Australian Broadcasting Corporation v Kane

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FEDERAL COURT OF AUSTRALIA

Australian Broadcasting Corporation v Kane [2020] FCA 443

Prospective appeal from: Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133
File number: NSD 173 of 2020
Judge: GRIFFITHS J
Date of judgment: 6 April 2020
Catchwords: COSTS –  determination of costs in respect of Urgent Application Before Start of a Proceeding – indemnity costs sought by prospective applicant – prospective applicant unable to demonstrate prospective respondents acted unreasonably or that their conduct was sufficiently grave to warrant an order for indemnity costs – no order as to costs
Legislation:

Crimes Act 1914 (Cth), s 3E

Legal Services Directions 2017 (Cth), Appendix B
Cases cited:

Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133

Australian Law Company Pty Ltd v Initiative Holdings Pty Ltd [2019] FCA 1561

Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622

Date of hearing: 24 February 2020
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 26
Counsel for the Prospective Applicant: A T S Dawson SC
Solicitor for the Prospective Applicant: Australian Broadcasting Corporation, Legal Department
Counsel for the Prospective Respondents: N Williams SC with C Winnett and A Hammond
Solicitor for the Prospective Respondents: Australian Government Solicitor

ORDERS

NSD 173 of 2020
BETWEEN:

AUSTRALIAN BROADCASTING CORPORATION

Prospective Applicant
AND:

MARTIN KANE

Prospective First Respondent

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Prospective Second Respondent

AGENT IAN BRUMBY OF THE AUSTRALIAN FEDERAL POLICE

Prospective Third Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

6 APRIL 2020

THE COURT ORDERS THAT:

1.There be no order as to costs in respect of the Urgent Application Before Start of a Proceeding filed on 20 February 2020. 

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

  1. The Australian Broadcasting Corporation (ABC) seeks indemnity costs in respect of its Urgent Application Before Start of a Proceeding, which it filed on 20 February 2020.  It seeks those costs against the prospective second and third respondents, who are the Commissioner of the Australian Federal Police (AFP) and Australian Federal Police Agent Mr Ian Brumby (who applied for and executed a search warrant at the ABC’s premises) respectively.  I shall refer to the second and third prospective respondents as the AFP parties.  The prospective first respondent is Mr Martin Kane, who is a Registrar of the Local Court of New South Wales and who issued the relevant search warrant. 

  2. For the following reasons, I consider that there should be no order as to costs. 

    Background matters summarised

  3. On 17 February 2020, Abraham J made orders and delivered reasons for judgment in Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133. Her Honour dismissed the ABC’s challenge to the search warrant which was issued by Mr Kane on 3 June 2019 under…

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Details
Case
[2020] FCA 443
Decision Date

CaseChat Overview and Summary

The Australian Broadcasting Corporation (ABC) sought an order for indemnity costs in relation to an urgent application before the commencement of a proceeding filed on 20 February 2020. The application was made in the context of a dispute concerning a search warrant issued by Mr Kane, which was the subject of a dismissed challenge by the ABC in Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133. The Australian Federal Police (AFP) parties had given an undertaking that restrained them from accessing materials seized during the execution of the warrant. The ABC intended to appeal the dismissed challenge but did not file a notice of appeal or indicate any possible grounds of appeal at the time of the urgent application. The primary issue before the court was whether the ABC was entitled to indemnity costs given the circumstances of the case.

The court considered the general principles applicable to the exercise of the court's discretion to award costs, particularly in cases where it has proved unnecessary for the court to determine the merits of an application. The starting point is that where both parties have acted reasonably in commencing and defending the proceeding, and the conduct continues to be reasonable until the litigation is settled or otherwise does not require a final hearing, the proper exercise of the court's costs discretion usually means that there is no order as to costs. The court also noted that the AFP parties had an obligation to make the seized material available to investigators, the accused, and their representatives well in advance of any trial, which could be a factor in their decision not to extend the undertaking. The court found that the ABC had not demonstrated that it was unreasonable for the AFP parties to require the ABC to approach the court as it did, nor that their conduct was sufficiently grave to warrant an order for indemnity costs.

The court concluded that there should be no order as to costs in respect of the urgent application before the start of a proceeding filed on 20 February 2020. The court found that the ABC had not demonstrated that the AFP parties acted unreasonably or that their conduct was sufficiently grave to warrant an order for indemnity costs. The general principle that where both parties have acted reasonably in commencing and defending the proceeding, and the conduct continues to be reasonable until the litigation is settled or otherwise does not require a final hearing, the proper exercise of the court's costs discretion usually means that there is no order as to costs applied in this case.

There be no order as to costs in respect of the Urgent Application Before Start of a Proceeding filed on 20 February 2020.

