GORDON BENSON MARSHAL v PAROLE BOARD OF SOUTH AUSTRALIA [2024] SASC 9

Applicant: GORDON BENSON MARSHAL Counsel: MR J MARCUS - Solicitor: JON LISTER BARRISTER & SOLICITOR First Respondent: PAROLE BOARD OF SOUTH AUSTRALIA Counsel: MS E FERGUSON - Solicitor: CROWN SOLICITOR (SA) Second Respondent: DEPARTMENT FOR CORRECTIONAL SERVICES Counsel: MS E FERGUSON - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 24/12/2021, 28/01/2023, 25/03/2022, 01/04/2024, 22/01/2024, 19/10/2022, 12/12/2022, 13/01/2023, 03/04/2023, 07/08/2023, 15/09/2023, 06/12/2023 File No/s: CIV-21-012719 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. MARSHAL v PAROLE BOARD OF SOUTH AUSTRALIA & ANOR [2024] SASC 9 Judgment of the Honourable Justice McDonald 25 January 2024 ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - COSTS ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS This was an application for judicial review of a decision made by the Department of Correctional Services declining to transfer the Applicant to the Adelaide Pre-release Centre and also the decision made by the Parole Board refusing an application for release on parole. The Applicant initially sought that the decision to refuse accommodation at the Adelaide Pre-release Centre be quashed and that the application for parole be heard and determined forthwith. On 12 September 2023, the Applicant filed a notice of discontinuance and submitted that an order for costs should not be made. The second respondent, the Parole Board presses that an order for costs be made in their favour. Held: The Applicant pay the Respondent's costs from 17 November 2022 on a party/party basis, the date on which the Applicant became eligible to make a fresh parole application. Correctional Services Act 1982 (SA) s 67; Migration Act 1958 (Cth); Uniform Civil Rules 2020 (SA) s 194, referred to. Latoudis v Casey (1990) 170 CLR 534; Re The Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; Northern Territory v Sangare (2019) 265 CLR 164, applied. -- 1 of 15 -- Minister for Immigration & Citizenship v Li (2012) 249 CLR 332; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230., considered. -- 2 of 15 -- MARSHAL v PAROLE BOARD OF SOUTH AUSTRALIA & ANOR [2024] SASC 9 Civil: Costs McDONALD J. 1 On 16 November 2021 Mr Marshal filed an originating application for judicial review of the decision of the Department of Correctional Services (‘DCS’) to refuse to transfer him to the Adelaide Pre-release Centre (‘APC’) and of the failure of the Parole Board to have finally determined an application for release on parole instituted by Mr Marshal in November 2017. 2 On 12 September 2023, after a series of amendments to the originating application, numerous court hearings and administrative adjournments, Mr Marshal filed a notice of discontinuance. Prior to that time the Respondents’,1 had been required to file their response and provide affidavits and written submissions. 3 Ordinarily, in such circumstances an order for costs would follow the event. Mr Marshal challenges the making of that order and submits no costs order should be made. The second respondent, the Parole Board presses that an order for costs be made in their favour. Background 4 To put the competing submissions into context, it is necessary to set out some of the background to this matter. 5 In 1986 Mr Marshal was convicted of the offence of murder. At that time he was 17 years old. Mr Marshal was detained at the Governor’s pleasure. That was converted to life imprisonment by reason of amendments to the Criminal Law (Sentencing Act) 1988 (SA). On 7 August 1989, a non-parole period of 13 years and six months was fixed to commence from 17 April 1986. By force of the Statues Amendment (Truth in Sentencing) Act 1994 (SA) this became nine years, two months, 25 days and was due to expire on 11 July 1995. Mr Marshal absconded from the Cadell Training Centre in 1995. He was released on parole in June 1996 but returned to custody four days later due to breaches of his parole conditions. He was again released in September 1996 and remained in the community for three and a half years until convicted of further offences resulting in his parole being cancelled in 2000. Mr Marshal was again released on parole in 2007, but this was cancelled on 22 May 2008 due to him having committed further offences. 6 In 2014 Mr Marshal was transferred to the APC however was removed on the basis of a positive alcohol test. In 2016 he was given the opportunity of a 1 Although the Parole Board and the Department of Correctional Services were the Applicants on the argument for costs for ease of reference I will continue to refer to them as the Respondents. -- 3 of 15 -- [2024] SASC 9 McDonald J 2 further transfer to the APC however whilst there he absconded. He remained at large for a significant period of time with the circumstances of his arrest resulting in a police siege. Mr Marshal had attended at the District Court and told a sheriff’s officer that he had explosives strapped to his body and that he was going to blow himself up. When police attended Mr Marshal told them that he wanted to speak to a judge, a lawyer or the ABC. Eventually it was determined that there were no explosives and Mr Marshal was arrested with considerable attendant publicity. 