In the Matter of Hyde (No 2)

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
IN THE MATTER OF HYDE (No 2)
[2023] SASC 177
Judgment of the Honourable Justice Kimber
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - RECOVERY OF COSTS - ENTITLEMENT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - PARTIES AND NON-PARTIES - OTHER PARTIES
The applicant sought orders pursuant to ss 10 and 11 of the Surveillance Devices Act 2018 (SA) authorising the provision and use of audio recordings and associated transcripts obtained from three separate conversations. The application was opposed by the second interested party. The applicant was not wholly successful.
The applicant sought an order that his costs be paid by the second interested party.
The second interested party opposed the application for costs and submits the applicant should bear their own costs. In the alternative, the second interested party sought that the applicant pay his costs in relation to at least aspects of the application.
The applications for costs are dismissed.
The applicant and the second interested party are to bear their own costs.
Surveillance Devices Act 2016 (SA) ss 10, 11; Local Government (Elections) Act 1999 (SA) s 67; Uniform Civil Rules 2020 (SA) r 21.1, referred to.
City of Burnside v Attorney-General of South Australia and Others (1994) 63 SASR 65, applied.

IN THE MATTER OF HYDE (No 2)
[2023] SASC 177
Civil: Application — Costs
KIMBER J:

This is an application for costs.
Mr Hyde, the applicant, seeks an order that Mr Li, the second interested party, pay his costs on a standard costs basis, to be agreed or taxed. In the alternative, the applicant seeks an order that Mr Li pay 85 per cent of his costs on a standard costs basis, to be agreed or taxed. Mr Li submits that he and Mr Hyde should bear their own costs. In the alternative, Mr Li submits Mr Hyde should pay to him the costs incurred with respect to an aspect of the application which was unsuccessful and the costs he incurred as a result of his response to matters raised by the sixth interested party, Mr Hou. Neither Mr Hyde nor Mr Li seek an order for costs with respect to any other party.
For the reasons which follow, both Mr Hyde and Mr Li should bear their own costs.
The originating application
It is necessary to give some background to the originating application in this Court.
Mr Hyde is the petitioner in proceedings in the Court of Disputed Returns under Part 13 of the Local Government (Election) Act 1999 (SA) (LG Act). Pursuant to s 67(2), the Court of Disputed Returns is constituted by a District Court Judge. The proceedings in the Court of Disputed Returns are in the form of an election petition alleging illegal practices that are alleged to have affected the election of councillors of the Central Ward of the Adelaide City Council in 2022.
The Electoral Commissioner of South Australia (the Commissioner) and Mr Li are the first interested party and second interested party respectively in the Court of Disputed Returns proceedings. In those proceedings, Mr Hyde seeks to have the election for the council for the Central Ward declared void based upon allegations directed to the conduct of Mr Li and/or persons alleged to have been assisting him. Mr Li was returned as a councillor for the Central Ward following the election. Mr Li denies the allegations in those proceedings and seeks its dismissal. The Commissioner also seeks dismissal of those proceedings.
The originating application in this Court
In this Court, Mr Hyde made an application pursuant to ss 10 and 11 of the Surveillance Devices Act 2018 (SA) (SD Act). In that application, Mr Hyde sought orders authorising the provision and use of audio recordings and associated transcripts alleged to have been derived from listening devices on 13 May 2022, 27 October 2022 and 10 November 2022 respectively. There were six interested parties to that application. The first interested party was the Commissioner. The second interested party was Mr Li. The third, fourth, fifth and sixth interested parties were Mr Shengbao Ma, Ms Chenkang Wang, Mr William Bai and Mr Simon Hou respectively.
Mr Li opposed the application pursuant to the SD Act. In the alternative, he also sought orders pursuant to ss 10 and 11. That application was contingent upon any relevant aspect of the application made by Mr Hyde being granted. I granted the application with respect to the conversations said to have occurred on 27 October 2022 and 10 November 2022. I refused to grant the application with respect to the conversation said to have occurred on 13 May 2022.[1]
[1] In the matter of Hyde [2023] SASC 146.
A summary of the appearances of substance in this Court
The application in this Court came before me for argument on 22 September 2023. On that day, I heard submissions on behalf of Mr Hyde, the Commissioner and Mr Li. There was no appearance for the third, fourth, fifth and sixth interested parties. Mr Li opposed the application. The Commissioner took a neutral stance but made submissions about the SD Act. Other than each party stating their respective positions on the application, the submissions otherwise substantially focused upon the evidence in support of the application; the terms of the SD Act; the approach to be taken to that Act; and whether I should receive the recordings and transcripts before determining the application. Mr Li opposed me receiving the recordings and transcripts.
