COULTHARD & ORS v TOPEZ [2026] SASC 70

Applicants: VINCENT COULTHARD, CHERYL COULTHARD-WAYE, NICHOLAS DEMELL Counsel: MR T WYLIE - Solicitor: LOVEJOY LEGAL Respondent: MULARA TOPEZ In Person First Interested Party: CLAYTON CRUSE Counsel: MR T WYLIE - Solicitor: LOVEJOY LEGAL Second Interested Party: DISTRICT COURT OF SOUTH AUSTRALIA No Attendance Hearing Date/s: 19/03/2026 File No/s: CIV-25-009791 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. COULTHARD & ORS v TOPEZ [2026] SASC 70 Judgment of the Honourable Justice McDonald 13 May 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY The applicants have filed an application for judicial review of the decision of Auxiliary Judge Chivell in the District Court of South Australia in Topez v Coulthard & Ors [2025] SADC 14. Three interlocutory applications have been filed and those applications are the basis of this decision. The applicants have filed an interlocutory application for a stay of execution of the judgment of Auxiliary Judge Chivell until the judicial review proceedings have been determined. The respondent has filed an application for summary judgment and an application for security for costs, both under the Uniform Civil Rules 2020 (SA). -- 1 of 27 -- On application for a stay, the applicants submitted that the Court has a broad discretion to order a stay on enforcement of a judgment pending appeal proceedings. The applicants relied on the prejudice that may be suffered in the event they cannot recoup the judgment debt in the event they are successful on appeal. The respondent argued that the applicants had not demonstrated any real risk of prejudice, and relied on the relatively modest amount of the judgment sum. The respondent sought an order for summary judgment on the basis that there is no reasonable prospects of the judicial review succeeding. It was contended that the applicants did not identify any errors that are amenable to judicial review, nor does the Court have jurisdiction to hear the application. The applicants placed each of the issues brought on review into three broad categories of error, being procedural fairness, jurisdictional error, and no reasonable conclusion, respectively. The respondent brought an application for security for costs in the sum of $50,000. The respondent relied on allegations that the applicants have mismanaged funds, and that the payment of security would allow for legal representation to be obtained. The applicants submitted that the respondent’s assertions were without foundation and irrelevant and that the respondent’s status as a self- represented litigant does not entitle a costs award for personal labour. Held: 1. The judgment of Auxiliary Judge Chivell be stayed until finalisation of the judicial review proceedings. 2. The respondent’s application for summary judgment is refused. 3. The respondent’s order for security for costs is declined. Uniform Civil Rules 2020 (SA) r 2.1(1), 102.1, 102.2, 115.1, 144.2, 144.3, 215.3, 215.4(1), 256.1, 256.5(3) and 256.7(3); Magistrates Court Act 1991 (SA) s 38(6), 38(7)(b), 38(7)(d), 38(7)(e) and 38(8); Defamation Act 2005 (SA) s 29(5); Supreme Court Civil Rules 2006 (SA) r 232; Federal Court of Australia Act 1976 (Cth) s 31A; Enforcement of Judgments Act 1991 (SA) s 17, referred to. Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd (No 2) [2018] SASC 152, applied. Wilczynski v District Court of South Australia [2022] SASC 115; Wilczynski v District Court of South Australia [2016] SASC 51; McFarlane v Outback Communities Authority [2024] SASC 54; MT v SE [2025] SASCA 8; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Brackenridge v Bendigo and Adelaide Bank Ltd [2020] SASC 235; Roberts v Roberts [2021] SASC 99; Blaikie v Chelliah [2023] SASCA 143; Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Lt (1992) 57 SASR 180, discussed. Craig v State of South Australia (1995) 184 CLR 163; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; H, AW v K, S (No 2) [2022] SASCA 88; Daikos v Mason [2010] SASC 108; Re Badger [2021] SASCA 92; Cosenza v Gill [2018] SASC 50, considered. -- 2 of 27 -- COULTHARD & ORS v TOPEZ [2026] SASC 70 Civil: Judicial Review McDONALD J. 1 The applicants have filed an application for judicial review. The decision they seek to review is the decision of Auxiliary Judge Chivell in Topez v Coulthard & Ors,1 to rescind the decision of Magistrate Vozzo in Topez v Adnyamathanha Traditional Land Association RNTBC, Coulthard & Ors.2 His Honour found partially in favour of the respondent and ordered that there be judgment in her favour in the sum of $12,000 against each of the applicants jointly and severally. 2 Three interlocutory applications have been filed that require determination in advance of the judicial review hearing. The respondent has filed an application for summary judgment3 under rr 102.1, 144.2, 144.3, 256.1, 256.5 and 256.7(3) of the Uniform Civil Rules 2020 (SA) (‘UCR’). She has also filed an application for security for costs in the sum of $50,000 under UCR 102.1, 102.2, 115.1 and 215.3.4 The applicants have filed an interlocutory application for a stay of execution of the judgment of Auxiliary Judge Chivell, until the determination of the judicial review proceedings.5 3 On 19 March 2026 I heard submissions on the three interlocutory applications. 4 I make the following orders: 1. I refuse the application for summary judgment. 2. I decline to make the order for security for costs. 3. I stay the execution of the judgment of Auxiliary Judge Chivell until the finalisation of the judicial review proceedings. 5 These are my reasons. Background 6 The applicants, Vincent Coulthard, Cheryl Coulthard-Waye and Nicholas Demell are Adnyamathanha First Nations People from the greater Flinders Ranges area of South Australia, and members of the Adnyamathanha Traditional Lands Association (‘ATLA’). 1 [2025] SADC 14. 2 [2023] SAMC 98. 3 FDN 8. 4 FDN 18. 5 FDN 11. -- 3 of 27 -- [2026] SASC 70 McDonald J 2 7 The respondent filed a minor civil action for defamation in the Magistrates Court seeking $12,000 for damages,6 including general, special and aggravated damages together with orders requiring the applicants to take down any publications which remain accessible online and restraining further defamatory publications.7 8 The respondent claimed that the publications had damaged her personal and professional reputation and caused her substantial hurt, distress and embarrassment.8 She said that the publications had adversely impacted her personal relationships with members of the Adnyamathanha community and caused her to feel unwelcome in that community and on Adnyamathanha land.9 The publications 9 The action was based on four separate publications. All of the publications that were the subject of complaint arose in the context of a longstanding conflict between the parties concerning the respondent’s identification as an Adnyamathanha person. 10 The applicants do not accept that the respondent is an Adnyamathanha person. They say that she has not provided credible proof of Adnyamathanha ancestry and that her spiritual activities are culturally inappropriate, disrespectful to Adnyamathanha people and/or make a mockery of Adnyamathanha culture. 11 The four publications that were central to this action are as follows:10 • A posting by Vincent Coulthard on Facebook on 27 March 2020. The respondent claimed that the publication contained five false and defamatory imputations, essentially that she had made false and mischievous accusations about Mr Coulthard’s conduct whilst he was a board member of the ATLA. • A posting by Cheryl Coulthard-Waye on Facebook on 7 August 2019. The respondent claimed that the posting had four defamatory imputations concerning her claims to be an Adnyamathanha person and her spiritual practices. • A posting by Nicholas Demell on Facebook on or around 19 April 2020. In the posting Mr Demell made a number of derogatory references to the respondent. The respondent said the posting contained four false 6 FDN 26. 