Green v Ellul (No 3) - [2019] SASCFC 23

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
GREEN & ANOR v ELLUL & ORS (No 3)
[2019] SASCFC 23
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Lovell)
8 March 2019
SUCCESSION - FAMILY PROVISION - PROCEDURE - ORDERS AND OTHER PROCEDURAL MATTERS - COSTS
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE
PROCEDURE - COSTS - INTERLOCUTORY PROCEEDINGS
Interlocutory application to vacate orders made by the Full Court, but not yet sealed, in relation to the costs of an appeal to the Full Court from the judgment of a master of the Supreme Court and the costs of the hearing before the master.
The appeal arose from a claim made for the benefit of the Inheritance (Family Provision) Act 1972 (SA) (the Act). The Full Court allowed the appeal from the decision of the master. The appellant then sought an order that the respondents pay the costs of the appeal to the Full Court and the costs of the hearing of the preliminary argument before the master.
The Full Court refused the appellants’ application and ordered that the appellants have their costs of and incidental to the appeal and the hearing before the master paid by the estate on a solicitor/client basis.
Held (by the Court):
1. The appellants were not denied procedural fairness in the making of the costs orders (at [39]).
2. The Court would only vacate the order made if it was satisfied it was wrong or that it was made on the basis of some error of principle. The Court was not satisfied that either was established. It was open to the Court in the exercise of its unfettered discretion to make the costs order it did (at [43]-[44]).
3. The exercise of the Court’s discretion, either to relieve an unsuccessful applicant from the burden of an order for costs or to award costs in favour of an unsuccessful applicant, does not depend upon the Court being satisfied as to the merits of the applicant’s claim (at [45]).
4. Application refused (at [49]).
Inheritance (Family Provision) Act 1972 (SA) s 7, s 8, s 9; Supreme Court Act 1935 (SA) s 40; Supreme Court Civil Rules 2006 (SA) r 263, referred to.
Copping v ANZ McCaughan Limited (1985) 63 SASR 523; Roche v Roche & Anor (No. 2) [2017] SASC 75; Smith v New South Wales Bar Association (1992) 176 CLR 256, applied.
Autodesk Inc & Anor v Dyason & Ors [No. 2] (1992-1993) 176 CLR 300; Bowyer v Wood (2007) SASR 190; Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No. 2) [2013] HCA 44; Doedens & Ors v Owen (No. 2) [2018] SASC 23; Green & Anor v Ellul & Ors (No. 2) [2018] SASCFC 105; Krause v Sinclair & Anor [1983] VR 73; McAdam v Robertson (1998-1999) 73 SASR 360, discussed.
Pizimolas v Pizimolas & Zannis (No. 2) [2010] SASC 209, considered.

GREEN & ANOR v ELLUL & ORS (No 3)
[2019] SASCFC 23
Full Court: Kourakis CJ, Stanley and Lovell JJ
THE COURT:
Introduction

This is an interlocutory application to vacate orders made by the Court, but not yet sealed, in relation to the costs of an appeal to this Court from a judgment of a master and the costs of the hearing before the master. In order to understand the basis of the application, it is necessary to explain the background to the proceedings.
The deceased, Mary Ellul, died on 18 September 2016 having made her last will on 4 February 2011. Probate of her will was granted on 12 January 2017. The executors under the will are the appellants, who are the principal beneficiaries of a relatively modest estate valued at approximately $283,000. They are two of the deceased’s children. The respondents are also children of the deceased. Each was left a cash legacy of $1,000 under the will.
On 10 July 2017 the respondents brought proceedings pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (the Act). On 27 July 2017 the respondents brought an interlocutory application for an extension of time within which to lodge a claim under the Act.
The master heard and decided as a discrete issue the question of whether the summons instituting proceedings under the Act constituted an application for an extension of time.
The master found that the summons commencing the proceedings pursuant to the Act was effectively an application for an extension of time within the meaning of s 8 of the Act. On 26 September 2018 this Court, in allowing the appeal from the master, rejected that conclusion.
It held that the summons filed on 10 July 2017 and served on 13 July 2017 was not an application for an extension of time within the meaning of s 8(4) and (5) of the Act. The consequence of that conclusion is that the executors’ distribution of all but $5,023.46 of the estate, which occurred after service of the proceedings but before any application to extend time was instituted, cannot be disturbed. Accordingly, while an application by the respondents for an extension of time filed and served subsequently remains undecided, only the undistributed amount of the estate, namely, $5,032.46, can be the subject of proceedings, even if time were now to be extended.
