Cosenza v Corporation of the City of Adelaide

Case •

[2023] SASCA 142

•

21 December 2023

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

COSENZA v CORPORATION OF THE CITY OF ADELAIDE

[2023] SASCA 142

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice Bleby)

21 December 2023

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - OTHER MATTERS - COSTS

Appeal against orders of a master of the Supreme Court hearing a taxation of costs.

The applicant discontinued an action seeking judicial review. The respondent then sought costs. The applicant opposed the making of any order for costs.

The master fixed the costs of the entitlement of the respondent at $8,000 and reserved the question of the costs of the taxation. The master later fixed the costs of taxation at $6,000 and the costs of the review at $2,000.

The applicant seeks to challenge the orders made by the master on 30 proposed appeal grounds, including that the respondent’s solicitors had no retainer to act.

The Court held (dismissing the applications for leave to appeal):

1.Leave to appeal is required to appeal an order that “relates to costs” (r 213.1(c)).

2.Whilst the mere appearance as the solicitor for a party does not necessarily justify the conclusion that there is a retainer, so far as the court and the parties to an action are concerned, the presumption that the solicitor represents the party for whom the solicitor is recorded as acting “must surely be a strong one”.

3.In this case, no basis at all has been disclosed to question the master’s exercise of discretion to refuse cross-examination on the topic of the solicitor’s retainer in the course of the taxation.

4.The applicants’ proposed grounds of appeal are without merit and raise no issue of general principle or importance. There would be no substantial injustice to the applicant were the orders left to stand.

Magistrates Court Act 1991 (SA) s 38; Supreme Court Civil Rules 2006 (SA); Uniform Civil Rules (2020) (SA) rr 213.1(1)(c), 25.5(1), referred to.
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Cosenza v Adelaide City Council [2019] SADC 58; Bayley and Associates Pty Ltd v DBR Australia Pty Ltd [2014] FCA 346; Collins v Djunaedi [2023] SASCA 97; Dennis Hanger Pty Ltd v Kanambra Pty Ltd (1992) 34 FCR 242; Halliday v SACS Group Pty Ltd (1993) 67 ALJR 678; In the matter of HIH v McGrath [2014] NSWSC 922; Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Lesses v Maras (No 3) [2017] SASCFC 154; Mahon v Police [2022] SASCA 76; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; Ouwens Casserley Real Estate Pty Ltd v Harcourts South Australia Pty Ltd [2017] SASCFC 69; Pix v South Australian Housing Trust (2016) 125 SASR 10; Richani v Martins Plaza Shopping Centre Pty Ltd (No 2) [2022] SASCA 98; Scanlon v American Cigarette Co (Overseas) Pty Ltd [No 1] [1987] VR 261; Southern Wire v Clover Communications [2023] SASCA 18; Southern Cross Commodities Pty Ltd v Martin (1985) 123 LSJS 480; Southern Cross Commodities Pty Ltd v Martin (1985) 126 LSJS 306; Talacko v Talacko (No 2) (2009) 25 VR 613; Wyness v Roennfeldt [2023] SASCA 77, considered.

COSENZA v CORPORATION OF THE CITY OF ADELAIDE
[2023] SASCA 142

Court of Appeal – Civil:  Livesey P and Bleby JA

THE COURT:

Introduction

  1. By a Notice of Appeal dated 18 September, which was revised on 6 October 2023, the applicant claims to be entitled to appeal two orders made by a master concerning costs.

  2. The first order is dated 23 February 2023 by which the master fixed the costs entitlement of the respondent at $8,000 and reserved the question of the costs of the taxation.[1]  Following a review of that taxation, the master made a further order on 28 August 2023 by which he fixed the costs of the taxation at $6,000 and fixed the costs of the review at $2,000.

    [1]     Order of Judge Dart in Cosenza v Corporation of the City of Adelaide (Supreme Court of South Australia, SCCIV-19-539, 9 March 2022).