7 The proceeding was initially commenced on 12 August 2020 in the Supreme Court for damages in the amount of $5,747,343.64 for breach of contract, assault, defamation and unconscionable conduct arising out of publications and/or conduct by nine respondents including ATLA. In 2021, the matter was transferred to the Magistrates Court and leave was granted to the applicant to file an amended claim limited to the original 2nd, 7th, 8th and 9th named respondents. 8 FDN 26 at [27]. 9 FDN 26 at [28]. 10 [2025] SADC 14 at [19]. -- 4 of 27 -- [2026] SASC 70 McDonald J 3 and defamatory imputations which related to her dealings with an elderly Adnyamathanha man, Uncle Ken McKenzie, which suggested that she was taking advantage of him. • An email sent by Clayton Cruse to members of the ATLA Special Advisory Board on 1 July 2020. The respondent claimed that the email contained five false defamatory imputations concerning her dealings with ATLA, and which suggest that she is a fraud who was acting for her own benefit and to the detriment of the Adnyamathanha Community. The proceedings in the Magistrates Court 12 The minor civil action proceeded to trial.11 None of the parties were represented by counsel.12 The trial produced over 700 pages of transcript and there were over seven volumes of documents before the Court.13 13 The Magistrate dismissed the claim and ultimately found that each of the four publications complained of defamed the respondent but that the applicants had made out the defences of justification and/or contextual truth.14 14 The Magistrate formed a negative view of the respondent’s credibility.15 15 The Magistrate did not accept the bona fides of the respondent’s identification as Adnyamathanha. She did not consider that the respondent could have held a genuine belief of being Adnyamathanha based on the information known to the respondent at the time. The Magistrate expressed the view that “the [respondent] was opportunistic in her self-identification and made false statements about her Aboriginality for personal gain”.16 The proceedings in the District Court 16 The respondent made an application in the District Court for a review of the decision of the Magistrate pursuant to s 38(6) of the Magistrates Court Act 1991 (SA).17 This section provides for a single judge of the District Court to review a minor civil action on the application of a dissatisfied party. The judge may inform themselves as they think fit, and in doing so is not bound by the rules of evidence, 11 During submission on the interlocutory applications, the respondent advised the Court that during the proceedings in the Magistrates Court both parties initially had legal representation. Although it was a minor civil action, the respondent had given consent for the parties to be legally represented. It was necessary for the initial trial date to be vacated. The respondent said that by this stage she had exhausted her available funds and for that reason she withdrew her consent for representation. She said that despite this, the applicants continued to be assisted by a solicitor who sat at the bar table and made submissions over the respondent’s objection. 12 [2025] SADC 14 at [7]. 13 [2025] SADC 14 at [8]. 14 [2023] SAMC 98 at [299]. 15 [2023] SAMC 98 at [87]. 16 [2023] SAMC 98 at [19]. 17 Mr Coulthard also filed an application for a ‘cross review’. However, for current purposes, this is not relevant. -- 5 of 27 -- [2026] SASC 70 McDonald J 4 and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.18 The judge on review may affirm, or rescind and substitute the outcome and in limited circumstances may remit the matter to the Magistrates Court.19 Of significance, in the context of the current judicial review proceedings, the outcome of a review in the District Court is final (with some exceptions not relevant to these proceedings) and not subject to appeal.20 17 The application for review was heard by Auxiliary Judge Chivell. There was no challenge to the Magistrate’s understanding and enunciation of the relevant legal principles. The approach adopted on the review by Auxiliary Judge Chivell was to consider each of the defamatory imputations that were found by the Magistrate to arise from the publications and determine whether the Magistrate was in error in determining that a defence had been established. 18 In respect of the majority of the imputations, Auxiliary Judge Chivell saw no reason to interfere with the Magistrate’s findings. However, in relation to three of the publications, and six of the imputations arising from them, his Honour found that the Magistrate was in error in finding that the applicants had a defence to the claim of defamation. 19 Given that it is these findings that are the subject of the application for judicial review, I will identify each by reference to the relevant publication. First publication (Coulthard) Fifth imputation 20 The fifth imputation pleaded was that the “[respondent] has been [the] subject of many adverse court decisions which confirm that she spreads lies about the Second Respondent and ATLA”.21 21 The Magistrate found that the imputation arose from the Facebook post and was defamatory. Her Honour said:22 the 5th Coulthard Imputation, that the applicant has been the subject of many adverse court decisions which confirm that she spreads lies about Mr Coulthard and ATLA, conveys that a court has confirmed that she has these traits and engages in such behaviour. 22 The Magistrate held that Mr Coulthard had not proved this imputation to be substantially true and accordingly the defence of justification failed. The Magistrate then considered the defence of contextual truth and found that the contextual imputations were substantially true, and the relevant (fifth) imputation 18 Magistrates Court Act 1991 (SA) ss 38(7)(b) and (e). 19 Magistrates Court Act 1991 (SA) s 38(7)(d). 20 Magistrates Court Act 1991 (SA) s 38(8). 21 FDN 1 at [13]. 22 [2023] SAMC 98 at [149]. -- 6 of 27 -- [2026] SASC 70 McDonald J 5 did not further harm the respondent’s reputation.23 On that basis, the Magistrate found that the defence of contextual truth had been established.24 23 Auxiliary Judge Chivell found that the Magistrate was in error in finding that there was a defence of “contextual truth” and that none of the defences of “justification”, “contextual truth”, or “honest opinion” had been established.25 Second Publication (Coulthard-Waye) First Imputation 24 The first imputation pleaded was that “[the respondent] was knowingly lying about being an Adnyamathanha person”.26 25 The Magistrate held that this imputation was conveyed by the natural and ordinary meaning of the publication and was defamatory of the respondent because it asserted that she was dishonest.27 26 The Magistrate held this imputation was substantially true and hence found that the defence of justification had been established.28 27 Auxiliary Judge Chivell found that there were insufficient grounds for the Magistrate to conclude that the imputation that the respondent was knowingly lying about being an Adnyamathanha person had been proved to be substantially true.29 28 His Honour found that the defences of “justification”, “contextual truth” and “fair comment” or “honest belief” had not been established.30 Third Publication (Demell) First imputation 29 The first imputation was that the respondent was “taking advantage of a respected Senior Adnyamathanha Law man” (Uncle Ken McKenzie).31 30 The Magistrate held that this imputation arose from the publication and that it was defamatory.32 31 The Magistrate however found that the defence of justification was made out on the basis that the imputation was substantially true. 23 [2023] SAMC 98 at [203]. 24 [2023] SAMC 98 at [204]. 25 [2025] SADC 14 at [84], [88], and [89]. 26 FDN 1 at [20]. 27 [2023] SAMC 98 at [221]. 28 [2023] SAMC 98 at [224]. 29 [2025] SADC 14 at [127]. 