State of South Australia v Lampard-Trevorrow - [2008] SASC 370

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
STATE OF SOUTH AUSTRALIA v LAMPARD-TREVORROW
[2008] SASC 370
Judgment of The Honourable Justice White
24 December 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
Application for permanent stay of appeal – respondent succeeded at trial and was awarded damages, interest and costs – appellant has already paid respondent the full amount of the damages and interest – appellant has indicated that, if appeal succeeds, it will not seek to recover from respondent any of the damages or interest already paid – appellant reserves right to recover costs of proceedings at first instance and on appeal – proceedings have elements of a ‘test case’.
Whether appeal involves a hypothetical point as appellant does not seek to disturb in a practical way the outcome of the trial – consideration of circumstances in which an appeal may be dismissed or stayed because of lack of practical consequences – whether appellant is abusing Court processes by commencing and pursuing appeal.
Held: application dismissed - issue of costs is a live issue for determination on appeal - case involves important issues of principle – no abuse of process.
Alternative application for stay until appellant agrees to pay respondent’s costs of appeal in any event – consideration of circumstances in which court may attach conditions to a grant of permission to appeal.
Held: application dismissed – appellant commenced appeal as of right – exercise of right should not be unduly fettered.
Supreme Court Civil Rules 2006 (SA) r 281, r 192, r 290;; Supreme Court Act 1935 (SA) s 40, s 50,, referred to.
Gardner v The Dairy Industry Authority of New South Wales (1978) 52 ALJR 180; Sun Life Assurance Company of Canada v Jervis [1944] AC 111; Hole v Insurance Commissioner [1962] VR 395; GIO General Ltd v Newcastle City Council (1996) 38 NSWLR 558; Cadbury-Fry-Pascall Pty Ltd v Federal Commissioner of Taxation (1944) 70 CLR 362; NZI Insurance Australia v Baryzcka (2002) 85 SASR 482; Elders Pastoral Ltd v Bank of New Zealand [1990] 3 NZLR 129; Leibler v Air New Zealand Ltd (No 2) (1998) 2 VR 525; Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565; Oxer v Astec Paints Australia Pty Ltd (2008) 254 LSJS 57, discussed.
Re Luck (2004) 203 ALR 1; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374; Dodoro v Knighting (2004) 10 VR 277; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355; Rapson v WorkCover Corporation (2007) 98 SASR 86; Harrington v Rich (2008) 166 FCR 440; Secretary to the Department of Human Services v Magistrates’ Court at Melbourne (2002) 6 VR 140; Hope Downs Management Services v Hamersley Iron Pty Ltd [1999] FCA 1652; Beitseen v Johnson (1989) 291 IR 336; Liversidge v Anderson [1942] AC 206; Oshlack v Richmond River Council (1998) 193 CLR 72; CSR Ltd v Eddy (2005) 226 CLR 1 ; De Rose v State of South Australia (No 3) [2005] FCAFC 137; Re Magarey Farlam Lawyers Trust Accounts (No 5) [2008] SASC 42, considered.

STATE OF SOUTH AUSTRALIA v LAMPARD-TREVORROW
[2008] SASC 370

WHITE J: This decision concerns an application for an order for the permanent stay of an appeal or, in the alternative, an order that the appeal be stayed until such time as the appellant agrees to pay the respondent’s costs of the appeal in any event.
Background
On 1 August 2007, after a substantial trial lasting some 37 days, a Judge of this Court found that the late Mr Trevorrow was entitled, as against the State of South Australia, to an award of damages totalling $525,000. The State was found liable on various bases for the consequences of the separation of Mr Trevorrow from his family in the period commencing in January 1958, when he was 13 months old, and continuing to May 1967. After hearing submissions concerning interest and costs, the Judge entered judgment on 1 February 2008 for Mr Trevorrow in the sum of $525,000 together with interest of $250,000 fixed as a lump sum. In addition, the Judge ordered that, save for one discrete matter, the State pay Mr Trevorrow’s costs of the action.