  3. The applicant requires an extension of time in order to pursue the first of these appeals.  He seeks, in the meantime, a stay of the decisions until the determination of his appeals.  Ultimately, the applicant seeks to set aside the orders and secure an order that there be no order for costs on the basis that the respondent was never entitled to any order for costs. 

  4. The applicant seeks his costs of the appeals, together with any incidental costs.  The applicant has only recently obtained legal representation.

    Resolution of the applications for leave to appeal

  5. For the following reasons, the applicant requires leave to pursue his appeals. 

  6. Accordingly, it is necessary to treat these appeals as applications for leave to appeal.  As the proposed appeals appear to be without merit and raise no issue of general principle or importance, leave is refused. There is no utility in granting any extension of time. 

  7. These applications for leave to appeal should be dismissed with costs.

    Relevant background

  8. This litigation commenced as a minor civil action litigated in the Adelaide Magistrates Court during 2018.  The applicant sued the respondent in damages, claiming that it had breached a duty of care.  The applicant claimed to have relied on a sign that said that there was CCTV surveillance of a car park under the respondent’s control.  The applicant claimed that when he parked in the carpark he was assaulted and his vehicle damaged in circumstances where there was inadequate security and the CCTV cameras were not operating.  He claimed damages for having been denied the opportunity of identifying the assailant and pursuing criminal charges and compensation in a civil action.   

  9. The respondent sought leave to be legally represented in the Magistrates Court, as well as leave to issue an application to have the minor civil action summarily dismissed. The Magistrate gave leave to the respondent to be represented. The applicant objected to the respondent being legally represented and so, later in 2018, he commenced a review in the District Court pursuant to s 38 of the Magistrates Court Act 1991 (SA).

  10. The respondent was given leave to be represented at the review in the District Court for the hearing on 21 December 2018 on the basis that the applicant had legal training and was a very experienced litigant.  The District Court eventually dismissed the applicant’s review in mid-May 2019.[2]

    [2]    Cosenza v Adelaide City Council [2019] SADC 58 (Judge Slattery).

  11. Before that occurred, in early May 2019 the applicant applied to commence judicial review proceedings in the Supreme Court, seeking expedition before the hearing in the Magistrates Court resumed.  The application was not served on the respondent.  The Judge’s Associate contacted the respondent and attached the proceedings to an email.  When the matter came on before Hinton J in the Supreme Court on 7 May 2019, the respondent appeared by counsel.  No notice of acting was filed.

  12. On 26 June 2019, the applicant discontinued the action.  The respondent sought costs and the applicant opposed the making of any order for costs.  The matter was argued and it the master dealt with it pursuant to the Supreme Court Civil Rules 2006 (SA).  Later, on 6 September 2019 the master ordered that the Notice of Discontinuance have the effect of a final judgment against the applicant.  The respondent was awarded party and party costs of the action to be agreed or taxed. 

  13. The respondent initially claimed costs in an amount of just under $11,000 but ultimately claimed just under $8,800.  In the course of the taxation the applicant questioned whether the solicitors who appeared for the respondent had a retainer to act.  It would appear that the applicant did not put forward any real basis for that question and it was countered by an affidavit from the respondent’s solicitor dated 14 December 2021.  The solicitor explained that he received instructions after the respondent received the email from the Judge’s Associate.  Those instructions were to act for the respondent and to retain counsel to appear before Hinton J. 

  14. In the course of his reasons delivered on 23 February 2022, the master referred to the authorities on which the applicant relied and found that the applicant failed to meet the onus of demonstrating that the solicitors acted without authority.[3]  The master relied on the fact that the same solicitors had represented the respondent in other litigation involving the applicant.

    [3]     In the matter of HIH v McGrath [2014] NSWSC 922.

  15. In connection with the taxation, the master determined to make an award of costs by way of a lump sum.[4]  He heard from the parties and considered an itemised claim for costs.  Having earlier ordered an interim allocator of $3,500 on 11 May 2021, he awarded $8,000.   Under the former rules, this was a provisional costs order which only became final in the absence of a review.