30 [2025] SADC 14 at [127] and [129]. 31 FDN 1 at [36.a]. 32 [2023] SAMC 98 at [269]. -- 7 of 27 -- [2026] SASC 70 McDonald J 6 32 Auxiliary Judge Chivell determined that the Magistrate had erred in this finding on the basis that the evidence was not capable of establishing the truthfulness of the imputation.33 It therefore followed that the defence of justification should fail.34 Second imputation 33 The second imputation said to arise from the third publication was that the respondent “mocks Adnyamathanha culture”.35 34 The Magistrate accepted that this imputation arose from the publication and was defamatory. 35 The Magistrate however found that the defence of justification had been established on the basis that the imputation was substantially true.36 36 Auxiliary Judge Chivell determined that on the evidence, the Magistrate’s ruling that the imputation was substantially true could not stand.37 His Honour found that the defences of “honest belief” and “contextual truth” also failed.38 Third imputation 37 The third imputation was that the respondent “should be ashamed for taking advantage of Adnyamathanha people”.39 This was essentially the same imputation as the first imputation. For the same reasons the Magistrate found that the imputation was substantially true. 38 Auxiliary Judge Chivell determined, as with the first imputation, that the Magistrate was in error in making this finding. For the same reasons that he gave in relation to the first imputation, his Honour found that the defences of “justification”, “contextual truth” and “honest belief” also failed.40 Fourth Imputation 39 The fourth imputation was that the respondent was a worthless person who does not deserve support and should be disrespected as “white trash” and/or a “dirty white bitch”.41 40 The Magistrate formed the view that the imputation did arise from the relevant words. She however held that although the imputation is offensive and vulgar, it was not defamatory.42 She noted that “white trash” is a colloquial and 33 [2025] SADC 14 at [159]. 34 [2025] SADC 14 at [161]. 35 FDN 1 at [36.b]. 36 [2023] SAMC 98 at [268]. 37 [2025] SADC 14 at [169]. 38 [2025] SADC 14 at [170]. 39 FDN 1 at [36.c]. 40 [2025] SADC 14 at [171]. 41 FDN 1 at [36.d]. 42 [2023] SAMC 98 at [251]. -- 8 of 27 -- [2026] SASC 70 McDonald J 7 derogatory term for very poor white people, and that “bitch” is used for abuse of women.43 41 Auxiliary Judge Chivell disagreed with the Magistrate’s finding that the imputation was not defamatory. His Honour found that when these words are uttered in the context of an imputation that the respondent is a “worthless person who does not deserve support and should be disrespected”, the imputation has crossed the line into defamation.44 42 Auxiliary Judge Chivell also found that this imputation “couched in such vulgar language” could not be proved to be substantially true and that the defences of “contextual truth” and “honest belief” did not apply.45 The application for judicial review 43 In the Statement of Facts, Issues and Contentions the applicants identify the following issues arising from the judgment of Auxiliary Judge Chivell:46 10. The issues arising from the Chivell Decision are as follows: First Publication: First Applicant Fifth Imputation a. Issue 1: whether in dismissing the defence of contextual truth in relation to the fifth imputation carried by the First Publication (at [76]-[84], [197.1.e]), his Honour erred by: i. making a decision which was irrational; ii. making a decision which was unreasonable; iii. failing to take into account relevant considerations; iv. taking into account irrelevant considerations; v. failing to properly construe and apply the law; vi. failing to afford the Applicants procedural fairness by providing inadequate reasons; Second Publication: Second Applicant First Imputation b. Issue 2: whether in dismissing the defence of justification in relation to the first imputation carried by the second publication (at [97]-[128]), his Honour erred by: 43 [2023] SAMC 98 at [253]. 44 [2025] SADC 14 at [176]. 45 [2025] SADC 14 at [177]. 46 FDN 1 at [10]. -- 9 of 27 -- [2026] SASC 70 McDonald J 8 i. making a decision which was irrational; ii. making a decision which was unreasonable; iii. failing to take into account relevant considerations; and iv. taking into account irrelevant considerations. c. Issue 3: whether in dismissing the defence of contextual truth in relation to the first imputation carried by the second publication at [129], [198 2a.], his Honour erred by: i. making a decision which was irrational; ii. making a decision which was unreasonable; iii. failing to take into account relevant considerations; iv. taking into account irrelevant considerations; v. failing to properly construe and apply the law; and vi. failing to afford procedural fairness by providing no or inadequate reasons; Third Publication: Third Applicant First Imputation & Third Imputation d. Issue 4: whether in finding that the first and third imputation carried by the third publication was defamatory (at [152]), his Honour erred by: i. making a decision which was unreasonable; and ii. failing to properly construe and apply the law. e. Issue 5: whether in dismissing the defence of justification in relation to the first imputation carried by the third publication (at [153]-[161],[199 3.a.]) his Honour erred by: i. making a decision which was irrational; ii. making a decision which was unreasonable; iii. failing to take into account relevant considerations; iv. taking into account irrelevant considerations. v. failing to properly construe and apply the law; Second Imputation f. Issue 6: whether in dismissing the defence of justification in relation to the second imputation carried by the third publication at [165]-[169], [199 3.b.], his Honour erred by: -- 10 of 27 -- [2026] SASC 70 McDonald J 9 i. making a decision which was irrational; ii. making a decision which was unreasonable; iii. failing to take into account relevant considerations; iv. taking into account irrelevant considerations; and v. failing to properly construe and apply the law. Fourth Imputation g. Issue 7: whether in finding that the third publication carried the fourth imputation alleged namely that “the applicant is a worthless person who does not deserve support and should be disrespected as ‘white trash’ and, or a ‘dirty white bitch’” (at [173]), his Honour erred by: i. making a decision which was irrational; ii. making a decision which was unreasonable; iii. failing to take into account relevant considerations; iv. failing to properly construe and apply the law. h. Issue 8: whether in finding that the fourth imputation carried by the third publication was defamatory (at [176]), his Honour erred by: i. making a decision which was unreasonable; ii. failing to properly construe and apply the law. Damages i. Issue 9: whether in assessing damages (at [204]), his Honour erred by: i. failing to take into account relevant considerations; ii. failing to properly construe and apply the law. j. Issue 10: whether in awarding damages against the first, second and third Respondents jointly and severally (at [205]), his Honour erred by: i. failing to take into account relevant considerations; ii. taking into account irrelevant considerations; iii. failing to properly construe and apply the law; iv. made a decision which irrational and/or unreasonable. -- 11 of 27 -- [2026] SASC 70 McDonald J 10 44 In submissions this was further distilled down to 10 identified issues for review, which were divided into the following broad categories:47 a. that his Honour did not properly construe and apply the law as it pertains to the defence of contextual truth and/or his decision was otherwise flawed as it pertained to the First and Second Publication (Issue 1 and 3); b. his Honour’s decision to dismiss the defence of justification as it pertained to the Second Publication and Third Publication did not properly construe and apply the law and/or was flawed (Issue 2, issue 5 and issue 6); c. his Honour erred in finding that the defamatory meaning and/or imputation was conveyed in the third publication by failing to take into account that the publication occurred on social media and was derogatory in nature, such that it conveyed no defamatory meaning. In doing so, His Honour failed to properly construe and apply the relevant law (Issue 4, Issue 7 and Issue 8); and d. in awarding damages his Honour made errors of law (Issue 9 and Issue 10). (Footnotes omitted) Principles relating to judicial review 45 Judicial review is a remedy that is available where it is established that there has been an error that goes to the jurisdiction that the judge was required to exercise. It is important to bear in mind that judicial review is not concerned with the substantive merits of the decision, but with the fairness of the procedure leading to the decision. 