The State had not waited for the formal entry of the judgment before paying to Mr Trevorrow the damages of $525,000. That amount, less a required Medicare deduction, was paid to Mr Trevorrow on 23 November 2007. Four days after the entry of the judgement on 1 February 2008, the State paid to Mr Trevorrow the interest of $250,000.
On 8 February 2008, the Judge made an order staying that part of the judgment requiring the State to pay Mr Trevorrow’s costs. The stay operates, in effect, until the appeal by the State against the judgment entered on 1 February 2008 is determined. That appeal was commenced on 28 February 2008. Mr Trevorrow was of course named as the respondent to the appeal.
On 20 June 2008, Mr Trevorrow died. His widow, in her capacity as executor of his estate, has since been substituted as the respondent to the appeal. In these reasons, when it is necessary to distinguish between Mr Trevorrow and his widow, I will refer to them separately. When it is not necessary to distinguish between them, I will refer to them jointly as “the respondent”.
In a number of communications, made both publicly and in correspondence with the respondent’s solicitors, the State has indicated that in the event that its appeal is successful, it will not seek to recover from Mr Trevorrow, or his estate, any of the damages or interest which it has paid under the judgment. However the State says that it reserves the right to recover any costs to which it may be found entitled.
It is sufficient to recite only some of the communications to which I have referred. In the letter of 23 November 2007, which enclosed the cheque in payment of the damages (less the Medicare refund) the Crown Solicitor said:
The Government is still considering its position as to whether there are any aspects of the Judgment against which an appeal will be lodged. However, I am instructed to advise you that, should an appeal be lodged and the State be successful, the State will not seek to recover from the plaintiff any part of the monies paid by the enclosed cheque. I would be grateful if you would convey this to your client.
In relation to the interest the Crown Solicitor said in a letter dated 6 March, 2008:
I am instructed to advise you that, should the State be successful in its Appeal of this matter, the State will not seek to recover from the plaintiff the award of interest paid by this cheque. I would be grateful if you would convey this to your client.
Following a request for clarification from the respondent’s solicitors, the Crown Solicitor wrote on 18 March 2008 saying:
I am instructed to advise you that the position of the State as set out in my letters to you dated 23 November, 2007 and 6 March, 2008 remains the same and that the State will not seek to recover from the plaintiff the awards of damages or interest should it be successful in its Appeal.
By letters dated 31 October and 4 November 2008 the respondent’s solicitors enquired as to the State’s intentions with respect to recovery of any amount from the estate of the late Mr Trevorrow should any part of its appeal succeed. On 12 November 2008, the Crown Solicitor responded saying:
I am instructed to advise you that the State reserves its right to recover from the estate any costs awarded as a consequence of the outcome of the appeal.
The effect of this correspondence is that the State has undertaken not to seek the recovery from the estate of any part of the damages or interest which it paid to Mr Trevorrow. There is an issue about the extent of that undertaking to which I will refer shortly. It can be seen that the State has expressly reserved the right to recover from the estate any costs which it may be awarded “as a consequence” of the outcome of the appeal. Those costs may include (depending upon the outcome of the appeal) some or all of the costs of the appeal, and some or all of the costs of the trial.
Mr Burnside QC, who appeared with Ms O’Connor for the respondent on the hearing of this application, also referred to evidence that the Attorney-General of the State of South Australia had said in a radio interview broadcast on 29 February 2008 that the Government was “letting [Mr Trevorrow] keep that money, that was our pledge” and later that “Mr Trevorrow’s payout is his to keep”.
It is the commitments given in these communications (described at the hearing as “undertakings”) which have given rise to the application for a stay.
The application for a permanent stay
By interlocutory application filed on 6 June 2008, Mr Trevorrow sought a permanent stay of the appeal. That application is now pursued by his widow. She asserts that the undertakings of the State not to seek the recovery of any of the damages and interest render the appeal hypothetical. As the State does not seek to disturb in a practical way the outcome of the trial, there is no point to a determination of the appeal. The respondent contends, in addition, that it is unjust for the appeal to be prosecuted in circumstances when the estate has no real interest in defending it. By participating in the appeal to oppose it, the respondent will not only incur the costs of her own representation but will be exposed to an adverse order for costs in the event that the appeal succeeds.