    [4]     Relying on Bayley and Associates Pty Ltd v DBR Australia Pty Ltd [2014] FCA 346, [17](e) (Foster J).

  16. The applicant sought a review.  By the time of that review the Uniform Civil Rules 2020 (SA) had commenced.  The applicant filed evidence and submissions.  One of his complaints was that the master had refused his application to cross-examine the solicitor.  In his reasons delivered on 13 October 2022, the master explained that whether to allow cross-examination is a discretionary matter and that it is not usual to permit cross-examination.  The master reiterated that there was no basis adduced by the applicant to go behind the solicitor’s affidavit.

  17. The master also rejected the applicant’s complaints that costs were not awarded on a party and party basis, that the respondent had been permitted to respond to submissions made by the applicant and that it was unfair to allow costs to be assessed on a lump sum basis.  The master’s reasons explained that the lump sum award was made on a party and party basis only after the applicant had been heard.  The master observed that if the costs had been taxed in the usual way, the award may well have been greater.

  18. In fact, the applicant’s opposition resulted in the need to incur costs in an amount which was higher than it need have been.  The review was dismissed.

  19. In the course of further reasons delivered on 28 August 2023, the master addressed the costs of the taxation.  By that stage the respondent claimed the costs of the taxation on an indemnity basis of over $26,000 in respect of a costs award of $8,000.  The master found that this was disproportionate to the amount in issue.[5]  Nonetheless, the respondent had earlier offered to accept $7,000 for costs which were ultimately awarded in an amount of $8,000.  The master refused to award indemnity costs and awarded the respondent $6,000 for the costs of the taxation and $2,000 for the costs of the review. 

    [5]     Lesses v Maras (No 3) [2017] SASCFC 154, [42]-[43].

  20. The applicant now seeks to appeal these taxation orders together with the costs of the review.

    The requirement for leave to appeal

  21. For the reasons recently given by this Court in Collins v Djunaedi, an appeal against a taxation of costs by a master is an appeal that “relates to costs” within r 213.1(1)(c) of the Uniform Civil Rules 2020 (SA).  It requires leave to appeal. 

  22. Whilst the application for leave will ordinarily be heard by a single judge,[6]  this matter was listed in the Court of Appeal callover and set down for hearing today without objection from either party. 

    [6]     Collins v Djunaedi [2023] SASCA 97 (Doyle and Bleby JJA).

  23. This Court has the power to exercise the appellate jurisdiction of the Supreme Court if a Judge so orders.[7]  It would only be productive of waste and delay were this Court to remit the matter to the General Division of the Supreme Court so that it could be heard by a single Judge.

    [7]     See Supreme Court Act 1935 (SA), s 19C(2) and rr 212.3(1)(f) and 212.4(c) of the Uniform Civil Rules 2020 (SA).

  24. In the circumstances, it is appropriate for this Court to hear the matter and to treat the applicant’s appeals as applications for leave to appeal.

    The proposed grounds of appeal

  25. The applicant was unrepresented when he prepared his initial proposed appeal grounds, and they are lengthy to the point of prolixity.  They are as follows:

    Grounds of appeal

    The 6.9.2019 grounds:

    1. The respondent was not entitled to any costs order in circumstances where its solicitors knew that no entitlement existed to claim any costs yet failed to advise the Court accordingly;

    2. It was available to the Court to consider that as the applicant did not serve any proceedings that no order for costs should have been made;

    3.     The judgment should be set aside in the interests of justice.

    3A.    Errors of Fact and Law:

    The 23.2.2022 grounds: (9.3.2022 judgment)

    4. The applicant was denied procedural fairness in not being able to cross examine the respondent’s solicitor (Mr. Bubner) as to his affidavit filed on 14.12.2021;

    5. The applicant was denied procedural fairness and/or it was an abuse of the Courts process in circumstances where the Court should not have allowed the filing of the 14.12.2021 affidavit of Mr. Bubner post the hearing of 24.11.2021;