Given uncertainty about whether the interested parties who were not present were aware of the hearing date, the matter was not finalised on 22 September 2023. Orders were made with respect to those parties being contacted and the matter was listed for mention on 27 September 2023.
After 22 September 2023 and before the mention date, Mr Hou swore an affidavit with respect to the conversation in which he was said to be a participant on 27 October 2022. Mr Hou attended on 27 September 2023 but none of the third, fourth and fifth interested parties attended. On 27 September 2023, Mr Hou made clear that he wished the Court to receive his affidavit before determining the application. That was opposed by Mr Li. Mr Li submitted that if the affidavit were to be received, he would make an application to cross‑examine Mr Hou. The application was then listed for further hearing on 3 October 2023.
On 3 October 2023, I received the affidavit of Mr Hou over the objection of Mr Li. I also permitted Mr Hou to be cross examined by Mr Li. During the evidence of Mr Hou, it emerged that his affidavit had been drafted and ultimately sworn by Mr Hou as a result of arrangements made by Mr Hyde after the hearing on 22 September 2023. I infer that Mr Hyde considered that an affidavit from Mr Hou might assist in advancing his application, at least with respect to the conversation on 27 October 2022. I observe that there is no reason to conclude that this is something Mr Hyde was not able to do before 22 September 2023.
After Mr Hou gave evidence on 3 October 2023, further relatively brief submissions were made. I ultimately ruled on 12 October 2023.[2]
[2] In the matter of Hyde [2023] SASC 146.
Some principles — costs and interested parties
Rule 21.1(4) of the Uniform Civil Rules 2020 (SA) provides that an interested party is a party who should be given the opportunity to be heard in relation to the proceeding or who must be joined to be bound by the result. There is a note to Rule 21.1(4) as follows:
The costs rules that apply as between applicant and respondent do not apply as between applicant and interest party. If the interested party does not participate in the proceeding, no costs order will ordinarily be made as between applicant and interested party. Even if the interested party does participate, costs will not necessarily follow the event due to the limited role of an interested party in contrast to the role of a respondent.
In City of Burnside v Attorney‑General of South Australia and Others,[3] Debelle J held that there was no reason why, as a matter of general principle, a person who was then referred to as an intervener who was unsuccessful should not be subject to the general rule that costs follow the event. Debelle J held that rule was not to be applied without qualification. Debelle J held:
[An] unsuccessful intervener might be liable for costs if his intervention has substantially extended the hearing or put the successful party to unnecessary cost. In such circumstances, the intervener might be liable to pay a portion of the successful party's costs, that portion being determined by the extent to which the hearing has been lengthened by the intervention. Such a rule is consistent with the principle that, generally speaking, an intervener must take the action as he finds it.
In determining whether the intervener should be liable for costs, the court should adopt a broad axe approach. If the hearing was slightly longer than it would have been but for the intervention, it might not be appropriate to order the intervener to pay costs. It will be a question of fact and degree in every case whether the intervener's participation has resulted in the trial being substantially longer than it would have been but for the intervention. In determining whether the intervener should be liable, it would be appropriate to have regard also to such factors as whether the interest which the intervener sought to protect was adequately protected by an existing party. Depending on the nature of the issues in the action, it might be a relevant factor that the intervener has assisted the parties and the court in identifying or elucidating the issues. It is not unrealistic to suppose that, although the intervention has prolonged the trial, the intervener's participation has been of substantial assistance. In such a case, it might be inequitable to order the intervener to contribute to the costs of the successful party.[4]
[3] (1994) 63 SASR 65.
[4] Ibid 67–8.
Discussion
With the above principles in mind, I turn to the question of costs.
