Edwards v Virgin Blue International Pty Ltd

[2021] SASCFC 34

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

EDWARDS v VIRGIN BLUE INTERNATIONAL PTY LTD

[2021] SASCFC 34

Judgment of The Full Court  

(The Honourable Chief Justice Kourakis, the Honourable Justice Stanley and the Honourable Justice Doyle)

25 August 2021

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - COSTS OF AND INCIDENTAL TO PROCEEDING

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - APPEAL, REVIEW OR REFERENCE

On 23 October 2020, the Full Court delivered judgment in the appellant’s favour and the appellant now seeks, and the respondent opposes, an order that the appellant be at liberty to tax those costs immediately and that they be payable forthwith. The appellant also seeks an order in relation to what costs order should apply in relation to the arguments in the Magistrates’ Court.

Held per Kourakis CJ (Stanley J and Doyle J agreeing), allowing the application:

1.  The respondent is to pay the appellant’s costs of the appeal to this Court to be agreed or taxed.

2.  The Court orders that the appellant is at liberty to tax those costs immediately and that they be payable forthwith.

3.  The costs of the hearing in the Magistrates Court on 9 August 2019 be reserved to the Magistrates Court which is better placed to assess where the burden of costs for the hearing should fall.

Uniform Civil Rules 2020 (SA) R 2.1, 194.4(8), referred to.

EDWARDS v VIRGIN BLUE INTERNATIONAL PTY LTD
[2021] SASCFC 34

Full Court:   Kourakis CJ, Stanley and Doyle JJ

1. THE COURT:   We would grant the respondent an extension of time to provide its submissions on costs.

2. The parties agree that this Court should make an order that the appellant is entitled to the costs of and incidental to the respondent’s application brought in the Magistrates Court on 11 December 2018 on a standard costs basis on the Magistrates Court Costs Scale to be agreed or taxed. 

3. The Court orders that the costs of the hearing in the Magistrates Court on 9 August 2019 be reserved to the Magistrates Court which is better placed to assess where the burden of costs for the hearing should fall.

4. The parties also agree that the respondent should pay the appellant’s costs of the appeal to this Court to be agreed or taxed.  We so order. 

5. The appellant seeks, and the respondent opposes, an order that the appellant be at liberty to tax those costs immediately and that they be payable forthwith.  Rule 194.4(8) of the Uniform Civil Rules 2020 (SA) provides that unless the court otherwise orders, costs orders do not become payable until the final determination of a proceeding:

   (8)Costs ordered or to be paid under these Rules are not to be taxed and do not become payable until the final determination of a proceeding, including final costs orders being made.

   Note—

   See also rule 69.5, rule 74.3, rule 154.5, rule 154.6, rule 154.11, rule 154.12, rule 154.13, rule 194.4(2) and rule 194.4(3), which create presumptive costs rules.

6. The definition of “proceeding” in Rule 2.1 includes, where the context requires, an appellate proceeding.  On one view at least, the appeal to this Court is a different proceeding to the proceeding brought in the Magistrates Court.  The appeal has been finally determined.

7. In any event, even if the appeal were dealt with as if it were an aspect of the proceeding in the Magistrates Court, the following factors strongly support an order that costs be payable forthwith:

   a.the appeal has finally resolved a discrete issue and fundamental issue;

   b.the Magistrates Court action is not likely to be concluded soon;

   c.the order would not hinder Virgin from defending the Magistrates Court proceedings; and

   d.there is no prospect that the costs orders will be later disturbed.