MJW v THE COMMISSIONER OF POLICE [2024] SADC 10

Appellant: MJW Counsel: MS A WELLS - Solicitor: TINDALL GASK BENTLEY Respondent: THE COMMISSIONER OF POLICE Counsel: MR M BOISSEAU - Solicitor: CROWN SOLICITOR'S OFFICE Hearing Date/s: 22/11/2023 File No/s: CIV-22-010168 B DISTRICT COURT OF SOUTH AUSTRALIA (District Court Administrative and Disciplinary Division) 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. MJW v THE COMMISSIONER OF POLICE (No 2) [2024] SADC 10 Judgment of her Honour Judge Thomas 9 February 2024 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS POLICE - INTERNAL ADMINISTRATION - DISCIPLINE AND DISMISSAL FOR MISCONDUCT PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS A former police officer was substantially successful in his appeal in the Administrative and Disciplinary Division of this Court against a decision of the Deputy Commissioner of Police (as the duly appointed delegate of the Commissioner of Police) terminating his employment under s 26 of the Police Complaints and Discipline Act 2016 for admitted breaches of discipline. Subject to hearing the parties, I proposed in my reasons for judgment to rescind the decision and remit the Appellant’s admitted breaches of discipline to the Deputy Commissioner for reconsideration of the appropriate sanction, together with certain proposed directions and recommendations. The Appellant opposed remittal and asked this Court to substitute a decision it considers appropriate under s 42F of the District Court Act 1991. In the alternative, if the matter is remitted to the Commissioner, the Appellant submitted it should be remitted with a direction that if the Commissioner is not to hear and determine sanction, any delegation should be to an authorised person other than the Deputy Commissioner. The Commissioner submitted remittal to the Commissioner as the original decision-maker together with the proposed directions and recommendation proposed is the appropriate remedy and it is not necessary for any direction to be given as to the identity of the decision-maker. Further, the Appellant sought an order for the costs of the appeal under s 42(G)(2) of the District Court Act 1991. The Commissioner opposed any order as to costs. -- 1 of 18 -- Held: 1. It should be accepted that any remittal would be to the Commissioner as the “original decision- maker” defined as “the person or body whose decision is appealed against” in s 42B of the District Court Act. 2. Remittal is the appropriate remedy in the circumstances of this case, having regard to the materials before this Court and the nature of the decision to be made on sanction. The Commissioner and any delegate within senior management of SA Police with “particular expertise in the managerial requirements of the police force” would be better placed to impose sanction for the Appellant’s admitted breaches of discipline than this appeal Court. 3. On remittal, any direction or delegation of the imposition of sanction by the Commissioner should not be made to the Deputy Commissioner. 4. Having regard to the circumstances relied upon cumulatively, it is not necessary in the interests of justice that an order for costs be made in the Appellant’s favour. The statutory test under s 42G(2) and its application to the facts of this case is considered. District Court Act 1991 (SA) s 42, s 42B, s 42F, s 42G, s 42H; Police Act 1998 (SA) s 19; Police Complaints and Discipline Act 2016 (SA) s 22, s 24, s 25, s 26; Supreme Court Act 1935 (SA) s 40, referred to. Kirushanthan Paramananthan v Minister for Immigration & Multicultural Affairs: Minister for Immigration & Multicultural Affairs v Vijayakumar Sivarasa [1998] FCA 1693, applied. Tamawood Limited v Paans [2005] QCA 111; The Estate of Babich v South Australian Superannuation Board (No 2) [2019] SADC 54, distinguished. Marksman Training Systems Pty Ltd v The Registrar of Firearms (No 3) [2015] SADC 16; Moore v The Registrar of the Medical Board (No 2) [2001] SADC 141, discussed. Aldrich v Ross [2001] 2 Qld R 235; Briginshaw v Briginshaw (1938) 60 CLR 336; DC v The Commissioner of Police [2022] SADC 102; Heywood-Smith v Physiotherapy Board of SA [2008] SADC 18; Hunter Development Brokerage Pty Ltd v Cessnock City Council (No 2) (2006) 68 NSWLR 177; Khan v Delegate of Registrar of Motor Vehicles (No 2) [2019] SADC 22 ; Latoudis v Casey (1990) 170 CLR 534; Marin v Chiropractic Board (No 2) [2009] SADC 43; Oshlack v Richmond River Council (1998) 193 CLR 72, considered. -- 2 of 18 -- MJW v THE COMMISSIONER OF POLICE (No 2) [2024] SADC 10 Civil Introduction 1 The Appellant substantially succeeded in his appeal to the Administrative and Disciplinary Division of this Court against an order of the Commissioner of Police (Commissioner) imposing the sanction of termination for admitted breaches of discipline in formal proceedings commenced under the Police Complaints and Discipline Act 2016 (PCD Act). Judgment1 was delivered on 7 September 2023 allowing the appeal on the first, second and fifth grounds and dismissing the third and fourth grounds. It was unnecessary to consider the sixth ground of appeal. 2 I found the asserted errors the subject of the successful grounds of appeal were serious departures from the proper basis for taking action and imposing sanction. They were separately and together cogent reasons to depart from the decision (Decision)2 made by the Deputy Commissioner of Police (Deputy Commissioner) as the duly appointed delegate of the Commissioner. 3 The errors made vitiated the Decision and it should be rescinded. Subject to hearing the parties as to remission and costs, I proposed in my judgment to remit the Appellant’s admitted breaches of discipline to the Deputy Commissioner for reconsideration of the appropriate sanction with proposed directions and recommendations as set out in my judgment at paragraphs [32] to [34]. 