POLICE ASSOCIATION OF SOUTH AUSTRALIA & ORS v STRANGE (No 2) [2026] SASCA 63

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DART) [2025] SADC 31 First Appellant: POLICE ASSOCIATION OF SOUTH AUSTRALIA Counsel: MR C JACOBI KC WITH MR B NARULA - Solicitor: LIESCHKE & WEATHERILL Second Appellant: POLICE ASSOCIATION OF SOUTH AUSTRALIA SECRETARY BERNADETTE ZIMMERMAN Counsel: MR A HILLARY - Solicitor: WEARING & BLAIRS Third Appellant: POLICE ASSOCIATION OF SOUTH AUSTRALIA PRESIDENT MARK CARROLL Counsel: MR P CAMPBELL - Solicitor: HWL EBSWORTH LAWYERS Respondent: SAMANTHA STRANGE Counsel: MR H ABBOTT SC WITH MR M MANETTA - Solicitor: DEWAR LEGAL BARRISTERS & SOLICITORS Hearing Date/s: 21/05/2026 File No/s: CIV-26-000348 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) 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. POLICE ASSOCIATION OF SOUTH AUSTRALIA & ORS v STRANGE (No 2) [2026] SASCA 63 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice B Doyle) 10 June 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - PRELIMINARY DISCOVERY PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - OVERRIDING PURPOSE OF AND OBLIGATIONS UNDER RULES OR ACTS REGULATING CIVIL PROCEEDINGS PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO PREVENT ABUSE OF PROCESS Following the Court’s decision to allow the appeal in Police Association of South Australia v Strange [2026] SASCA 56, the parties made submissions as to costs. The appellants sought indemnity costs of the appeal to the Court of Appeal (‘the CA appeal’), the appeal to a single judge of the District Court (‘the DC appeal’) and the primary proceeding in the District Court (‘the primary proceeding’). The appellants relied, inter alia, upon the non-disclosure by the respondent (Ms Strange) of the fact that, before the pre-action discovery order was decided in the primary proceeding, she had commenced a proceeding in the Supreme Court. -- 1 of 8 -- The respondent (Ms Strange) submitted that any order in the first and third appellants’ favour in respect of the CA appeal should be their costs in the ultimate cause and limited to costs on a standard basis. She contended that the second respondent should bear her own costs of the CA appeal. Ms Strange submitted that the Court should not disturb the costs order in her favour in the DC appeal, and should make no order in respect of the primary proceeding. Held, granting the appellants’ applications for costs in part: 1. The respondent should pay the appellants’ costs of the CA appeal on a standard basis. 2. The respondent should pay the appellants’ costs of the DC appeal on a standard basis. 3. The respondent should pay the appellants’ costs of the pre-action discovery application in the primary proceeding on a standard basis. Uniform Civil Rules 2020 (SA) rr 194.6(2)(a), 194.8, 242, referred to. Police Association of South Australia v Strange [2026] SASCA 56; Poniatowska v Channel Seven Sydney Pty Ltd (No 5) [2021] SASCFC 41; Tasmanian Sandstone Quarries Pty Ltd v Tasmanian Sandstone Pty Ltd (No 2) [2009] SASC 125, discussed. -- 2 of 8 -- POLICE ASSOCIATION OF SOUTH AUSTRALIA & ORS v STRANGE (No 2) [2026] SASCA 63 Court of Appeal—Civil: S Doyle, Bleby and B Doyle JJA 1 THE COURT: On 21 May 2026, the Court gave judgment allowing the appeal to this Court, setting aside the orders made by the appeal judge and, in their place, ordering that the pre-action discovery orders made by the primary judge be set aside.1 2 These reasons address the parties’ contentions as to the appropriate costs orders in respect of the appeal to the Court of Appeal (‘the CA appeal’), the appeal to a single judge of the District Court (‘the DC appeal’) and the application for pre- action discovery at first instance (‘the primary proceeding’). 3 Ms Strange submits that the costs of the CA appeal should be PASA’s and Mr Carroll’s costs in the cause of the primary proceeding. She also submits that the appellants should pay her costs of the DC appeal, and that the costs of the primary proceeding should be left to be dealt with in that forum. 4 PASA seeks an order that Ms Strange pay each of the appellants’ costs of and incidental to the CA appeal, the DC appeal, and the primary proceeding (at least on and from the institution of the Supreme Court proceeding on 14 May 2024) on an indemnity basis. In the alternative, PASA seeks those costs on a standard basis. Mr Carroll and Ms Zimmerman adopt the same position with respect to their own costs. 5 For the reasons that follow, we would award PASA, Mr Carroll and Ms Zimmerman their costs on a standard basis in respect of the CA appeal, the DC appeal and the primary proceeding. Ms Strange’s contentions 6 Starting with the costs of the CA appeal, Ms Strange submits that the costs of arguing about the proper construction or application of UCRs r 242 in circumstances where an applicant has commenced substantive proceedings were not wasted. That issue has only been argued and determined once. Had the commencement of the substantive proceeding been disclosed before the primary judgment was given, the same or a similar argument would have been required at that time. By reason of the non-disclosure of the commencement of the substantive proceeding, the debate about the construction and application of r 242 has simply occurred in a different forum. 