[2025] SASCA 131

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE B DOYLE) CIV-25-002750 Applicant: NATALE LAURO Other: MR E LAURO (AS LITIGATION GUARDIAN) Respondent: MINTER ELLISON (A FIRM) Counsel: MR R HARMS - Solicitor: MINTER ELLISON Hearing Date/s: On the papers File No/s: CIV-25-010976 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. LAURO v MINTER ELLISON (A FIRM) (No 2) [2025] SASCA 131 Judgment of the Court of Appeal (The Honourable President Livesey and the Honourable Justice Bleby) 19 November 2025 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS The Court of Appeal dismissed applications to disqualify members of the present coram from sitting, and it dismissed an application for leave to appeal the decision of a judge of the General Division. The underlying dispute concerns the taxation of the fees of a law firm who had previously represented the applicant. The respondent law firm seeks its costs of the applications on an indemnity basis or, alternatively, on the standard basis. The applicant, by his son, opposed the award of any costs on any basis. The applicant’s son is his litigation guardian, and no objection was made to him representing his father. Held (the Court): 1. In order to demonstrate a basis for an indemnity costs order, it is usually necessary to demonstrate that, with proper consideration, the case should have been seen to be hopeless. 2. Whilst the Court is satisfied that the applications made by the applicant were wholly without merit, the Court is not satisfied that, in the circumstances of this case, it is appropriate to make an award of indemnity costs. 3. The applicant must pay the respondent’s costs on the standard basis. Uniform Civil Rules 2020 (SA) rr 2.1, 25.6, 194.3, 101.6, referred to. Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397; Gassy v The King [2023] SASCA 90; In the Estate of Amuso (No 2) [2021] SASC 61; J-Corp Pty Ltd v Australian Builders Labourers -- 1 of 8 -- Federated Union of Workers (No 2) [1993] FCA 70; Lauro v Minter Ellison (A Firm) [2025] SASCA 116; McVicars v South Australian Housing Trust [2025] SASCA 52; McVicars v South Australian Housing Trust (No 3) [2025] SASCA 75, considered. -- 2 of 8 -- LAURO v MINTER ELLISON (A FIRM) (No 2) [2025] SASCA 131 Court of Appeal – Civil: Livesey P and Bleby JA THE COURT Introduction 1 On 9 October 2025, this Court dismissed applications to disqualify members of the present coram from sitting, and it dismissed an application for leave to appeal the decision of a judge of the General Division.1 2 The underlying dispute concerns the taxation of the legal fees of a law firm who had previously represented the applicant. 3 The matter before the Court of Appeal was heard on the papers. The Court granted the parties leave to file written submissions concerning the question of costs. 4 The respondent law firm seeks its costs of the applications on an indemnity basis or, alternatively, on the standard basis. 5 The applicant, by his son, opposes the award of any costs on any basis. The applicant’s son is his litigation guardian and, at present, no objection has been made to him representing his father.2 Contentions of the respondent law firm 6 Relying upon the Uniform Civil Rules 2020 (SA), the respondent contended that costs follow the event and, though they are ordinarily awarded on a standard basis, the Court has a discretion about the basis for any award.3 7 The respondent contended that the discretion toward indemnity costs will be enlivened where there are special or unusual circumstances justifying a departure from the ordinary rule. Examples given were where:4 1. A party persists with what should on proper consideration be seen as a hopeless case; 1 Lauro v Minter Ellison (A Firm) [2025] SASCA 116. 2 See Lauro v Minter Ellison (A Firm) [2025] SASCA 116, [2] and footnote 2 (Livesey P and Bleby JA). 3 Uniform Civil Rules 2020 (SA), r 194.3; See In the Estate of Amuso (No 2) [2021] SASC 61, [4] (Stanley J). 4 Written submissions of the respondent dated 22 October 2025, [4], relying on J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (No 2) [1993] FCA 70, Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397, 401 (Woodward J) and Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, [4] (Sheppard J). -- 3 of 8 -- [2025] SASCA 131 The Court 2 2. There is evidence of misconduct which causes loss of time to the Court and other parties; 3. The proceedings were commenced in wilful disregard of known facts or clearly established law; and/or 4. The case is unduly prolonged by groundless contentions. 8 The categories of case warranting an order for indemnity costs is not closed and the Court’s costs discretion is unfettered. 