46 In Wilczynski v District Court of South Australia,48 Blue J contrasted a judicial review with a merits-based appeal in the following manner:49 Judicial review is to be contrasted with review by way of appeal. The latter focuses on the merits of the decision: was it right or wrong? The former focuses on the process whereby the decision was reached and articulated: did that process miscarry so as to vitiate the decision? Traditionally there are four broad grounds for judicial review: jurisdictional error, procedural unfairness, fraud and error of law on the face of the record. Certiorari is the judicial review remedy to quash a decision vitiated by one of the four types of error referred to above and is the applicable remedy in the present case if such error is established. 47 In the earlier decision of Wilczynski v District Court of South Australia,50 Doyle J, as he then was, discussed the confined role of the Court in the 47 FDN 26 at [11]. 48 [2022] SASC 115. 49 Wilczynski v District Court of South Australia [2022] SASC 115 at [292]-[294]. 50 [2016] SASC 51. -- 12 of 27 -- [2026] SASC 70 McDonald J 11 identification of errors of the kind ordinarily sufficient to warrant intervention in judicial review proceedings. His Honour observed:51 Broadly speaking, this includes errors of two kinds: a denial of procedural fairness, or an excess of power or jurisdiction. The latter includes jurisdictional error, acts or decisions which are ultra vires, and errors of law. It is not sufficient to establish relevant error this Court would reach a different conclusion on the evidence. Unless the conclusion reached below was based on no evidence, was irrational, or was otherwise a decision which no reasonable decision maker could have reached, then errors in the reasoning process or findings of fact will not warrant intervention in judicial review proceedings. Further, even if grounds for review are established, the Court retains a discretion whether or not to grant a remedy, and in particular whether to grant an order in the nature of certiorari quashing the decision below. (Footnote omitted) 48 In McFarlane v Outback Communities Authority,52 Hughes J emphasised the importance of maintaining the distinction between an error that demonstrates that jurisdiction was not exercised, and an error within jurisdiction. Her Honour explained:53 The distinction between an error that demonstrates that jurisdiction was not exercised, and an error within jurisdiction, must be maintained. If it is not, the distinction between appeal and judicial review is lost. In relation to a review of a minor civil action, the legislature has determined that the review may not be appealed. That legislative edict is not to be undermined by courts entertaining complaints labelled as errors of the type that are amenable to judicial review when such complaints are properly understood to concern alleged errors in decisions that are within the judge’s realm of power. (Footnote omitted) Application for summary judgment 49 The respondent has applied for summary judgment of the judicial review proceedings on the basis that there is no reasonable prospect of success.54 More particularly that the application for judicial review of the District Court defamation judgment does not fall within the scope of a judicial review. It was submitted that it is a private law dispute (tort between parties) governed by the Defamation Act 2005 (SA), rather than a decision by a public authority exercising administrative power.55 50 The respondent raises two arguments in favour of summary judgment. These are:56 51 Wilczynski v District Court of South Australia [2016] SASC 51 at [51]-[52]. 52 [2024] SASC 54. 53 McFarlane v Outback Communities Authority [2024] SASC 54 at [19]. 54 FDN 10. 55 FDN 10 at [10]. 56 FDN 10 at [8]. -- 13 of 27 -- [2026] SASC 70 McDonald J 12 a. that the application for judicial review raises no new material; and b. that the applicants are engaging in a ‘de facto appeal’ where no such right exists. 51 These complaints may be understood as alleging that: a. the applicants have not identified any errors of procedural fairness or an excess of power or jurisdiction; and b. there is no jurisdiction for the Court to hear the application for judicial review. 52 It is the respondent’s contention that the application for judicial review is misconceived.57 That no jurisdictional error has been identified and instead the applicants seek to relitigate factual and legal findings made by Auxiliary Judge Chivell and as a consequence the application should be summarily dismissed.58 53 It was submitted that this is precisely the type of case that Craig v State of South Australia59 warns against, in that the applicants seek to re-argue factual findings, legal conclusions, damages and joint liability, none of which amount to jurisdictional error.60 54 UCR 256.5 provides for summary judgment in judicial review proceedings. Relevantly, UCR 256.5(3) reads: (3) If this rule applies, the Court will dismiss the action (insofar as judicial review is sought)— (a) unless the Court is satisfied that there is a reasonable basis for the action for judicial review; and … 55 The Court can enter summary judgment if it is satisfied that there is no reasonable prospect that if the judicial review proceeded to hearing, the appellate Court would exercise the discretion and grant the relief. 56 Although UCR 256.5(3) specifically relates to judicial review proceedings, the test of the absence of a “reasonable basis for the action” is the same as that is contained in other rules relating to other claims or causes of action. 57 In the recent judgment of MT v SE,61 the Court of Appeal helpfully summarised the appropriate approach to an application for summary judgment 57 FDN 27 at [2]. 58 FDN 27 at [2] and [8]. 59 (1995) 184 CLR 163. 60 FDN 27 at [30]-[32]. 