Determination of the application by a single judge
The respondent invokes r 192 of the Supreme Court Civil Rules 2006 (the 2006 Rules) which provides:
The Court may stay proceedings if the justice of the case so requires.
It can be seen that an order for a stay may be made when the justice of the case requires it. Neither party submitted that the power vested by r 192 is any different in scope than the inherent power of the Court to stay proceedings.
Although the appeal lies to the Full Court, I am satisfied that the present application may be determined by a single judge. Rule 290(3) of the 2006 Rules permits a single judge or a master to exercise, in interlocutory proceedings, the powers of the Court in relation to appeals vested by r 290(1). Those powers include the power to make, vary or reverse interlocutory orders in relation to an appeal (r 290(1)(c)). An order for the stay of proceedings, even a permanent stay, is generally regarded as interlocutory in nature. See for example Re Luck,[1] Dodoro v Knighting,[2] and Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3).[3]Each party agreed that the present application could be heard and determined by a single judge.
[1] [2003] HCA 70 at [9], (2004) 203 ALR 1 at 4.
[2] [2004] VSCA 217 at [20], (2004) 10 VR 277 at 282.
[3] (1998) 86 FCR 374 at 387 (Branson J), 392 (Emmett J).
Does the appeal involve a hypothetical point?
At first instance, the Judge found for Mr Trevorrow on a number of bases. The Judge found that the torts of misfeasance in a public office, wrongful imprisonment and negligence were established and that Mr Trevorrow suffered loss and damage for which the State was responsible. In addition, the Judge found that persons for whom the State was responsible had engaged in unlawful conduct which was voluntary, conscious and deliberate so that an order for exemplary damages was appropriate. The Judge also found that the State owed to Mr Trevorrow a fiduciary duty which it had breached. However, given his findings on the other causes of action, it was unnecessary for him to consider whether equitable compensation should be awarded in respect of those breaches. Finally the Judge granted Mr Trevorrow an extension of time in which to commence his proceedings.
The notice of appeal contains 21 separate grounds. Taken together, those grounds seem to complain of the Judge’s conclusions on each of the causes of action noted above and on each of the steps leading to the award of damages. The State seeks orders that the appeal be allowed and that the judgments pronounced on 1 August 2007 and 1 February 2008 be set aside. The State then seeks the substitution of orders dismissing the respondent’s claim and an order that the State have its costs of the trial and of the appeal.
There were two aspects to the respondent’s contention that a determination of the appeal would involve the resolution of hypothetical issues. First, it was said that the undertakings given by the State meant that the success or failure of the appeal would not, in a practical sense, result in any difference in the positions of the parties. Secondly, it was said that the continuation of the appeal could not be justified as a ‘test case’ because, on analysis, the grounds of appeal centred on matters which were personal to Mr Trevorrow, and not matters of general application.
Courts do not ordinarily, as a matter of principle, determine proceedings which involve issues which are not live as between the parties. The aversion of courts to determining issues which are moot, hypothetical or academic is well known.[4] In relation to an appeal, it was said by each of Mason J and Aickin J in Gardner v The Dairy Industry Authority of New South Wales[5] that the Court should not determine an appeal which would produce ‘no foreseeable consequences for the parties’.[6]
[4] Ainsworth v Criminal Justice Commission [1992] HCA 10, (1992) 175 CLR 564 at 582; Bass v Permanent Trustee Company Ltd [1999] HCA 9 at [45] [49], (1999) 198 CLR 334 at 355–357; Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355 at [27]; Rapson v WorkCover Corporation [2007] SASC 172 at [10]-[16], (2007) 98 SASR 86 at 90-92.
[5] (1978) 52 ALJR 180.
[6] Ibid at 188, 189.