7 Since that time Mr Marshal has applied for parole on a number of occasions. Relevantly, to these proceedings Mr Marshal made an application for parole on 10 November 2017. It is not necessary to traverse the series of events that followed from that application other than to note that on 9 February 2021 the Parole Board interviewed Mr Marshal. 8 The result of that interview was that the Parole Board recommended that Mr Marshal have the opportunity of parole and in order to aid resocialisation in advance of being released, he should be transferred to the APC. The plan was that the Parole Board would review Mr Marshal’s situation three months after his transfer to the APC. 9 This recommendation appears to have then become the sticking point in any move towards Mr Marshal being granted parole. The reason for this is that whilst the Parole Board can make such a recommendation, the movement of prisoners between institutions is the responsibility of the DCS and relevantly here the Serious Offender Committee. 10 On 10 March 2021 the solicitor acting on behalf of Mr Marshal was advised that the Serious Offender Committee was not prepared to move Mr Marshal to the APC on the basis of Mr Marshal’s conduct on earlier occasions when he had been accommodated in that institution. In particular there were concerns about the risk of Mr Marshal absconding and his high security rating. 11 It is that decision that was the subject of the initial originating application. 12 A chain of correspondence between Mr Marshal’s solicitor, the Parole Board and the Chief Executive of DCS then ensued. This resulted in a further Parole Board interview with Mr Marshal on 20 July 2021. On that occasion the Parole Board resolved to obtain a psychological assessment of Mr Marshal. 13 There appears to have then been a delay in obtaining that assessment such that on 8 September 2021 Mr Marshal’s solicitor was advised that the report was not returnable until 7 December 2021. 14 I am advised that it was at this point having arrived at the 4 year anniversary of the application for parole, Mr Marshal determined to make an application for judicial review. -- 4 of 15 -- [2024] SASC 9 McDonald J 3 15 Following on from the receipt of that advice, on 16 November 2021 Mr Marshal filed the application for judicial review. He sought a writ of mandamus “the chief purpose of which was to cause the determination of his application for parole and to attempt to resolve what was alleged to be an impasse between the Parole Board and the prison regarding the placement of the applicant.”2 16 Curiously on 17 November 2021 the Parole Board resolved to refuse Mr Marshal’s application for parole despite having previously indicated that they wished to obtain a psychological assessment. 17 Counsel for the Parole Board, Ms Ferguson was not in a position to provide an explanation as to why that occurred other than to make the observation that the Parole Board acknowledge that they had not afforded procedural fairness in that they subsequently advised Mr Marshal’s solicitor that they would reconsider the decision of 17 November 2021 upon receipt of the psychological report. 18 Be that as it may, this turn of events resulted in a recasting of the originating application such that it now included the 17 November 2021 decision. An amended application for judicial review was filed on 20 January 2022.3 19 A psychological report was obtained by the Parole Board in early 2022. The author of that report assessed the risk of Mr Marshal re-offending was moderate/high. 20 Mr Marshal was reinterviewed by the Parole Board on 22 March 2022. 21 On 14 April 2022 Mr Marshal’s solicitor was advised that the Parole Board had resolved to confirm its earlier decision. The Parole Board again recommended that Mr Marshal be transferred to the APC or alternatively that one-on-one psychological intervention be made available to him. As to the former the Serious Offender Committee maintained their position and did not approve Mr Marshal’s transfer to the APC. 22 On 30 May 2022 the Chief Executive of DCS wrote to Mr Marshal’s solicitor and advised her that Mr Marshal’s security was to be reduced to ‘low’ and a placement at Mobilong Prison had been endorsed. Further, that Mr Marshal’s placement at the Cadell Training Centre would be considered at his next case review which was due on approximately 9 March 2023. 23 On 5 September 2022 Mr Marshal’s solicitor received further correspondence from the Chief Executive of DCS advising that the Serious Offender Community did not approve Mr Marshal’s placement at APC but that they had however recommended that Mobilong Prison refer Mr Marshal to the 2 Applicant’s written submissions. 3 FDN 8. -- 5 of 15 -- [2024] SASC 9 McDonald J 4 OARS SMART Recovery Program. That referral had been made on 30 August 2022. 24 As of 17 October 2022 Mr Marshall had not yet commenced any programs, intervention or counselling at Mobilong Prison. The events that occurred between April and October 2022 resulted in a further iteration of the application for judicial review being filed on that date.4 25 At a directions hearing, two days later on 19 October 2022 Mr Marshal was granted leave to proceed on the originating application amended on 17 October 2022. The Respondents’ were required to file their response and accompanying documents by 29 November 2022. 