61 [2025] SASCA 8. -- 14 of 27 -- [2026] SASC 70 McDonald J 13 under the current UCR, albeit in the context of a claim for damages for malicious prosecution:62 Rule 144.2(2) of the Uniform Civil Rules 2020 (SA) (UCR) provides that a court may give summary judgment on a claim, a cause of action, or an issue that arises on the claim, if there is no reasonable basis for prosecuting the claim, cause of action or issue. The ‘no reasonable basis’ test is materially the same as that which previously applied under Rule 232 of the Supreme Court Civil Rules 2006 (SA) (repealed). It is also similar to the test under s 31A of the Federal Court of Australia Act 1976 (Cth), which is whether there is no reasonable prospect of successfully prosecuting the proceedings. The focus of all of these provisions is on whether the claim has a reasonable basis or prospect of success. Thus, cases dealing with any of these tests may be relevant. The general principles that apply to a defendant’s application for summary judgment are well-established. The power to order summary judgment is one that should be exercised with great care (sometimes expressed as ‘exceptional caution’). A party should not ordinarily be denied the opportunity to have its case determined following trial. It is only in the clearest of cases, where there exists a high degree of certainty about the ultimate outcomes of the proceedings if they were to go to trial, that summary judgment ought properly to be granted. Accordingly, summary judgment will be granted only where it is clear there is no reasonable basis for the claim. At all times, the respondent retained the legal onus of demonstrating that the application for summary judgment ought to succeed. The respondent must establish that there is no reasonable basis for the claim made on any cause of action raised by the appellant. (Footnotes omitted) 58 In Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd,63 Doyle J, as he then was, suggested that when assessing whether there is any merit to the proceedings, a practical but cautious approach should be adopted. His Honour explained:64 By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss. Related to the requirement that the Court undertake a “practical” assessment is the notion that the Court should not embark upon a “mini trial” of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court’s decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue 62 MT v SE [2025] SASCA 8 at [56]-[58]. 63 (2020) 137 SASR 117. 64 Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 at [59]-[60]. -- 15 of 27 -- [2026] SASC 70 McDonald J 14 that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim. (Footnotes omitted) 59 In McFarlane v Outback Communities Authority,65 Hughes J gave particular consideration to the approach to be adopted in an application for summary dismissal on an application for judicial review, arising out of a minor civil action. Her Honour observed:66 … Whilst the absence of a right of appeal has the effect that judicial review is the only curial remedy to error in the proceedings, it is also indicative of the legislature’s intention that low-value disputes should be allowed and required to be disposed of in an efficient, timely manner so as to reduce the burden of litigation on the parties and the community as a whole. … Consideration – Summary judgment 60 The applicants place each of the issues identified in the Statement of Facts, Issues and Contentions into three broad categories of error.67 The first is procedural fairness by failing to give proper reasons (Issues 1 and 3). The second is jurisdictional error, including errors of law (Issues 1, 3, 5, 6, 7, 8, 9, and 10), and that the conclusion reached was based on no evidence, was irrational or no reasonable decision maker could have reached it (Issues 1 to 10). 61 The applicants illustrated their arguments by applying those complaints to a selection of the relevant publications and imputations that were the subject of differing opinions between the Magistrate and Auxiliary Judge Chivell. First publication (Coulthard) – Fifth imputation 62 There is no dispute that the first publication contained a defamatory imputation (the fifth imputation). Auxiliary Judge Chivell however found that the Magistrate was in error in finding that the defence of contextual truth had been established,68 on the basis that this particular imputation caused additional damage to the respondent’s reputation, beyond those other imputations that had been found to be substantially true. 63 The complaint that is made about this finding is multifaceted. It commences with a criticism of the adequacy of the reasons provided for by Auxiliary Judge Chivell when arriving at that finding and continues that “[i]n the absence of such reasons and where the contextual imputations are of the severity found by the Court, his Honour has misapplied the law, acted irrationally or failed to take into 65 [2024] SASC 54. 66 McFarlane v Outback Communities Authority [2024] SASC 54 at [32]. 67 FDN 26 at [28]. 68 [2025] SADC 14 at [84]. -- 16 of 27 -- [2026] SASC 70 McDonald J 15 account relevant considerations, particularly the nature and the severity of those contextual imputations”.69 Second publication (Coulthard-Waye) – First imputation 64 The first imputation in the second publication (Coulthard-Waye), was that the respondent was knowingly lying about being an Adnyamathanha person. 65 The Magistrate found that imputation to be defamatory, however because it was substantially true, determined that the defence of justification was available. On that basis, the Magistrate did not find it necessary to consider the defence of contextual truth. 66 Auxiliary Judge Chivell found that there were insufficient grounds for the Magistrate to conclude that the imputation that the respondent was knowingly lying about being an Adnyamathanha person had been proved to be substantially true.70 67 Auxiliary Judge Chivell went on to consider the issue of contextual truth. His Honour said:71 The defence of contextual truth does not assist the seventh respondent, because the imputation arising from the publication clearly does further harm to the applicant’s reputation. Finally, the defence of fair comment or honest belief cannot succeed because it cannot be said that the imputation is based on “proper material” as required by s 29(5) of the Defamation Act 2005. 68 The Magistrate had not considered it necessary to identify the contextual imputations, given her finding of justification. In that context, Auxiliary Judge Chivell made a finding, in one sentence, that the defence of contextual truth failed without identifying what those imputations were.72 In doing so, the applicants contend that his Honour was acting outside of jurisdiction or was in jurisdictional error.73 Issues 9 and 10 - Damages 69 The applicants also addressed Issues 9 and 10 that related to the damages awarded, to further highlight that these issues were relevant to the process by which the decision was reached, rather than the merits of the decisions, and therefore amenable to judicial review. 70 Issue 9 deals with the assessment of damages and the principal of partial justification. Whilst Auxiliary Judge Chivell found some of the imputations to be defamatory, he found that others were not. That is, his Honour found that there was partial justification for the applicants’ conduct. The complaint in this respect 69 T22. 70 [2025] SADC 14 at [127]. 71 [2025] SADC 14 at [129]. 72 [2025] SADC 14 at [129]. 73 FDN 26 at [13]. -- 17 of 27 -- [2026] SASC 70 McDonald J 16 was that although the findings amounted to partial justification of the statements made by the applicants across the four publications, no consideration was given to the extent, if at all, it mitigated the damages to be awarded.74 It was contended that as part of the assessment of damages Auxiliary Judge Chivell was obliged to consider whether there should be any mitigation of damages to take into account partial justification. In omitting to do so it was said that Auxiliary Judge Chivell had failed to take into account relevant considerations and/or failed to properly construe and apply the law, both of which rendered the decision susceptible to judicial review.75 71 Similarly, Issue 10 related to the award of damages. It was submitted that the finding by Auxiliary Judge Chivell that there was joint and several liability with respect to damages was a clear error of law. There were four separate publications, with no findings that any more than one applicant was involved in each publication. There were no joint publications. The four matters were heard together for the sake of convenience. It is the applicants’ contention that Auxiliary Judge Chivell was therefore required to assess damages separately in relation to each of the three relevant applicants; they should have been separately liable absent any finding of a joint publication.76 In failing to do so, the applicants contend that Auxiliary Judge Chivell failed to take into account relevant considerations, failed to properly construe and apply the law, and made a decision which was irrational and/or unreasonable.77 72 Although the applicants did not address every issue raised in the Statement of Facts, Issues and Contentions, they attempted to demonstrate that this was not an attempt to appeal the merits of the decision, but rather a challenge to his Honour’s failure to exercise jurisdiction. 