GM v Department of Human Services (No 2)

[2024] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

GM v DEPARTMENT OF HUMAN SERVICES (No 2)

[2024] SASC 43

Judgment of the Honourable Justice McIntyre  

25 March 2024

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - GENERAL PRINCIPLES AND EXERCISE OF DISCRETION

These reasons address the issue of costs arising from an unsuccessful appeal by GM against a decision made by the South Australian Civil and Administrative Tribunal (‘SACAT’) affirming a decision of the Department of Human Services (‘DHS’) to issue a prohibition notice to the appellant under s 32 of the Child Safety (Prohibited Persons Act 2016 (SA) (‘CSPP Act’).

The respondent seeks an order that the appellant pay its costs of the appeal on the standard costs basis to be agreed or taxed.  The appellant contends that this appeal raised four key public interest features and submits that this should incline the Court to not award costs against the appellant, or to do so at a significantly reduced rate.

Held:

1.Whilst the appeal raised issues of general importance that there is not a proper basis to depart from the usual order as to costs.

2.The applicant is to pay the respondent’s costs of the appeal on the standard costs basis, to be agreed or taxed.

Child Safety (Prohibited Persons) Act 2016 (SA) s 32; Supreme Court Act 1935 (SA) s 40; South Australian Civil and Administrative Appeal Tribunal Act 2013 (SA) s 71; Uniform Civil Rules 2022 (SA) rr 194.5, 194.6, referred to.
GM v Department of Human Services [2024] SASC 23; Cretazzo v Lombardi (1975) 13 SASR 4; Holt v Bunney (No 2) [2020] SASCFC 120; Slater v Ecosol Pty Ltd (No 2) [2024] SASC 29; Donald Campbell & Co v Pollak [1927] AC 732; Latoudis v Casey (1990) 170 CLR 534; Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353; Moloney v Hayward (No 2) [2023] SASC 36; JJK v Police (No 2) [2023] SASCA 84; Knight v The State of South Australia [2022] SASCA 34; GJC v Department of Human Services [2020] SACAT 38; Schinkel v Registrar of Firearms [2020] SASC 236; House v The King (1936) 55 CLR 499; Shah (a Pseudonym) v Medical Board of Australia [2022] SASC 140; Minister for Primary Industries and Regional Development v Scali [2024] SASC 4, considered.

GM v DEPARTMENT OF HUMAN SERVICES (No 2)

[2024] SASC 43

Single Judge Appeal: Civil

1. McINTYRE J:   These reasons address the issue of costs arising from an unsuccessful appeal by GM against a decision made by the South Australian Civil and Administrative Tribunal (‘SACAT’) affirming a decision of the Department of Human Services (‘DHS’) to issue a prohibition notice to the appellant under s 32 of the Child Safety (Prohibited Persons Act 2016 (SA) (‘CSPP Act’).[1]

   [1]     GM v Department of Human Services [2024] SASC 23.

2. The respondent seeks an order that the appellant pay its costs of the appeal on the standard costs basis to be agreed or taxed.  The appellant contends that this appeal had a number of public interest features and submits that this should incline the Court to not award costs against the appellant, or to do so at a significantly reduced rate.

3. For the reasons that follow, the appellant is to pay the respondent’s costs in accordance with the standard costs basis to be agreed or taxed.

   Costs Principles

4. The relevant principles in relation to costs are not in dispute.  What is in dispute, is their application.

5. Costs are in the discretion of the Court under s 40 of the Supreme Court Act 1935 (SA) and under ss 71(6) of the South Australia Civil and Administrative Tribunal Act 2013 (SA).  The discretion is unfettered but must be exercised judicially.[2]  Subject to the exercise of such discretion, the ordinary position is that, as a general rule or starting point:

   ·costs follow the event;[3] and

   ·costs are assessed in accordance with the Court scale where applicable.[4]

   [2]     Cretazzo v Lombardi (1975) 13 SASR 4 at 11; Holt v Bunney (No 2) [2020] SASCFC 120 at [9].