Upon this Court publishing its reasons for judgment and making orders allowing the appeal, the appellants applied for an order that the respondents pay their costs of the appeal and the hearing before the master.
Senior Counsel for the respondents opposed the application and submitted that the outcome of the appeal likely disposed of the application pursuant to the Act. He submitted that the ordinary principle in family provision litigation is that there be no order as to the costs of an unsuccessful applicant. The respondents contended that in the circumstances of an appeal from the master’s decision on the threshold question of whether the application for provision had been validly instituted the same approach should apply, bearing in mind the savings to the parties in dealing with the question of the validity of the proceedings by way of a preliminary hearing.
Senior Counsel for the appellants replied and the Court reserved judgment on the question of costs.
Subsequently, on 28 September 2018, the solicitors for the appellants sent an email to the Court inquiring whether the Court would be assisted by written submissions in relation to the question of costs. The solicitors indicated that they were putting this suggestion because they were uncertain about why the Court reserved the question of costs.
The Court replied acknowledging the correspondence. It did not accede to the appellants’ offer to provide further submissions in writing on costs. On 15 October 2018 this Court delivered judgment on the question of costs. It refused the appellants’ application for an order that the respondents pay their costs of the appeal on the hearing before the master. It ordered that the appellants have their costs of and incidental to the appeal and the hearing before the master paid by the estate on a solicitor/client basis.
Reasons of the Court
In making those orders the Court reasoned as follows:[1]
[1] Green & Anor v Ellul & Ors (No. 2) [2018] SASCFC 105 at [10]-[19].
Pursuant to s 9(8) of the Act, the Court is empowered to make such order as to the costs of any proceedings under the Act as it considers just.
In Doedens & Ors v Owen (No 2), Nicholson J held that s 9(8) confers a discretion in respect of costs that is no more confined than the general costs discretion and may, in some respects, be broader. Further, like the general costs discretion, it covers proceedings at large; that is, it is not restricted to proceedings that have been finalised following a trial on the merits.
Nicholson J further observed that, as a general proposition, costs will follow the event and applicants who are successful following a trial will be entitled to receive their costs out of the estate.
In Pizimolas v Pizimolas & Zannis (No 2), Kourakis J (as he then was) discussed the approach to costs in family provision claims in the following terms:
The ordinary rule as to costs is more easily displaced in family provision claims. In my view that approach reflects conflicting public interest considerations. On the one hand unmeritorious litigation which dissipates the estate should not be encouraged. On the other hand the purpose of family provision legislation is to charge the estates of testators who have made inadequate provision with such an amount as is necessary for the support of their dependents; that public policy objectives may not be achieved in practice if meritorious claimants are discouraged from making a claim by the ordinary rule as to costs. In Bowyer v Woods, Debelle J considered the exercise of the costs discretion in family provision claims, saying:
[66]The reported decisions contain little discussion of the principles to be applied. In most instances the report simply notes the order as to costs. There is a substantial number of decisions in which no costs order was made in the case of an unsuccessful application: re Maslin; re Chapman; re Roberts; re Kennedy; re Richardson; re McCreedy; re Milanovic; Dobell v Van Damme. In Fox v Burvill, the High Court ordered that, in the particular circumstances of that case, the costs of the unsuccessful applicant who was also the appellant (she was the divorced widow of the testator) be paid out of the estate. In Krause v Sinclair at 78, Tadgell J ordered that an unsuccessful applicant should not have the benefit of an order for costs but at the same time she would not be ordered to pay costs. The executor’s costs were paid out of the estate. In Singer v Berghouse, the majority noted that there is nothing in the Act which precludes an order for costs against an unsuccessful applicant. While that is unquestionably correct, their Honours were not discussing the ordinary rule nor did they question that in some circumstances an unsuccessful applicant might recover costs out of the estate. In exercising its discretion not to order costs against an unsuccessful applicant, the court will also consider the effect of an order for costs upon the applicant’s financial position: re De Feu (deceased).