7 Ms Strange also contends that whilst the appellants succeeded on this issue in the CA appeal, she proposes to discontinue the substantive proceeding and may 1 Police Association of South Australia v Strange [2026] SASCA 56 at [74]. The abbreviations used in those reasons are also used in this judgment. -- 3 of 8 -- [2026] SASCA 63 The Court 2 then successfully renew her r 242 application, with the result that it may yet be that the same outcome will be reached as if the appellants had not appealed to this Court. That submission misunderstands the effect of the orders made in connection with the appeal and misconstrues paragraph [73] of our reasons. In ordering that the application for pre-action discovery be set aside, the relief sought in the originating application has been refused. Our observation at paragraph [73] was intended to convey that, conceivably, a further originating application might be made. We expressed no concluded view as to whether changed circumstances would justify that course. 8 In any event, even if the view were to be taken that it remains open, following the setting aside of the pre-action discovery orders, to move for the same orders within the same originating application, we would not favour the approach contended for by Ms Strange. From the perspective of costs, and the identification of an ‘event’, in our view, that would represent a new chapter in the dispute. It would introduce a new event. 9 We favour a simpler analysis. The appeal concerned a question in respect of which the appellants wholly succeeded. The result was to set aside the orders previously made. Whatever might happen in the future in respect of a substantially similar application made following the discontinuance of the Supreme Court proceeding, the appeal has succeeded in form and substance, and there should be a costs order reflecting this. 10 With respect to the costs of the DC appeal, it may be accepted that, had the institution of the Supreme Court proceeding been disclosed when it was instituted, the appellants could have relied upon that fact to succeed in the DC appeal. However, the fact is that the costs actually incurred in the DC appeal concerned arguments in respect of which, with one exception, the appellants failed. To award the appellants their costs of the DC appeal would be to award them costs in respect of issues on which they substantially failed. 11 As for the primary proceeding, Ms Strange points out that the Supreme Court proceeding was instituted after the Auxiliary Master had heard argument and reserved judgment. The costs were therefore incurred in relation to issues upon which Ms Strange succeeded. If the appellants were to be awarded their costs of the primary proceeding, they would recover the costs associated with unsuccessful arguments. 12 It is convenient to consider Ms Strange’s contentions about the costs of the DC appeal and the primary proceeding when considering PASA’s claim to indemnity costs in respect of those proceedings. The appellants’ contentions 13 In seeking its costs on an indemnity basis, PASA, whose submissions are adopted and relied upon by Mr Carroll and Ms Zimmerman, relies upon three propositions: -- 4 of 8 -- [2026] SASCA 63 The Court 3 (1) the non-disclosure of the Supreme Court proceeding caused wasted costs because had that proceeding been disclosed the CA appeal would never have been necessary; (2) from the time of the institution of the Supreme Court proceeding, objectively assessed, the pre-action discovery application had no reasonable prospects of success. Properly advised, Ms Strange should have appreciated she had no chance of success on and from 14 May 2024; and (3) the non-disclosure amounts to ‘unreasonable conduct of a party in connection with a proceeding’ within the meaning of UCRs r 194.6(2)(a). 14 Dealing first with the CA appeal, and assuming for the moment that the non- disclosure was ‘unreasonable conduct’, we observe that the non-disclosure was no longer operative during the appeal to this Court. The CA appeal was conducted with knowledge of the Supreme Court proceeding. Of course, the non-disclosure was what necessitated a second appeal, and it militates in favour of an award of the costs of the proceeding. But an award of indemnity costs is not designed to punish a party for conduct antecedent to a proceeding the costs of which are in issue. We therefore do not consider the non-disclosure provides any significant support for an award of indemnity costs in relation to the CA appeal. 15 Similarly, as to the first ground, we are not inclined to give much weight to the circumstance that the proceeding was only rendered necessary by the earlier non-disclosure. That provides a reason in favour of an order for costs but says little in favour of an exceptional order for indemnity costs. 16 Turning to the second ground, whilst it may be said that the Court’s decision with respect to the proper construction of r 242 was not reached on fine balance, those reasons reflect the considerable benefit of detailed written submissions and oral argument. Our reasons show that there were arguments raised by Ms Strange which required careful consideration. That they did not carry the day does not mean that, on an objective assessment, Ms Strange or her advisers should have known they had no prospects of success.2 In this context, as in others, it is important to avoid hindsight bias.3 17 In our view, the costs of the appeal should be awarded on a standard basis. 18 In respect of the DC appeal, the costs were incurred at a time when Ms Strange had not disclosed the existence of the Supreme Court proceeding. On the appeal to this Court, Ms Strange conceded that this should have been disclosed. Whilst it was not in our view to be characterised as dishonest,4 the failure to disclose the institution of the proceeding, so that the parties could explore its 2 cf. Poniatowska v Channel Seven Sydney Pty Ltd (No 5) [2021] SASCFC 41 at [14] (Kourakis CJ, Blue and Nicholson JJ). 3 Tasmanian Sandstone Quarries Pty Ltd v Tasmanian Sandstone Pty Ltd (No 2) [2009] SASC 125 at [18]-[22] (White J). 