Thompson v Workcover Corporation of South Australia

[2006] SADC 40

DISTRICT COURT OF SOUTH AUSTRALIA

(District Court Administrative and Disciplinary Division: Application)

THOMPSON v WORKCOVER CORPORATION OF SOUTH AUSTRALIA

Reasons of His Honour Judge Anderson

11 April 2006

PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT COURT

Administrative and Disciplinary Division - Costs

- Application for costs subsequent to withdrawal of Amended Notice of Appeal - granted

District Court Act 1991 s42G, referred to.
Moore v The Registrar of the Medical Board (No 2) (2002) 219 LSJS 448, applied.

THOMPSON v WORKCOVER CORPORATION OF SOUTH AUSTRALIA
[2006] SADC 40

1. The Amended Notice of Appeal in this matter was struck out after hearing the Appellant in person and Dr Baxter for the Respondent on 6 April 2005.  I ordered that the Respondent have its costs of its successful application to strike out the Amended Notice.

2. I then gave leave for the issue and service of a Further Amended Notice of Appeal.

3. Further adjournments were granted and the matter next came on on 19 December 2005.  By this day the Appellant had filed a Further Amended Notice of Appeal in accordance with the order of 6 April 2005, as thereafter enlarged.  He did so on 7 October 2005.  The Respondent filed a comprehensive affidavit in reply thereto on 25 November 2005.

4. On 19 December 2005, the Appellant appeared in person and Ms Colmer appeared for the Respondent.

5. It was plain from the nature of the affidavit of 25 November 2005 that all documents, the subject of the Application, had been produced to the Appellant.

6. That this production was in then current, but un‑associated criminal proceedings, is nothing to the point, as I explained to the Appellant at several attendances.  What was relevant to this matter was that the documents sought had already been produced to him.

7. On 19 December 2005, the Appellant accepted, albeit somewhat reluctantly, that this was so and that it was not proper for an order to be made which would have the effect of providing him with something which he already had.

8. Consequently, he agreed with my suggestion that the only realistic course open to him was that he apply to withdraw the Amended Notice of Appeal.  This he did and I granted that application.

9. He also accepted that it was not possible to make an order for the production of documents which, he asserted, no longer existed as they had been destroyed at some earlier time.

10. On 19 December 2005, Ms Colmer made an application for costs.  It was agreed that submissions in writing should be made and that I would consider these and provide a ruling in writing without the further attendance of the parties.  This I now do.

11. I have those written submissions and have had regard to them.

12. The Appellant submitted that the interests of justice are such that no order should be made in favour of the Respondent in the particular circumstances of this matter.

13. Much of the Appellant’s submission related to its early history.

14. The Respondent’s affidavit of 25 November 2005 provides a comprehensive response to those matters and both the transcript and the order of 19 December 2005 indicate that the Appellant accepted its contents.

15. I accept what Smith DCJ said in Moore v The Registrar of the Medical Board (No 2) (2002) 219 LSJS 448 as to the scope and application of s42G of the District Court Act 1991 without repeating it here.

16. As I remarked on 6 April 2005, there was by then an element of pointlessness in this Appeal (T44-45).  It was then apparent that all of the extant documents were with the Appellant.  Notwithstanding that, he pursued the matter only to ultimately recognise, on 19 December 2005, the futility of his position.  In fact, as much was obvious once the Respondent’s affidavit filed on 16 March 2005, was in.

17. Thus, the Appellant has pursued the Appeal well past the time when there was no prospect of success.  In my opinion, such an approach on his part brings this matter within what Smith DCJ described as the “something further” required before an entitlement for costs is established pursuant to s42G of the Act.

18. In short, the Appellant has pursued the Appeal without any prospect of success and has put the Respondent to expense in responding.  In this circumstance, the Respondent is entitled to its costs.

19. The costs order I made on 6 April 2005 was intended to be in relation to the whole application to strike out the Amended Notice of Appeal, lest there be any confusion as to the use of the word “today” in my order at page 58 of the transcript for that day.

20. I order that the Respondent have its costs of and incidental to the attendances on 18 August 2005, 14 October 2005 and 19 December 2005.

21. All costs are to be as agreed or taxed.