[67]In some instances the question whether an unsuccessful applicant will be liable for costs will depend on the reasonableness of the application. In re Testator’s Family Maintenance Acts (1916) Ewing J held that in view of the fact that the applicant was ‘within his rights in coming to the Court there should not be an order for costs’ except as to the costs of two parties which were paid out of the estate. The decision was affirmed on appeal. In the case of a reasonable application based on a moral claim or obligation, the unsuccessful applicant may even obtain an order for costs in his favour out of the estate. Re Bodman is an instance. In that case, a number of applicants succeeded but one failed. Hoare J ordered that both the successful applicants and the unsuccessful applicant be paid their costs out of the residuary estate of the deceased. He said:
As to costs I order that the costs of each applicant, including reserved costs, be taxed as between solicitor and client and be paid out of the residuary estate of the testator. So far as concerns the applicant George Albert Bodman, although his application failed, in the particular circumstances of this case especially having regard to the strong moral obligation of the deceased towards him, I order that his costs, including reserved costs, be taxed as between solicitor and client and paid out of the residuary estate of the deceased.
In re Klease Hoare J ordered that unsuccessful applicants should have paid their costs out of the estate because ‘there was this moral obligation in their favour and the applicants could not be said to be unreasonable’.
In my view, the principles which govern the award of costs where the validity of a will is contested have some application to family provision claims by way of analogy. Those principles were summarised by Angas Parsons J in Public Trustee v Hall:
The rules relating to costs have been classified as follows: - 1. If the litigation results through the fault of the testator or those interested in the residue the costs may properly be paid out of the estate. 2. If there be sufficient and reasonable ground looking to the knowledge and means of knowledge of the opposing party to question either the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent. 3. Unless the circumstances of the case bring it within one of the foregoing exceptions, the general rule that costs follow the event ought to prevail.
[Footnotes omitted.]
Consideration
At issue is whether the unsuccessful respondents to the appeal should pay the appellants the costs of the appeal and of the hearing before the master. There is no claim by the respondents that they are entitled to payment of their costs out of the estate.
At the outset, we reject the submission that the appellants are not entitled to an order for costs on the basis that they sought to take advantage of the respondents’ solicitor’s error in serving the application for the benefit of the Act within time, or seek an extension of time in that summons. We accept that, in distributing the estate in those circumstances, when they did, the appellants in their capacity as executors, were acting in accordance with their duties owed to the beneficiaries of the estate.
In this case, the Court has not considered, and it appears is unlikely to consider, the merits of the respondents’ claim to the benefit of the Act. Their claims founder in limine because of the failure of their solicitor to serve the summons within the limitation period or seek an extension of time in that summons. Accordingly, it cannot be determined whether their claims were meritorious. Nonetheless, the mere possibility that their claims were meritorious invokes the public policy objective identified in Pizimolas that the costs discretion should not be exercised so as to discourage the bringing of meritorious claims. In the absence of a determination that the respondents’ claims are unmeritorious, we consider that the principled exercise of the Court’s unfettered discretion as to costs should be exercised against making an award that the respondents pay the appellants’ costs of the appeal and the hearing before the master.
We are reinforced in this view by two considerations. First, that the course adopted of having the issue of the extension of time dealt with on a preliminary basis was agreed by the parties. Almost certainly the adoption of this course has eliminated the need for a trial. This results in a substantial saving to the estate and its beneficiaries. Second, because there has been no determination of the application on its merits, it may be that the respondents have been left without adequate provision. It scarcely would seem fair to burden them with an award of costs in those circumstances.
Finally, we note that the basis upon which we intend to exercise the discretion as to costs is consistent with the approach taken in Krause v Sinclair, where Tadgell J dismissed a claim for provision for the proper maintenance and support out of the estate of the plaintiff’s former husband pursuant to the provisions of the Administration and Probate Act 1958 (Vic) (the Administration and Probate Act). The basis of the plaintiff’s claim was that she was the “widow” of the deceased, in accordance with the extended definition in the Administration and Probate Act. That definition includes any former wife of the deceased who was, at the date of his death, in receipt of or entitled to receive payments of alimony or maintenance, whether pursuant to any order of a court or otherwise. The deceased made no provision in his will for the applicant. Tadgell J dismissed the application on the ground that the applicant did not fall within the extended definition. Accordingly, there was no decision on the merits of her claim that she had not been left with proper maintenance and support out of her former husband’s estate. In those circumstances, Tadgell J decided that the right thing to do in the exercise of the discretion as to costs was to order that the applicant not have her costs paid from the estate, but that she not be ordered to pay any and that the respondent’s costs be paid by the estate. That approach was approved in Bowyer v Wood, and applied in Pizimolas. It can be seen that in Krause, as in this case, the applicants for the benefit of the Act failed at a jurisdictional threshold. Tadgell J did not consider that precluded the exercise of the discretion as to costs not to order the unsuccessful plaintiff pay the successful defendant’s costs.