The authorities reveal a number of circumstances in which appeals have been dismissed or stayed because they had no practical utility. In Sun Life Assurance Company of Canada v Jervis,[7] an insurer was granted leave to appeal to the House of Lords upon its undertaking to pay the costs of the appeal as between solicitor and client in any event, and upon its further undertaking not to ask for the return of any money ordered to be paid under the order which was the subject of the appeal. The House of Lords held that it was inappropriate to hear to the appeal. Viscount Simon LC said:
The difficulty is that the terms put on the appellants by the Court of Appeal are such as to make it a matter of complete indifference to the respondent whether the appellants win or lose. The respondent will be in exactly the same position in either case. He has nothing to fight for, because he has already got everything that he can possibly get, however the appeal turns out, and cannot be deprived of it. I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. If the House undertook to do so, it would not be deciding an existing lis between the parties who are before it, but would merely be expressing its view on a legal conundrum which the appellant which the appellants hope to get decided in their favour without in any way affecting the position between the parties….[8]
[7] [1944] AC 111.
[8] Ibid at 113.
Similarly, in Hole v Insurance Commissioner,[9] the Full Court of the Victorian Supreme Court refused to hear an appeal on learning that the judgment debt had been paid by the defendant prior to the hearing of the appeal and that the parties had agreed that the money should not be repaid, nor a retrial sought, should the appeal succeed. I note, however, that in GIO General Ltd v Newcastle City Council,[10] the New South Wales Court of Appeal did not appear to consider the agreement of the insurer not to dispute its liability to indemnify the insured in relation to certain claims to be an impediment to the hearing and determination of one of the appeals then before it.
[9] [1962] VR 394.
[10] (1996) 38 NSWLR 558 at 566.
The decision in Sun Life Assurance Co was applied by Starke J in Cadbury‑Fry‑Pascall Pty Ltd v Federal Commissioner of Taxation,[11] in relation to taxation which the Commissioner had undertaken not to seek to recover, and was referred to with approval by Mullighan J, at first instance, in NZI Insurance Australia Ltd v Baryzcka and Anor.[12]
[11] (1944) 70 CLR 362 at 386.
[12] [2002] SASC 16 at [6], (2002) 85 SASR 482 at 485.
Other examples of circumstances in which courts have refused to hear appeals, or to grant permission to appeal, when the determination of the appeal would produce no practical consequence include Harrington v Rich; [13] Secretary to the Department of Human Services v Magistrates’ Court at Melbourne;[14] Hope Downs Management Services v Hamersley Iron Pty Ltd;[15] and Beitseen v Johnson[16]
[13] [2008] FCAFC 61, (2008) 166 FCR 440.
[14] [2002] VSCA 171; at [19]–[21] (2002) 6 VR 140 at 147-8.
[15] [1999] FCA 1652.
[16] (1989) 29 IR 336 at 338
However, in the present case the question of costs of the trial remains a live issue between the parties. As noted earlier, the Judge has ordered the State to pay Mr Trevorrow’s costs but stayed the execution of that order until the hearing and determination of the appeal. Further, the State has reserved its rights with respect to the recovery of costs to which it may be entitled as a result of an order on appeal.
It is clear enough that a live controversy between the parties concerning costs may constitute a sufficient lis or issue warranting the determination of an appeal. In Elders Pastoral Ltd v Bank of New Zealand,[17] the Privy Council said:
It appears from the authorities that even if the only effect of a successful appeal between the parties will be to reverse an order for costs made in the Courts below, there remains a lis or issue between the parties...[18]
[17] [1990] 3 NZLR 129
[18] Ibid at 133.
This passage was applied in Leibler v Air New Zealand Ltd (No 2).[19] Phillips JA, with whom Winneke P and Kenny JA agreed, said:
So as long as there remains the dispute between the parties about existing orders for costs, it cannot be concluded that there is no lis on foot. At first, there was some attraction in the view that, upon the demise of the main issue concerning rectification, the continued existence of any significant lis must be thrown in doubt; but the authorities are to the contrary. It appears to be well established that, so long as the appeal will have direct consequences for the parties, even if it only be in respect of existing orders for costs, there is controversy enough to sustain the appeal….[20] [Citations omitted].
[19] (1998) 2 VR 525.
[20] Ibid at 529.