4 On 22 November 2023, I heard the parties as to remedy and costs. Both parties rely on written3 submissions in support of their opposing positions. Conclusion and Orders 5 I rescind the Decision and remit the Appellant’s admitted breaches of discipline to the Commissioner as the original decision-maker for reconsideration of the appropriate sanction, with the following directions and recommendations.4 1. If the Commissioner is not to determine what action may be taken for the Appellant’s admitted breaches of discipline under s 26 of the PCD Act, any delegation or direction in determining sanction should not be made to Deputy Commissioner Williams. 1 [2023] SADC 124. 2 The decision to impose the sanction of termination as notified by way of letter dated 8 August 2022 (the Decision Letter as defined in my judgment). 3 Written Submissions of the Appellant as to Orders Sought on Appeal (FDN 32); Written Submissions of the Appellant as to Costs (FDN 30); Summary of Argument of Respondent Concerning Remedy (FDN 36); Summary of Argument of Respondent Concerning Costs (FDN 35). 4 Using terms as defined in my judgment. -- 3 of 18 -- [2024] SADC 10 2 2. In determining what action may be taken for the Appellant’s breaches of discipline under s 26 of the PCD Act, sanction must only be imposed for the conduct and breaches of discipline admitted in the form of the Amended Notice of Allegation. In doing so, the Impact Statement and the Further Particulars must be disregarded. The only proper use that might be made of the Probationary Constable’s Sworn Statement would be to understand the effect on the Probationary Constable and the organisation of only those breaches of discipline admitted by the Appellant. 3. The reconsideration of sanction must be procedurally fair. The material to be relied on should be clearly identified and, where adverse to the Appellant, the substance should be notified and the Appellant should be given a reasonable opportunity to address such material, as is appropriate in the circumstances. In this regard, what the Deputy Commissioner was referring to by the “organisational information” available to her that was not before the Tribunal5 should be clarified so as to ensure the Appellant has proper notice of it and the substance of any matter adverse to him arising from that information, if there is anything additional. 4. In this case, due regard is not required to be given to the Tribunal’s assessment of the seriousness or otherwise of the breaches of discipline the Appellant admits he committed. This is because in my view s 25(3) of the PCD Act does not apply to breaches of discipline proven by admission under s 24 of the PCD Act. This does not mean it may be given no regard. Rather, it means it is not mandatory for it to be given due regard. Whatever regard may be given to the Tribunal’s assessment in reconsidering sanction of the Appellant’s admitted breaches of discipline should nevertheless be stated and reasons given for any such regard. 6 I decline to make any order as to costs. Remedy The Parties’ Contentions 7 As to remedy, s 42F of the District Court Act 1991 (District Court Act) relevantly provides this Court may rescind the Decision and substitute a decision the Court considers appropriate, or remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendation of the Court. 8 The Appellant’s primary submission is that this Court should substitute its decision rather than remit the matter to the original decision-maker. Contrary to the tentative view I expressed in my judgment that the Deputy Commissioner is better placed than this Court to impose sanction for the Appellant’s admitted 5 See the first paragraph of page 5 of the Decision Letter. -- 4 of 18 -- [2024] SADC 10 3 breaches of discipline,6 the Appellant contends there is good reason to conclude otherwise. 9 Five grounds were advanced in support of this primary submission. 10 The first is that any remittal should be made to the Commissioner as the original decision-maker for the purposes of s 42F of the District Court Act. 11 The second is that any remittal would need to be accompanied by a direction that if the Commissioner is not to hear or determine the sanction, any delegation or direction by the Commissioner should be made to an authorised person other than the Deputy Commissioner, who as a result of the sanction imposed by her and set aside by this Court, is now disqualified from hearing the matter for apparent bias. 12 The third ground is that this Court is now in a better position to substitute its own decision. Reference was made to evidence already reviewed by the Court concerning the maintenance of professional standards within SA Police and public confidence in the police force and policing. The Appellant submits that the Court is in a better position to exclude inadmissible material and act uninfluenced by such material than the Deputy Commissioner. 13 The fourth ground is that no particular expertise or skill has been shown to be required to determine sanction. The Appellant submits that the professional standards and expectations the subject of sanction are applicable to any kind of large workforce with standing in the community, and the decision-maker does not require particular expertise in the field. If the Court wished to be informed of a particular aspect of police force standards or management, evidence could be presented. 14 The fifth ground is that it is in the interests of police force management and discipline that sanction be imposed promptly by a substituted decision and the Court is fully informed and can proceed efficiently. 