That is the approach we intend to follow in this case.
[Citations omitted.]
The current application
By interlocutory application dated 13 December 2018 the appellants applied for the following orders or directions:
1.The respondents be prohibited from taking any steps to seal the order made by the Full Court relating to costs as described at paragraph 21 of the Full Court’s reasons delivered on 15 October 2018;
2.The judgment of the Full Court relating to costs delivered on 15 October 2018 be vacated;
3.The appellants be granted leave of the Court to make submissions in relation to the issue of costs; and
4.Such further or other orders as this Honourable Court deems fit.
The appellants submit that the Court denied them procedural fairness in failing to identify the issues upon which it wished to give further consideration when reserving judgment on the application for costs and in failing to take up the appellants’ request to further address the issues in relation to costs being considered by this Court of which they contended they were unaware.
The appellants contend that the Court should reopen the question of costs pro tanto; the orders made by the Court in relation to costs, but not entered, should be recalled; and the Court should make the orders in relation to costs sought by the appellants on 26 September 2018.
When the interlocutory application came on for hearing before this Court, Mr Speck, the respondents’ solicitor on file, informed the Court that his instructions had been terminated due to a conflict of interest and he was seeking to get off the file as the solicitor of record. Nonetheless, he appeared as a matter of courtesy to the Court but was not in a position to put any submission on behalf of the respondents. The respondents were present in the body of the Court. Apart from the third respondent who indicated that she wished the matter to be brought to an end, no other submission was put by the respondents.
The Court reserved its judgment on whether to vacate the orders made in relation to costs and heard the appellants’ submissions in support of their contentions as to the orders that should be made de bene esse.
The appellants submit that the Court erred in the exercise of the costs discretion as it was not in a position to evaluate whether the application brought by the respondents was meritorious or unmeritorious. They submit that in those circumstances there is no justification for the Court to refrain from making an order that the unsuccessful respondents should pay the successful appellants their costs. The public policy consideration identified in Pizimolas v Pizimolas & Zannis (No. 2)[2] against discouraging meritorious applications pursuant to the Act does not arise where the Court is not in a position to assess the merits or otherwise of the application. Further, the appellants submit that the reasoning of the Victorian Supreme Court in Krause v Sinclair & Anor[3] does not support a departure from the usual rule as to costs in the circumstances of this case.
[2] [2010] SASC 209 at [6]-[7].
[3] [1983] VR 73.

The appellants submit that it is erroneous to reason that the approach of dealing with the validity of the application as a preliminary point resulted in a substantial saving to the estate and its beneficiaries because it assumes that the burden of costs would fall on the estate. Further, the appellants submit that it is erroneous to reason that it would be unfair to the respondents to burden them with the costs of the appeal and the hearing before the master where they might have been left without adequate provision, because the Court is not in a position to evaluate the unfairness of any burden imposed upon the respondents given the absence of any evidence as to the merits or otherwise of their claims.
The appellants also submit that the principle that a respondent to an application for an extension of time should have its costs even when an extension is granted (let alone when it is not) applies with even greater rigour in this case.
In addition, the appellants submit that there are further considerations which favour the orders they seek, namely, that the estate is small and will be unduly dissipated if the executors and beneficiaries who have been the successful party in the litigation, cannot look to the respondents for their costs, and must instead seek reimbursement out of the estate. Further, in all likelihood, the respondents have incurred no costs at all as it is likely they are underwritten by Law Claims. The appellants acknowledge that there is no evidentiary foundation for that supposition.
Principles relevant to recalling orders of the court
This Court is empowered to recall a judgment, at least before its formal entry.[4]
[4] McAdam v Robertson [1999] SASC 169, (1998-1999) 73 SASR 360.
In Smith v New South Wales Bar Association[5] in a joint judgment Brennan, Dawson, Toohey and Gaudron JJ said:[6]
It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected. ... The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review. And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal. It is important that it be understood that these considerations may tend against the reopening of a case ...
[5] (1992) 176 CLR 256.
[6] (1992) 176 CLR 256 at 265.
