Commisioner of Police v A.D

[2009] SADC 119

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

COMMISIONER OF POLICE v A.D. & ORS

[2009] SADC 119

Judgment of Her Honour Judge McIntyre

29 October 2009

PROCEDURE - COSTS

Four defendants seeking costs orders against various other defendants.

Held:

1.  Commissioner of Police properly issued interpleader summons.

2.  Once the interpleader summons was issued all parties were required to participate regardless of the attitude of other parties.

3.  In the circumstances of this matter each party should bear their own costs.

District Court Act 1991 s42; District Court Rules 2006 R-202(3)(f), R-263, referred to.
Lovell v Lovell (1950) 81 CLR 51, considered.

COMMISIONER OF POLICE v A.D. & ORS
[2009] SADC 119

1. On 30 September 2009 I delivered judgment on an interpleader summons issued by the Commissioner of Police.  Four of the parties have applied for costs.  The Commonwealth of Australia seeks costs against the first defendant A.D.  Mr Rojo and Dr Mills, the sixth and seventh defendants, seek costs against the fifth defendant Channel Seven.  The first defendant A.D. seeks its costs against the third defendant Peter Liddy.

   The Law

2. Section 42 of the District Court Act 1991 confers discretion to the District Court to award costs. The discretion must be exercised judicially.[1]

   [1] Lovell v Lovell (1950) 81 CLR 51

3. District Court Rules 2006 R263 provides that, as a general rule, costs follow the event. DCR-202(3)(f) relating to costs on interpleader actions is also relevant.

   Ruling

4. The circumstances of this matter are set out in my reasons for decision.  The Commissioner of Police properly issued the interpleader proceedings given the uncertainty surrounding the entitlement of various parties to the items held by the Commissioner.  The Commissioner has not applied for costs in these proceedings but has, appropriately in my view, elected to bear his own costs.

5. As outlined in my reasons for decision this was a difficult and somewhat unusual matter to determine.  It is my view that I should make no order as to costs and that each party should bear their own costs.  This is because this was plainly a matter that had to be determined by the court.  In those circumstances each party was required to attend court to assert its particular position. 

6. I will deal with each of the claims for costs in turn. 

   Commonwealth of Australia

7. The Commonwealth of Australia seeks costs against the first defendant A.D. on the basis that A.D. was the contradictor to the argument that the Commonwealth put and that this argument was substantially successful.  Whilst this may be the case, the Commonwealth’s claim was factually and legally complex.  It was by no means obvious that the Commonwealth had an entitlement to the objects that it sought.  It is my view that, regardless of the position taken by A.D., the Commonwealth would have had to call the evidence and make the submissions that it did in order to establish its entitlement.  In those circumstances it is my view that the Commonwealth should bear its own costs.

   First Defendant A.D.

8. A.D. says that he should be entitled to costs against Mr Liddy.  AD says that he was largely successful in establishing that Mr Liddy owned the items in dispute and that these items were caught by the Mareva Injunction despite Mr Liddy’s assertion that he divested himself of ownership of a significant number of items.  I do not agree.  I made no determination as to the ownership of items.  In effect A.D. has been the beneficiary of the significant uncertainty that surrounded the items in dispute.  In those circumstances I consider that A.D. should bear his own costs.

   Rojo/Mills claim

9. Dr Mills and Mr Rojo were the only claimants who had an obvious entitlement to the items in dispute.  They had purchased the items and were in possession of them at the time they were seized by the Commissioner.  In those circumstances I have some sympathy with their claim for costs.  I am however perplexed that their claim is limited to a claim against Channel Seven.  It is not, in my view obvious that Channel Seven caused the issue of interpleader summons as asserted in support of their application.  The summons was quite properly issued by the Commissioner of Police in the highly contentious circumstances surrounding Mr Liddy’s estate.  These circumstances were not caused by Channel Seven.  Once the Commissioner had formed the view that there were competing claims, Dr Mills and Mr Rojo were obliged to take part in these proceedings regardless of the position of any of the other defendants including Channel Seven.

   Conclusion

10. I reject the claims for costs made by the first, sixth, seventh and tenth defendants and I order that each party to these proceedings bear their own costs.