15 The Appellant’s alternate submission is that if the matter were to be remitted, it should be remitted to the Commissioner, and not the Deputy Commissioner, with a direction that if the Commissioner is not to hear and determine sanction, any delegation should be to an authorised person other than the Deputy Commissioner. 16 The Commissioner submits remittal is the appropriate remedy, the Court should proceed as intimated and any direction as to the identity of the decision- maker is unnecessary. 6 Judgment [30]. -- 5 of 18 -- [2024] SADC 10 4 The “original decision-maker” 17 It was uncontentious and should be accepted that any remittal would be to the Commissioner as the “original decision-maker” defined as “the person or body whose decision is appealed against” in s 42B of the District Court Act”. Properly construed, the reference to the “original decision-maker” in s 42F is to the Commissioner as the repository of the power to sanction under s 26 of the PCD Act and not to the Deputy Commissioner who made the Decision as his duly authorised delegate exercising his powers.7 Remittal is Appropriate 18 As to whether remittal is the appropriate remedy in this case, the Appellant’s submissions that this Court should substitute its decision should not be accepted. 19 Having regard to the materials before this Court and the nature of the decision to be made on sanction, it is not the case that this Court is now in a better position to substitute its own sanction than the Commissioner. The Appellant’s submissions give insufficient regard to the considerable knowledge and experience in managing SA Police required to properly impose sanction for the admitted breaches of police discipline in the wider context of what is necessary for the police service as a whole and the public it protects. As the Commissioner submits, it is not just a matter of obtaining organisational knowledge but determining the appropriate weight to be given in balancing countervailing factors relevant to sanction. 20 In the circumstances of this case, I consider the Commissioner and (leaving aside the Deputy Commissioner) any delegate8 within senior management of SA Police with “particular expertise in the managerial requirements of the police force”9 would be better placed to impose sanction for the Appellant’s admitted breaches of discipline than this appeal Court. 21 There is, as the Commissioner emphasises, an important difference between the respective roles and expertise of police commissioners and appellate courts as regards the imposition of sanction for breaches of discipline. Management decisions made by police commissioners are made in the wider context as to what is necessary to maintain professional standards within the police force, for the organisation itself and the public it protects. The appellate court’s function is supervisory and focuses on the circumstances of an individual case as relevant to the alleged grounds of appeal. 22 Plainly, the appropriate remedy in any appeal will depend on the circumstances of the case. 7 Kirushanthan Paramananthan v Minister for Immigration & Multicultural Affairs: Minister for Immigration & Multicultural Affairs v Vijayakumar Sivarasa [1998] FCA 1693. 8 Police Act 1998, s 19. 9 Aldrich v Ross [2001] 2 Qld R 235 at 257 per Thomas JA. -- 6 of 18 -- [2024] SADC 10 5 23 Here, the nature of the breaches of discipline concern complex and sensitive workplace issues of broad impact both within SA Police and the community. As the Appellant properly acknowledges, the imposition of sanction requires the determination of what action best ensures the self-esteem of police officers generally, and junior members particularly, and the confidence of the public in the police force and policing. This involves the consideration of existing and evolving SA Police workplace polices and strategies aimed at gender diversity and inclusion and the training of supervisors of vulnerable recruits as well as relevant obligations and expectations. All of this is to be evaluated in the wider context of what is necessary for the police force as a whole and the public it protects. 24 Whilst it may be accepted that general norms of acceptable workplace behaviour inform SA Police policies and strategies, the knowledge and experience required in this case are workplace specific. Detailed knowledge of SA Police training and the nature of policing is essential. The Appellant’s submissions that no particular expertise or knowledge has been shown to be required or there is a danger that too much weight may be given to this consideration should not be accepted. 25 This Court’s knowledge of the relevant issues is necessarily general and incomplete. Contrary to the Appellant’s submissions, this Court is not fully informed and could not proceed efficiently or effectively by evidence being presented on discrete aspects of police standards or management. If the Court were to determine sanction, extensive evidence would need to be adduced about SA Police workplace polices and strategies for workplace behaviour as regards respect, gender diversity and inclusion in the wider context as to what is necessary for proper policing and the protection of the public. Comprehensive evidence as to all available sanctions, including, for example, education, training and counselling in workplace behaviour specific to SA Police, would be essential given the potential range of sanctions to be considered. 26 In this case, the importance of bringing ‘judicial’ skill and expertise to the imposition of sanction is overstated by the Appellant. The imposition of sanction requires significantly more than just compliance with this Court’s directions and recommendations. 