4 Police Association of South Australia v Strange [2026] SASCA 56 at [63]. -- 5 of 8 -- [2026] SASCA 63 The Court 4 consequences, was objectively unreasonable and was objectively likely to result in the appellants and the Court proceeding upon a misapprehension. That is a factor in favour of awarding indemnity costs. Against this, however, the costs that were in fact incurred related to issues about which Ms Strange was substantially successful. It may be that, had the existence of the Supreme Court proceeding been known, the appellants would not have seen fit to pursue the arguments on which they failed; they may have plumped for the shorter way home. It is not possible now to be sure what would have happened. The question is whether the unreasonable conduct inhering in the non-disclosure justifies awarding the appellants their costs associated with unsuccessful arguments on an indemnity basis. Standing back and considering the matter broadly, a fair and just result is achieved by awarding the appellants their costs of the DC appeal on a standard basis. 19 For similar but slightly different reasons we reach the same outcome in relation to the primary proceeding. The difference is that the Supreme Court proceeding was instituted after the costs were incurred arguing the application. The institution of the proceeding should have been disclosed before the primary judgment was delivered, but had this occurred it would not have avoided the costs that by then had been incurred. And, in respect of the issues as ultimately argued before the Auxiliary Master, Ms Strange was substantially successful. 20 However, as the primary judgment records,5 Ms Strange’s position with respect to pre-action discovery had ‘changed over time’. A number of propositions Ms Strange had previously relied upon were not pressed.6 The arguments raised by the appellants, whilst not successful, were not unreasonably advanced. Pre- action discovery applications may be seen, at first instance at least, as having some parallels with applications in which an applicant seeks an indulgence (such as when seeking to amend a proceeding). It will sometimes be appropriate that the respondent be compensated in whole or in part for the costs of and incidental to the application even if the application ultimately succeeds, so long as they have acted reasonably. 21 We do not suggest that this consideration justifies any presumptive approach as to the costs of reasonable but unsuccessful resistance of a pre-action discovery application. However, when it is coupled with the fact that, as events unfolded, the application ought to have failed (once the Supreme Court proceeding was instituted), a fair outcome in respect of the primary proceeding is that the appellants be awarded their costs on a standard basis. 22 This order is not intended to address any interlocutory activity occurring in the primary proceeding after the primary judgment. Any application in relation to 5 Primary judgment, [9]. 6 Primary judgment, [10]. -- 6 of 8 -- [2026] SASCA 63 The Court 5 that activity should be made to and considered by the judicial officer with carriage of those issues. 23 Nor is the order that we would make intended to interfere with any claim that the appellants may have for reasonable compensation for the time and expense involved in complying with the pre-action discovery orders whilst they were on foot.7 The second appellant 24 To this point we have dealt with the position of the appellants without differentiation. 25 Ms Strange submits that Ms Zimmerman’s costs of the CA appeal were incurred voluntarily and, essentially, unnecessarily, given that she had no documents to discover and no submissions to advance separately from those made by other parties. Ms Strange says it is not clear what assistance Ms Zimmerman was ever going to be able to provide to the Court on appeal. 26 There is some force in this. The fact is, however, Ms Zimmerman was the subject of an order which has now been set aside. The real issue, it seems to us, is whether the extent of her participation (or the costs that she might claim in connection with that participation) may be disproportionate in all the circumstances. With some hesitation we have decided that if there is ultimately a concern about this, it is a matter to be raised in the course of any taxation of costs, rather than a reason to deny Ms Zimmerman her costs of and incidental to the appeal on a standard basis. We indicate, however, that in circumstances where Ms Zimmerman did not advance and was not required to respond to any substantive submissions, we would expect the extent of the claim for standard costs in relation to the CA appeal to be modest. Conclusion 27 It is appropriate to test the conclusions reached by considering the proposed suite of costs orders holistically. 28 In this matter there have been three substantive hearings or contests. On the issues actually joined in the course of the first two contests, Ms Strange succeeded, and in the third, the appellants succeeded. However, by reason of the institution of the Supreme Court proceeding, Ms Strange ought not to have succeeded in the first contest, and neither the second nor third should have been necessary. The non- disclosure was unreasonable. Ms Strange should compensate the other parties for their costs of and incidental to the three contests. But in circumstances where some of those costs concerned particular issues on which the appellants failed, an award of indemnity costs would not be fair to Ms Strange. Costs should be awarded on a standard basis. 7 UCRs r 242.3(1). -- 7 of 8 -- [2026] SASCA 63 The Court 6 UCRs r 194.8 29 Ms Strange’s written submissions in relation to costs indicated that, subject to the orders made, she would seek the opportunity to consider an application under UCRs r 194.8. The orders we make are not intended to foreclose Ms Strange having that opportunity. -- 8 of 8 --