JJK v Police (No 2)

[2023] SASCA 84

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

JJK v POLICE (No 2)

[2023] SASCA 84

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David)

9 August 2023

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS

The Court of Appeal granted the appellant permission to appeal from the decision of a single judge, but dismissed her appeal. The respondent seeks an order that the appellant pay the respondent's costs of the appeal.

The appellant submits that the appropriate order is that parties bear their own costs of the appeal, relying primarily upon a submission that there was some public interest in the appeal.

Held, per the Court:

1.   None of the matters raised by the appellant, either individually or cumulatively, are sufficient to warrant a departure from the usual approach that costs follow the event.

2.   The appellant is to pay the respondent's costs of the appeal on the standard basis.

Freedom of Information Act 1991 (SA) cl 12; Police Complaints and Discipline Act 2016 (SA) s 45; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 57; Uniform Civil Rules 2020 (SA) rr 194.5(2), 194.5(1)(d), 194.6(2)(g), referred to.
Dallimore v Return to Work Corporation of South Australia (No 2) [2021] SASCFC 8; Hart v Federal Commissioner of Taxation (No 2) [2019] FCAFC 191; JJK v Police [2023] SASCA 73; Knight v The State of South Australia & Anor (No 2) [2022] SASCA 34; Northern Territory v Sangare (2019) 265 CLR 164; Oshlack v Richmond River Council (1998) 193 CLR 72; Perrett v Commissioner for Superannuation (1991) 23 ALD 257; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, considered.

JJK v POLICE (No 2)
[2023] SASCA 84

Court of Appeal – Civil:     Lovell, Doyle and David JJA

1. THE COURT:  In earlier reasons for judgment,[1] the Court of Appeal granted the appellant permission to appeal from the decision of a single judge, but dismissed her appeal.

   [1]     JJK v Police [2023] SASCA 73.

2. Relying upon the usual approach that costs follow the event, the respondent seeks an order that the appellant pay the respondent’s costs of the appeal.  The appellant resists such an order, and submits that the appropriate order is that the parties bear their own costs of the appeal.  In seeking a departure from the usual approach, the appellant relies primarily upon a submission that there was some public interest in the appeal by reason that it raised arguable issues of principle and of some general importance.

3. These costs reasons should be read in conjunction with the explanation of the background, and matters raised on appeal, in this Court’s earlier reasons.

4. Whilst costs (including costs of an appeal) ordinarily follow the event,[2] the Court retains an overriding unfettered discretion[3] and may make some other order should there be good reason to do so.[4]

   [2]     Uniform Civil Rules 2020 (SA), r 194.5(2).

   [3]     Uniform Civil Rules 2020 (SA), r 194.5(1)(d).

   [4]     Dallimore v Return to Work Corporation of South Australia (No 2) [2021] SASCFC 8 at [12] (Peek and Stanley JJ and David AJ); Knight v The State of South Australia [2022] SASCA 34 at [4] (Kelly P, Livesey and Bleby JJA).

5. It is apparent from the Court’s earlier reasons that, while the appeal was ultimately unsuccessful, it raised arguable issues of principle and of some general importance in relation to the proper construction of s 45 of the Police Complaints and Discipline Act 2016 (SA) and the scope of exempt documents under cl 12 of schedule 1 of the Freedom of Information Act 1991 (SA).[5]

   [5]     JJK v Police [2023] SASCA 73 at [83] (Lovell, Doyle and David JJA).

6. Relying upon this feature of the appeal, the appellant noted that the factors relevant to the Court’s exercise of its costs discretion include “any public interest in the subject matter of the proceeding or public benefit from the prosecution or defence of the proceeding”.[6]

   [6]     Uniform Civil Rules 2020 (SA), r 194.6(2)(g).

7. The present litigation was not ‘public interest litigation’ in the usual sense in which that phrase is used to characterise litigation in the context of costs disputes.[7]  As the appellant acknowledges, the appellant was pursuing a private interest in seeking access to documents about her interaction with police.  And whilst her appeal raised issues of principle and ‘some’ general importance, they were not issues that had been the subject of public controversy, or which were otherwise of high public interest or importance in the sense that they were likely to affect significant numbers of people who were unlikely to be in a position to take action on their own behalf to protect or vindicate their rights.

