Jones v The Nominal Defendant (No 2) - [2022] SASC 129

Supreme Court of South Australia
(Appeal to a Single Judge)
JONES v THE NOMINAL DEFENDANT (NO 2)
[2022] SASC 129
Judgment of the Honourable Justice Blue
11 November 2022
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
On 7 October 2022 the appeal by the appellant against an order by a District Court Judge allowing an appeal against a decision of a Master of the District Court and granting leave to the respondent to amend its defence was dismissed: Jones v The Nominal Defendant [2022] SASC 111.
The respondent seeks an order that the appellant pay its costs of the Supreme Court appeal on the ground that it was successful on the appeal. The appellant seeks an order that the respondent pay his costs of the appeal because of the manner in which the appeal evolved and because the appeal was dismissed by reason of the grant of discretionary indulgence in favour of the respondent given its multiple procedural mistakes and misjudgments.
The District Court Judge made an order that the appellant pay the respondent’s costs of the District Court appeal. The appellant seeks reversal of that order. The respondent opposes reversal or alteration of that order.
Held:
1Each party should bear their own costs of the District Court appeal (at [13]).
2The respondent should recover from the appellant one third of its costs of the Supreme Court appeal (at [26]).
3The appeal should be certified fit for senior counsel but not for two counsel (at [28]).
4Liberty to apply to vary the costs orders depending on the ultimate outcome of the action should not be granted (at [36]).

Supreme Court Act 1935 (SA) s 40; District Court Act 1991 (SA) s 42, referred to.
Bell v Deputy Coroner of South Australia (No 2) [2020] SASC 77; Duncan as Liquidator of WDR Iron Ore Pty Ltd (In Liquidation) v SMA Industries Pty Ltd (No 2) [2020] SASC 127; Koonara Management Pty Ltd (Receivers and Managers Appointed) v Fabriano Pty Ltd [2019] SASC 99; Mayfield Family Wines Pty Ltd v Growers Wine Group Pty Ltd (No 2) [2021] SASC 75, considered.

JONES v THE NOMINAL DEFENDANT (NO 2)
[2022] SASC 129
Civil

BLUE J: On 7 October 2022 I dismissed an appeal by Robert Jones against an order by a District Court Judge allowing an appeal against a decision of a Master of the District Court and granting leave to the Nominal Defendant to amend its defence.[1]
[1] Jones v The Nominal Defendant [2022] SASC 111.
The Nominal Defendant seeks an order that Mr Jones pay its costs of the Supreme Court appeal on the ground that it was successful on the appeal. Mr Jones seeks an order that the Nominal Defendant pay his costs of the appeal because of the manner in which the appeal evolved and because the appeal was dismissed by reason of the grant of discretionary indulgence in favour of the Nominal Defendant given its multiple procedural mistakes…

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: [2022] SASC 129
Decision Date: 11 November 2022

CaseChat Overview and Summary

The case of Jones v The Nominal Defendant (No 2) involves a dispute regarding costs in civil proceedings between the plaintiff, Mr Jones, and the defendant, referred to as the Nominal Defendant. The matter was heard in the Supreme Court, where the plaintiff appealed an earlier decision from the District Court that had ordered him to pay the defendant’s costs of a District Court appeal. The plaintiff sought to overturn this costs order and to challenge the decision that he should bear a portion of the defendant’s costs for the subsequent appeal to the Supreme Court.

The central legal issue before the court was the appropriateness of the costs orders made in the District Court and the subsequent Supreme Court appeal. Specifically, the court needed to determine whether the original costs order was just and whether the plaintiff should be required to pay a portion of the defendant’s costs for the Supreme Court appeal. The court also considered the standard of legal representation required for the appeal, determining that it was fit for senior counsel but not for two counsel.

In its decision, the court found that the order made by the District Court Judge was not just and set it aside. Instead, the court ordered that each party bear their own costs for the District Court appeal. However, the court did rule that the plaintiff should pay one third of the defendant’s costs for the Supreme Court appeal. The court justified this decision by considering the nature of the appeal and the arguments presented by both parties. The final orders included setting aside the previous costs order, directing each party to bear their own costs for the District Court appeal, and requiring the plaintiff to pay a portion of the defendant’s costs for the Supreme Court appeal. The appeal was also certified fit for senior counsel but not for two counsel.

Orders

Orders of the court

36. Orders

37. I make the following orders:

37. 1 Set aside order 3 made on 10 December 2021 in case CIV-21-7802 by the District Court Judge that Mr Jones pay the Nominal Defendant’s costs of the District Court appeal.

37. 2 In lieu of that order, order that each party bear their own costs of the District Court appeal in case CIV-21-7802.

37. 3 Mr Jones is to pay one third of the Nominal Defendant’s costs of the Supreme Court appeal in case CIV-21-14116.

37. 4 The appeal is certified fit for senior counsel but not for two counsel.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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