[2025] SASCA 23

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE CHIEF JUSTICE KOURAKIS) CIV-24-006680; CIV-24-006681 Applicant: GRANT THOMAS AUBREY HALL First Respondent: VIVIENNE KATHLEEN CARNEY AS EXECUTOR OF THE ESTATE OF KATHLEEN FLORENCE ELLIOTT Counsel: MR E GUTHRIE - Solicitor: ADELTA LEGAL Second Respondent: VIVIENNE KATHLEEN CARNEY Counsel: MR E GUTHRIE - Solicitor: ADELTA LEGAL Third Respondent: JAMES CAVALIER DOUGLAS AS EXECUTOR OF THE ESTATE OF KATHLEEN FLORENCE ELLIOTT Counsel: MR E GUTHRIE - Solicitor: ADELTA LEGAL Fourth Respondent: GEOFFREY GORDON ELLIOTT Hearing Date/s: On the papers File No/s: CIV-24-010525; CIV-24-010526 A 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. HALL v CARNEY & ORS [2025] SASCA 23 Judgment of the Court of Appeal (The Honourable President Livesey and the Honourable Justice S Doyle) 13 March 2025 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - APPEAL, REVIEW OR REFERENCE Application for leave to appeal against the refusal of an appeal judge to grant leave to appeal against a Master’s costs decision. The Master ordered the applicant to pay the respondents’ costs of a taxation on a standard costs basis. The appeal judge held that there were no reasons to depart from the long-settled rule that leave is not commonly granted in such cases and that there was nothing obviously wrong about the way the Master had exercised his discretion. The applicant seeks to challenge the decision of the appeal judge on various grounds. Held (the Court), refusing leave to appeal, with costs: 1. Leave to appeal is required as each appeal is against a “judgment on appeal”, r 213.1(1)(b), and is otherwise “against an order or judgment that relates to costs”, r 213.1(1)(c) of the Uniform Civil Rules 2020 (SA). 2. Apart from the usual questions arising on leave to appeal, this Court must also take into account that this is an appeal concerning costs and it is the applicant’s second attempt to appeal the primary decision. -- 1 of 6 -- 3. The applicant has failed to demonstrate manifest error or injustice. The applicant’s proposed grounds of appeal do not identify any reason to doubt the decisions of the Master or the appeal judge. There is no issue of principle or general importance raised, and allowing the decision to stand will not work any substantial injustice. 4. This matter does not warrant a grant of leave to appeal. Uniform Civil Rules 2020 (SA) rr 195.11, 213.1, referred to. Atkins v Australian Broadcasting Corporation [2024] SASCA 96; Colgate Palmolive v Cussons (1993) 46 FCR 225; Hall v Carney (No 3) [2020] SASC 177; Hall v Carney (No 3) [2021] SASCA 37; House v The King (1936) 55 CLR 499; Miojlic v City of Onkaparinga Council [2025] SASCA 2, considered. -- 2 of 6 -- HALL v CARNEY & ORS [2025] SASCA 23 Court of Appeal – Civil: Livesey P and Doyle JA THE COURT: Introduction 1 This is a second application for leave to appeal against a decision on costs in litigation which has been on foot for some years.1 2 At issue are the costs of a taxation concerning two orders for costs in two related actions, which may be treated as one. The first was made by the primary judge, who made an order barring the applicant from making any claims against his deceased mother’s estate, after six months from the service of a notice pursuant to s 29 of the Trustee Act 1936. The second order was made by the Court of Appeal in dismissing the applicant’s appeal and upholding the barring order made by the primary judge. The costs of a taxation – the offers 3 The respondents claimed nearly $51,500 for the costs incurred before the primary judge and nearly $46,500 for the costs of the appeal, a total of around $98,000. The parties failed to agree the amount to be awarded and so a taxation became necessary. 4 By email dated 2 May 2022, the applicant offered to pay $83,000. That offer was only open for a few days before it was withdrawn. Though informal, the court could have regard to that offer when determining the costs of the taxation.2 5 In October 2022, the respondents filed a formal offer in each action in accordance with the rules for a combined amount of $67,000. The applicant’s response was to reject the offer without making any counter-offer. 6 The result on the taxation was that the respondents recovered $72,000 for their costs. 7 The applicant sought the costs of the taxation.3 The orders made by the Master and the appeal judge 8 On 4 September 2023, the Master ordered that the applicant pay the respondents’ costs of the taxation on a standard costs basis. The applicant sought leave to appeal. 1 Hall v Carney (No 3) [2020] SASC 177; on appeal, Hall v Carney (No 3) [2021] SASCA 37. 2 Uniform Civil Rules 2020 (SA), r 195.11. 3 Uniform Civil Rules 2020 (SA), r 195.11. -- 3 of 6 -- [2025] SASCA 23 The Court 2 9 By orders made on 15 October 2024 following a hearing on 14 October 2024, the Chief Justice (the appeal judge) refused leave to appeal, finding that there were no reasons to depart from the long-settled rule that leave is not commonly given in cases such as this, and where there was nothing obviously wrong about the way in which the Master had exercised his discretion. The latest application for leave to appeal 10 By Notices of Appeal dated 4 November 2024, the applicant again applied for leave to appeal, this time against the orders made by the appeal judge. Leave is required because each appeal is against a “judgment on appeal”,4 and they are otherwise “against an order or judgment that relates to costs”.5 11 Usually, an application for leave to appeal to the Court of Appeal will be determined by reference to the interests of justice having regard to three, inter-related questions:6 1. whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; 2. whether the decision raises an issue of principle or general importance; and 3. whether allowing the decision to stand would work a substantial injustice to the applicant. 