Orders

Orders of the court

1. There be no order as to costs in respect of the Urgent Application Before Start of a Proceeding filed on 20 February 2020.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the following reasons, I consider that there should be no order as to costs. Background matters summarised On 17 February 2020, Abraham J made orders and delivered reasons for judgment in Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133. Her Honour dismissed the ABC’s challenge to the search warrant which was issued by Mr Kane on 3 June 2019 under s 3E(1) of the Crimes Act 1914 (Cth). The warrant was executed at the ABC’s premises on 5 June 2019. The search warrant related to suspected offences by two men, including Mr David McBride. Mr McBride has been committed to stand trial in the Supreme Court of the Australian Capital Territory. In December 2019, a substantive pre-trial issue and the trial of Mr McBride were listed for hearing for 10 days commencing on 2 March 2020. These dates were subsequently vacated in February 2020 and the matter was listed for mention in the ACT Supreme Court on 24 February 2020 for the purpose of setting new dates. As at February 2020, it was understood that any trial would likely be listed in November or December 2020. Throughout the substantive proceeding before Abraham J, the AFP parties had given an undertaking which had the effect of restraining them from accessing or dealing with materials seized during the execution of the warrant. At the hearing before Abraham J, senior counsel for the AFP parties extended the existing undertaking until seven days after judgment was published. At the delivery of the primary judgment on Monday, 17 February 2020, the AFP parties further extended the undertaking until 4:30 pm on Monday, 24 February 2020. This was done in response to information that neither senior nor junior counsel for the ABC was available for an interlocutory hearing in the week commencing 17 February 2020. By letter dated 19 February 2020, the ABC was informed by the solicitors for the AFP parties (AGS) that no further extension would be given and that it was planned to access the seized material when the current undertaking expired unless restrained from doing so. The AGS stated that the only circumstance that may potentially alter the position of the AFP parties concerning the undertaking was if the Court was able to list any appeal for an expedited appeal hearing. By a reply letter dated 19 February 2020, the ABC informed the AGS that the ABC intended to appeal the whole of the judgment. The AFP parties were asked whether they would extend the undertaking until such time as the parties could make a joint approach to the Court with a view to ascertaining the likely timeframe for the hearing of an expedited appeal. The ABC stated that if the AFP parties did not agree to make that joint approach, the ABC would urgently apply for an injunction. It might be noted that, at this point, the ABC had not identified any prospective grounds of appeal, nor did it indicate when a notice of appeal would be filed. On 20 February 2020, the AFP parties declined to further extend the undertaking. They emphasised that any proposed grounds of appeal were as yet unknown. They added that they might agree to extend the undertaking to accommodate an early final hearing of the appeal, but this would depend upon the terms of the notice of appeal and the time within which the appeal could be heard. They added that, given the history of the matter, a special leave application might also be filed and that there was a strong public interest in the seized material being available to AFP investigators, and to the accused and his representatives, well in advance of any trial. This presumably was a reference to the AFP’s disclosure obligations under the Commonwealth Director of Public Prosecutions’ Statement on Disclosure (March 2017) (CDPP’s Statement on Disclosure).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having regard to all these matters, I do not consider that the ABC has demonstrated that it was unreasonable of the AFP parties to require the ABC to approach the Court as it did, let alone that their conduct was sufficiently grave to warrant an order for indemnity costs. Conclusion For these reasons, there will be no order for costs in respect of the Urgent Application Before Start of a Proceeding filed on 20 February 2020.

Ratio Decidendi

Legal Principle Established

In accordance with those orders, and in circumstances where no notice of appeal was filed, the Court has the benefit of helpful written submissions from the parties on costs, including reply submissions by the ABC. Consideration and determination In brief, the ABC contends that this is an appropriate case for indemnity costs having regard to the following matters. (a)The alleged uncooperative conduct of the AFP parties leading up to the filing of the ABC’s Urgent Application Before Start of a Proceeding, including refusing to extend the undertaking and their insistence that the matter come before the Court in any event. This was said to be contrary to their obligations as model litigants.(b)The AFP parties persisted in “an unjustified rejection of the ABC’s attempts to reach sensible agreement”. The ABC submitted that the stated concern of the AFP parties relating to the timing of Mr McBride’s trial was “illusory”. (c)The fact that it proved unnecessary to hear and determine the Urgent Application Before Start of a Proceeding, despite the position taken by the AFP parties in the correspondence referred to above. (d)The “surprising attitude” of the AFP parties that forcing the ABC to apply for an urgent injunction and forcing the Court to hear and determine the matter would not entail “a significant expenditure of time and public funds”, in circumstances where the ABC incurred considerable expenses in having to make the application, including paying a filing fee of $7,180.00, briefing counsel and preparing evidence and written submissions. The ABC submitted that the ultimate outcome suggested by the Court and adopted by the parties “reflected the very proposal the ABC put to the [AFP parties] in that correspondence”. The parties did not dispute the relevant principles, which are set out at some length in their respective outlines of written submissions and which are reflected in my reasons for concluding that there should be no order as to costs. Those principles relate to the exercise of the Court’s discretion to award costs, whether on the normal basis or by way of indemnity costs. The general principle which applies where it has proved unnecessary for the Court to determine the merits of an application were summarised by me in Australian Law Company Pty Ltd v Initiative Holdings Pty Ltd [2019] FCA 1561 at [16] to [18]. The starting point is that in such a case costs normally are assessed having regard to the approach of McHugh J in Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622, i.e. where it appears that both parties have acted reasonably in commencing and defending the proceeding and that conduct continues to be reasonable until the litigation is settled or otherwise does not require a final hearing, the proper exercise of the Court’s costs discretion usually means that there is no order as to costs. There is considerable force in the contention of the AFP parties that the ABC is not entitled to any costs, even on the normal basis, in circumstances where it failed to file any notice of appeal or indicate at any time possible grounds of appeal. Accordingly, the legal position as declared in the primary judgment prevails.