Costs for impecunious Don Dale prisoners … Use of tear gas to quell rioting youngsters … NT appeal judges reverse themselves on awarding costs against impecunious litigants and, in the process, preempt a High Court appeal from the territory on the very same topic … Top End law ‘n’ order … Buffalo Bruce reports
In refusing the youths’ application, the NT Court of Appeal criticised its own decision in Sangare v Northern Territory, pre-empting the High Court’s decision in that case.
Sangare was, in fact, heard in Canberra only one day after the Don Dale matter was decided in Darwin.
In August 2014, all four appellants, aged 15 to 17 at the time, were in solitary confinement at the Don Dale centre. Another inmate, Jake Roper, broke out of his cell and into a hallway, where he ran amok.
Two of the appellants tried to join him, causing property damage, while the other two stayed quietly in their cells.
Corrections officials resorted to tear gas to restore order (referred to as CS gas in the judgment). The gas was applied directly to Roper, but it also affected the appellants, who were still in their cells.
Roper and the four appellants were handcuffed, made to lie on their stomachs, hosed down, and taken by van to Berrimah Correction Centre.
The four youths argued the corrections officers were acting without authority, under various pieces of corrections’ legislation. These arguments were rejected at first instance and on appeal.
After dismissing the appeal, the court heard arguments on costs. The appellants acknowledged costs normally follow the event, but submitted there were exceptional cases were losing parties should not pay. This, they said, was one such case.
The youths argued a court can decline to order costs when an appeal raises a novel question of general importance. This argument relied on the full Federal Court’s decision in the Tampa case, Ruddock v Vadarlis (No 2).
The youths said their appeal raised important questions about the use of tear gas in youth corrections facilities, about the limits of corrective power in the NT, and what constitutes reasonable force in youth detention.
The court held that only two out of four grounds of appeal could be described as having public importance – namely the NT’s Weapons Control Act and Youth Justice Act respectively.
However, these grounds were given limited weight in the appeal as similar questions had been considered in previous decisions. It was decided that they weren’t enough to displace the normal rule on costs.
The appellants’ second unsuccessful argument was that they would find any costs order insurmountable. This approach recalled the court’s 2018 decision in Sangare v Northern Territory.
Sangare was a Guinean asylum seeker, who in 2014 worked for the NT government as a civil engineer. He sued the NT for defamation over a ministerial briefing which accused him of lying about his refugee status, after the Refugee Review Tribunal denied him a protection visa.
The NT government was successful at first instance and on appeal, relying on the defences of qualified privilege and honest opinion. However, the NT Court of Appeal refused to make a costs order against Sangare, holding that such an order would be futile as Sangare was impecunious.
The NT government has appealed the costs questions to the High Court, where the matter awaits a decision. Oral argument, in fact, was heard on April 11, – one day after NT appeal court brought down the Don Dale judgment in which it reversed its earlier decision in Sangare.
In the Don Dale costs decision, the Court of Appeal was explicit:
“The decision of this court in Sangare v Northern Territory of Australia is inconsistent with a well-established line of authorities to the contrary.”
As far as Sangare was concerned …
“That decision is to be considered by the High Court of Australia on appeal on April 11, 2019.”
Nonetheless, the NT Court decided to pre-empt the HCA on the costs issue, holding that a lack of money couldn’t prevent a costs order.
The appeal judges reasoned that in most cases the unsuccessful party’s impecuniosity has no bearing on the litigation, or the success of the other party, and that if impecuniosity was a bar on costs orders there would be nothing to stop the destitute from bringing trivial claims.
Also, it would be impractical for courts in every instance to assess whether a party’s impecuniosity was so severe as to bar a costs order.
Whether this reasoning aligns with the High Court’s thinking remains to be seen.