26 On 15 November 2022 Mr Marshal filed a new application for parole. He did so on the basis that a year had passed since the Parole Board’s decision to refuse parole. 27 Division 3 of the Correctional Services Act creates the statutory regime for the release of prisoners on parole. Section 67 provides for the release of a prisoner on parole by application to the Parole Board. 28 Section 67(9) relevantly reads: S 67 – Release on parole by application to Board (9) The Board must, not more than 30 days after refusing an application by a prisoner for release on parole, notify the prisoner in writing of – (a) its refusal; and (b) the reasons for its refusal and of any matters that might assist the prisoner in making any further application for parole; and (c) a date, not less than six months or more than one year after the date on which the Board refuses the application, before which the Board will not accept any further application by the prisoner for release on parole. (Emphasis Added) 29 On 6 December 2021, the Parole Board wrote to Mr Marshal and advised him of the decision made on 17 November 2021 to refuse parole. In that letter they advised that he may reapply in 12 months’ time. 30 It follows that from 17 November 2022 Mr Marshal was at liberty to make a fresh application for parole and consequently had an alternative remedy open to him. 31 It was the Respondent’s submission that at that point all utility for the judicial review fell away. Even had Mr Marshal established jurisdictional error the remedy 4 FDN 13. -- 6 of 15 -- [2024] SASC 9 McDonald J 5 is discretionary. That discretion was unlikely to have been exercised in circumstances in which Mr Marshal had an alternative avenue open to him. 32 That date is particularly relevant because the bulk of the work that was undertaken was in the writing of submissions and preparing the arguments for a hearing in January 2023. Both of these events post-dated the fresh parole application. 33 As required, on 30 November 2022 the Respondents’ filed their response and accompanying affidavit. One of the documents exhibited to that affidavit was a letter from the Sentence Management Unit dated 24 November 2022 advising that on 7 November 2022 Mr Marshal had commenced the SMART Recovery Program. 34 The parties filed their written submissions on 7 December and 20 December 2022. On 10 January 2023 the Respondents’ filed a further affidavit advising that Mr Marshal had been transferred to the Cadell Training Centre on 13 December 2022. This was a further step towards his release on parole. It was an alternate route to that initially suggested that involved Mr Marshal transitioning through the APC. 35 On 21 March 2023 Mr Marshal was re-interviewed by the Parole Board. On 28 March 2023 the Parole Board advised of their intention to defer the application for three months pending a progress report from the Cadell Training Centre in relation to Mr Marshal’s behaviour and progress. 36 On 5 July 2023 the Parole Board reviewed Mr Marshal’s application and resolved to re-interview him on 29 August 2023. A further interview occurred on that date. 37 On 1 September 2023 Mr Marshal’s solicitor was advised that the Parole Board had determined to grant Mr Marshal parole subject to him spending three months at the APC followed by a period of review. On the basis of that information Mr Marshal decided to discontinue the judicial review proceedings and on 12 September 2023 a notice of discontinuance was filed.5 38 Before considering the competing arguments on this application it is convenient to make a couple of general observations about the chronology of events that I have set out. 39 Regardless of what had occurred previously, since 9 February 2021, there have been a number of efforts on the part of the Parole Board to progress Mr Marshal’s case. At times things appeared to progress slowly and there would no doubt have been frustrations on the part of Mr Marshal, however this was not a situation in which the Parole Board took the view that Mr Marshal had hit a roadblock and exhausted his opportunity for parole. Rather the Parole Board were 5 FDN 30. -- 7 of 15 -- [2024] SASC 9 McDonald J 6 progressing the matter in a cautious and measured way no doubt mindful of the need to not expose the community to any unnecessary risk by releasing Mr Marshal prematurely given his history. The Law 40 There are a number of rules in the Uniform Civil Rules 2020 (SA) (“UCR”) that govern the question of costs. 41 Rule 194 relates to the general discretion of the Court to make an order for costs. Relevantly, it provides: 194.1—Costs may be ordered at any stage (1) The Court may make an order for costs in favour of a party or non-party and against a party or non-party at any stage of a proceeding up to and after the final determination of the proceeding. … 194.5—General costs principles (1) Each of the following principles are subject to— (a) the presumptive costs rules in rule 194.4 (to the extent that the Court does not otherwise order); (b) other applicable rules; (c) other applicable principles; and (d) the overriding discretion of the Court as to costs. (2) Costs follow the event. (3)–(11)… 42 Rule 194.6 provides that in exercising its discretion as to costs, “the Court may have regard to any factors it considers relevant”. 