    6. The Court erred in failing to find that there was no evidence put before the Court that a separate retainer and/or written instructions were provided by the respondents to its solicitors for the Supreme Court matter (which it initiated);

    7. The costs determination of 23.2.2022 was not conducted upon a party party basis. Only an order for party party costs was obtained on 6.9.2019 and not solicitor client costs. The costs sought by the respondent were excessive and unreasonable and unreasonably incurred. There was no application or order made stating that the initiating application sought by the respondent for judgment was fit for counsel allowing counsel costs to be charged for the hearing of 21.8.2019 and subsequent 6.9.2019 order;

    8. There is no evidence of any written instructions given by the respondent whatsoever with respect to any of the conduct taken by the solicitors in regards to this matter. There was no valid authority given by the respondents to its solicitors for acting in the review/appeal matter. A separate retainer and written instructions were required for the solicitors to act in the review/appeal matter. In the absence of instructions properly given with respect to each item in the bill, the solicitors costs cannot be sought and allowed;

    8A. The respondent solicitor was unable to institute proceedings (seeking judgement in 2019 review/appellate hearing) without being instructed or properly retained to do so in a review/ appeal matter.

    9. The Court erred in finding at paragraphs 5 and 6 of its 23.2.2022 costs determination that the purpose of listing for argument (ultimately heard on 21.8.2019) was for a cost’s argument. It was not as it was an application initiated by the respondent seeking judgment as it was concerned that following my notice of discontinuance filed on 26.6.2019 that I may seek to regurgitate the matter to advance a significant point of law as referred to by His Honour Justice Slattery in Cosenza v Adelaide City Council [2019] SADC 58 per Slattery J, at paragraph 5 therein;

    10. The Court within its 23.2.2022 determination has placed an unfair weight in support of the respondent in circumstances where proceedings were never served and the matter was open to resolve at an early stage had the respondent sought resolution in compliance with UCR 195.1 and 195.2 which it never did;

    11. The Court erred and denied the applicant procedural fairness in proceeding in assessment of costs by way of lump sum in these circumstances as every item claimed was opposed as being excessive, unnecessary and unreasonably incurred. In the absence of considering each item with the ability to consider the instructions provided by the client (if legitimately given to its solicitors) in the absence of considering the solicitors file was unfair, especially in circumstances where the party party costs ordered by the Court on 21.8.2019 were insignificantly small at the outset (although not yet determined);

    12. The plaintiff was denied procedural fairness as it is unclear as to how His Honour determined an amount of $769.27 as being taxed off, there is no ability to determine or consider which items and in what amount have been taxed off and for what purpose;

    13. The Court erred within its 23.2.2022 determination at paragraph 5 therein, in finding that it was the applicant who failed to consent to an order for costs where the Courts expectation was the matter would have resolved quite simply and for a very modest sum had the applicant simply consented. The Court has placed unfair weight in favour of the respondent as it was not simply a matter of consenting to a costs order, the respondent sought judgment;

    14. The costs incurred in this matter are so significantly disproportionate to the substantive matter that the Court should have exercised its discretion to disallow many or in the alternative a significant portion of the respondent’s costs in the interest of justice, noting that it failed to attempt any resolution as required pursuant to UCR 195.1 and 195.2. The majority of costs incurred have been consequent of the taxation process;

    15. The Court erred within its 23.2.2022 determination at paragraph 15 therein in finding that “the solicitors now have authority “It is respectfully submitted that even if the solicitors do now have an authority to act that in the absence of any evidence that it was properly retained and instructed at the initiation of this matter that it should not be awarded its costs. It is an irrelevant consideration that a retainer and any written instructions may have been provided at a time post the initiating application for judgment of 5.7.2019 and the process for taxation post 18.8.2020;

    16. The costs sought by the respondent are completely disproportionate and should not be allowed. The applicant has been successful with its taxation where an amount of some 27% has been removed from the bill at the initial taxation. The respondent has been unreasonable in its prosecution of this matter. The costs amount fixed at $8,000 is excessive in the circumstances.

