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

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.
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.
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.
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).

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] SASCA 84
Decision Date: 9 August 2023

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal concerning the costs of an earlier proceeding. The appellant, JJK, sought to appeal against a decision made by a single judge of the Supreme Court regarding the costs awarded in a previous matter.

The central legal issue before the Full Court was whether it possessed the power to make an order for costs against the appellant in the context of the appeal itself, given the specific circumstances of the case and the relevant rules of court.

The Court considered the inherent jurisdiction of the Supreme Court and the provisions of the Supreme Court Civil Rules 1999 (SA). It was held that the Court had the power to make orders for costs against a party appealing an interlocutory decision, even if that appeal was ultimately dismissed. The Court reasoned that the general power to award costs in interlocutory matters extended to appeals from such decisions, and there was no specific rule or principle that precluded such an order in this instance. The Court noted that the appellant had not been successful in their appeal.

Consequently, the Full Court ordered that the appellant pay the respondent's costs of the appeal.

Orders