Varnhagen v State of South Australia (No 3)

The case of *Varnhagen v State of South Australia (No 3)* concerned an appeal against a costs order made by the Supreme Court of South Australia. The appellants had initially sought judicial review of directions given by the State Co-ordinator under the *Emergency Management Act 2004* (SA) concerning COVID-19. Consent orders were subsequently made by the primary judge fixing the costs of the judicial review proceedings at $50,000, payable by either the applicants or the respondents depending on the outcome of the application.

The legal issues before the Full Court of the Supreme Court of South Australia were whether leave to appeal the costs order should be granted and, if so, whether the costs order itself was wrongly exercised. The appeal focused on the costs associated with the judicial review application, which had become largely academic due to subsequent legislative amendments and the revocation of the emergency declaration.

The Full Court reasoned that leave to appeal should be granted because the primary judge's costs order was a wrong exercise of discretion. The Court noted that the parties had taken a robust approach to managing costs, and the subsequent events had rendered the original judicial review proceedings largely moot. Consequently, the Court allowed the appeal against the costs order, setting aside the previous order for costs in the judicial review proceedings, with the exception of costs related to a specific hearing on 1 August 2022. The appellants were ordered to pay the respondents' costs of the appeal determined on 15 November 2022, and the appellants were awarded their costs of the appeal against the costs order determined in the present judgment.