White v SA Amateur Football League Inc (No 2)

[2022] SASC 113

Supreme Court of South Australia

(Civil: Application)

WHITE v SA AMATEUR FOOTBALL LEAGUE INC (No 2)

[2022] SASC 113

Judgment of the Honourable Auxiliary Justice Tilmouth  

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - DEPRIVING SUCCESSFUL PARTY OF COSTS - CONDUCT OF PARTY OR PROCEEDING - CONDUCT ANTECEDENT TO OR TENDING TO LITIGATION - GENERALLY

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - PARTIES AND NON-PARTIES - TRIBUNAL, BOARD, COMMISSION ETC

Discussion of the principles applicable to orders for costs against domestic Tribunals in judicial review proceedings.

Held:

1.The respondent is to pay one third of the applicant's costs to be agreed or taxed on a party/party basis.

Supreme Court Act 1935 (SA) s 40; Uniform Civil Rules 2020 (SA) rr 194.5, 194.6, referred to.

WHITE v SA AMATEUR FOOTBALL LEAGUE INC (No 2)
[2022] SASC 113

Civil: Application

1. TILMOUTH AJ:  The underlying application for judicial review returns to the Court to make consequential orders with respect to costs.

2. On 12 August 2022, orders were made declaring null and void the decision made on 27 July 2022 by the SA Amateur Football League Tribunal, suspending Mr White from playing in the 2022 Australian Rules Football competition for three matches after finding him guilty off careless conduct by striking another player during the course of a match.[1] The parties were granted liberty to file written submissions as to costs.

   [1]    White v SA Amateur Football League Inc [2022] SASC 85, [31].

   Legal principles

3. It common ground, pursuant to Uniform Civil Rules 2020 (SA) r 194.5(2), that as a general discretionary principle, civil litigation costs ordinarily follow the event.[2] The starting point controlling costs is s 40 of the Supreme Court Act 1935 (SA) which vests a wide and unfettered discretion to award costs on any basis considered appropriate. This discretion is unfettered by r 194.5, but one nonetheless to be exercised judicially.[3]

   [2]    Hamdorf v Riddel [1971] SASR 398, 402.

   [3]    Copping v ANZ McCaughan (1995) 63 SASR 523, 527–528.

4. Indeed r 194.6(1) specifically provides that in exercising the discretion as to costs, ‘the Court may have regard to any factors it considers relevant’. Despite the unfettered nature of the general rule, r 194.6 permissively allows the Court to have regard to such factors as any misconduct or unreasonable conduct of a party in connection with a proceeding, the making or not making and non-acceptance of an offer by a party to resolve the proceeding, the value and importance of the relief sought or any relief obtained, as well as any public interest in the subject matter of the proceeding, or public benefit from the prosecution or defence of the proceeding. Otherwise, Division 3 of Part 6 of the Uniform Civil Rules, ‘Judicial review and defence of liberty proceedings’, is silent on the question of costs in judicial review applications.

5. Furthermore, a successful party in civil disputes holds a reasonable expectation of obtaining a favourable order for costs, unless for some reason connected with the litigation itself, a different order is warranted.[4]

   [4]    Oshlack v Richmond River Council (1998) 193 CLR 72, 96–97; Latoudis v Casey (1990) 170 CLR 534, 557, 569; Forlyle Pty Ltd v Tiver (2007) 252 LSJS 387, [29].

6. There is, on the other hand, a distinct line of practically universal authority to the effect that costs are only exceptionally awarded against Tribunals not actively taking part in review type processes.[5] So much is implicit in the judgment of Doyle CJ in Keogh v Medical Board of South Australia.[6]

   [5]    R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35–36; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) (1987) 77 ALR 609, 612; Hall v Development Assessment Commission (No 2) [2001] SASC 181, [6]; Fernando v Medical Complaints Tribunal (2007) 16 Tas R 237, [16]; Pham v Victims of Crime Assistance Tribunal (No 2) [2016] VSCA 135, [5]; R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739, [27]; R (Gudanaviciene) v First Tier Tribunal (Immigration and Asylum Chamber) [2017] 1 WLR 4095, [27].

   [6] (2007) 99 SASR 327, [163]–[170].

7. Even so, as Doyle CJ observed (with Bleby and Martin JJ agreeing) of this principle of practice in El Deeb v Magistrates Court of South Australia:[7]

   Nevertheless, the fact remains that the settled practice cannot be substituted for, or bind the court in its exercise of, the wide discretion that the court has in relation to costs. The settled practice referred to reflects the manner in which courts have exercised that power in particular circumstances. The settled practice cannot be equated with the scope of the power possessed by the court.

   [7] (1999) 72 SASR 596, [15].

