Kowalski v Cole

Kowalski (the applicant) appealed to the Full Court of the Supreme Court of South Australia against a costs order made by a single judge of that court. The original proceedings concerned disciplinary proceedings brought by the Legal Profession Conduct Commissioner against Cole (the respondent), a legal practitioner. The Commissioner had made a finding of unsatisfactory professional conduct against Cole, but the disciplinary tribunal had dismissed the charges. The Commissioner then sought to appeal that dismissal to the Supreme Court, but the appeal was dismissed. The single judge then ordered the Commissioner to pay Cole's costs of the appeal.

The central legal issue before the Full Court was whether the single judge had erred in ordering the Legal Profession Conduct Commissioner to pay the costs of the legal practitioner, Cole, following the dismissal of the Commissioner's appeal against a disciplinary tribunal's decision. This involved considering the general rule that costs follow the event and any exceptions or special circumstances that might apply to disciplinary proceedings involving a statutory officer such as the Commissioner.

The Full Court held that the single judge had not erred in principle by ordering the Commissioner to pay Cole's costs. The Court affirmed the general rule that costs follow the event, and that there was no inherent reason why a statutory officer, when unsuccessful in an appeal, should be immune from an adverse costs order. The Court noted that while the Commissioner acts in the public interest, this does not automatically displace the ordinary costs rule, particularly when the Commissioner's appeal is unsuccessful. The Court found no special circumstances that would justify departing from the general rule.

Consequently, the Full Court dismissed the applicant's appeal and affirmed the costs order made by the single judge.