Sands v The State of South Australia (No 3) - [2011] SASC 7

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SANDS v THE STATE OF SOUTH AUSTRALIA (No 3)
[2011] SASC 7
Judgment of The Honourable Justice Anderson
2 February 2011
DEFAMATION - ACTIONS FOR DEFAMATION - OTHER PROCEEDINGS BEFORE TRIAL - STAYING ACTION
DEFAMATION - JUSTIFICATION - GENERALLY
POLICE - RIGHTS, IMMUNITIES, POWERS, DUTIES AND LIABILITIES - MISFEASANCE IN PUBLIC OFFICE
PROCEDURE - COSTS - INTERLOCUTORY PROCEEDINGS
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ISSUES
Action for defamation - defendant sought a permanent stay of proceedings in the matter - defendant claimed it was unable to plead a defence as pleadings would reveal confidential information - public interest immunity claimed - affidavit was filed in support of the stay application - plaintiff sought to cross-examine on the affidavit - leave for cross-examination was refused - plaintiff sought access to defendant's confidential materials attached to confidential affidavit - access refused - plaintiff and defendant seek costs for whole application for stay.
Held: Defendant to have 50 per cent of its costs.

SANDS v THE STATE OF SOUTH AUSTRALIA (No 3)
[2011] SASC 7
Civil

ANDERSON J. In this matter I published reasons on 15 December 2010: see Sands v State of South Australia (No 2) [2010] SASC 340. The defendant had applied for a stay of proceedings based on its claim for public interest immunity in respect of confidential material related to a murder investigation. The plaintiff has sued the defendant for defamation. The defendant has pleaded, inter alia, justification.
The application for a stay made by the defendant was taken out on 25 March 2010. The first hearing in relation to that matter was on 8 April 2010.
The decision I made on 15 December 2010 was the end result of a series of arguments and an earlier judgment and ruling. There was an application made by the plaintiff to cross-examine Deputy Commissioner Burns who had deposed in an affidavit as to reasons why, because of public interest immunity considerations, there should be a stay of the action.
I decided on 10 August 2010 that there should be no cross-examination of Deputy Commissioner Burns: see Sands v State of South Australia [2010] SASC 244. This application occupied considerable time and included detailed legal argument.
There was then an application made by the plaintiff for access to the confidential materials. The confidential materials were attached to a confidential affidavit from Deputy Commissioner Burns. I examined both the affidavit and the materials but I denied access to the plaintiff and his legal advisers, including senior counsel. The ruling in relation to my refusal of access to those materials was given on 18 October 2010. Again this aspect occupied some considerable time and included detailed legal argument.
The actual hearing of the defendant’s stay application was heard on 25 and 26 October 2010. As I have indicated, judgment was given and reasons published on 15 December 2010. Needless to say, this involved an analysis of all the relevant legal principles and both parties provided detailed written and oral submissions.
The matter was adjourned following the publication of reasons so that counsel could consider the reasons and obtain instructions from their clients. At a further hearing on 22 December 2010 Mr Heywood-Smith QC for the plaintiff informed me that the plaintiff would not be proceeding with his claim for misfeasance in a public office. This plea raised matters which in my view would have required the defendant to reveal most of its investigation file in order to answer the allegation made against it.
I said at [130]:
[130]It seems to me that it is simply the case that if the plaintiff wishes to raise the stakes by alleging malice, he must face the reality that his whole action would be placed in jeopardy because it is my conclusion that a stay is the only appropriate answer if the allegations are maintained. That is because the defendant would be deprived of a key plank of its defence on the basis of my finding that there is information in the possession of the defendant which cannot be disclosed according to the principles of public interest immunity.
In the decision I had earlier ruled that the defendant should be able to plead to the new imputations raised by the plaintiff in the same way it had done in its earlier defence. I therefore declined the defendant’s application for a stay based on the difficulties in pleading to the new imputations.
As indicated, in relation to the new allegation of misfeasance in a public office, I held that the defendant could not plead and moreover could not properly present its case and therefore if that allegation were maintained then a stay would be granted.
It is in those circumstances that Mr Heywood-Smith advised that the plaintiff would not continue with its allegation of misfeasance in a public office.
Taking stock of the situation then, it seems to me that, in relation to costs, it is necessary to see who has effectively achieved what they set out to achieve and at what cost. The defendant sought a stay. No stay has been granted. However, that is only because the plaintiff was forced to withdraw its plea in relation to misfeasance. Therefore to that extent the defendant has had a victory.
By the same token, however, the defendant also pleaded that it could not properly enter a plea to the new imputations alleged. To that extent the defendant lost that part of its application and so the plaintiff has been successful.
Along the way, however, as part and parcel of the application for a stay, the defendant has been successful. It was successful in defending the plaintiff’s application to cross-examine Deputy Commissioner Burns. It was likewise successful in defending the plaintiff’s application to be given access to the confidential materials.
Both Mr Heywood-Smith and Mr Trim QC for the defendant have argued that their respective clients are entitled to costs.
Standing back and looking at the whole application for the stay and considering each stage that has been dealt with along the way, and also including the final result, it is my view that the defendant indeed has achieved more success than the plaintiff. I acknowledge, however, that the plaintiff has been successful in requiring the defendant to plead to the new imputations. Mr Heywood-Smith argued that because there was an application for a stay and because a stay was not granted, the plaintiff is entitled to costs. I disagree with that. The plaintiff, to achieve that position, has had to concede and withdraw its claim for misfeasance in a public office. If it had not done that, the defendant would have succeeded and have been granted a stay. I said so in my reasons.
Using my overall discretion regarding the question of costs in relation to this whole application for a stay and regarding all parts of it, it is my view that the appropriate order is to allow the defendant 50 per cent of its costs in relation to the whole application for a stay.
It is my view that the question of costs should be dealt with by me rather than incur the further time and expense of having a taxation before a master. I will hear the parties further as to how the question of costs should proceed.