73 The power to determine a claim summarily should not be utilised lightly. The exercise of the power requires a practical assessment of whether the applicants have a real as opposed to a merely fanciful prospect of success.78 74 Whilst some of the issues raised by the applicants have more merit than others, this is not a case in which the overall application could be described as frivolous, vexatious or an abuse of the Court’s processes. In my view the applicants have a real as opposed to fanciful prospect of success. I am satisfied that there is a reasonable basis for the action. 74 FDN 1 at [60]-[61], FDN 26 at [13.b] and [30]. 75 FDN 1 at [10.i]. 76 FDN 26 at [13.c]. 77 FDN 1 at [64]. 78 Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1 at [78] per Debelle J. -- 18 of 27 -- [2026] SASC 70 McDonald J 17 Application to stay the execution of the judgment of Auxiliary Judge Chivell 75 It is convenient to next deal with the applicants’ application to stay the execution of the judgment of Auxiliary Judge Chivell until the judicial review proceedings are completed. 76 As previously set out, on 20 February 2025 Auxiliary Judge Chivell ordered that “there be judgment in favour of the [respondent] in the sum of $12,000.00 against the [applicants] … jointly and severally”.79 Of note, and perhaps reflecting the complexity of the issues involved, no order was made for costs with Auxiliary Judge Chivell determining both parties should bear their own costs. 77 The applicants purport to bring this application pursuant to UCR 215.4(1) which provides: (1) The Court may, if there is proper reason to do so, stay execution of a judgment or proceeding pending the hearing and determination of an appellate proceeding or application for leave to appeal on such terms as it thinks fit. 78 The difficulty with the applicants’ reliance upon this rule is that these proceedings are not appellate proceedings. UCR 256.7(3) however, which falls under “Part 6 – Judicial Review and defence of liberty proceedings”, provides: (3) The Court may at any time— (a) stay proceedings the subject of the action; or (b) suspend the operation of a decision or act the subject of the action. 79 In addition, there is also power for the Court to stay a judgment pursuant to s 17 of the Enforcement of Judgments Act 1991 (SA) which provides: 17—Stay of execution A party against whom a judgment has been given may apply to the court for a stay of execution, and the court may, if satisfied that there is a proper reason for granting the stay, grant the stay on such terms as it considers appropriate. 80 It is clear that the Court has a broad discretion as to when and in what circumstances it can stay the enforcement of a judgment pending appeal. The principles to be applied in making such a determination are uncontentious. In Brackenridge v Bendigo and Adelaide Bank Ltd,80 Livesey J, as he then was, made the following observations about the approach to be adopted in determining whether to order a stay pending the outcome of an appeal:81 Regardless whether an application is made pursuant to r 215.4 of the Uniform Civil Rules 2020 (SA), s 17 of the Enforcement of Judgments Act 1991 (SA), or the inherent jurisdiction of this Court, there is a long line of authority demonstrating that a successful litigant is 79 [2025] SADC 14 at 55 (Order 1). 80 [2020] SASC 235. 81 Brackenridge v Bendigo and Adelaide Bank Ltd [2020] SASC 235 at [14]-[15]. -- 19 of 27 -- [2026] SASC 70 McDonald J 18 ordinarily entitled to the benefit of a judgment unless and until that judgment is set aside or varied on appeal. The “norm is no stay”, such that if “there is to be a stay, cause must be shown”. As may be expected, the onus is on the party seeking the stay to justify the favourable exercise of discretion. That discretion is not to be fettered by the use of adjectives such as “special” or “exceptional”. Ordinarily, the Court will act in the interests of justice, endeavouring to balance the interests of the parties, and ultimately considering the balance of convenience. In many cases, the appellant seeking a stay must demonstrate serious issues for determination, together with the real risk of irreparable prejudice or damage in the event of a successful appeal. (Footnotes omitted) 81 In Roberts v Roberts,82 Hughes J helpfully summarised the principles that can be distilled from the various decisions of this Court dealing with the circumstances in which an application for a stay of judgment should be granted. Her Honour explained:83 A number of principles are evident from these case authorities on an application for a stay. The power to grant a stay is a broad discretionary power that ultimately turns upon the facts of each individual case and what would be in the interests of justice in the particular circumstances. The starting point is that the successful party following a trial is entitled to the benefit of the judgment and the party seeking a stay of the execution of the judgment has the onus of establishing that the particular circumstances warrant the granting of a stay in their favour. The court is required to find that the appeal is arguable, and that there is a real risk to the applicant that a prejudice or damage would be suffered if the stay were not granted, that would not be redressed on a successful appeal. If those matters are established, the Court must assess whether the balance of convenience favours the granting of a stay. That balancing exercise must be performed with reference to the interests of the parties whilst bearing in mind the onus on the applicant for a stay to demonstrate that the discretion should be exercised in their favour and a consideration of what would be just in the circumstances of the case. 82 Applying those considerations to this case, the respondent was at least in part successful on appeal. It is therefore for the applicants to establish that the particular circumstances of this case warrant the granting of a stay in their favour. 83 As I have said in the context of giving consideration to the application for summary judgment, the application for judicial review is at least arguable. 84 The prejudice relied upon by the applicants is that, in the event that they are successful on appeal, they will not be able to (or will have difficulty in) recouping the judgment sum.84 In support of this submission, the applicants rely on the respondent’s history of having been bankrupt on two occasions, most recently in December 2016.85 The petitioning creditor in the second bankruptcy was the 82 [2021] SASC 99. 83 Roberts v Roberts [2021] SASC 99 at [21]. 84 FDN 13 at [13]. 85 FDN 13 at [10]. -- 20 of 27 -- [2026] SASC 70 McDonald J 19 ATLA in circumstances in which the Court awarded the ATLA and the first applicant (amongst others) $200,000.86 85 Additionally, the applicants have raised a concern that the respondent has provided account details for payment into an entity described as the “Devine Trust” on an invoice for payment sent to them on 12 August 2025. It was the applicants’ submission that, given that judgment was in favour of the respondent personally, payment into another entity risks the distribution or dissipation of those funds to avoid recovery if the applicants are successful upon review.87 In an affidavit dated 19 November 2025,88 the first applicant deposed that at the time of the second bankruptcy the respondent was not a beneficiary of the Devine Trust and that the trustee in bankruptcy was not able to recover funds that the respondent had contributed to the trust.89 86 The applicants contended that their concerns that the respondent will dissipate the funds in a manner that will avoid their recovery in the event that the application for judicial review is successful have been heightened as a consequence of a statement recently made by the respondent in an affidavit. In the affidavit the respondent said that “it is entirely my business and not the business of the Applicants where I direct payment and how I spend monies owed to me”.90 87 It was submitted that by moving the funds to a separate entity there is prejudice to the applicants because in the event they are successful, it will be necessary for them to incur costs in attempting to recover the judgment sum if it is moved to the Devine Trust. 