA Pty Ltd v Police (No 2)

This matter came before the Supreme Court of South Australia, constituted by Kourakis CJ, Blue and Parker JJ, on appeal from a decision concerning a suppression order. The appellants were members of the news media who sought to appeal a magistrate's decision regarding a suppression order. The core dispute revolved around the costs of this appeal, specifically whether the general rule that costs follow the event should apply.

The legal issues before the Court were twofold: first, the proper construction of section 69B(3)(c) of the Evidence Act concerning the power of an appellate court to make costs orders on appeals against suppression orders; and second, whether the news media, as appellants, should be entitled to costs on appeal, departing from the general rule. The Court was required to consider the nature of proceedings involving suppression orders, the public interest considerations at play, and the specific rights of media organisations to appeal such decisions.

The Court reasoned that while section 69B(3)(c) of the Evidence Act confers a power to make costs orders, it does not mandate that costs must follow the event, unlike provisions in other appellate jurisdictions. The Court distinguished the appellate jurisdiction concerning suppression orders from general civil and criminal appeals, noting that appeals under Part 8, Division 2 of the Evidence Act are as of right and are open to parties and any person with a proper interest, including media representatives. The Court found that the appellants' contention that a favourable costs order is necessary to encourage media appeals in the public interest carried limited weight, as Parliament did not necessarily expect media entities to appeal solely on the basis of favourable cost outcomes. The Court also noted that the Police and the individual whose identity was subject to the suppression order were acting in the public interest or assisting the Court, rather than pursuing private interests, and had not acted unreasonably in making submissions.

The Court ultimately held that the general rule that costs follow the event should not be applied to appeals concerning suppression orders. While acknowledging the power to make costs orders, the Court determined that the specific nature of these appeals, involving public interest considerations and broader rights of participation for media, warranted a departure from the standard approach. The decision implies that costs in such appeals are discretionary and not automatically awarded to the successful party.