In Autodesk Inc & Anor v Dyason & Ors [No. 2][7] Brennan J said:[8]
This Court has undoubted jurisdiction to recall a judgment which it has pronounced, at least prior to the formal entry of the judgment, if the judgment has been pronounced against a person who, without fault on the part of that person, has not had an opportunity to be heard as to why that judgment should not be pronounced. The jurisdiction is exercised sparingly for it is important to bring litigation to finality in this Court. Nevertheless, natural justice would be denied if, in a case in which the stated conditions are satisfied, the judgment were not vacated.
…
A court should not pronounce a judgment against a person on a ground which that person has not had an opportunity to argue. However, a sufficient opportunity to argue a ground is given when the ground is logically involved in a proposition that has been raised in the course of argument before the court or is to be considered by the court as an unconceded step in determining the validity of a conclusion for which one of the parties contends. Of course, the precise ground which a court or judge assigns for a decision will frequently be formulated in terms different from the terms of a submission by counsel but, provided the ground has arisen in one of the ways mentioned, the court or judge may properly proceed to judgment without requiring the case to be relisted for further argument and without inviting supplementary submissions to be made.
[Citations omitted].
[7] (1992-1993) 176 CLR 300.
[8] (1992-1993) 176 CLR 300 at 308.
Dawson J said:[9]
Whilst the Court has jurisdiction to entertain an application to vacate orders which it has made, at all events before those orders have been perfected by the entry of judgment (that not having occurred in this case), it is a jurisdiction to be exercised cautiously, bearing in mind the public interest in the finality of litigation. In Wentworth v Woollahra Municipal Council, the Court said:
“[T]he circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.”
And it should be added that even though a party fails to present his case in a manner which is open on the pleadings and on the facts, a final appellate court with responsibility to determine the law cannot be precluded from disposing of a case upon the basis which appears to it to be correct. This is particularly so where matters not raised on appeal have been raised in the courts below. "Judges are more than mere selectors between rival views - they are entitled to and do think for themselves."
[Citations omitted].
[9] (1992-1993) 176 CLR 300 at 317.
Gaudron J said:[10]
Judgment has not yet been entered and, in my view, should be set aside if the interests of justice so require. However, the circumstances in which justice requires that course are, in practice, extremely rare, particularly if there has been an opportunity for full argument.
[Citations omitted].
[10] (1992-1993) 176 CLR 300 at 322.
Later her Honour further said:[11]
[I]t seems to me that the interests of justice would require that course if it were fairly arguable that the judgment involved a misunderstanding of the facts or misapplication of the law in relation to one or more of the issues on which the respondents now wish to put further argument.
[11] (1992-1993) 176 CLR 300 at 328.
Mason CJ, who was in dissent, said:[12]
The exercise of the jurisdiction to reopen a judgment and grant a rehearing is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant’s part, he or she has not been heard. It is true that the jurisdiction is to be exercised with great caution, having regard to the importance of the public interests and the finality of litigation.
…
[T]he public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law.
[Citations omitted].
[12] (1992-1993) 176 CLR 300 at 301-302.
Deane J, who also was in dissent, held the judgment should be vacated because of a denial of procedural fairness.[13]
[13] (1992-1993) 176 CLR 300 at 314.
In Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No. 2)[14] Hayne, Crennan, Kiefel, Bell and Gageler JJ said that in Autodesk all members of the High Court accepted that the Court may recall orders which it has made disposing of an appeal if those orders were made against a party who, without fault on the part of that person, did not have an opportunity to be heard as to why those orders should not be made. They found that it was accepted in Autodesk that the High Court may recall its orders if they were made on a ground which the person against whom the orders were made had no opportunity to argue.[15] They went on to say that in Autodesk the High Court was divided as to whether the jurisdiction to recall its orders extended beyond cases where a party was not given an opportunity to be heard on an issue held to be determinative. They considered that Mason CJ took the broadest view of the power to reopen but nonetheless emphasised that the jurisdiction to do so is not to be exercised for the purpose of reagitating arguments already considered by the Court.[16]
[14] [2013] HCA 44.
[15] [2013] HCA 44 at [13].
[16] [2013] HCA 44 at [15].