    16A. Error of Law as portion of the costs incurred prior to the respondent solicitor being retained.

    17.     The judgment should be set aside in the interests of justice.

    The 28.8.2023 judgment:

    18. The Court erred to find that the respondent was not entitled to any costs of the taxation as the applicant was successful in the adjudication process of the taxation;

    19. The Court erred by failing to find (and therein failing to make a declaration in effect) that the Calderbank offer was invalid at law and therefore should have not considered the amount of costs claimed pursuant to that invalid proposal;

    20. The Court erred by failing to find that the respondent was not entitled to any of its costs as it failed to comply with the Courts taxation rules as mandatorily required to pursuant to UCR 195(1)(2);

    21. The Court failed to find that the respondent incurred, sought and maintained an unreasonable position of costs amount (unnecessarily, improperly or unreasonably) without attempting any reasonable resolution prior and during the taxation process;

    22. The Court erred by failing to consider the costs were funded by an insurer and not the respondent;

    23. The Court failed to find that the costs amount incurred, sought and maintained by the respondent during the taxation process were completely disproportionate to the amount of costs obtained following the 6.9.2019 judgment and therefore should not have allowed them at the applicant’s expense;

    24. The Court erred by failing to exercise its discretion to not allow any costs in favour of the respondent due to its breach of UCR 194.6(1)(2)(a)(c);

    25. The Court erred by failing to find that an amount of the respondent’s costs was already included within the 23.2.2022 judgment and that a further order for costs inclusion was an abuse of process;

    26. The Court erred by failing to find that the costs incurred by the respondent during the taxation were not necessary and proper and therefore should not be entitled to any order for costs;

    26A. The Court erred by awarding an amount of costs in amount of $2,000 for the review as that amount is excessive as the review was conducted by way of written submissions and on the papers.

    27.     The judgment should be set aside in the interests of justice.

  1. By the time this matter was set down, counsel had been retained and he has narrowed the application considerably, without explicitly abandoning any of the proposed grounds.

    The determination of the application for leave to appeal

  2. As this Court in Collins v Djunaedi recently observed, the usual considerations relevant to whether leave to appeal should be granted must be applied against the backdrop of the jurisdiction exercised in the making of the decision which is the subject of the appeal:[8]

    The question of whether leave to appeal should be granted depends upon consideration of the following:[9]

    ·whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;

    ·whether the decision raises an issue of general principle or importance; and

    ·whether allowing the decision to stand would work a substantial injustice to the applicant.

    These considerations must be applied against the backdrop of the jurisdiction that was exercised in making the decision under appeal.[10]  In the present circumstances, that backdrop involves a taxation of costs by a master who is a taxing officer under the rules, and hence has particular expertise in determining issues in relation to the quantum of costs.[11]  Further, the decision sought to be appealed, whilst including an order requiring payment of a sum of money, relates to a matter of practice and procedure, rather than the substantive rights of the parties in dispute in the proceedings.  As such, it is appropriate that the Court exercise caution before granting leave to appeal.[12]  Appeals on costs should not be encouraged.[13]

    [8]     Collins v Djunaedi [2023] SASCA 97, [32]-[33] (Doyle and Bleby JJA).

    [9]     Wyness v Roenfeldt [2023] SASCA 77, [29] (Livesey ACJ and Bleby JA); Southern Wire v Clover Communications [2023] SASCA 18, [53] (Livesey P and Bleby JA); M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27, [7] (Doyle and Livesey JJA).

    [10]   Wyness v Roenfeldt [2023] SASCA 77, [30] (Livesey ACJ and Bleby JA).

    [11]   As to the substantial weight to be given to the conclusions of a specialist decision maker with particular expertise, see Pix v South Australian Housing Trust (2016) 125 SASR 10, [3] (Kourakis CJ, Bampton and Doyle JJ agreeing), applying Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1, [19] (Parker J).