27 In any event, the proposed recommendations make plain the factual foundation for imposing sanction and the limited use that can be made of the Probationary Constable’s Sworn Statement. The Commissioner submits he or his delegate will carefully consider the Court’s directions and recommendations. He is obliged to do so. 28 The Commissioner has foreshadowed filing substantial, admissible, affidavit evidence concerning relevant matters if the Court were to proceed to determine sanction.10 It should be accepted that these matters are the very matters of which 10 Summary of Argument of Respondent Concerning Remedy [7]. -- 7 of 18 -- [2024] SADC 10 6 the Court would need to inform itself to properly determine sanction. The Appellant would need to consider such evidence and likely wish to file further affidavit evidence. 29 Bearing this in mind and the Commissioner’s “particular expertise in the managerial requirements of the police force”11, it follows there is no substance to the Appellant’s submission that substitution would be more prompt or efficient than remittal. 30 The Commissioner submits he or his delegate will carefully consider the Court’s directions and recommendations. If a further oral hearing is necessary for the purposes of affording procedural fairness, the Commissioner further submits it will be convened in a relatively short time period and a decision on sanction should follow within a month or so of any hearing. Noting the Commissioner’s commitment to a timely and efficient process, it should be accepted that the Commissioner on remittal would be able to proceed to sanction more quickly and expeditiously than this Court. Direction as to the Decision-maker 31 Contrary to the Commissioner’s submissions, I am persuaded there is good reason to direct that if the Commissioner is not to hear and determine sanction, any delegation or direction should be made to an authorised person other than the Deputy Commissioner. 32 The errors made by the Deputy Commissioner in her use of the Impact Statement demonstrate the significant influence it had on her decision12 and, together with her improper use of the Further Particulars, was foundational to her assessment of the risk the Appellant’s continued employment presented to the public and other members of the police force and her conclusion on sanction.13 Although discrete errors of law, I consider an objective observer would think the Deputy Commissioner would have difficulty in following the Court’s directions and recommendations and could not simply put these impermissible matters aside and impose sanction solely on the basis of the admitted conduct. 33 Further, it is in the interests of justice that determination of sanction be determined promptly and without the further delay and distraction of submissions to the Commissioner as to the Deputy Commissioner’s apprehended bias that would likely follow if no direction as to the identity of the decision-maker were given on remittal. 11 Aldrich v Ross ibid. 12 Judgment [222]-[236]. 13 Judgment [27]. -- 8 of 18 -- [2024] SADC 10 7 Costs of Appeal The Parties’ Contentions 34 The Appellant seeks his costs of the appeal under s 42G of the District Court Act. The Appellant submits that in combination, the history of the matter prior to appeal, the public interest in his pursuit of the appeal and public benefit in its outcome ground a finding that a costs award is necessary in the interests of justice. 35 The Commissioner opposes the making of any costs order and contends that each party should bear their own costs as is ordinarily the case in this division of the Court. 36 The Commissioner submits that neither of the factors relied on makes necessary in the interests of justice an order for costs in favour of the Appellant. First, the Appellant has not established any feature of the Commissioner’s conduct in the proceedings below or the appeal necessitating a costs order. Secondly, the Appellant has misapprehended what is required to establish a ‘public interest’ and therefore cannot satisfy the Court that a costs order on a ‘public interest’ basis is necessary in the interest of justice. Relevant Legal Principles 37 As to costs, s 42G of the District Court Act provides: (1) The Court may, on appeal, make any ancillary or consequential order that the Court considers appropriate. (2) However, no order for costs is to be made unless the Court considers such an order to be necessary in the interest of justice. 38 There was some consensus between the parties as to the scope and proper interpretation of s 42G(2). As a starting point, the Appellant properly accepts that s 42G(2) dispenses with the ordinary rule that costs follow the event.14 Both parties agree that a successful outcome is but a qualifying requirement and is not enough in and of itself for a costs order. To succeed in obtaining an order ‘something further’ would need to be established.15 39 The parties otherwise disagree as to what ‘something further’ means in their analysis of the scope of the Court’s power to award costs. The Appellant submits the relevant question according to the earlier authorities is whether there is some unusual or out of the ordinary feature that demonstrates that one party, in the interests of justice, is entitled to an order for costs.16 Relying on more recent authority, the Appellant identifies that the question for the imposition of a costs 14 Written Submissions of the Applicant as to Costs [2]. 15 Ibid, citing Moore v The Registrar of the Medical Board (No 2) [2001] SADC 141 (Moore) at [12] and [16]; Summary of Argument of the Respondent [3]. 