88 The final argument relied on by the applicants was somewhat more novel and linked to one of the issues identified on the application for judicial review, namely, the order for the sum of $12,000 was against the applicants “jointly and severally”. It was the applicants’ submission that whilst the usual starting point is that the decision of Auxiliary Judge Chivell should be treated as correct until determined otherwise, the joint and several nature of the judgment creates a prejudice between the applicants.91 In the absence of any apportionment, one applicant may be required to satisfy the judgment debt, thereby effectively meeting the liability of another in circumstances in which they ought not be jointly liable.92 89 In response to these arguments, the respondent submitted that the applicants are attempting to “undermine the integrity of the judicial process,” and “unfairly prejudice [her]”.93 She put to the Court that the applicants’ submissions on the stay application rely on speculative and irrelevant assertions, including her past 86 FDN 13 at [11]. 87 T27. 88 FDN 13. 89 FDN 13 at [12]. 90 FDN 17 at [15]. 91 T28. 92 T28. 93 FDN 17 at [16]. -- 21 of 27 -- [2026] SASC 70 McDonald J 20 bankruptcy.94 The respondent submitted that the applicants had not demonstrated any real risk of prejudice, nor had they established any real risk of dissipation of the judgment sum.95 The respondent also relied on the relatively modest amount of the judgment sum.96 90 In my view the applicants have put forward a proper basis for the execution of the judgment to be stayed pending the judicial review proceedings. Although it is an important consideration that a successful party should not be deprived of the fruits of their success, the applicants have raised a genuine issue about the dissipation of the funds before the proceedings are completed. 91 In considering the balance of convenience, it is a relevant consideration that interest will continue to accrue on the outstanding sum over the intervening period. I also do not consider that the current proceedings are “being used as an instrument of oppression or merely as a delaying tactic”,97 nor that the applicants’ financial situation will change over time such that they will become unable to pay the amount owing. 92 In coming to this exercise of the discretion, I have endeavoured to balance the interests of the parties and I have had regard to the balance of convenience and have arrived at the position that the overall justice of the case requires that the application for the stay be granted. Application for security for costs 93 In the alternative to summary judgment, the respondent has made an application for security for costs.98 Although she seeks an order in the sum of $50,000, the respondent has provided no proper basis for how she has arrived at that figure. 94 The principles governing security for costs pending an appeal are not in dispute. Generally speaking, the courts have shown a preparedness, or greater readiness, to grant security for costs when the issue in question is the costs of an appeal.99 95 The rationale underpinning that approach is that the applicants have already had the opportunity to have the matter litigated, and have had the benefit of a judicial determination of the underlying controversy.100 It is also a relevant factor, pulling in the opposite direction, that the appellants here were the defendants both in the Magistrates Court and District Court proceedings.101 94 T5. 95 T5. 96 T47. 97 Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd (No 2) [2018] SASC 152 at [23]. 98 FDN 18. 99 H, AW v K, S (No 2) [2022] SASCA 88 at [7]. 100 Blaikie v Chelliah [2023] SASCA 143 at [48]; Daikos v Mason [2010] SASC 108 at [10]. 101 Blaikie v Chelliah [2023] SASCA 143 at [48]. -- 22 of 27 -- [2026] SASC 70 McDonald J 21 96 The application for security for costs is brought under r 215.3 of the Uniform Civil Rules 2020 (SA). Under this rule, the discretion to order security for costs of an appeal is not conditioned upon a finding of special circumstances. Rather, the Court has an unfettered discretion, albeit one that must be exercised judicially and having regard to established principles. 97 These proceedings are not however an appeal and therefore it would be seen that UCR 115.1 is the relevant rule under which this application should be made. It relevantly provides: 115.1—Security for costs (1) The Court may order that an applicant in an action provide security for costs if— (a) the applicant is bringing the claim or application for someone else’s benefit; (b) the applicant is ordinarily resident outside Australia; (c) there are reasonable grounds to suspect that the action has been brought for an ulterior purpose; (d) the order is authorised by statute; or (e) the order is necessary in the interests of justice. Note— Section 1335 of the Corporations Act 2001 (Cth), section 19 of the Service and Execution of Process Act 1992 (Cth) and section 15 of the Trans-Tasman Proceedings Act 2010 (Cth) empower the Court to order security for costs in defined circumstances. (2) The Court may order a stay of the action until security is given. (3) The Court may vary or revoke an order for security for costs and may order further security. (4) If security is not given, the Court may dismiss the action. (5) If the action has been stayed under subrule (2) for 6 months without security having been given, the action is automatically dismissed for want of prosecution. (6) If the action is dismissed under subrule (4) or (5), the Court may, for special reasons, reinstate the action. 98 The UCR defines the term “action” in UCR 2.1(1) to include an originating application, which these proceedings were commenced by. 99 Given the broad discretion to be found under both the rules and the similarity in principles to the relevant considerations underlying an order for security for costs on an appeal and a judicial review, nothing turns on the difference in the expression of the tests in the two different rules. Judicial consideration and -- 23 of 27 -- [2026] SASC 70 McDonald J 22 commentary arising from an application for security for costs on an appeal has equal force on such an application made in the context of a judicial review. 