   [7]     Oshlack v Richmond River Council (1998) 193 CLR 72 at [20] (Gaudron and Gummow JJ); Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [28]-[29] (Black CJ and French J).

8. There may be cases in which it is appropriate that a successful respondent (particularly a public authority) not be awarded its costs of an appeal on the basis that resolution of the issue(s) raised by the appeal was not only of some general importance but also of particular importance to the respondent.  However, as this Court explained in Knight v The State of South Australia (No 2),[8] the mere fact that it may be beneficial for the respondent to obtain appellate authority on a disputed issue of statutory construction may not by itself justify departure from the usual order as to costs:[9]

   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.[10]  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.[11] 

   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.[12]  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.[13]

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

   [9]     Knight v The State of South Australia [2022] SASCA 34 at [5]-[6] (Kelly P, Livesey and Bleby JJA).

   [10]   Ruddock v Vadarlis (2001) 115 FCR 229, [17] (Black CJ and French J); Dallimore v Return to Work Corporation of South Australia (No 2) [2021] SASCFC 8 at [12] (Peek J, Stanley J and David AJ).

   [11]   Perrett v Commissioner for Superannuation (1991) 23 ALD 257, 269 (Wilcox, Burchett and Ryan JJ); Ruddock v Vadarlis (2001) 115 FCR 229 at [17] (Black CJ and French J); Dallimore v Return to Work Corporation of South Australia (No 2) [2021] SASCFC 8 at [12] (Peek J, Stanley J and David AJ).

   [12]   Dallimore v Return to Work Corporation of South Australia (No 2) [2021] SASCFC 8 at [12] (Peek J, Stanley J and David AJ).

   [13]   Hart v Federal Commissioner of Taxation (No 2) [2019] FCAFC 191 at [6] (Kenny, Kerr and Moshinsky JJ).

9. In following the usual approach that costs of an appeal follow the event, the Court in Knight v State of South Australia (No 2) noted that whilst the appeal had raised arguable issues of general importance,[14] the appellant nevertheless pursued the appeal with an ostensible purpose of pursuing her own interest in improving her financial position,[15] and in circumstances where there was no antecedent widespread uncertainty about the operation of the relevant legislation (as exemplified, for example, by conflicting decisions on the point in issue).[16] 

   [14]   Knight v The State of South Australia [2022] SASCA 34 at [8]-[9] (Kelly P, Livesey and Bleby JJA).

   [15]   Knight v The State of South Australia [2022] SASCA 34 at [10] (Kelly P, Livesey and Bleby JJA).

   [16]   Knight v The State of South Australia [2022] SASCA 34 at [12]-[13] (Kelly P, Livesey and Bleby JJA).

10. The same can be said of the present case.

11. The appellant relied upon the fact that she succeeded at first instance in the South Australian Civil and Administrative Tribunal, a jurisdiction in which the usual order is that each party pay its own costs.[17]  This origin of the dispute between the parties is of little, if any, significance given that the dispute at hand relates to the costs of an appeal to the Court of Appeal, the appellant having already pursued an unsuccessful appeal to a single judge of this Court.

    [17]   South Australian Civil and Administrative Tribunal Act 2013 (SA), s 57.

12. Finally, the appellant relied upon some evidence to suggest that she had only modest means.  Whilst the respondent opposed reliance upon this consideration in circumstances where it apparently had reason to believe that the appellant may have been financially assisted in her pursuit of the appeal, it is not necessary to pursue the factual issues raised by the parties’ submissions.  There is clear authority to the effect that the financial wherewithal of a party is not ordinarily relevant to the Court’s exercise of its discretion whether to make an order for costs.[18]

    [18]   Northern Territory v Sangare (2019) 265 CLR 164 at [32] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).

13. In summary, none of the matters raised by the appellant, either individually or cumulatively, are sufficient to warrant a departure from the usual approach that costs follow the event.

14. We order that the appellant pay the respondent’s costs of the appeal on the standard basis.