Russell v Polites Investments P/L (No 2)

[2016] SASC 203

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

RUSSELL v POLITES INVESTMENTS P/L (No 2)

[2016] SASC 203

Judgment of The Honourable Justice Stanley

22 December 2016

DEFAMATION - ACTIONS FOR DEFAMATION - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT

PROCEDURE - COSTS - INTERLOCUTORY PROCEEDINGS

In this matter the Court had before it four interlocutory applications.  Three of these applications were by the appellant, Mr Russell.  There were two applications seeking an extension of time for the provision of appeal books for appeals brought against judgments of the District Court dismissing claims by the appellant against the respondent for damages for personal injury and for breach of a lease.  The third application sought orders in the nature of discovery in the appeal from the dismissal of his claim for damages for personal injury.  The respondent brought an application for the summary dismissal of the appellant’s notice of appeal from the judgment of Peek J who dismissed an application by the appellant for the setting down of appeals to the Full Court from the District Court judgments.  The respondent also sought an order for costs. 

The appellant’s notice of appeal from the judgment of Peek J was dismissed.  It was unnecessary to consider an extension of time for providing the appeal books.  The appellant’s application for discovery was also dismissed. 

The respondent seeks an order for costs in relation to these applications.  The application is opposed by the appellant.

Held, per Stanley J:

1. The general discretion on costs conferred by s 40 of the Supreme Court Act 1935 (SA) is not fettered by 6SCR 263(1) of the Supreme Court Civil Rules 2006 (SA) (at [7]).

2. The respondent have the costs of each of the interlocutory applications (at [10]).

Supreme Court Act 1935 (SA) s 40(1); Supreme Court Civil Rules 2006 (SA) r 263(1), r 263 (2), referred to.
Copping v ANZ McCaughan (1995) 63 SASR 523; Gwinnett v Day (No 2) [2012] SASC 61; Donald Campbell & Co v Pollak [1927] AC 732; Cretazzo v Lombardi (1975) 13 SASR 4, considered.

RUSSELL v POLITES INVESTMENTS P/L (No 2)
[2016] SASC 203

Interlocutory Application

STANLEY J:

1. In this matter the Court had before it four interlocutory applications.  Three of these applications were by the appellant, Mr Russell.  There were two applications seeking an extension of time for the provision of appeal books for appeals brought against judgments of the District Court dismissing claims by the appellant against the respondent for damages for personal injury and for breach of a lease.  The third application sought orders in the nature of discovery in the appeal from the dismissal of his claim for damages for personal injury.  The respondent brought an application for the summary dismissal of the appellant’s notice of appeal from the judgment of Peek J who dismissed an application by the appellant for the setting down of appeals to the Full Court from the District Court judgments.  The respondent also sought an order for costs. 

2. I dismissed the appellant’s notice of appeal from the judgment of Peek J.  It was unnecessary to consider an extension of time for providing the appeal books.  I dismissed the appellant’s application for discovery. 

3. The respondent seeks an order for costs in relation to these applications.  The application is opposed by the appellant.

4. Each party filed written submissions on the question of costs.  The appellant filed two written submissions.  These are extensive, being 18 pages and five pages respectively.  The submissions are difficult to follow.  To the extent that I can make sense of them, they mostly consist of irrelevant submissions that seek to agitate various grievances held by the appellant relating to the District Court actions. 

5. Section 40(1) of the Supreme Court Act 1935 (SA) (the Act) provides:

   Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.

6. 6SCR 263(1) of the Supreme Court Civil Rules 2006 (SA) provides that, as a general rule, costs follow the event. That general rule is qualified by 6SCR 263(2) which provides that the general rule is subject to specific rules to the contrary and prescribed exceptions, none of which are relevant to this case.

7. The general discretion on costs conferred by s 40 is not fettered by 6SCR 263(1).[1]   Costs are in the discretion of the court.  The general discretion is absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously, and it cannot be exercised on grounds unconnected with the litigation.[2]

   [1]    Copping v ANZ McCaughan [1995] SASC 4917; (1995) 63 SASR 523; Gwinnett v Day (No. 2) [2012] SASC 61.

   [2]    Donald Campbell & Co v Pollak [1927] AC 732; Cretazzo v Lombardi (1975) 13 SASR 4 at 11.

8. In this matter the appellant was unsuccessful on the three interlocutory applications he brought.  The respondent was successful on its interlocutory application. 

9. While I accept that it was unnecessary to consider the applications for an extension of time for providing appeal books, nonetheless I consider that the appellant was unsuccessful in those applications. He did not obtain the relief he sought. In any event, those applications were so intricately intertwined in the argument on the application for summary dismissal of the notice of appeal from Peek J that there is no proper basis upon which to deal with that application on any discrete basis. The respondent submits that the court should adopt the general rule that costs follow the event in accordance with 6SCR 263(1). I accept this submission.

   Conclusion

10. I would award the respondent the costs of each of the interlocutory applications heard by me.