16 Written Submissions of the Applicant as to Costs [6]. -- 9 of 18 -- [2024] SADC 10 8 order is simply whether the interests of justice require it, a construction that is said to accord with the plain meaning of the text in s 42G(2).17 40 The Commissioner submits the Appellant’s reliance on the earlier authorities in his written submissions tends to place a gloss on the statutory test. The enquiry is not whether by reason of some unusual or out of the ordinary feature, one party, in the interests of justice, is ‘entitled’ to an order for costs. 41 The Commissioner’s submissions in this regard should be accepted. The Court’s discretion as to costs must be examined in its precise statutory context. Here it would be wrong to construe s 42G as conferring an unfettered discretion on the Court to decide whether an order for costs should be made simply where the interests of justice require it. It would also be wrong to conceive of the Court’s power to order costs under s 42G(2) as an unfettered discretion once the trigger for engaging that power is satisfied. Such an approach distracts attention from the proper starting point required by the express words of the provision. 42 Properly construed, s 42G(2) provides as a general rule that there shall be no order made as to costs, with a discretionary power to depart from this rule where it is “necessary in the interests of justice”. It is an express departure from the usual principle that it is just and reasonable for the (unsuccessful) party who has caused the other (successful) party to incur costs in bringing or defending litigation to indemnify that party for the liability incurred.18 43 As such, this departure from the general rule that costs follow the event should be understood in the context of a specialised court hearing an appeal from a decision made in disciplinary proceedings in the public interest. It is different from cases where the litigants dispute private rights. 44 Self-evidently, there is no prescription of the criteria informing what is “necessary in the interests of justice” and no absolute rules as to the exercise of the power conferred on the Court. It is in this sense only that the discretion to depart from the general rule conferred by s 42G(2) is unfettered. 45 By its language and context, s 42G(2) is not an unconstrained conferral of power without direction or limitation, confined only in so far as the “subject matter and the scope and purpose” of the legislation may otherwise provide.19 It is in this regard unlike s 42G(1). Nor is it the same as provisions expressly identifying that the power to order costs is intended to compensate the successful party for costs incurred in the litigation.20 17 Ibid [12], relying on The Estate of Babich v South Australian Superannuation Board (No 2) (Babich) [2019] SADC 54. 18 Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543, Toohey J at 563 and McHugh J at 567. 19 The first of the three forms of statutory powers to award costs as identified by Basten JA (with whom Santow and Bryson JJA agreed) in Hunter Development Brokerage Pty Ltd v Cessnock City Council (No 2) (2006) 68 NSWLR 177 at [16]-[17]. 20 Ibid at [18]. -- 10 of 18 -- [2024] SADC 10 9 46 It is therefore important not to overlook that the Court’s discretion to order costs is expressed as an exception to the general rule and confined by the requirement that such order be “necessary in the interests of justice”. 47 What is “necessary in the interests of justice” to depart from the general rule that there be no order for costs was first given detailed consideration by his Honour Judge Smith in Moore.21 His Honour said: So in my view, the proper construction of s42G, and for that matter s42H, is that costs are not to be ordered simply on the basis of the successful outcome of the litigation. Rather, the phrase “necessary in the interest of justice”, requires that there be some unusual or out of the ordinary feature of the contest which demonstrates that one party in the interests of justice is entitled to an order for costs. In the ordinary course, a successful outcome will be but a qualifying requirement. To succeed in obtaining an order something further would need to be established. It is not possible to specify what additional matters would assure a favourable exercise of the discretion. However, to offer some guide, it is my view that much the same considerations which have been held to be relevant in the cases dealing with when costs will be ordered on a solicitor/client, indemnity or some other special basis, would be applicable here. There must be some special or unusual features; (see Colgate-Palmolive Co Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225; Casley-Smith v FS Evans & Sons Pty Ltd (No. 6) (1989) 148 LSJS 483). Examples of the circumstances which have provoked such orders are set out at length in Civil Procedure South Australia, Lunn Volume 1 at 10,702, 10,703. For instance, such costs may be awarded where a party unreasonably proceeds when he ought to have known there was no prospect of success; (see Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397). 48 His Honour’s conclusion as to the proper construction of s 42G(2) was reached after considering the history of the provision, comparing it to the language of the costs provisions in the Supreme and District Courts and borrowing from the considerations concerning higher than usual costs orders.22 He observed that s 42G(2) did not follow the language of s 40(1) of the Supreme Court Act and s 42(1) of the District Court Act that confer an unfettered discretion as to costs. Rather, s 42G(2) followed the language of s 40(2) of the Supreme Court Act and s 42(2) of the District Court Act:23 …both of which, as a starting place, deny entitlement to costs to any plaintiff who, although succeeding, fails to prosecute his or her claim in the appropriate court “unless the court is of the opinion that it is just, in the circumstances of the case, that the plaintiff should recover the whole or part of the costs of action”. 