Collins v Djunaedi (No 2)

[2024] SASCA 2

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

COLLINS v DJUNAEDI (No 2)

[2024] SASCA 2

Judgment of the Court of Appeal  

(The Honourable Justice Doyle and the Honourable Justice Bleby)

31 January 2024

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INDEMNITY COSTS - RELEVANT CONSIDERATIONS GENERALLY

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS

The applicants sought to appeal a decision of a Master of this Court on a taxation of costs. On 14 September 2023, their application for leave to appeal was dismissed by this Court.

The respondents seek their costs of the application on an indemnity basis, relying upon the applicants’ failure to acknowledge that leave to appeal was required, and the Court’s conclusion that there was, in any event, no merit in either the applicants’ proposed grounds of appeal, or their application for leave to appeal.

The applicants oppose the order sought on the basis that the issue of whether leave was necessary to appeal from a decision on a taxation of costs had not previously been addressed by the Court of Appeal and was not straightforward.  They also rely upon the fact that the rules contemplate that applications for leave to appeal may be dealt with on the papers, and without hearing from the respondents.  

Held, (per the Court):

1.The applicants are to pay the respondents’ costs of the application for permission to appeal, fixed in the sum of $2,000.

Collins v Djunaedi [2023] SASCA 97, considered.

COLLINS v DJUNAEDI (No 2)
[2024] SASCA 2

1. THE COURT:     The applicants sought to appeal a decision of a Master of this Court on a taxation of costs.  Their application for leave to appeal was dismissed by this Court.[1]

   [1]     Collins v Djunaedi [2023] SASCA 97.

2. The respondents seek their costs of the application on an indemnity basis.  They rely upon the applicants’ failure to acknowledge that leave to appeal was required, and the Court’s conclusion that there was, in any event, no merit in either the applicants’ proposed grounds of appeal, or their application for leave to appeal. 

3. The applicants oppose the order sought on the basis that the issue of whether leave to appeal was necessary from a decision on a taxation of costs had not previously been addressed by the Court of Appeal, and was not straightforward.  They also rely upon the fact that the rules contemplate that applications for leave to appeal may be dealt with on the papers, and without hearing from the respondents.

4. Addressing this last point first, when an application for leave to appeal is dismissed on the papers, the Court may decline to make any order for costs.  However, when the present matter was called over, it was apparent that there was some procedural history and complexity that made it likely that the Court would be assisted by submissions from the respondents.  The Court therefore invited submissions from the respondents, and the submissions provided were of assistance.  In those circumstances it is appropriate that there be an order for costs in favour of the respondents.

5. In our view, there was little merit in the applicants’ submissions, both in support of their contention that they were entitled to appeal as of right, and as to why, in the alternative, they should be granted leave to appeal.  However, rather than dwell on whether it is appropriate to order that they pay the respondents’ costs of the application on a standard or indemnity basis, we consider it more appropriate to simply fix a sum.  This is appropriate in circumstances where this Court is in a position to estimate the likely costs reasonably incurred by the respondents, and where there is a risk of further wasted time and expense if the costs are not fixed.

6. The applicants are to pay the respondents’ costs of the application for permission to appeal, fixed in the sum of $2,000.