I consider the starting point to be that Mr Hyde was obliged to bring the application pursuant to the SD Act if he wished to be able to use any recording in the Court of Disputed Returns proceedings. It follows that the hearing on 22 September 2023 was necessary regardless of the approach of Mr Li to that application. Also important is that the primary position of Mr Li with respect to all three conversations was to actively oppose the application. Mr Li did so by making submissions; opposing the receipt of the affidavit of Mr Hou; and cross‑examining Mr Hou for the purpose of exploring the circumstances in which his affidavit had been prepared. This is not to overlook that Mr Li also made submissions which can be characterised as going beyond opposition to the application. For example, Mr Li made submissions with respect to the SD Act; the evidence which could be relied upon; and the circumstances in which the Court may receive the recordings for the purpose of determining the application pursuant to the SD Act. Also relevant is that the application of Mr Hyde succeeded with respect to two of the three conversations.
I turn to consider each of the hearings on 22 September 2023, 27 September 2023 and 3 October 2023.
To the extent that the hearing on 22 September 2023 was longer than it would have otherwise been had Mr Li not made submissions opposing the application, and bearing in mind it is a matter of fact and degree, that hearing was not substantially longer for that reason. As set out above, it was a hearing that was necessary because of the application of Mr Hyde. Further, submissions were necessary with respect to the proper approach to the SD Act and the evidence upon which I could rely. Mr Li’s submissions were of assistance to the Court with respect to both issues.
On 27 September 2023, the matter was only listed for mention. That was necessary as the third to sixth interested parties were not present at the hearing which took place on 22 September 2022. That was not the fault of Mr Li. The hearing on 27 September 2023 was directed to how the matter should proceed. An issue addressed was whether the affidavit of Mr Hou should be received before the application was determined. Mr Li opposed that affidavit being received. The Commissioner reserved his position. Before this hearing Mr Ma had provided an unsworn statement. Both the Commissioner and Mr Li opposed that statement being received. The matter was then listed for further hearing on 3 October 2023 with matters to be addressed being whether any further evidence should be received and, if so, whether there should be cross examination.
At the hearing on 3 October 2023, the applicant did not press for the statement of Mr Ma to be received. That hearing was primarily directed to whether the affidavit of Mr Hou should be received over the opposition of Mr Li; whether Mr Hou should be cross examined; and that cross examination. The bulk of the cross‑examination was by counsel for Mr Li, but Mr Hyde also cross‑examined, albeit briefly. The cross examination on behalf of Mr Li was primarily focussed on exploring the circumstances in which the affidavit of Mr Hou had been prepared. The proper characterisation of that cross examination is that it was primarily, if not exclusively, directed to advancing the opposition of Mr Li to the order sought pursuant to the SD Act with respect to the conversation on 27 October 2022.
I find that the approach of Mr Li to the hearing on 3 October 2023 was such that it was substantially longer than it would have been had the affidavit of Mr Hou simply been received. At the same time, that hearing was necessary as Mr Hou applied to have the Court receive his affidavit; the affidavit shed light on matters relevant to the application pursuant to the SD Act with respect to the conversation on 27 October 2022; and as the Commissioner had reserved his position. It was not the fault of Mr Li that Mr Hou had not appeared on 22 September 2023.
Conclusion
While Mr Li took an active role in opposing the application of Mr Hyde, that opposition only made one hearing substantially longer than it might otherwise have been. That must be balanced with the fact that the submissions of Mr Li, while in opposition to the application, assisted the Court both with the evidence and the approach to the SD Act; that the application was necessitated by the SD Act if Mr Hyde was to be able to attempt to use the recordings in the Court of Disputed Returns proceedings; and that the failure to complete evidence and submissions on 22 September 2023 was not the fault of Mr Li. Also relevant is that the application of Mr Hyde was not wholly successful. If the approach of Mr Li was, as urged by Mr Hyde, most appropriately characterised as the conduct of a respondent opposing an application rather than the conduct of an interested party — a submission that has some force — consideration must be given to Mr Hyde’s lack of complete success.
In the circumstances, despite the conduct of Mr Li in opposing the application, I am not satisfied either of the orders sought by Mr Hyde should be made. I find that Mr Hyde and Mr Li should bear their own costs of the application in this Court.

[2023] SASC 177

18 December 2023