21 Op cit. at [16]-[17]. 22 Section 40 of the Supreme Court Act 1935 and s 42 of the District Court Act 1991. 23 Moore op cit [11]. -- 11 of 18 -- [2024] SADC 10 10 49 After referring to the explanation of the purpose of the statutory formula in s 42G(2)24 given by the Minister in the second reading speech,25 his Honour concluded that the purpose of the costs provision in s 42G(2) is to deny costs even to a successful party unless there are considerations present making such an order “necessary in the interests of justice”. 50 Such considerations are ‘special’ in the sense that they necessitate a departure from the general rule that ‘ordinarily’ no order as to costs is to be made. 51 As both parties acknowledge, the decision of Judge Smith in Moore has been referred to as authoritative and applied in a number of subsequent cases.26 52 In support of his position, the Appellant placed particular reliance on certain observations made in two more recent decisions of this Court: Marksman Training Systems Pty Ltd v The Registrar of Firearms (No 3) (Marksman)27 and Babich.28 53 In Marksman, his Honour Judge Tilmouth considered the scope and proper construction of s 42G(2), citing Moore as frequently referred to in this context. His Honour observed:29 The expression ‘necessary in the interests of justice’ imposes a limitation on the exercise of the power to award costs unconfined by such qualifications as ‘exceptional’, ‘unique’ or ‘rare’ and the like, but once satisfied furnishes a discretion at large to award costs. 54 As to Babich, the Appellant relies on his Honour Judge Chivell’s rejection of the proposition that s 42G(2) requires some unusual or special circumstances before an award of costs can be made, having referred to the notes in Civil Procedure South Australia30 as to the criteria for a costs order under s 42G(2): I reject the submission that s 42G(2) requires some unusual or special circumstances before an award of costs can be made. To narrow the discretion in that way puts an unwarranted gloss on the discretion granted by the section. Section 42G goes no further than providing that an order for costs to a successful party is not automatic, and that there must be some good reason which justifies an order for costs. 55 In reaching this conclusion, his Honour relied on the decision of Keane JA (as he then was) in Tamawood Limited v Paans (Tamawood)31 in the Queensland Court of Appeal that concerned, in his Honour’s view, ‘similar legislation’.32 Judge Chivell first noted his Honour’s conclusion that the Queensland provisions were 24 And s 42H, which is in the same form. 25 Ibid [14]: “…however, costs in disciplinary proceedings, like those in administrative appeals, are only to be awarded where the interests of justice so require. They do not simply follow the event”. 26 See e.g. Heywood-Smith v Physiotherapy Board of SA [2008] SADC 18, [78] (Trenordon DCJ); Marin v Chiropractic Board (No 2) [2009] SADC 43, [11] (Shaw DCJ); Khan v Delegate of Registrar of Motor Vehicles (No 2) [2019] SADC 22, [7] (Clayton DCJ). 27 [2015] SADC 16. 28 Ibid. 29 At [17]. Footnotes omitted. 30 LexisNexis Butterworths, Civil Procedure South Australia, vol 1 (at Service 175) [DCA s 42G.1]. 31 [2005] QCA 111. 32 Ibid [28]. -- 12 of 18 -- [2024] SADC 10 11 intended to impose a general rule that good reason must be shown in terms of the interests of justice for making an award of costs. He then interpreted his Honour’s consideration of the proposition ‘that ordinarily no order as to costs should be made’ as meaning that:33 …whether the reason is ordinary or otherwise, usual or otherwise, is irrelevant. The question is whether the reason is good enough to justify a conclusion it is in the interests of justice to make the order. 56 The Commissioner urged caution in approaching the decision in Babich on two grounds.34 First it is contrary to the accepted limitations on the discretion conferred by s 42G(2) enunciated in Moore that have long been followed in this jurisdiction. Secondly, the analogy drawn with Tamawood concerned a materially different provision. 57 As to the first ground, the Commissioner’s criticism of Judge Chivell’s statement of principle cited above35 is less persuasive when regard is had to the context in which his statement was made. Upon citing a proposition attributed to Marksman¸36 his Honour referred to the unfettered nature of the sole criterion for the exercise of the discretion to order costs. It is axiomatic that the criterion “necessary in the interests of justice” is unconfined by qualifications such as ‘exceptional’, ‘unique’ etc. and must depend only on the facts of the case at bar. 58 What then follows is more difficult to agree with if the proposition “there must be some good reason which justifies the order for costs” is to be read without proper regard to the full text and context of s 42G(2) and the objects the legislature had in view in enacting it. 59 As to text, as the Commissioner properly submits “necessary” in s 42G(2) must be given its natural and ordinary meaning. It means more than the expression “appropriate” used in s 42G(1) both textually and contextually. It follows that the interests of justice must necessitate a costs order. Using his Honour’s words, good reason is only good enough if it justifies a conclusion that it is “necessary in the interests of justice”. 60 As to legislative intention, the rationale for costs orders in administrative appeals is different from other civil proceedings. This very point was made by Judge Chivell in distinguishing the case at bar from other cases:37 …such as Khan v The Delegate of the Registrar of Motor Vehicles (No 2) and Marksman, where regulatory authorities have made administrative decisions in relation to a driving instructor’s licence and in relation to licences under the Firearms Act. A further example is Marin v The Chiropractic & Osteopathy Board of South Australia (No 2) in relation to 33 At [11]. 