100 As Doyle JA observed in Blaikie v Chelliah:102 Whilst it is important to emphasise the unfettered nature of the discretion, it is relevant to bear in mind the broad statements of principle that inform the discretion. For example, in Australian Dream Homes Pty Ltd v Stojanovski, the Victorian Court of Appeal said: The basis for making an order for security for the costs of an appeal lies in identifying a risk, which is unacceptable in all the circumstances, that the respondent to the appeal may be put to the expense of defending the judgment or decision in its favour without the benefit of expecting that, in the usual course, if it is successful in doing so, the unsuccessful appellant will be required to pay the respondent’s costs of the appeal. As already observed, the considerations that may bear on the Court’s discretion to order security are of many kinds, depending on the features of the particular case. But it is fundamental to the resolution of any application for security to identify the nature and extent of the risk in question (usually, as here, the risk as to the appellant’s impecuniosity). Although the focus of the above passage is upon a risk as to the appellant’s impecuniosity, I consider that in some cases it will be relevant to address the matter in terms of a slightly broader consideration; namely, the risk that an appellant may not be able to – or be prepared to – meet an adverse costs order without the respondent being subjected to undue delay and expense in the enforcement of that order. This was a matter emphasised by Bleby JA in H, AW v K, S (No 2), and explains the references in several other authorities to the relevance of previous defaults and delays, of both a substantive and procedural nature. (Footnotes omitted) 101 The merits of the appeal are also generally a relevant consideration.103 The extent to which it will be possible or appropriate for the Court to make such an assessment will depend upon the nature of the case and the issues raised. In a case in which the Court is in a position to form a view that the prospects of success on appeal are weak, or where the Court has concerns about the genuineness or bona fides of the appeal, then this may be a significant consideration in favour of an order for security. 102 Other considerations relevant to the justice or injustice associated with an order for security for costs on an appeal may include any risk that the appeal would be stifled by an order for security. However, as Doyle JA noted in Blaikie v Chelliah:104 … While the predominant considerations will often be the risk associated with enforcement of an adverse costs order and the merits of the appeal, it is to be emphasised that neither of these is necessarily decisive. … 102 [2023] SASCA 143 at [49]-[50]. 103 Re Badger [2021] SASCA 92 at [7]-[8]. 104 [2023] SASCA 143 at [54]. -- 24 of 27 -- [2026] SASC 70 McDonald J 23 103 The purpose of a security for costs order is to ensure that if the applicants fail, any award of costs would not be meaningless. 104 In support of this application the respondent relies primarily on allegations that she has made in affidavits about the applicants’ previous mismanagement of funds.105 These allegations are: 1. The applicants notoriously do not pay anyone. 2. The first applicant is a Director of Rangelea, a company responsible for issuing royalty payments to Adnyamathanha people. He received 60 per cent of approximately $3,000,000.00 in the past 12 months in this role. He has a notorious history of not paying people including his own family members. 3. The applicants show a lack of financial responsibility. 4. The respondent is once again being dragged into costly proceedings without assurance of recovery. 5. The applicants’ unpaid judgment debt shows they may not pay costs if they lose. 105 In support of 2, the respondent has provided a copy of an article published in the Sydney Morning Herald on 21 August 2025, which sets out a history of proceedings in this Court in relation to royalty payments, Rangelea Holdings Pty Ltd and the role of the first respondent.106 Although the article suggest that the first respondent was resistant to scrutiny in his role as a director, I would not be prepared to draw the inferences that the respondent seeks to draw from the article. 106 The respondent was also critical of the applicants’ failure to disclose their financial position, suggesting that the reason for this may well be that it would reveal that they would not be able to meet any costs orders made by the Court. 107 It was the applicants’ submission that most of what is relied upon by the respondent are bare assertions, without foundation and are irrelevant.107 108 As to 5, the applicants submitted that they are entitled to bring an application to stay the judgment sum, and doing so does not indicate any intention to avoid complying with any other orders of the Court.108 109 As to the quantum of the costs sought, the basic rule on security for costs is that the Court should have regard to the probable costs of the respondent.109 The 105 FDN 14; FDN 20. 106 FDN 14, exhibit MT1. 107 FDN 26 at [41]. 108 FDN 26 at [43]. 109 FDN 26 at [47]. -- 25 of 27 -- [2026] SASC 70 McDonald J 24 onus is on the respondent to adduce evidence to enable the Court to make an appropriate estimate. The applicants also made the point that the respondent is self-represented and as a general rule, a self-represented litigant is not entitled to recover costs for their own labour on any costs award. At most, self-represented litigants are only entitled to out-of-pocket expenses which do not include compensation for loss of time or opportunity, lost wages or travel expenses.110 110 In assessing any out-of-pocket costs that the respondent may incur in this case, the applicants made a number of pertinent observations. The originating application is for judicial review and therefore no new evidence or witnesses will be heard. Accordingly, the estimated length of the hearing will be one to two days, meaning that any transcript costs will be relatively limited, and as the nature of the hearing is directed at a review of an earlier decision, and not new evidence, there should be limited out-of-pocket expenses incurred by the respondent.111 111 During the course of submissions, the respondent raised the possibility of obtaining legal representation. She put to the Court:112 If the court is minded to allow the applicants to pursue new proceedings, fairness requires they provide security for costs. … Security is appropriate to ensure I’m left with that recourse and with an opportunity to engage legal counsel. I informed the court at my first appearance of this intention. I should not be exposed to further litigation expense without assurance of recovery. 112 The respondent told the Court that in the event that the matter proceeds, she would seek to secure the services of both a barrister and solicitor.113 When pressed on how she had arrived at the figure of $50,000, she responded:114 The breakdown was given to me by a lawyer in the east coast who said ‘You would need to have enough to cover our costs to get over here’ because I live in the east coast, obviously. Their cost to go through all the material which is substantial, their cost to have solicitor representation and counsel and there may even be a suggestion of senior counsel. 113 It is apparent from this exchange that the respondent is under the misapprehension that if an order is made for security for costs, she will receive a monetary sum from the applicants that will enable her to secure legal representation. That is incorrect. In the event that an order for security for costs is made, the money is paid into the Court and held until such time that the relevant proceedings have concluded. The making of such an order is not to enable a respondent to secure the service of lawyers that they could not have otherwise 110 FDN 26 at [44]. 111 T36-37. 112 T7-8. 113 T9. 114 T10. -- 26 of 27 -- [2026] SASC 70 McDonald J 25 afforded. It is means by which the Court may try to afford justice to both parties. As King CJ stated in Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd:115 In considering security for costs the court ought to try to do justice as between the parties. The court should protect a defendant against the loss which may result from inability to recover costs by reason of the impecuniosity of the plaintiff but should not go further than is reasonably necessary for that purpose. The provision of security for costs, which it may never be liable to pay, may place an unreasonable burden upon a plaintiff or those for whose benefit the plaintiff is suing. 114 There is nothing in the material before me to suggest that between them the applicants will be unable to meet an order for costs in the event that they are unsuccessful, particularly given the likely relatively modest nature of that order. 115 (1992) 57 SASR 180 at 189. -- 27 of 27 --