9 The respondent law firm highlighted the following considerations:5 1. There was no merit in the complaints that the appeal judge had erred, whether in fact or law, or in connection with the proper application of legal principles; 2. The contentions made about weight were without merit; 3. There was no reason to doubt or reconsider the impugned decisions; 4. No issue of principle or of general importance was raised; 5. The applicant failed to identify any substantial injustice if the decisions were allowed to stand; and 6. Whether considered individually or cumulatively, there was nothing in the applicant’s contentions regarding the disqualification of Livesey P or Bleby JA which gave rise to the requisite apprehension of bias. 10 In addition, the respondent law firm relied on a letter that it sent on 24 September 2025 in which it told the applicant that any appeal was bound to fail, questioned the conduct of the proceedings by the litigation guardian and put the applicant on notice that it would seek indemnity costs should he proceed. 11 The respondent contended that the applicant acted unreasonably in seeking the disqualification of Livesey P and Bleby JA because there was no proper factual basis and this added unnecessarily to the complexity of the proceeding. It was contended that the applicant should have known that the proposed appeal had no chance of success and had previously been involved in many proceedings and appeals. It was suggested that the applicant should not be permitted to avoid the consequences of making unmeritorious appeals by reason of not having engaged solicitors.6 5 Written submissions of the respondent dated 22 October 2025, [6]. 6 Written submissions of the respondent dated 22 October 2025, [8]. -- 4 of 8 -- [2025] SASCA 131 The Court 3 The contentions of the applicant 12 The applicant commenced with a submission made by his son that his response should be treated as a preliminary response. He did so on the basis that he had been unwell and hospitalised and that this had been disclosed to the Court. He said that the hearing had been determined on the papers without affording him “as the legally unrepresented Appellant’s litigation guardian, a fair opportunity to be heard”. It was additionally contended that legal advice was required to enable the preparation of a full and proper response. Reliance was placed on r 101.6(2) of the Uniform Civil Rules 2020 (SA) to request 14 days to file and serve final submissions on the issue of costs. 13 Nonetheless, “and subject to further necessary legal advice”, the applicant made the following submissions that no costs on any basis should be awarded. These submissions included, but were not limited to: 1. Discretion of the Court: The Court has absolute discretion in respect of costs, including the discretion not to follow the general principle that costs follow the event. 2. Summary Dismissal and Lack of Complexity: The general principle that costs follow the event should not be applied in this matter because, by dismissing the Appellant’s applications summarily, the Respondent has not had to deal with any complexity, contrary to its assertion. 3. Recusals and Procedural Irregularities: The Respondent should not be awarded any costs — let alone on an indemnity basis — because, among other things, the letter referred to and attached to the Respondent’s written submissions on costs (FDN 12) was not received. Moreover, by its own acceptance in FDN 6, recusals are ultimately “a matter for the individual Justices to decide.” 4. Unfair Benefit from Summary Dismissal: The Respondent should not benefit from any cost order arising from a summary dismissal of applications that were duly filed but not heard and determined, or based on criticism of the Appellant’s application where the Court provided no opportunity for the Appellant to file submissions in reply to FDN 6. 5. Respondent’s Misconduct or Unreasonable Conduct: The Respondent should not be allowed to benefit from any cost order where it has generated costs through misconduct, unreasonable conduct, or breach of overarching obligations. These factors warrant consideration by the Court in exercising its discretion against making a cost order in favour of the Respondent. UCR Rule 194 refers. 