In McAdam v Robertson[17] Doyle CJ, with whom Bleby and Martin JJ agreed, applied the reasons of the High Court in Smith and Autodesk. He considered that the power to reopen a previous decision of the Court is discretionary, but the discretion is fairly closely confined.[18] He said:[19]
In the light of those two decisions I proceed on the basis that the relevant principles are those stated by the majority in Smith. I consider that the observations of Mason CJ and Brennan J in Autodesk provide reliable guidance in relation to the exercise of the jurisdiction. I refer in particular to their observations that the jurisdiction is not exercised to enable a party to improve upon the argument that it has put, or merely to demonstrate that a decision is wrong. However, I proceed on the basis that a misapprehension in a significant respect as to the facts or the law may be a basis for the exercise of the jurisdiction, but in the light of what I have just said that cannot be a misapprehension which would be demonstrated only by persuading the Court to change its mind on something that it had already decided. I also proceed on the basis that the jurisdiction will not necessarily be exercised in the same way by an intermediate court of appeal and by a final court of appeal, although I do not attempt to identify any relevant distinctions here. I merely make the point that, in the case of the Full Court, the ability to apply to the High Court for special leave to appeal is a relevant matter that will tend to confine the exercise of the jurisdiction.
I therefore proceed on the basis that, the judgment not having been drawn up, the Full Court may review its decision. The power is to be exercised with great caution. The reasons for that are obvious. There is a strong public interest in the finality of litigation. Once a stage in the process of litigation has been completed, ordinarily it should not be revisited. Our system of adversary litigation, with the obligation that it imposes upon the parties to present their whole case and to present their best case, would begin to collapse if courts too readily entertained applications to reopen decisions given after a full hearing. The power can be exercised if some important principle of law has been overlooked, or if there is an apparent misapprehension as to a significant fact, but this is to be distinguished from enabling a party to attempt to persuade a court that it should change its view of a matter that it has considered and decided.
[17] [1999] SASC 169, (1998-1999) 73 SASR 360.
[18] [1999] SASC 169 at [40], (1998-1999) 73 SASR 360 at 367.
[19] [1999] SASC 169 at [38]-[39], (1998-1999) 73 SASR 360 at 367.
It can be seen the authorities emphasise that the discretion conferred upon the Court to recall its own judgment, where the judgment has not been perfected, is closely confined. The circumstances in which the Court will reopen a judgment which it has pronounced are rare. The power is to be exercised with great caution. Further, the Court will be reluctant to exercise the power where there is available a right of appeal. Finally, where the basis upon which the Court is invited to exercise the power is a denial of procedural fairness, the Court will not do so unless it is satisfied the party moving for the exercise of the power was denied a sufficient opportunity to argue the point upon which the judgment was entered. A sufficient opportunity to argue the point is given when the point is logically involved in a proposition that has been raised in the course of argument.
Consideration
In this case the appellants contend that they were denied procedural fairness because the Court failed to identify the issues upon which it wished to give further consideration when reserving judgment on the application for costs and in failing to take up the appellants’ request to further address the issues by way of written submissions.
We do not accept this submission.
What was in issue when the Court delivered judgment was whether the respondents should pay the costs of the appellants in relation to the appeal and the hearing before the master. The respondents put submissions in opposition to that application by the appellants. The respondents submitted that the outcome of the appeal had probably disposed of the proceedings by the respondents for provision from the testatrix’s estate. They further submitted that on the question of costs the Court should adopt the ordinary principle in family provision litigation and make no order as to the costs of the unsuccessful applicant. They submitted it should do so notwithstanding that, because of the way in which the proceedings had unfolded, the Court only addressed the question of the validity of the proceedings and did not proceed to a consideration of the merits of the application.
Those submissions made clear the basis upon which the Court was being invited to consider the nature of any order it should make in relation to the costs of the appeal and the proceedings before the master.
As Brennan J held in Autodesk, a sufficient opportunity to argue a ground is given when the ground is logically involved in a proposition that has been raised in the course of argument before the Court. That occurred here. The submission on costs put by the respondents invited the Court to make a binary choice between making the respondents liable for the costs of the appeal and the hearing before the master, or declining to do so, in which case the costs would fall on the appellants or the estate. As the appellants were the executors and the principal residuary beneficiaries, that amounted to the same thing.
The appellants were afforded the opportunity to put submissions on that issue at the time. The Court’s failure subsequently to take up the appellants’ offer to put written submissions, even on the basis of their intimation that they were uncertain about why the Court reserved the question of costs, did not constitute a denial of procedural fairness. The nature of the issue the Court was to decide should have been apparent to the appellants. The Court was not obliged to identify the issue beyond the manner in which the respondents had done so when the appellants were afforded an opportunity to put submissions on the question of costs at the time the Full Court delivered its judgment on the appeal.