   Underlying facts

8. Before considering the merits, it is first necessary to outline some of the history of the matter. The disciplinary action arose from a match in the competition on 23 July 2022. Two days later, the League advised Mr White that the Match Review Panel considered he breached the Laws of Australian Football by committing the offence of striking an opposition player during that match. As mentioned, the charge was heard and determined at a disciplinary Tribunal hearing convened on 27 July 2022.

9. It was not until 5 August 2022 that contact was first made with the League on behalf of Mr White ‘querying whether … [it] … would be amenable to discussions regarding … [his] … suspension …’ once the application for review was lodged. Soon after, on 8 August 2022, the League received an unsealed copy of the application for judicial review, endorsed with a listing time of 2.15pm on 10 August 2022.

10. The application for judicial review was heard as listed in the afternoon of 10 August 2022. By that time Mr White had already served two of the three match suspensions. However, the order for suspension for the third match rendered him ineligible to play in the next minor round of fixtures over the weekend of 13 and 14 August, as well as the final rounds, because of restrictions imposed under the Adelaide Footy League Rules & Regulations 2022 relating to the qualification of players to play in the final rounds.

11. The ‘event’ clearly went in favour Mr White. He therefore applies for an order for costs in his favour on a party/party basis. He further points to the fact that the SA Amateur Football League made no offer to resolve the proceedings and to the finding that it had denied Mr White procedural fairness in suspending him.[8] It emerged that informal approaches were made to the League to the effect that Mr White was ‘open to negotiations in order to resolve the matter without initiating the proposed proceedings’, and the League was orally advised of the pending application earlier on 5 August.[9]

    [8]    White v SA Amateur Football League Inc [2022] SASC 85, [25]–[28].

    [9]    Second affidavit of Nicholas Lionel Murphy, 28 September 2022, paragraphs 4.2 and 7.

12. In contrast, the SA Amateur Football League contends for an order that the parties ought to bear their own costs of the proceedings.

    Analysis

13. The SA Amateur Football League makes a number of points which it submits justifies the order suggested by it. Firstly, it points to the fact that it was given little more than a day in which to prepare for the hearing in this Court. In contrast, Mr White had from between 27 July and 8 August, that is eleven days, to give proper notice and in which to issue legal proceedings.

14. By 8 August 2022, the League committed to diverting its resources to preparing for argument, rather than engaging in negotiations to resolve the dispute. It further appears that neither party pursued options for internal review of the suspension to the League’s Executive and Investigation Committee under the Constitution and the Rules and Regulations of the League.

15. The League also points to its limited role in the conduct of the judicial review process. In the space of a relatively short period of time, it was forced to instruct and obtain advice from solicitors and counsel, to prepare affidavits of the events before the Tribunal and to ready the case for hearing. During the hearing it was prepared to allow the matter to be resolved on the papers, even though there was a distinct difference between the version of events by the participants in the Tribunal, which could not be resolved other than by taking oral evidence, and which the Court was most unlikely to be capable of determining before the final minor round over the weekend of 13 and 14 of August. This was very much to the advantage of Mr White.

16. Further than that, the League fairly conceded that rather than take any point as to the jurisdiction to grant orders in the nature of judicial review, since the Tribunal was a voluntary amateur sporting body,[10] the Court could nevertheless proceed by way of declaratory relief.[11]

    [10] Based on the decision of the High Court in Cameron v Hogan (1934) 51 CLR 358.

    [11] White v SA Amateur Football League Inc [2022] SASC 85, [29].

17. The League’s stance in the judicial review process was not one of complete submission in so much as it did maintain that the Tribunal did not take the past player record into account in suspending him for three weeks;[12] that was a position unsupported by the authorities.[13]

    [12] White v SA Amateur Football League Inc [2022] SASC 85, [26].

    [13] White v SA Amateur Football League Inc [2022] SASC 85, [9]–[14].

18. Even so, it is not inaccurate to observe that otherwise its role in the conduct of the case was substantially restricted to providing assistance to the Court on matters of administrative law and domestic Tribunal procedures.[14]

    [14] Lester Land Holdings Pty Ltd v The Development Assessment Commission (No 2) [2020] SASC 214, [40].

19. Given the restricted nature of the stance taken by the League before the Court and by paying due deference to the principle that costs are not usually ordered against Tribunals in review processes, it is appropriate to make an order reflecting the degree of cooperation evident here, whilst at the same time acknowledging that the failure to accord Mr White natural justice was, on the state of the authorities, a relatively clear one.

    Conclusion and orders

20. Exercising a broad discretion, and by striking a proportionate balance between the competing considerations referred to above, it is in the circumstances appropriate to order that Mr White have an order in his favour for one third of his costs to be agreed or taxed on a party/party basis. The hearing of 10 August 2022 is certified fit for Senior Counsel.