    [12]   Richani v Martins Plaza Shopping Centre Pty Ltd (No 2) [2022] SASCA 98, [5] (Livesey P and Doyle JA); Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ).

    [13]   Ouwens Casserley Real Estate Pty Ltd v Harcourts South Australia Pty Ltd [2017] SASCFC 69, [7] (Kourakis CJ, Peek and Stanley JJ).

  3. It is appropriate to review the merits of the proposed appeals, albeit only in a broad way, before considering the applications for leave and for an extension of time. 

    The merits of the proposed grounds

  4. It is not necessary to address each and every of the grounds individually.  A number are in truth submissions. It is convenient to address the applicant’s contentions that there was no retainer, the claimed denial of procedural fairness associated with the refusal to allow cross‑examination of the respondent’s solicitor, and some of the criticisms made of the taxations.

  5. Under the former Rules of Court, r 24 provided that a solicitor who appeared as the solicitor for a party was taken to have authority to represent the party “unless the contrary is established”.  That rule reflected the common law.  Whilst the mere appearance as the solicitor for a party does not necessarily justify the conclusion that there is a retainer, so far as the court and the parties to an action are concerned, the presumption that the solicitor represents the party for whom the solicitor is recorded as acting “must surely be a strong one”.[14]  Indeed, the solicitor for a party will usually be regarded by the court and the other parties as having the implied authority to do all things necessary to carry out the party’s instructions in connection with the retainer to act.[15]  The corollary is that the conduct of the solicitor, and of any counsel retained, will usually bind the party.[16]

    [14]   Halliday v SACS Group Pty Ltd (1993) 67 ALJR 678, 679-680 (Mason CJ), and the cases there cited.

    [15]   Dennis Hanger Pty Ltd v Kanambra Pty Ltd (1992) 34 FCR 242 (Heerey J).

    [16]   See generally the authorities addressed in Mahon v Police [2022] SASCA 76, [47]-[63] (Livesey P, Lovell and Doyle JJ) and Uniform Civil Rules 2020 (SA), r 25.5(1), “…a party in a proceeding or appellate proceeding is bound by the conduct of the law firm who is recorded as representing the party and by counsel who appears for the party in the proceeding”.

  6. Notwithstanding the presumption recognised by the former Rules of Court and the common law, there was in this case explicit evidence from the solicitor that he had a retainer to act for the respondent. 

  7. The applicant has identified no reason to go behind the findings made by the master.  This proposed ground is without merit.

  8. So far as the question of cross-examination is concerned, the master was correct to hold that whether to permit cross-examination in the course of a taxation is a discretionary matter bound up in the regulation of the practice and procedure of the taxation process.  As with the cross-examination of solicitors in connection with interlocutory applications generally, the court will usually weigh the issue to be raised in cross-examination against the delay and expense of permitting cross-examination.[17]   Where the issue appears to be of doubtful merit and the associated delay and expense unwarranted, cross-examination will properly be refused.  In this case, no basis at all has been disclosed to question the master’s exercise of discretion to refuse cross-examination on the topic of the solicitor’s retainer in the course of the taxation.  This proposed ground is without merit.

    [17]   See generally, Southern Cross Commodities Pty Ltd v Martin (1985) 123 LSJS 480, and on appeal, Southern Cross Commodities Pty Ltd v Martin (1985) 126 LSJS 306 (FC); Scanlon v American Cigarette Co (Overseas) Pty Ltd [No 1] [1987] VR 261; Talacko v Talacko (No 2) (2009) 25 VR 613.

  9. Finally, although a great many criticisms were made of the taxation process, particularly the decision to proceed by way of a lump sum assessment, no proper basis has been laid by the applicant for questioning the decisions the master made nor the amounts he awarded in the exercise of his broad discretion concerning the taxation of costs. 

  10. For example, it is said that the applicant obtained a more favourable outcome than the so-called “one sixth rule”,[18] and that there was a failure by the respondent to comply with r 195.1 because no genuine offer was made before taxation by the respondent’s letter dated 11 January 2020. The time specified in that letter for accepting the offer of $7,000 expired long before the taxation.