For these reasons there was no denial of procedural fairness. Accordingly, the condition precedent for the exercise of the Court’s discretion to recall its judgment on costs has not been enlivened. In any event, even if it was enlivened, we consider that the Court should refrain from exercising the discretion given the availability to the appellants of a right of appeal.
Accordingly, we would refuse the application. Furthermore, even if we had come to a different view as to whether the appellants had been denied procedural fairness, we would have dismissed the application in any event on its merits.
We do not accept that the appellants have established a proper basis justifying the recalling of the Court’s order as to costs. The overarching legal principle is that costs are in the discretion of the Court. This position is enshrined in s 40 of the Supreme Court Act 1935 (SA) (Supreme Court Act) and r 263 of the Supreme Court Civil Rules 2006 (SA) (SCR).[20] Section 9(8) of the Act provides that the Court may make such order as to the costs of any proceedings under the Act as it considers just. The costs discretion is unfettered but must be exercised judicially.[21] As a general rule, a successful litigant is entitled to an order that costs follow the event. Nonetheless, an order modifying the operation of the general rule may be made in an appropriate case if it is just to do so.
[20] Roche v Roche & Anor (No. 2) [2017] SASC 75 at [5].
[21] Copping v ANZ McCaughan Limited [1985] SASC 4917, (1995) 63 SASR 523 at 527-528.
As was pointed out in Doedens & Ors v Owen (No. 2)[22] by Nicholson J, the nature of the discretion conferred by s 9(8) of the Act may be broader than the general costs discretion conferred by s 40 of the Supreme Court Act and SCR 263.[23] Further, like the general costs discretion, it covers proceedings at large; that is, it is not restricted to proceedings that have been finalised following a trial on the merits.
[22] [2018] SASC 23.
[23] [2018] SASC 23 at [12].
The Court would only vacate the order made if it was satisfied it was wrong or that it was made on the basis of some error of principle.
We are not satisfied that either has been established. It was open to the Court in the exercise of its unfettered discretion to make the costs order it did. The exercise of its discretion was informed by a concern that the making of an order for costs should not stifle the bringing of meritorious claims in family provision litigation. While the Court was not in a position to determine whether this claim was meritorious or unmeritorious, the underlying policy consideration provided a sufficient basis for the exercise of the Court’s discretion.
In Bowyer v Wood,[24] Debelle J canvassed the authorities in relation to the exercise of the costs discretion in a family provision claim. His Honour observed that in some instances the authorities have held that the question whether an unsuccessful applicant will be liable for costs in family provision claims will depend upon the reasonableness of the application.[25] Plainly, the exercise of the Court’s discretion, either to relieve an unsuccessful applicant from the burden of an order for costs or to award costs in favour of an unsuccessful applicant, does not depend upon the Court being satisfied as to the merits of the applicant’s claim.
[24] [2007] SASC 327, (2007) SASR 190.
[25] [2007] SASC 327 at [67], (2007) SASR 190 at 209.
The appellants’ criticism of the Court’s reasoning of Tadgell J in Krause v Sinclair & Anor[26] is misplaced. The Court placed no greater reliance on the judgment in Krause than to note that the Court’s exercise of the costs discretion was consistent with the approach taken in Krause.
[26] [1983] VR 73.
In this case, in exercising the costs discretion, this Court was entitled to weigh contingencies in forming its evaluative judgment. The Court is entitled to weigh where the burden of costs should fall in any particular matter brought under the Act. In this case it was entitled to consider the situation where the claim might be meritorious or unmeritorious. Given the parties adopted the prudent course of dealing with the validity point in limine, this would never be assessed. If the claim was unmeritorious, the estate would suffer as a result of the Court’s exercise of the costs discretion. If the claim was meritorious, the respondents who are left with inadequate provision from the estate would be further burdened by an order for costs if the Court had exercised the costs discretion in the manner contended for by the appellants. The Court was entitled to consider which approach would operate more harshly in circumstances where it could not know whether the claim was meritorious or unmeritorious. Given these contingencies, it was open to the Court to exercise the costs discretion in the manner in which it did.
In our view, these are proper considerations. For these reasons, even if we had been satisfied that the appellants were denied procedural fairness, we would not have recalled the costs order.
Conclusion
We would dismiss the interlocutory application. We would hear the parties as to costs.