43 Rule 141 relates specifically to the discontinuance of proceedings. It provides that where, such as here, there is a discontinuance without consent or leave, the applicant is liable to pay the costs of the respondent against whom the claim is discontinued up to the date of service of the notice of discontinuance on the standard costs basis. 44 Generally, the UCRs reflect the common law on costs, which is that costs are entirely discretionary but generally costs follow the event. The relevant principles were discussed by McHugh J in Latoudis v Casey:6 6 (1990) 170 CLR 534, 568. -- 8 of 15 -- [2024] SASC 9 McDonald J 7 In civil proceedings, the relevant statute or rule often provides that costs follow the event unless the court thinks that some other order should be made. But even when the discretion is uncontrolled, civil courts act on the basis that a successful party has a reasonable expectation of obtaining an order for costs and that the discretion to refuse to award costs should not be exercised against the successful party except for a reason connected with the case. 45 During submissions, both counsel made reference to Re The Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (“Lai Qin”).7 In that matter there was an application for a protection visa under the Migration Act 1958 (Cth) which was refused by the Minister. The prosecutrix commenced proceedings in the High Court for an order nisi for writs of prohibition, certiorari and mandamus directed to the Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal. Before the application was heard, the Minister exercised his discretion to grant a protection visa to the prosecutrix. The issue that arose for consideration was whether, in those circumstances, the respondent should pay the costs of the prosecutrix. In that context McHugh J set out the principles which govern an application for costs when a party elects to not pursue an action because they have achieved the relief sought either by settlement or in circumstances in which the prosecution becomes futile.8 In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where 7 (1997) 186 CLR 622. 8 (1997) 186 CLR 622, 624-625. -- 9 of 15 -- [2024] SASC 9 McDonald J 8 his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases. (Footnotes omitted) 46 In Lai Qin, the crucial question was the reasonableness of the prosecutrix in bringing the proceedings and whether the respondents acted unreasonably in not informing the prosecutrix that an application to review the decision was being considered by the Minister. It was determined that both parties had acted reasonably in commencing and defending the proceedings in a sensible manner and, consequently, there was no order for costs in the proceeding. 47 It was agreed by both parties that the principles set out in Lai Qin are central to this application for costs. Did Mr Marshal act reasonably in commencing and defending the proceedings up until 12 September 2023? 48 Counsel for Mr Marshal, Mr Marcus, contended that his client commenced the litigation in good faith and on the basis of an arguable case, but due to circumstances beyond his control the utility of the application was lost. Further, that during the time that the proceedings remained on foot, he conducted the case competently, co-operatively, and efficiently. It was submitted that at all times he behaved reasonably, including the filing of the notice of discontinuance in a timely manner when it became apparent that the application no longer had any merit. 49 As to the reasonableness of the decision to institute proceedings, Mr Marcus suggested that an important consideration in determining this question is that Mr Marshal is a prisoner who has been sentenced to life imprisonment. It follows that the only means by which he can be released from custody is with the approval of the Parole Board.9 There is no internal review mechanism, nor is there a right of appeal from that decision. The only means of challenge open to someone in Mr Marshal’s position is to seek judicial review of that decision. 50 It was submitted that Mr Marshal found himself caught in the middle of an unreasonable impasse between the Parole Board and the Serious Offenders Committee which he had no ability to navigate. From his perspective, he had been caught in that situation for over four years. 51 It was submitted that although there were some hurdles for Mr Marshal to overcome in order for the application to be successful, this is not a situation in 9 Correctional Services Act 1982 (SA) s 67. -- 10 of 15 -- [2024] SASC 9 McDonald J 9 which his case was patently unarguable. Mr Marcus contended that there is no South Australian reported authority that deals with the issue of the Parole Board failing to exercise jurisdiction and finally determine an application for parole. 