12 In this case there are two further considerations. The first is that this appeal concerns an issue about the costs of the parties rather than their substantive rights:7 These considerations must be applied against the backdrop of the jurisdiction that was exercised in making the decision under appeal.8 In the present circumstances, that backdrop involves a taxation of costs by a master who is a taxing officer under the rules, and hence has particular expertise in determining issues in relation to the quantum of costs.9 Further, the decision sought to be appealed, whilst including an order requiring payment of a sum of money, relates to a matter of practice and procedure, rather than the substantive rights of the parties in dispute in the proceedings. As such, it is appropriate that the Court exercise caution before granting leave to appeal.10 Appeals on costs should not be encouraged.11 4 Uniform Civil Rules 2020 (SA), r 213.1(1)(b). 5 Uniform Civil Rules 2020 (SA), r 213.1(1)(c). 6 Atkins v Australian Broadcasting Corporation [2024] SASCA 96, [24]-[25] (Livesey ACJ and Stein AJA). 7 Collins v Djunaedi [2023] SASCA 97, [33] (Doyle & Bleby JJA). 8 Wyness v Roenfeldt [2023] SASCA 77, [30] (Livesey ACJ and Bleby JA). 9 As to the substantial weight to be given to the conclusions of a specialist decision maker with particular expertise, see Pix v South Australian Housing Trust (2016) 125 SASR 10, [3] (Kourakis CJ, Bampton and Doyle JJ agreeing), applying Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1, [19] (Parker J). 10 Richani v Martins Plaza Shopping Centre Pty Ltd (No 2) [2022] SASCA 98, [5] (Livesey P and Doyle JA); Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ). 11 Ouwens Casserley Real Estate Pty Ltd v Harcourts South Australia Pty Ltd [2017] SASCFC 69, [7] (Kourakis CJ, Peek and Stanley JJ). -- 4 of 6 -- [2025] SASCA 23 The Court 3 13 The second consideration is that this is not the applicant’s first attempt to seek leave to appeal. The fact that the applicant is seeking what would amount to a second appeal warrants caution. As was recently explained:12 Of course, it is necessary to evaluate these questions recognising that this is the applicant’s second application for leave to appeal.13 Because the matter has already received comprehensive consideration by a single judge that will usually make it more difficult for an applicant to demonstrate that the interests of justice require that there be a grant of leave to appeal. Where the matter has already been considered on appeal, the applicant must be astute to clearly identify real doubt about the decision under appeal, an issue of principle or general importance, or exactly where substantial injustice arises. Complaints about the outcome, disengaged from the identification of material error, will not usually assist an applicant seeking a second appeal hearing. 14 The applicant filed amended Notices of Appeal on 20 December 2024 and the respondents do not oppose leave to amend. In addition, the applicant filed very extensive written submissions. The respondents’ written submissions were filed in late January 2025. The determination of the application for leave to appeal 15 The grounds of appeal, together with the further grounds upon which leave is sought, exceed three pages. When the paragraphs and sub-paragraphs are added, well over 30 complaints are made. It is, to say the least, unlikely that the appeal judge made so many errors when deciding whether to grant leave to appeal a costs decision. 16 A number of the applicant’s complaints are expressed in broad, vague terms, endeavouring to invoke the language of House v The King.14 For example, appeal ground 1 is as follows: As explained further below, the learned Appeal Judge mistook relevant and significant facts and law, failed to take account of material considerations and this has resulted in a judgement which is unreasonable and plainly unjust when the true facts are properly appreciated, and will result in a substantial injustice to the Appellant if the present Orders are left to stand. 17 At bottom, the applicant is simply dissatisfied with the outcome. In addition, he is displeased that greater weight was not given to his informal offer. 18 However, the applicant has failed to demonstrate manifest error or injustice.15 Moreover, the appeal judge had regard to the Master’s approach to the applicant’s informal offer and explained why it did not have the effect for which the applicant contended. First, the time limit for acceptance before it was withdrawn was inadequate. Secondly, the effect of the respondents’ subsequent offer meant that 12 Miojlic v City of Onkaparinga Council [2025] SASCA 2, [12] (Livesey P). 13 See, for example, M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27, [5]-[7] (Doyle and Livesey JJA); Sambastian v Police [2024] SASCA 79, [4] (Livesey ACJ and Bleby JA). 14 House v The King (1936) 55 CLR 499. 15 Colgate Palmolive v Cussons (1993) 46 FCR 225, 234 (Sheppard J). -- 5 of 6 -- [2025] SASCA 23 The Court 4 the offers “cancelled each other out”, as the Master described it, though the appeal judge thought that this assessment was favourable to the applicant. 19 The applicant has not identified any reason to doubt the decisions of the Master or the appeal judge. The applicant has not identified any issue of principle or general importance, and allowing the decision to stand will not work any substantial injustice. Conclusion 20 This matter does not warrant a grant of leave. 21 The application for leave to appeal must be dismissed with costs. -- 6 of 6 --