Paying for Losers

Catching up over the Christmas break on one or two interesting decisions over the last year, my attention was attracted by the decision in Radman v Open Plan [2020] VSC 318.

The underlying facts were not that unusual. Open Plan made a payment claim and subsequently obtained an adjudication determination against Radman. A few days after the determination was made, Radman applied to the Supreme Court of Victoria to have that determination quashed by order of certiorari. Shortly before the trial of that application, Open Plan conceded: the parties emailed the court asking for a consent order to be made, inter-alia quashing the determination and for Open Plan to pay Radman’s legal costs. Such an order was made.

But here comes the interesting bit. Open Plan, as the losing party, made an application for its own costs, and its liability to pay Radman’s costs, to be indemnified by the public purse.

It sounds like a bizarre application, but it succeeded under the terms of Continue reading

New Court of Appeal in South Australia

Shortly before Christmas, the Attorney General’s Department made an announcement as to the full composition of the new Court of Appeal in South Australia, which commences work this month. The judges are Justices:

  • Bleby
  • Doyle
  • Livesey
  • Kelly
  • Lovell

The previous system of appeal – the full court system – was always somewhat bizarre. The idea was that if a litigant wanted to appeal against the judgment of a justice of the Supreme Court, the appeal was heard by more of the same bench of judges. Insofar as the court system provided for the first instance trial to be heard before a judge with some expertise in the particular area of law (and that was not very far at all) the appeal system involved going backwards, in the sense that the appeal judges were even less likely to have relevant expertise.

In England, the practice has grown up of ensuring that Continue reading