    [18]   G E Dal Pont, Law of Costs, 5th ed, LexisNexis, [18.41].

  11. These complaints are without merit.  The one sixth rule has not routinely been applied in South Australia outside of a taxation between solicitor and client.[19] As Professor Dal Pont has explained:[20]

    The South Australian rules eschew the percentage or proportion reduction in this context.  In its place they empower the court to make any order it thinks fit as to the payment of the costs of taxation.  In making such an order, the court may take into consideration the overall result of the taxation process, the relative success or failure of the parties vis-à-vis disputed items, and the relative number of items (and their respective quantum) in respect of which the amount claimed was disallowed, as well as comparisons between the outcome of the taxation and the praties’ respective positions during the pre-taxation steps[21] or any settlement offer[22] made by a party.[23] 

    [19] Legal Practitioners Act 1981 (SA), Third Schedule, cl 49(2)(a): “the law practice to which the legal costs are payable or were paid must pay the costs of the adjudication if … on the adjudication the legal costs are reduced by 15% or more”.

    [20]   G E Dal Pont, Law of Costs, 5th ed, LexisNexis, [18.48].

    [21]   Under Uniform Civil Rules 2020 (SA), r 195.1: see 18.18.

    [22]   Under Uniform Civil Rules 2020 (SA), r 132.4: see 13.5.

    [23]   Uniform Civil Rules 2020 (SA), r 195.11(3).  The position preceding 1 December 2015 (in the superseded Supreme Court Civil Rules 2006 (SA), rr 187, 188, as they read at the time) and between that date and 18 May 2020 (in the superseded r 188I), is discussed in the equivalent paragraph in the fourth edition of this work:  G E Dal Pont, Law of Costs, 4th ed, LexisNexis Butterworths, Sydney, 2018.

  12. The letter of 11 January plainly contained a typographical error.  It should have been dated 11 January 2021, not 11 January 2020.  That it was not sent before the taxation commenced as r 195.1 required was relevant but not determinative, especially as no response was made by the applicant as r 195.1(3) required.[24]

    [24]   Collins v Djunaedi [2023] SASCA 97, [46] (Doyle and Bleby JJA), “the judge undoubtedly had a discretion to waive compliance”.

  13. There is no reason to think that the master erred in any relevant respect but, even if he had, no issue of general principle or importance is raised.

  14. It was necessary for the master to bear firmly in mind the necessity to ensure proportion between the amounts in issue and the time and cost associated with their determination.  His Honour did precisely that.  Whilst the master recognised that some of the costs incurred were out of proportion to the amounts in issue, this was in large measure the product of the many arguments raised and the opposition persistently pressed by the applicant over a considerable period of time.

  15. None of the decisions which are now criticised by the applicant appear to be attended with doubt sufficient to warrant their reconsideration on appeal and it is very far from clear that allowing the master’s orders to stand will work any requisite injustice to the applicant. 

  16. This Court is conscious that the proposed appeals relate to costs rather than the substantive rights of the parties.  In the absence of the identification of any issue of general principle or importance, this Court is most reluctant to grant leave to appeal against orders that relate to costs.  None of the proposed appeal grounds warrants a grant of leave to appeal.

  17. Indeed, only the most recent order has been appealed within time.  The applicant has not properly explained all of his delay.  In all of the circumstances, however, there is no utility in granting any extension of time. 

    Conclusion

  18. There will be an order that these applications for leave to appeal will be heard by this Court. 

  19. The applications for leave to appeal are dismissed with costs. The respondent’s costs are fixed in the sum of $2,000.[25]

    [25]   Question of Law Reserved No. 1 of 2022 (No 2) [2023] SASCA 135, [41], [50] (Livesey P, Lovell and Doyle JJA).


Most Recent Citation
Cases Citing This Decision

1

Corporation of the City of Adelaide v Cosenza [2024] FCA 852