City of Burnside v Attorney-General of South Australia, Pembroke School Inc and Athletics Association of SA Inc No. SCGRG 91/1540 Judgment No. 4797 Number of Pages 6 Costs Intervention

The case involves the City of Burnside seeking an order to authorise the sale of an area of park land known as the Olympic Sports Field. The City of Burnside was joined by the Attorney-General of South Australia as a defendant due to the land's potential charitable trust status. The Athletics Association of South Australia and Pembroke School Inc were granted leave to intervene in the action, both having interests in the land. The Athletics Association held a lease that was to determine in 1994, while Pembroke School held a licence to use part of the land. The Athletics Association and the Attorney-General opposed the relief sought by the City of Burnside. The primary judge initially ruled against the City of Burnside, but this decision was overturned on appeal. Consequently, the City of Burnside substantially succeeded on the issues argued before the primary judge and in the Full Court.

The legal issues the court had to decide included whether an unsuccessful intervener is liable for costs in cases where the intervention prolonged the hearing, and whether the intervener should be liable for any additional costs incurred by the successful party due to the intervention. The court had to balance the principles of costs following the event with the need to ensure that unsuccessful interveners do not unduly burden successful parties, particularly when their intervention significantly extended the proceedings or caused unnecessary costs.

The court held that an unsuccessful intervener may be liable for costs if their intervention substantially extended the hearing or caused unnecessary costs. However, the court should take a broad approach in determining whether the intervener should be liable for costs. In this case, the intervention by the Athletics Association did result in a substantial extension of the hearing. The court found that the Athletics Association was liable to pay a portion of the City of Burnside's costs, specifically a refresher for junior counsel for one half day and a solicitor's fee for one half day. However, the court decided against ordering the Athletics Association to pay any part of the City of Burnside's costs in conducting searches or other enquiries, as it was difficult and not very productive to determine which searches were unnecessary.

The final orders of the court were that the Athletics Association of South Australia should pay the City of Burnside an amount equivalent to a refresher for junior counsel for one half day and a solicitor's fee for one half day. There would be no other orders as to the costs of the action or of the appeal.