The respondent sought to avoid the application of this line of authority by submitting that in the present case the undertakings of the State meant that costs were no longer a live issue between the parties. The State’s undertakings meant, it was contended, that not only could the State not seek to recover monies having the character of damages or interest, it could not seek a recovery of monies of any character if the effect of that recovery would be to eliminate or diminish the monies in the hands of the respondent resulting from the payment of the damages and interest. In this respect, counsel emphasised the statement in the letter of 23 November 2007 that the State would not seek to recover ‘any part of the monies paid by the enclosed cheque’ and the statement of the Attorney-General on public radio that “Mr Trevorrow’s pay out is his to keep”. It was submitted in effect that the State could not recover under a different guise those monies which it had agreed that Mr Trevorrow should be able to keep.

The Solicitor-General, who appeared for the State, contended that the undertakings were confined to recoupment of the amounts paid as damages and interest as such. No undertaking had been given with respect to costs recovery. He submitted that the State would be entitled, in the event that it succeeded on the appeal and obtained a costs order in its favour, to enforce that order even if the estate could satisfy it only by repaying the State some or all of the monies paid to Mr Trevorrow by way of damages or interest.
I consider that it is neither necessary nor appropriate to resolve this issue on the present application. Even if the respondent’s submission is correct and the State cannot recover any of the monies already paid, there would remain the question of whether the State must pay the respondent’s costs of the trial. Those costs must be substantial as the trial occupied some 37 days. The order requiring the State to pay the respondent’s costs of trial has been stayed. If the State succeeds in the appeal (at least substantially) that costs order may well be set aside. The State would thereby be relieved of the liability to pay a substantial amount by way of costs to the respondent. In other words, even if it could be said now that the respondent’s submission about the effect of the State’s undertakings is correct, there would remain a live issue about the costs liability of the State to the respondent.
There are additional reasons why it would be inappropriate to determine the dispute about the effect of the State’s undertakings at this stage. That dispute may itself be hypothetical, because the circumstance in which the State may seek to enforce a costs order against the respondent may never arise. The State may fail altogether on its appeal. Alternatively, it may succeed on some issues but without that leading to the trial Judge’s orders being disturbed. Even if the State succeeds in having the trial Judge’s orders altered or overturned, the Full Court may, using the example of Lord Aickin in Liversidge v Anderson,[21] which was cited by Gaudron and Gummow JJ in Oshlack v Richmond River Council,[22] invite the State not to seek a costs order. There is the further possibility that the Court may, if satisfied that the case has the character of test case litigation, decline to make costs orders in favour of the State.[23] In this respect I note that the Solicitor-General’s submissions accepted that there were elements of the appeal which were in the nature of a test case. Even if the State does obtain costs orders in its favour, it may not seek to enforce them. In these circumstances, it would be preferable for the issue raised by the respondent to be determined if and when it arises and not as an incident of the present interlocutory proceedings.
[21] [1942] AC 206 at 283.
[22] [1998] HCA 11 at [42]; (1998) 193 CLR 72 at 89.
[23] Cf CSR Ltd v Eddy [2005] HCA 64 at [81], (2005) 226 CLR 1 at 35; Oshlack v Richmond River Council [1998] HCA 11 at [42]; (1998) 193 CLR 72 at 89; De Rose v State of South Australia(No 3) [2005] FCAFC 137 at [12].
Given my view that there is a live issue to be determined on the appeal, it is not necessary to address in any detail the second aspect of the respondent’s submission concerning hypotheticality. However, I do make two comments. First, I would not wish to be understood as accepting that the grounds of appeal must be characterised as being either personal to Mr Trevorrow or of general application. It is commonly the case that the application or development of the law in relation to particular individuals or particular circumstances produces principles of general application, and the circumstances of the present case would appear to be of that kind. Secondly, it may be appropriate for the Full Court which hears the appeal to determine whether, in the light of the undertakings of the State, it is appropriate to determine all grounds of appeal, in particular, those which raise issues which are very much specific to Mr Trevorrow, such as the assessment of his damages.
The balance of the respondent’s submissions in support of the application for a permanent stay assumed that this Court has a discretion to decline to hear the appeal if the only practical consequence of the outcome of the appeal will be a costs order. It was submitted that the Court should exercise that discretion to make the order in this case. There may be a question about the existence of such a discretion. The issue was not canvassed in the submissions before me. In those circumstances, I consider it appropriate to proceed (without deciding the issue) on the basis that the Court does have such a discretion. I note that in Leibler v Air New Zealand,[24] Philips JA inclined to the view that the Victorian Full Court had such a discretion in like circumstances.[25]
[24] (1998) 2 VR 525.
