O'Malley & State of South Australia v Singh (No 2)

[2019] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

O’MALLEY & STATE OF SOUTH AUSTRALIA v SINGH (No 2)

[2019] SASC 89

Judgment of The Honourable Justice Stanley

3 June 2019

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - OTHER CASES

Application for costs of and incidental to an appeal to the Supreme Court.

In this matter the respondent sued the appellants for malicious prosecution. The action has not yet come to trial. A magistrate dismissed the appellants’ application for the respondent’s claim against the first appellant to be struck out on the ground that it was commenced contrary to s 65(3) of the Police Act 1998 (SA) (the Act). On appeal to the Supreme Court, the Court held that the magistrate erred in the construction of s 65 and the appeal was allowed.

The appellants seek that the respondent pay their costs of and incidental to the appeal on the basis of the general rule that costs follow the event. The respondent opposes this application. She submits the Court should make no order as to costs as the appellants succeeded on a point not taken below.

Held:

1.  The appellants are entitled to have the respondent pay their costs of and incidental to the appeal.

Police Act 1998 (SA) s 65, referred to.
Oshlack v Richmond River Council (1998) 193 CLR 72; O’Malley and State of South Australia v Singh [2019] SASC 68, discussed.

O’MALLEY & STATE OF SOUTH AUSTRALIA v SINGH (No 2)
[2019] SASC 89

Magistrates Appeals:

Civil.

1. STANLEY J:         On 8 May 2019 I allowed the appeal in this matter.  I reserved the question of costs and afforded the parties an opportunity to make written submissions.

2. The appellants seek their costs of the appeal.  The respondent opposes that application.  The respondent submits that the Court should make no order as to the costs of the appeal.  The basis of that submission is that the appellants succeeded on a point not taken below.

3. The Court’s discretion as to costs is unfettered subject to the Court’s discretion being exercised judicially and in connection with the litigation.  The general rule is that costs follow the event.  However, in the exercise of the Court’s discretion there are grounds upon which the Court can depart from the general rule.  Those grounds include circumstances where the appellant succeeds on a point not argued below.[1]

   [1]    Oshlack v Richmond River Council (1998) 193 CLR 72 at [69].

4. The respondent submits that the Court decided the appeal on the basis that the correct construction of “the circumstances of the case” in s 65(3)(a) of the Police Act 1998 (SA) includes not just the pleadings but such evidence as is before the Court when it must determine the question of whether the injured person is entitled to sue the police officer.[2]  The respondent submits that this argument was not put to the magistrate.  The appellants contend to the contrary.

   [2] [2019] SASC 68 at [31].

5. I accept the appellants’ submission. On appeal the decisive issue was the proper construction of s 65. At issue was the conditions upon which an injured person may sue a member of SA Police personally. Before the magistrate the appellants contended that the onus of proving that the case fell within the exception found in s 65(3)(a) lay on the respondent. That required the respondent to prove at the interlocutory stage that the acts of the first appellant were dishonest. In short, that was the issue before the magistrate. Further, the appellants contended for a wider construction of “the circumstances of the case” than the respondent.

6. This was the basis upon which the appellants succeeded.

7. In the circumstances I accept the appellants’ submission that there is no reason to depart from the general rule that costs follow the event.

8. The appellants are entitled to have the respondent pay their costs of and incidental to the appeal.