34 Summary of Argument of Respondent Concerning Costs [4]. 35 At [54] above. 36 Op cit at [6]. 37 Ibid at [14]. Citations omitted. -- 13 of 18 -- [2024] SADC 10 12 professional misconduct. In such cases, the authorities appealed from were exercising a regulatory function in the public interest. 61 By expressly providing that costs do not follow the event as a starting point in administrative appeals, s 42G(2) manifests a clear legislative intention that the usual rationale for a costs order is not sufficient and ‘something further’ is necessary. 62 As to the second ground for approaching the decision in Babich38 with caution, the Commissioner’s submission should be accepted that the provision in Tamawood39 was materially different. In that case the scheme of the legislation considered evinced a different legislative aspiration (that parties should not be legally represented as distinct from the parties bearing their owns costs)40 and included an extensive array of special provisions relating to orders for costs in particular circumstances, grounding the proposition that good reason must be shown in terms of the interests of justice for making a costs order.41 Central to the reasoning in Tamawood was Keane JA’s observation that the interests of justice would be eroded if successful parties were to bear the costs of representation reasonably necessary to achieve success.42 This is contrary to the legislative intention manifest in the express words of s 42G(2) that provide for a departure from the principle that it is just for costs to follow the event as the starting point. 63 Finally, it is uncontentious that whether it is “necessary in the interests of justice” to make a costs order must depend on the facts of the case. The burden lies on the Appellant as the party seeking an order as to costs to establish that it is necessary in the interests of justice to depart from the general rule that each party should bear their own costs of the appeal. Is an order for costs necessary in the interests of justice? 64 The Appellant relies on two features of the appeal and disciplinary proceedings below in combination as compelling the exercise of the Court’s discretion to order costs in his favour and depart from the general rule with the effect that the parties bear their own costs. The first is the history of the proceedings before the appeal, including the Commissioner’s conduct.43 The second is the ‘public interest’ in the Appellant’s pursuit of the appeal.44 38 Op cit. 39 Op cit. 40 Ibid [25], [32]-[33]. 41 Ibid [28]. 42 Ibid [32]-[33]. 43 Written Submissions of the Appellant as to Costs [15]-[22]. 44 Ibid [23]. -- 14 of 18 -- [2024] SADC 10 13 Ill-treatment in the history proceedings 65 As to the history of the proceedings, the Appellant contends it is quite out of the ordinary and amounts to ill-treatment of the kind recognised in Moore45 to be ‘something further’, relying on the following circumstances in combination. • The considerable distress and stress caused to the Appellant by the complaint, investigation, resulting allegations and the disciplinary proceedings, requiring professional assistance. • The Appellant’s admissions were made on substantially the same factual basis proposed by him many months earlier, on a basis that was refused by the Commissioner several times in the course of the proceedings.46 • The Commissioner provided the Appellant with an Amended Notice of Likely Penalty including termination as a possible sanction, without explanation, after negotiations were commenced at his instigation.47 • The Appellant suffered from the unnecessary, adversarial and aggressive approach of the Commissioner’s representative before the Tribunal.48 • The first scheduled sanction hearing was rescheduled without explanation late on the preceding afternoon.49 • Subsequently, the Deputy Commissioner made numerous errors in imposing sanction despite receiving detailed submissions from the Appellant’s counsel on the correct factual basis for imposing sanction and irrelevant material that should be disregarded.50 66 The first circumstance should be dismissed as not being a compelling consideration in the case of disciplinary proceedings properly instituted for serious breaches of discipline of the kind admitted by the Appellant. The object of a costs order under s 42G(2) should not be to compensate an Appellant (successful or not) from disadvantage occasioned from proceedings arising from and concerning his admitted misconduct. 67 In any event, the Court would need to be reasonably satisfied of the ‘considerable’ stress the Appellant claims to have suffered and its cause. Reasonable satisfaction means an actual persuasion of the fact before the Court can find it and should not be produced by “inexact proofs, indefinite testimony or indirect inferences”. 51 The only evidence before the Court is the bare statement 45 Op cit. 46 Written Submissions of the Appellant as to Costs [15]-[22]. [17]. 47 Ibid [18]. 48 Ibid [19]. 49 Ibid [20]. 50 Ibid [21]. 51 Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. -- 15 of 18 -- [2024] SADC 10 14 made in the Appellant’s appeal affidavit that he was prescribed antidepressant medication during the course of his suspension and throughout the Tribunal proceedings due to moderate to severe anxiety.52 The circumstance relied on is not proven to my reasonable satisfaction. 