52 Mr Marcus accepted that the situation significantly shifted for Mr Marshal on 17 November 2022 when he became eligible to make a fresh application for parole and the utility of the application for judicial review fell away. It was submitted however that given the costs are entirely discretionary it is a relevant factor that at no stage either before or after that date did the respondent make an application for summary dismissal. Mr Marcus encapsulated his submission on this topic in the following terms:10 …obviously accommodations and agreements at the bar table are desirable but, in my submission, for a model litigant to say “well this matter ran on for a very long time, far beyond its life expectancy – or indeed when it should have; when that occurred by their consent as well, it is a bit of having one’s cake and eating it too, to then heap the fault for all of that at the applicant’s feet. 53 I do not accept that submission. I make the observation that throughout the history of this litigation counsel and the solicitors for both parties have conducted themselves in an exemplary manner. It is to their credit that the waste of the Court’s time has been kept to a minimum. The pragmatic, flexible approach adopted by Counsel for the respondent is something that ought to be encouraged not penalised. 54 It was Mr Marshal who instituted these proceedings. In doing so he would have been advised of the risks of an order for costs being made against him. He chose to continue this litigation for over two years. It is not an answer to the predicament in which he now finds himself to say that the Respondents, who had no choice but to incur costs of responding to the application, now bear the costs of his decision on the basis that they did not attempt to stop him proceeding. 55 As to the reasonableness of the manner in which Mr Marshal conducted the litigation, Mr Marcus submitted:11 … he behaved reasonably throughout the whole process, by engaging with the other parties, seeking adjournments administratively as much as could be done and putting the other parties on notice that changes of circumstances required the matter to go off. 56 Ms Ferguson, who appeared for the respondent, accepted that in determining whether Mr Marshal behaved reasonably in instituting these proceedings, it was only necessary for him to demonstrate that there was an arguable case. Having made that concession, she went on to make out an argument that, on the facts of this case, the Parole Board was almost certainly going to succeed. In the 10 T19. 7-15. 11 T20.18-22. -- 11 of 15 -- [2024] SASC 9 McDonald J 10 alternative, Ms Ferguson submitted that at least since November 2022, the applicant acted unreasonably in maintaining the proceedings. 57 Ms Ferguson’s primary argument was based on the nature of the two decisions that were under challenge. These were the decisions of the DCS made on 10 March 2021 to decline to transfer Mr Marshal to the APC and the decision made by the Parole Board on 17 November 2022 to refuse parole. In essence, it was Ms Ferguson’s submission that for the application to succeed it would be necessary for Mr Marshal to establish unreasonableness on the part of the decisionmakers, in other words, to establish that the decisions were not within the norms of a decision that might reasonably have been reached. 58 It is generally accepted that the courts will not lightly interfere with the exercise of a statutory power involving a discretion and, accordingly, the test is high. In considering whether a particular decision is unreasonable, the High Court has held that a decision may be considered legally unreasonable when the decision “lacks an evident and intelligible justification”,12 or when the relevant decision “is so unreasonable that no reasonable authority would ever have come to it”.13 59 Ms Ferguson submitted that given the materials before the Parole Board,14 and Mr Marshal’s institutional history, this was a very steep hill for Mr Marshal to climb. 60 The difficulty in assessing such a submission is that in determining an application for costs, there is necessarily limited information before the Court. 61 In Lai Qin, the High Court held that whilst in an appropriate case a court will make an order for costs when there has been no hearing on the merits, the court cannot try a hypothetical action between the parties. The rationale for that is “to do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided”.15 62 It follows that there is a limit as to how deeply I am able to delve into the question of how meritorious the application was. 63 In my view, whilst there is some force in Ms Ferguson’s submission about the apparent obstacles facing Mr Marshal, I am not satisfied on the material before me that Mr Marshal’s case was entirely unarguable or completely unmeritorious. 64 The position, however, changed in November 2022 when Mr Marshal became eligible and, in fact, did make a fresh application for parole. As a consequence of making the fresh application, there would be a new decision. Assuming the decision again went against Mr Marshal, it would have been 12 Minister for Immigration & Citizenship v Li (2012) 249 CLR 332 at [76]. 13 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230. 14 FDN 20, Exhibits JN 8, JN 57. 15 (1997) 186 CLR 622 at 624. -- 12 of 15 -- [2024] SASC 9 McDonald J 11 necessary to make an application to review the new decision, resulting in the earlier application for judicial review becoming entirely redundant. 