[25] Ibid at 532.
Even assuming that the Court does have a power of this kind, I would not exercise it in this case. While it is true that the Court’s discretion to stay proceedings which involve a misuse of its procedures is broad, the circumstances in which it is appropriate to exercise the power are limited. The principles were reviewed by the High Court in Oceanic Sun Line Special Shipping Company Inc. v Fay.[26] Brennan J held:
The grounds on which the court is justified in refusing to exercise its jurisdiction when it is regularly invoked are, and in my opinion, should be, grave and narrowly confined.[27]
Deane J said:
The starting point of the determination of such an application in accordance with traditional principle must be the prima facie right of a plaintiff to insist upon the exercise of competent jurisdiction which he has regularly invoked. That prima facie right of a plaintiff is not to be lightly displaced or denied.[28]
[26] (1988) 165 CLR 197.
[27] Ibid at 233.
[28] Ibid at 243.
The exercise of the discretion, assuming it is available, would have to be approached with these principles in mind.
I am satisfied that there are elements of a test case about this matter. I referred earlier to a submission of the Solicitor-General to the same effect. As I understand it, this case is the first, or one of the first, in which an Aboriginal child separated involuntarily from his or her parents by action of a State or Territory Government has succeeded in a claim for damages. As such, the case raises important issues of principle, the determination of which may be significant in the resolution of other like claims. In this respect, the circumstances of this case are similar in kind to those considered by the Full Federal Court in Minister of State for Resources v Dover Fisheries Pty Ltd[29] to warrant appellate determination of a point which had become moot, ie, involving a live issue of costs and a real public interest in the determination of issues affecting the public administration.[30]
[29] (1993) 43 FCR 565
[30] Ibid at 568-569
Whatever sympathy one may have for the circumstances of the present respondent, and the difficult position in which she is placed in relation to the defence of the appeal, the matters to which I have referred indicate that it is appropriate for this appeal to be heard by the Full Court. Despite the submissions of the respondent, it cannot be said that the appeal involves an abuse of this Court’s processes.
The alternative application; a stay subject to a costs order
The respondent submitted in the alternative that the appeal should be stayed until such time as the State agreed to pay the estate’s costs of the appeal in any event. The respondent submitted that the State should not be permitted to pursue the appeal when, as between the parties to the appeal, the only outstanding issue was costs. This submission was linked to the respondent’s principal submission that a determination of the grounds of appeal raising matters specific to the late Mr Trevorrow would have no practical consequence, given the undertakings by the State. The respondent submitted that if the State wished to pursue the appeal for the purpose of resolving matters of more general application, it was doing so for its own purposes, and should not be permitted to do so at the expense of the estate. It was appropriate in those circumstances that the Court order the State to pay the respondent’s costs of the appeal in any event.
The respondent referred to the practice in a number of courts, including the High Court[31] and this Court,[32] of granting permission to appeal subject (when appropriate) to a condition (whether proffered voluntarily or imposed by the Court) that the appellant pay the respondent’s costs in any event. The respondent submitted that such an order in the present case would achieve three objectives:
(a)     It would permit the State to have questions of general importance decided;
(b)     It would ensure that there is proper contradictor in the appeal;
(c)It would properly protect the assets of the Estate, consistently with the clear   statements made by the State.
[31] CSR Ltd v Eddy [2005] HCA 64 at [81], (2005) 226 CLR 1 at 35; Oshlack v Richmond River Council [1998] HCA 11 at [137]; (1998) 193 CLR 72 at 124.
[32] See for example ReMagarey Farlam Lawyers Trust Accounts (No 5) [2008] SASC 42 at [1].