6. Ongoing Proceedings: Further interlocutory or appellate proceedings are anticipated in this matter, and the underlying taxation of costs represents a significant set-off in favour of the Appellant. Accordingly, it would be inappropriate for the Respondent to be awarded costs at this stage. The determination of the costs application 14 Although the respondent law firm has questioned whether the applicant’s son should continue to represent him, no objection was made before the matter was determined by the Court of Appeal. In any event, the submissions of the -- 5 of 8 -- [2025] SASCA 131 The Court 4 respondent tend to conflate two matters. The first is whether the applicant’s son should be appointed his litigation guardian. That requires a determination as to whether the applicant is a “person under a legal incapacity” within the meaning of r 2.1 of the Uniform Civil Rules 2020 (SA) and that a litigation guardian should be appointed.7 The second matter, distinct from the first, is whether it is appropriate for the applicant’s son to speak for him. There is no right to representation by a non-lawyer.8 From time to time, the court may give leave to a person to assist another in the presentation of a case. That person is often described as a McKenzie friend. However, a McKenzie friend is not normally permitted to speak, but merely to assist a litigant in court. Whilst the court has power to allow a person to appear as a lay advocate, the discretion to permit that to occur will usually only be exercised in exceptional circumstances.9 15 No objection was taken to the role of the applicant’s son as litigation guardian, or as lay advocate, and absent an objection and an inquiry into the relevant considerations this Court has no information which would enable those matters to be appropriately addressed. The determination of a costs application is not the occasion to consider these matters or any submissions in relation to them. This means that we reject the contention of the respondent that the role of the applicant’s son and his conduct of these proceedings should be taken into account as a factor in favour of or relevant to the determination of the application for indemnity costs. 16 Equally, however, we do not think that it would be proper to allow the determination of costs to be delayed by the desire of the applicant’s son to obtain legal advice. We refer to but do not repeat the matters addressed regarding our decision to proceed on the papers notwithstanding the application to adjourn.10 In the absence of information from the applicant, and given that the matter concerns costs, we are not prepared to defer the determination of costs for an indeterminate period in the manner suggested. 17 The principles relating to the unfettered discretion of the Court concerning an award of costs are well understood and need not be repeated. On the face of it, the applicant has failed and should pay the respondent’s costs. 18 Here, the respondent contends that the discretion to award indemnity costs has been enlivened.11 In overview, the respondent points to the lack of merit in the 7 See McVicars v South Australian Housing Trust [2025] SASCA 52, [9]-[10] (Livesey P) and the cases there cited. 8 Uniform Civil Rules 2020 (SA), r 25.6(1). 9 McVicars v South Australian Housing Trust (No 3) [2025] SASCA 75, [6]-[12] (Livesey ACJ) and the cases there cited. 10 Lauro v Minter Ellison (A Firm) [2025] SASCA 116, [10] (Livesey P and Bleby JA). It is, however, noteworthy that, even at this point, no medical certificate has been produced and no detailed information has been given about Mr E Lauro. No information has been given about the applicant either but, as the application is only based on submissions concerning the ill-health of Mr E Lauro the issue is only considered on that basis. 11 Pascoe Ltd (in liq) v Lucas (1999) 75 SASR 246, [313]; Doerr v Gardiner (No 2) [2024] QCA 21, [19]. -- 6 of 8 -- [2025] SASCA 131 The Court 5 arguments of the applicant, together with what it submits was the inappropriate objection to Livesey P and Bleby JA sitting. The respondent also relies on the written warning it gave to the applicant before the matter was considered by the Court of Appeal, in which its concerns were addressed in some detail. 19 Whilst it is apparent that there have been increasing numbers of cases involving unrepresented litigants, and that in a significant proportion of those cases objections to judges sitting are made on the grounds of ostensible bias, we do not regard that as a significant matter concerning the determination of the present costs application. Whilst it added somewhat to the argument and determination of the matter, it did not unduly complicate it or delay it in a way which suggests that it supports an application for indemnity costs. Having said that, each matter must be determined according to its own facts and circumstances, and we do not suggest that this factor, standing alone, could never support an application for indemnity costs. 