   [3]     Slater v Ecosol Pty Ltd (No 2) [2024] SASC 29; Donald Campbell & Co v Pollak [1927] AC 732 at 812; Latoudis v Casey (1990) 170 CLR 534 at 542-544, 557 and 569.

   [4]     Slater v Ecosol Pty Ltd (No 2) [2024] SASC 29; Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 at [113]; Moloney v Hayward (No 2) [2023] SASC 36 at [56].

6. Each of these principles are reflected in the Uniform Civil Rules 2022 (SA).  Rule 194.5 identifies general principles, which are subject to the overriding costs discretion, and include the general principle that costs follow the event.[5]

   [5]     JJK v Police (No 2) [2023] SASCA 84 at [4].

7. While the circumstances in which a court will depart from either starting point are not closed or limited, certain criteria and factors have been identified in the decided cases.  In exercising the discretion, the court may have regard to any factors it considers relevant,[6] including any “public interest” in the subject matter of the proceeding or “public benefit” from the prosecution or defence of the proceeding.[7]  Further, a grant of leave to appeal cannot, standing alone, displace the ordinary rule as to costs, but remains a relevant consideration nonetheless.[8]

   [6]     Uniform Civil Rules 2020 (SA) r 194.6(1).

   [7]     Ibid r 194.6(2)(g).

   [8]     Knight v The State of South Australia [2022] SASCA 34 at [11].

   Appellant’s contentions

8. The appellant contends that this appeal had four public interest features which displace the ordinary position for costs orders, these being:

   ·what constitutes a denial of natural justice by SACAT;

   ·the correct interpretation of s 26(1) of the CSPP Act;

   ·whether SACAT is a specialist tribunal for the purpose of CSPP Act s 26(1) appeals; and

   ·whether House v the King applies to this appeal.

   What constitutes a denial of natural justice by the Tribunal?

9. The appellant contends that the Court has now considered what may constitute a denial of natural justice in SACAT proceedings.  The appellant submits that in considering this the Court has provided a guide as to how a litigant before SACAT should conduct their case.  I found that the approach taken by the Senior Member in the original SACAT proceedings was unremarkable.[9]  There was nothing novel or unusual about my decision in relation to the topic of natural justice; it was an orthodox application of established principles.  Accordingly, I do not consider that this issue raises a public interest matter sufficient to displace the usual order as to costs. 

   [9]     GM v Department of Human Services [2024] SASC 23 at [94] - [95].

   The correct interpretation of s 26(1) of the CSPP Act

10. The appellant contended that there had been no prior appellate review of the interpretation of the requirement that a person “poses an unacceptable risk to children” under s 26(1) of the CSPP Act, nor of the standard of satisfaction.  I accepted that this was the case and that this was an issue of principle warranting the grant of leave to appeal. 

11. The respondent submits that whilst there had been no appellate consideration of the interpretation of s 26(1) of the CSPP Act, the parties agreed that the interpretation of Senior Member Rugless in GJC was correct.[10]  There was no conflicting authoritative decision, nor uncertainty elsewhere about the operation of s 26(1) of the CSPP Act.  In reaching my decision I endorsed the reasoning in GJC.[11] 

    [10]   GJC v Department of Human Services [2020] SACAT 38.

    [11]   GM v Department for Human Services [2024] SASC 23, at [79] – [81] and [87].

    Whether SACAT is a specialist tribunal for the purpose of s 26(1) appeals

12. The appellant contended that the issue of whether SACAT is a specialist tribunal for the purpose of s 26(1) appeals had not been considered by this Court before.  It is said that determination of this issue was relevant to the extent to which this Court may decide to interfere with decisions of SACAT.  During the appeal the appellant submitted that due to SACAT’s short time as the specialist in CSPP Act matters, it is in fact not a specialist tribunal for the purposes of the appeal. 

