McDonald v State of South Australia; McDonald v Minister for Education & Child Development (No 5)

[2016] SASC 127

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

MCDONALD & ANOR v STATE OF SOUTH AUSTRALIA; MCDONALD & ORS v MINISTER FOR EDUCATION & CHILD DEVELOPMENT & ORS (No 5)

[2016] SASC 127

Judgment of The Honourable Justice Nicholson

11 August 2016

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT

This is an application for costs.

On 3 June 2016, the proceedings in both Action 1574 of 2013 and Action 1564 of 2014 were dismissed (with the exclusion of the second plaintiff’s claim in Action 1574 of 2013) - whether the Court should depart from the general rule that costs follow the event.

Held:

1.  The costs incurred by the defendant(s) in both actions have not been materially contributed to by Mr Brennan McDonald’s participation and his proceedings remain on foot. Mr Brennan McDonald is not included in any costs orders.

2.  In Action 1574 of 2013, the first plaintiff and Mrs McDonald as a non-party are to pay the costs of the defendant’s third interlocutory application, FDN 45, to be agreed or adjudicated.

3.  In Action 1574 of 2013, the first plaintiff and Mrs McDonald as a non-party are otherwise to pay the defendant’s costs of the action, in the case of Mrs McDonald, since 16 July 2012 and in the case of the first plaintiff, since 11 November 2008.

4.  In Action 1564 of 2014, the first and third plaintiffs are to pay the defendants’ costs of the defendants’ interlocutory application, FDN 10, to be agreed or adjudicated.

5.  In Action 1564 of 2014, the first and third plaintiffs are otherwise to pay the defendants’ costs of the action.

McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education & Child Development & Ors (No 3) [2016] SASC 79, considered.

MCDONALD & ANOR v STATE OF SOUTH AUSTRALIA; MCDONALD & ORS v MINISTER FOR EDUCATION & CHILD DEVELOPMENT & ORS (No 5)
[2016] SASC 127

Civil:  Costs

NICHOLSON J.

1. On 3 June 2016, I delivered judgment dismissing a number of interlocutory applications brought by the plaintiffs in both these matters, allowing a number of interlocutory applications brought by the defendants in both these matters, dismissing the 2014 proceedings with respect to the claims of all plaintiffs and dismissing the 2013 proceedings with respect to the claims of the plaintiff, Mr Francis McDonald.[1]

   [1]    McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education & Child Development & Ors (No 3) [2016] SASC 79.

2. When delivering my reasons and making the substantive orders, I invited the parties to provide written submissions as to any costs orders that they submit should be made.  I have considered the written submissions provided by the defendants on 24 June 2016 and filed by the plaintiffs on 11 July 2016.  Attached to the defendants’ submissions were draft proposed minutes of order in the following terms.

   Action number 1574 of 2013

   1.The plaintiffs pay the defendant’s costs of and incidental to the defendant’s third interlocutory application FDN 45 to be agreed or adjudicated.

   2.The plaintiffs otherwise pay the defendant’s costs of the action, in the case of Rhoda McDonald since 16 July 2012, in the case of Francis McDonald since 11 November 2008.

   3.Liberty to the defendant to apply for a lump sum assessment of their entitlement to costs to be heard and determined by a Master of the District Court. 

   Action number 1564 of 2014

   1.The plaintiffs pay the defendants’ costs of and incidental to the defendants’ interlocutory application (FDN 10) to be agreed or adjudicated.

   2.The plaintiffs otherwise pay the defendants’ costs of the action.

   3.Liberty to the defendants to apply for a lump sum assessment of their entitlement to costs to be heard and determined by a Master of the District Court.

3. Nothing has been put before me which suggests that this is a case with respect to which the usual rule of costs following the event should not apply.  To the contrary, the defendants in both actions succeeded comprehensively and, in general terms, should have an order for costs.  The defendants’ draft minutes are consistent with an application of the general rule that costs should follow the event.  However, there are some qualifications I would adopt.

4. First, Mrs Rhoda McDonald was not a party to the 2013 proceedings; she failed in her application to be joined as a party.  However, she was a party to the 2014 proceedings which insofar as her claims were concerned replicated those pursued by both she and Mr Francis McDonald in the 2013 proceedings on the assumption that Mrs McDonald’s application to be joined as a plaintiff to the 2013 proceedings were to be allowed.  Mrs McDonald was actively involved in prosecuting both her and her husband’s claims from the time when she made her application to be joined to the 2013 proceedings[2] on 16 July 2012.  A costs order against her remains appropriate. 

   [2]    Mrs McDonald applied in 2012 to be joined as a plaintiff when the 2013 proceedings were being conducted in the District Court.  They were subsequently transferred in 2013 to this Court.  The complicated procedural history is explained in some detail in McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Child Education & Ors (No 3) [2016] SASC 79.

5. Second, the orders as sought against Mr Francis McDonald are confined to the period after 11 November 2008 because it was on that date that Mr Francis McDonald made a successful oral application in the District Court to withdraw an earlier filed Notice of Discontinuance of Proceedings.

6. Third, whilst Mr Brennan McDonald was a party to both the 2013 and 2014 proceedings (and remains a party to the 2013 proceedings), he has not appeared in court and has taken no active role in the litigation for a number of years.  The extent to which Mr Francis McDonald has been pursuing his own interests rather than those of Mr Brennan McDonald, when purporting to speak in court on his behalf throughout the last number of years, has always been quite unclear.  Issues concerning Mr Brennan McDonald’s claim took up very little time in the four day hearing before me.  Mr Brennan McDonald’s claim remains on foot and, in due course, should proceed to trial.  Further, I am not satisfied that Mr Brennan McDonald’s “participation” in the litigation has contributed, materially, to the costs incurred by the defendants in resisting the claims brought by his mother and father, which have been the focus of all parties to the proceedings for a number of years.  I do not propose to include Mr Brennan McDonald in any of the costs orders.

7. I make the following orders.

   Action number 1574 of 2013

   1.The first plaintiff, Mr Francis McDonald and the non-party, Mrs Rhoda McDonald, pay the defendant’s costs of the defendant’s third interlocutory application, FDN 45, to be agreed or adjudicated.

   2.The first plaintiff, Mr Francis McDonald and the non-party, Mrs Rhoda McDonald, otherwise pay the defendant’s costs of the action, in the case of Mrs Rhoda McDonald, since 16 July 2012 and in the case of Mr Francis McDonald, since 11 November 2008.

   3.Liberty to the defendant to apply for a lump sum assessment of their entitlement to costs to be heard and determined by a Master of the District Court.

   Action number 1564 of 2014

   1.The first and third plaintiffs, Mr Francis McDonald and Mrs Rhoda McDonald, pay the defendants’ costs of the defendants’ interlocutory application, FDN 10, to be agreed or adjudicated.

   2.The first and third plaintiffs, Mr Francis McDonald and Mrs Rhoda McDonald, otherwise pay the defendants’ costs of the action.

   3.Liberty to the defendants to apply for a lump sum assessment of their entitlement to costs to be heard and determined by a Master of the District Court.