20 Whilst we are prepared to take that approach on this application, we do so with some diffidence given the applicant’s apparent preparedness to make repeated applications of this kind in these proceedings. The applicant cannot assume that if further applications of this kind are made, the approach we have taken to costs will be taken by the courts below. It will be a matter for those judges to address any costs questions on their merits having regard to the information before the court. That information will include, of course, the fact that a number of applications for recusal or disqualification have been made and determined, and clear explanations have been given about the proper principles to be applied. 21 The letter from the respondent dated 24 September 2025 put the applicant on notice that unless the appeal was withdrawn, the respondent reserved the right to seek costs on an indemnity basis. The letter was sent at a time when the respondent did not have access to the appeal papers. Rather, the respondent referred to the decisions made by the appeal Judge and asserted that “any application for leave to appeal … would be without merit”. 22 Most of that correspondence was taken up with foreshadowing an application to seek costs personally from the applicant’s son. The applicant was also warned that the respondent may seek security for costs. As it transpired, neither of those applications were made. 23 Whilst the correspondence is relevant to the respondent’s application for indemnity costs, we are not inclined to give it any significant weight in circumstances where the reasons why the application for leave to appeal lacked merit were not explained. Whilst the respondent might well say that it did not have access to the appeal papers because they were not appropriately served, it was always open to the respondent to supplement its correspondence with correspondence in the usual form outlining the reasons why the application was said to lack merit. -- 7 of 8 -- [2025] SASCA 131 The Court 6 24 In these circumstances, we are left with the fact that the application for leave to appeal was without merit. Ordinarily, that would justify a costs order but not necessarily an indemnity costs order. In order to demonstrate a proper basis for an indemnity costs order, it is usually necessary to demonstrate that, with proper consideration, the case should have been seen in prospect to be hopeless. 25 As to the submission made by the respondent about the applicant’s lack of legal representation, we would prefer to say that the Court should be slow to allow an unrepresented litigant to rely upon an absence of legal representation as a reason to oppose the making of an order for costs, including an order for indemnity costs, which should otherwise be made. 26 The tension here is between recognising that many unrepresented litigants cannot afford legal representation, and recognising that a party who is legally represented should not be placed at a disadvantage because of that representation. The Court must strive to do justice regardless whether parties are legally represented. It must approach the determination of disputes in an objectively even- handed and impartial manner. It cannot be seen to favour the legally represented party, nor can it be seen to effectively take up the case of the unrepresented party, making the arguments that it did not make. The need to approach the determination of disputes between represented and unrepresented parties creates, at times, a tension that must be carefully observed and balanced.12 27 We have considered the contentions made by the applicant, set out earlier. Whether considered individually or as a whole, they do not answer the application for costs, including indemnity costs. Whilst it is true that the respondent said that recusal is ultimately a matter for the individual judges to decide, submissions were made in response to the applications made by the applicant on that issue. 28 The assertions made about unfair benefit and misconduct or unreasonable conduct are without any basis. Insofar as the applicant threatens further interlocutory or appellate proceedings, and suggests that the underlying taxation represents a significant set-off in favour of the applicant, it is a little difficult to know what lies behind that submission. Depending upon the outcome of the taxation and the balance of costs then appearing at that stage, it will be open to each party to make submissions about orders having the effect of a set-off. 29 Whilst we are satisfied that the applications made by the applicant were wholly without merit, we are not satisfied that, in the circumstances of this particular case, it is appropriate to make an award of indemnity costs. Conclusion 30 The applicant must pay the respondent’s costs on the standard basis. 12 Similar issues were touched on in Gassy v The King [2023] SASCA 90, [33]-[39] (Livesey P, David JA and Stein AJA). -- 8 of 8 --