65 In those circumstances, it was not reasonable for Mr Marshal to continue the application for judicial review, particularly in circumstances in which the bulk of the work was to be undertaken after that date. The relevance of Mr Marshal’s impecuniosity 66 There is no dispute that, having been incarcerated for nearly all of his adult life, Mr Marshal is impecunious and is likely to remain so subsequent to his release. 67 Mr Marcus submitted that this was a factor that could be taken into account in determining whether an order for costs should be made against Mr Marshal. He said that to make the order for costs would mean that when Mr Marshal eventually re-enters the community he will have a debt hanging over his head that is likely to be counterproductive to his continued rehabilitation. 68 Mr Marcus accepted that, as a matter of principle, impecuniosity of itself is not a bar to costs orders, however, he suggested that Mr Marshal sits in a slightly different position, based on his circumstances and the broader social consequences that may follow from making such an order. He said:16 … for a man who, having spent the better part since the late 1980s in gaol, to come out with a cost order which is likely to be in the magnitude of several thousand dollars hanging over his head would be absolutely adverse to his rehabilitation and, indeed, may cause Mr Marshal some angst in the community, particularly if it's sought to be enforced at some later date, in addition to all of the barriers that Mr Marshal would face in any event upon his release. Having a cost order of the likely magnitude of this one is also a relevant consideration. 69 In Northern Territory v Sangare,17 the High Court gave consideration to the effect of impecuniosity on an order for costs. The Court made the following general observations about an award of costs in circumstances in which there is a significant disparity in the resources of the parties:18 In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person. 16 T21.19-29. 17 (2019) 265 CLR 164. 18 (2019) 265 CLR 164 at [27]. -- 13 of 15 -- [2024] SASC 9 McDonald J 12 70 It was determined that the fact that one of the parties is a public authority was also an irrelevant consideration.19 71 The High Court further rejected a submission that as a matter of practicality the courts should not award costs in circumstances in which the impecuniosity of the losing party was unlikely to ever be enforced. It said:20 In any event, as a matter of authority, the courts have consistently rejected the suggestion that a costs order should not be made against an impecunious party because it would be futile to do so. The circumstance that a person may not presently, or even foreseeably, be able to meet an order for costs has not been regarded as a reason to regard the creation of the debt as an exercise in futility. The very existence of the debt created by the order is a benefit to a creditor. The successful party is better off with the benefit of the order than without it. It simply cannot be assumed that the respondent will never have the means to pay the debt in whole or in part or that it might not otherwise be turned to valuable account by the appellant. 72 It cannot be assumed that because the respondent in this case is a government agency, it has the capacity or it would be appropriate for it to simply absorb the cost of litigation of this nature. The vast majority of prisoners have limited means. To adopt such a position would give the courts’ imprimatur to endless unmeritorious applications by prisoners for judicial review of decisions of the DCS and the Parole Board in the expectation that if they were unsuccessful there would be no costs implications. 73 One of the concerns about how this matter has progressed is the manner in which the proceedings came to be used to give this Court a watching brief on how the DCS and the Parole Board were managing Mr Marshal’s situation. Whilst that was not the intention of Mr Marshal’s counsel, the resultant effect of various adjournments and multiple revisions of the originating application was that this Court took on a role that went beyond the scope of a judicial review. To decline to make the usual order for costs may have the effect of encouraging such a process in the future. Conclusion 74 In my view, the decision of Mr Marshal to institute proceedings was not unreasonable. I am also not in a position to say that the grounds in the originating application were entirely unmeritorious. The circumstances changed, however, in November 2022 when Mr Marshal became eligible to make a fresh application for parole and did, in fact, make such an application. 75 In those circumstances, it is appropriate that Mr Marshal bear the costs that the respondent has incurred since 17 November 2022. I fix that date on the basis that this was the date upon which Mr Marshal became eligible to make a fresh parole application. 19 (2019) 265 CLR 164 at [28]. 20 Ibid at [35]. -- 14 of 15 -- [2024] SASC 9 McDonald J 13 Order 1. Mr Marshal pay the respondent’s costs from 17 November 2022 on a party/party basis. -- 15 of 15 --