Players Pty Ltd (in Liquidation) (Receivers Appointed) v Clone Pty Ltd (No 2)

[2013] SASCFC 104

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

PLAYERS PTY LTD (IN LIQUIDATION) (RECEIVERS APPOINTED) & ORS v CLONE PTY LTD (No 2)

[2013] SASCFC 104

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Blue and The Honourable Justice Stanley)

14 October 2013

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS

This Court allowed an appeal from an interlocutory order made by a Judge of this Court.  The Court reserved the question of costs and received written submissions from the parties.  The Judge ordered that the appellants pay the respondent's costs of the interlocutory application.  The appellants were successful on every issue determined in the appeal proceedings.  Whether there is any reason why the usual order should not be made.

Held:

(1) The respondent is to pay the appellants’ costs of the appeal and of the earlier interlocutory proceeding to be adjudicated (at [6]). 

(2) No order is made as to the costs of the Liquor and Gambling Commissioner, the Licensing Court of South Australia and the Attorney-General for the State of South Australia (at [6]).

PLAYERS PTY LTD (IN LIQUIDATION) (RECEIVERS APPOINTED) & ORS v CLONE PTY LTD (No 2)
[2013] SASCFC 104

Full Court:       Gray, Blue and Stanley JJ

THE COURT.

1. On 12 April 2013, this Court allowed an appeal[1] from an interlocutory order made by a Judge of this Court.[2]  The Court reserved the question of costs and has received written submissions from the parties.  In our view, an order should be made that the respondent pay the appellants’ costs of the appeal and of the earlier interlocutory proceeding.  No order should be made as to the costs of the Liquor and Gambling Commissioner, the Licensing Court of South Australia and the Attorney-General for the State of South Australia.  Our reasons follow. 

   [1]    Players Pty Ltd (In Liquidation) (Receivers Appointed) & Ors v Clone Pty Ltd [2013] SASCFC 25.

   [2]    The order was dated 3 February 2012. 

2. The Court has an unfettered discretion as to costs.  The usual order is that costs follow the event.  In the present proceeding, the appellants have been successful on every issue determined in the appeal proceedings.  It is relevant to note that the Judge ordered that the appellants pay the respondent’s costs of the interlocutory application.[3]  In these circumstances, the question arises as to whether there is any reason why the usual order should not be made. 

   [3]    The order was dated 16 February 2012.

3. The respondents have submitted that the issue of costs should be considered in what was said to be the unusual context of the proceeding.  Attention was drawn to the fact that the appellants seek to reopen a matter finally determined in earlier proceedings, both at trial and on appeal.  It is suggested that the appellants will have to meet a high evidentiary threshold if they are to succeed in their applications to reopen the earlier proceedings.  It is said that the application was one which the respondent was entitled to resist and that in the event that the application to reopen fails, the appellants ought generally to bear the costs of all interlocutory steps occurring in the context of that proceeding, irrespective of the outcome of any particular interlocutory matter.  In our view, the respondent’s contentions do not provide good reason to justify the orders sought.

4. The Liquor and Gambling Commissioner, the Licensing Court of South Australia and the Attorney-General for the State of South Australia were necessary parties to the appeal, but ultimately their involvement was peripheral.  No order for costs should be made for or against those parties.

5. The application on the appeal concerned the entitlement of the appellants to make use of documents produced to them in the course of the primary proceedings, albeit as part of a taxation of costs.  This Court has held that the appellants are entitled to make use of those documents.  It has done so on several grounds.  In these circumstances, it is appropriate that the orders earlier referred to be made.

   Conclusion

6. The respondent is to pay the appellants’ costs of the appeal and of the earlier interlocutory proceeding to be adjudicated.  No order is made as to the costs of the Liquor and Gambling Commissioner, the Licensing Court of South Australia and the Attorney-General for the State of South Australia.