Paterson v MacPherson; Zacharakis v MacPherson (No 2) - [2011] SASCFC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
PATERSON & ORS v MACPHERSON & ANOR; ZACHARAKIS v MACPHERSON & ANOR (No 2)
[2011] SASCFC 59
Reasons for Ruling of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Peek)
28 June 2011
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - COSTS
Consideration of orders to be made - orders as to costs.
Local Government Act 1999 (SA) s 6(a), s 132A, s 272(3), s 272(3)(d); Evidence Act 1929 (SA) s 69AB, referred to.
Paterson & Ors v MacPherson & Ors [2010] SASC 311; Paterson & Ors v MacPherson & Anor; Zacharakis v MacPherson & Anor [2011] SASCFC 49, considered.

PATERSON & ORS v MACPHERSON & ANOR; ZACHARAKIS v MACPHERSON & ANOR (No 2)
[2011] SASCFC 59
Full Court: Doyle CJ, White and Peek JJ

THE COURT: These are the Court’s reasons for the orders that it makes in each of the actions before it.
The reasons are to be read with the reasons of Doyle CJ, with whom Peek J agreed, in Paterson & Ors v MacPherson & Ors; Zacharakis v MacPherson & Anor [2011] SASCFC 49. Those reasons are the majority reasons.
The Court has considered written submissions by the parties relating to the orders to be made to give effect to the majority reasons.
Validity of Terms of Reference
In each action the Court makes the following order:
The Court declares:
1.That the second defendant’s Notice of Appointment of the first defendant dated 22 July 2009 and the Terms of Reference set out therein are invalid to the extent that:
1.1 The Notice of Appointment and the Terms of Reference direct an investigation into whether the Council of the City of Burnside has contravened or failed to comply with provisions of the Local Government Act 1999 (SA) (the Act) other than s 6(a) and s 132A.
1.2 The Terms of Reference include the second and fifth dot points in paragraph (1) and the whole of paragraph (4).
The parties agree that the Court should make the order set out in para 1.2. The plaintiffs argue for, and the defendants oppose, the making of the order set out in para 1.1. The Court considers that the order in para 1.1 accurately reflects the reasons of Doyle CJ at [78]-[81] in the earlier reasons. While the making of the order in para 1.1 might not be essential, the Court considers that the order will provide useful guidance to the parties and to the public and others with an interest in the proceedings.
Documents produced and questions answered under s 272(3) of the Act
The plaintiffs claim an order declaring invalid Notices issued by Mr MacPherson, relying on s 272(3) of the Act. One such Notice required each plaintiff to produce documents relating to the Terms of Reference. The other Notice required each plaintiff to answer questions “associated with” the Terms of Reference.
The plaintiffs also…

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: [2011] SASCFC 59
Decision Date: 28 June 2011

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia considered applications for costs following earlier proceedings in *Paterson v MacPherson* and *Zacharakis v MacPherson*. The underlying dispute involved judicial review proceedings concerning decisions made by the respondent, MacPherson, in his capacity as the Registrar of the South Australian Civil and Administrative Tribunal (SACAT). The applicants, Paterson and Zacharakis, sought orders for costs against the respondent.

The central legal issue before the Full Court was whether the respondent, as a public official acting in his official capacity, should be ordered to pay the costs of the judicial review proceedings. This required the Court to consider the general rule that costs follow the event and the exceptions to this rule, particularly in the context of public officials and administrative law. The Court also had to determine whether the respondent's conduct in the proceedings warranted a departure from the usual cost orders.

The Court reasoned that while the general rule is that costs follow the event, there are established exceptions, particularly where a public official is involved in litigation in their official capacity. The Court noted that such officials are generally not ordered to pay costs unless they have acted unreasonably or vexatiously. In this instance, the Court found no evidence that the respondent had acted in such a manner. The respondent had defended the proceedings in good faith, and the issues raised were of public importance. Therefore, the Court concluded that the general rule should not apply, and each party should bear their own costs.

Accordingly, the Full Court ordered that there be no order as to costs, meaning each party was to bear their own legal expenses.

Orders