68 Implicit in the second circumstance relied on is the contention that the Commissioner unreasonably prolonged negotiations by his refusal to resolve the proceedings.53 On review, the referenced correspondence in March 202254 does not support such a conclusion. The offers passing between the parties’ legal representatives included two contentious material terms, both of which were ultimately abandoned. One was the Appellant’s requirement that the sanction of termination be removed from the Amended Notice of Likely Penalty. The other was the Commissioner’s requirement that the Appellant abandon his costs application before the Tribunal. Objectively viewed, the Commissioner’s conduct in negotiations was not unreasonable and the correspondence specifically relied on was exchanged over the course of a week, not many months. 69 The relevant correspondence is incomplete given negotiations began in December 2020 and the referenced correspondence concerns a limited period of the parties’ negotiations. The referenced correspondence is therefore not a reliable foundation for making any finding as to the unreasonableness of the Commissioner’s conduct in negotiations. 70 As to the third circumstance, it is unclear why the Appellant contends the amendment to the Notice of Likely Penalty is ill-treatment and is disadvantage for which he should be compensated by a costs order. It seems the substance of the Appellant’s complaint is the Commissioner’s change of position to include termination as a likely sanction. This is not a compelling consideration. The Commissioner was obliged by s 22(4) of the PCD Act to notify the Appellant of the likely penalty on commencing proceedings based on the facts known to the Commissioner at the time the notice of allegations was presented. No objection was taken as to the Commissioner’s power to amend the notice of likely sanction at a later stage in the proceedings should the basis of known facts change. The Appellant has not shown any unreasonable conduct on the part of the Commissioner as regards the Amended Notice of Likely Penalty. 71 The allegedly unexplained rescheduling of the first sanction hearing is also not a compelling consideration in all the circumstances. In the evidence it was explained as due to “scheduling issues”.55 Why it caused the Appellant unacceptable prejudice and amounted to ill-treatment has not been shown. 52 Exhibit A1 [47]. 53 22 November 2023 T3.37-T4.11. 54 Exhibits HKR-1 to HKR-4 to Exhibit A2. 55 Exhibit LW-24 to Exhibit R5. -- 16 of 18 -- [2024] SADC 10 15 72 As to the fourth circumstance, there is an important factual dispute over the Appellant’s characterisation of the conduct below as involving “an unnecessary, adversarial and aggressive approach to the conduct of the Tribunal proceedings.” Having regard to the seriousness of this allegation and the incomplete record of the proceedings below (including the correspondence between the parties) before this Court, the Commissioner’s submission should be accepted that caution is required before this Court embarks upon a mini-trial of the parties’ conduct in another forum in a costs application. In the circumstances, noting the Appellant made a successful application for costs in the Tribunal,56 it is not appropriate for this Court to determine a factual dispute of this nature. 73 Finally, the Commissioner accepts the reasonableness of the Commissioner’s defence of the appeal is a relevant consideration.57 I am not satisfied, however, that it was unreasonable for the Commissioner to defend the appeal. Whilst the Appellant was successful in vitiating the Decision on three grounds, he was unsuccessful on two others, including his contentions as to the decision in DC v The Commissioner of Police58 and the capacity of the Commissioner to engage in fact-finding in sanction proceedings. 74 The errors made by the Deputy Commissioner were in my view errors of judgment. They do not establish that is necessary in the interest of justice for a costs order to be made and depart from the general rule that there is to be no order as to costs and the parties will bear their own costs. These errors do not constitute ‘ill-treatment’ of the Appellant or any unacceptable degree of disadvantage. 75 It is of some significance the Deputy Commissioner made her decision before the decision in DC v Commissioner of Police was handed down and these were issues of principle properly ventilated in the appeal in this case. 76 Ultimately, I am not satisfied on the evidence there was any ‘ill-treatment’ of the Appellant in the history of the proceeding in the requisite sense. Public Interest 77 Whilst the Appellant’s grounds of appeal raised matters of interest to the public, his prime motivation was not to uphold the public interest and the rule of law for no personal gain59 so as to engage special consideration for the purposes of an order for costs. The Commissioner’s submissions in this regard should be accepted. 78 The Appellant pursued his private interest in appealing the Deputy Commissioner’s decision to impose the sanction of termination. His appeal affidavit60 makes plain his motivation to challenge the financial and personal 56 Transcript 1 April 2022, pages 5 to 6. 57 Khan v Delegate of the Registrar of Motor Vehicles (No 2) op cit per Clayton DCJ at [11]. 58 [2022] SADC 102. 59 Oshlack v Richmond River Council (1998) 193 CLR 72 at [20] per Gaudron and Gummow JJ. 60 Exhibit A1 [42]-[52]. -- 17 of 18 -- [2024] SADC 10 16 consequences of termination, as was his legal entitlement. Any findings in the appeal which may benefit the public were a by-product, rather than the primary purpose of the appeal he pursued. Conclusion 79 For these reasons, I am not satisfied that any combination of the circumstances relied on by the Appellant properly ground a conclusion that it is necessary in the interest of justice that there be an order made for the Appellant to have his costs of the appeal. -- 18 of 18 --