13. The respondent submits that there was no legitimate question about the Tribunal being a specialist tribunal for the purpose of reviews under the CSPP Act.  A similar issue was raised in the matter of Schinkel, where this Court held that SACAT was a specialist tribunal in firearms matters despite the Tribunal’s then “short specialist history in such matters”.[12]  The decision in Schinkel was clearly applicable to this appeal, and as such it is said there is no public interest in this issue. 

    [12]   Schinkel v Registrar of Firearms [2020] SASC 236 at [10].

14. I applied Schinkel in rejecting the appellant’s submission that SACAT was not a specialist tribunal but accepted that this issue raised an issue of principle warranting the grant of leave to appeal. 

    Whether House v the King applies to this appeal

15. The parties took opposing positions in relation to the question of whether the decision in House v The King[13] applied to this appeal.  The Court had previously considered similar issues in the matters of Shah,[14] and Scali;[15] however this issue had not been considered in the context of the CSPP Act.  Ultimately, I found that, in the context of a decision made under s 26(1) of the CCSP Act in relation to whether a person “poses an unacceptable risk to children”, this decision can properly be characterised as discretionary and therefore it is necessary to determine whether the decision was infected by a process error or an outcome error of the type identified in House v The King.[16]

    [13]   House v The King (1936) 55 CLR 499.

    [14]   Shah (a Pseudonym) v Medical Board of Australia [2022] SASC 140.

    [15]   Minister for Primary Industries and Regional Development v Scali [2024] SASC 4.

    [16]   GM v Department for Human Services [2024] SASC 23 at [67].

    Conclusion

16. The interpretation and specialist tribunal issues formed the basis of my decision to grant leave to appeal in that I considered that they were of sufficient substance to justify consideration by the Court.[17]  Once leave was granted, there was then a significant contest between the parties concerning the manner in which the appeal ought to be approached, the House v The King issue. 

    [17]   GM v Department of Human Services [2024] SASC 23 at [37] – [50].

17. Can these matters either alone, or in combination, be characterised as matters of public interest that give good reason to depart from the general principle that costs follow the event?  Useful guidance as to the factors impacting the decision can be gleaned from Knight v The State of South Australia & Another (No. 2)[18] where the Court of Appeal said:[19]

    Indeed, where a matter raises an issue of general importance of some difficulty, the appeal court may decline to make an order for costs against the unsuccessful party.  The cases illustrate that where the clarification of an issue of law raised by an appeal is of particular importance to a respondent, by virtue of its position as an authority, the appeal court may decline to order costs in favour of the respondent and against the unsuccessful party. 

    It has been held by the Full Court that, where it is important that the issue of law raised by an appeal be authoritatively determined, that will provide a reason for the Court to decline to make an order for costs against the unsuccessful party.  However, it has also been recognised that merely because it may be beneficial to obtain appellate authority on a disputed issue of statutory construction, that may not be sufficient, standing alone, to justify departure from the usual order as to costs.

    (citations omitted)

    [18] [2022] SASCA 34.

    [19] Ibid at [5] – [6].

18. In this matter it is relevant that I found that it was appropriate to grant leave to appeal and that issues of general importance were raised.  On the other hand, whilst the appeal raised issues of general importance, it is clear that the primary reason for the appeal was the appellant’s dissatisfaction with the decision under review and his wish to work with children.  Absent any other consideration this does not suggest a reason to depart from the general order as to costs. 

19. There was no uncertainty within SACAT as to the interpretation of s 26(1) of the CSPP Act.  I endorsed the approach that had been taken by SACAT in GJC and subsequent decisions.  Accordingly, it cannot be said that the appeal was necessary to resolve conflicting decisions within SACAT.  Likewise, the ‘specialist tribunal’ issue had previously been considered by this Court albeit in a different context.  Determination of that issue in this appeal did not raise any different considerations that would distinguish that prior decision. 

20. In all of the circumstances, I do not consider that there is a proper basis to depart from the usual order as to costs.  Accordingly, the respondent is to be awarded its costs of the appeal on the standard costs basis, to be agreed or taxed.