Question of Law Reserved No. 1 of 2022 (No 2)

This matter concerned a question of law reserved by the Honourable President Livesey, the Honourable Justice Lovell, and the Honourable Justice Doyle in the Supreme Court of South Australia. The central issue revolved around the application of the Court's Rules concerning costs orders in appellate proceedings.

The Court was required to determine the scope and application of Chapter 16, specifically rules 191 to 195, to appellate proceedings, excluding Part 6. This involved considering the Court's power to make various types of costs orders, including the basis of assessment (standard, solicitor/client, indemnity), the applicable costs scales, and the possibility of lump sum or partial lump sum awards. Furthermore, the Court had to address the presumptive rule that costs are to be taxed if not agreed, and the procedural requirements for initiating a taxation process, including the obligation to make a genuine offer to resolve costs prior to taxation.

The Court reasoned that Chapter 16, with necessary changes, applies to appellate proceedings in the same manner as it applies to actions, as stipulated by rule 211.5(2). This means the Court possesses broad powers under rule 194 to make diverse costs orders. The presumptive rule under rule 194.4(7) that costs are to be taxed unless otherwise agreed is a significant principle, requiring proper reasons to displace. The Court also outlined the detailed pre-taxation steps mandated by rules 195.1 and 195.2, which necessitate a written, itemised genuine offer to resolve costs, including a fixed sum, remaining open for acceptance for 28 days, and a corresponding obligation for the recipient to respond within the same period. The initiation of the taxation process itself requires a claim for costs in a prescribed form, with specific requirements for the format of the costs schedule and the attachment of supporting invoices.