Although there is force in these points, I do not consider that the Court should make the order sought by the respondent. The State has commenced its appeal in this case as a matter of right,[33] and not by permission. That distinguishes this case from the each of the examples cited by the respondent, in each of which the appellant had sought a favourable exercise of a power or discretion by the court. That favourable exercise of the power or discretion was essential to the appellant’s ability to access the court on appeal. In those circumstances a court may, in appropriate circumstances and for proper purposes, attach a condition to the grant of the permission to appeal. However, here the State appeals as of right. It has ‘a prima facie right… to insist upon the exercise of competent jurisdiction which [it] has regularly invoked’[34] and in my opinion, the excercise of that right should not be unduly fettered by an order of the Court.
[33] Supreme Court Act 1935 (SA) s 50(1)(a).
[34] Oceanic Sun Line Special Shipping Company Inc. v Fay (1988) 165 CLR 197 at 243 per Deane J.
As was pointed out by Viscount Simon LC in Sun Life Assurance Co,[35] when an appeal lies only with leave, conditions may, within limits, be put on the defeated party who seeks the exercise of that leave.[36] In this respect the respondent referred to r 281(b) of the 2006 Rules which provides that an appeal limited to a question about costs lies only with the permission of the Court. The suggestion was that if the appeal was in substance an appeal brought because of the costs consequences, it was an appeal to which r 281(b) applies so that the State did require permission for its appeal.
[35] [1944] AC 111.
[36] Ibid at 115.
I do not consider that this submission should be accepted. In Oxer v Astec Paints Australia Pty Ltd,[37] Debelle J held that r 281(b) should be construed as having the same effect as the former s 50(2)(b) of the Supreme Court Act 1935 (SA) which provided that leave to appeal was required from an order ‘as to costs only which by law are left to the discretion of the Judge’.[38] I respectfully agree. The notice of appeal in this case cannot properly be characterised as an appeal of that kind. None of the 21 grounds of appeal complain of the Judge’s exercise of the discretion with respect to costs vested in him by s 40 of the Supreme Court Act. The State does seek to have the costs orders made by the Judge set aside, but only as a consequential order in the event that its appeal on other grounds succeeds. Rule 281(b) does not apply in these circumstances.
[37] [2008] SASC 64, (2008) 254 LSJS 57.
[38] Ibid at [8], 58
I have already held that the State is not abusing this Court’s processes by its commencement and pursuit of the appeal. In those circumstances I am unable to see a proper basis upon which the Court could fetter the State’s exercise of its right to appeal in the way proposed by the respondent.
The exercise of appeal rights is an ordinary incident of litigation, well known to all who participate in it, whether as plaintiffs or defendants. Indeed, it could be said that it is the policy of the law, as manifested by s 50(1) of the Supreme Court Act, that an unsuccessful litigant should be able to exercise a right of appeal. Whenever such a right is exercised, the resources of the opposite party, or parties, are put at risk. I am unable to see that the undertakings which the State has given in this case require any different view of that ordinary position to be adopted.
It was not suggested that the State has engaged in any conduct, in relation to its pursuit of the appeal, such as misconduct or a failure to comply with time limits, which could warrant an order of the kind sought.
Accordingly, I refuse the respondent’s alternative application.
Conclusion
The circumstances of the trial at first instance, and the content of the notice of appeal, indicate that the hearing and determination of the appeal will be a substantial matter. The task of this Court will be made much more difficult if it does not have the benefit of submissions from counsel for the respondent, as well as from counsel for the State. One can readily understand the reluctance of the present respondent to commit the estate’s resources to the defence of the appeal if the effect will be to diminish substantially the estate’s assets. In these circumstances, I refer for the consideration of the State the approach mentioned by Gleeson CJ, Gummow and Heydon JJ in CSR Ltd v Eddy, [39] namely:
It is common in this Court in cases where the resolution of a point is desirable from the point of view of a large and recurrent litigant, whether corporate (for example, an insurance company) or governmental (for example, the Commissioner of Taxation or the Australian Competition and Consumer Commission), but the other party to the litigation is not a recurrent litigant and is not well-positioned to meet adverse costs orders on the point being tested, for the grant of special leave to be made conditional on appellants paying the other side’s costs in any event and on appellants not seeking to disturb costs orders in the courts below which were favourable to the other side.
[39] [2005] HCA 64 at [81], (2005) 226 CLR 1 at 35.
However, for the reasons given earlier, I dismiss the respondent’s application in its entirety.