Commissioner of the Australian Federal Police v Cacu (No 2)

[2015] NSWSC 1894

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of the Australian Federal Police v Cacu (No 2) [2015] NSWSC 1894

Hearing dates:

On the papers

Decision date:

11 December 2015

Jurisdiction:

Common Law

Before:

Adams J

Decision:

1. The plaintiff to pay the first defendant’s costs of and relating to his motion for a stay of proceedings.

 

2. The second defendant to pay the costs of the plaintiff in relation to her motion for a stay of proceedings, not including costs of matters also relating to the first defendant’s motion.

 3. Each party to pay their own costs in respect of the consent orders.

Catchwords:

COSTS – general rule that costs follow the event – application for stay of orders made pursuant to ss 39 and 180 of the Proceeds of Crime Act 2002 (Cth) – separation of issues where different outcomes

Legislation Cited:

Proceeds of Crime Act 2002 (Cth), ss 39, 42, 180

Cases Cited:

Commissioner of the Australian Federal Police v Cacu [2015] NSWSC 1232

Category:

Costs

Parties:

Commissioner of the Australian Federal Police (Plaintiff)
Ergun Cacu (First defendant)
Sofya Kuzniatsova (Second defendant)

Representation:

Counsel:
T M Thawley SC/ C Conde (Plaintiff)
P Singleton (Defendants)

  Solicitors:
AFP Proceeds of Crime Litigation Unit (Plaintiff)
Gregory J Goold Solicitor (Defendants)

File Number(s):

2015/00072625

Judgment

Introduction

1. On 10 March 2015 the plaintiff obtained ex parte orders under the Proceeds of Crime Act 2002 (Cth) which, amongst other things, required the defendants to provide statements of financial affairs under s 39 of the Act and attend for examination under s 180 of the Act. On the following day Federal agents arrested Mr Cacu and charged him with offences which, in substance, reflected the suspicions upon which the orders of 10 March 2015 were based. The defendants sought, in notices of motion filed on 1 and 24 April 2015 a stay of the orders requiring Mr Cacu to file statements of financial information until after the determination of the criminal proceedings involving him and, as well, a general stay of the proceedings under the Act until those criminal proceedings had been determined. They also sought an order for the return of a vehicle to Mrs Kuzniatsova and an extension of time for them to challenge the restraining orders.

2. On 3 September 2015 I made orders staying the requirement for Mr Cacu to provide statements of his affairs and attend for examination until his impending trial had been completed but, in relation to Ms Kuzniatsova, who had not been charged and was not facing pending criminal proceedings, I refused a stay of the orders made on 10 March 2015. See Commissioner of the Australian Federal Police v Cacu [2015] NSWSC 1232.

3. I also made an order, following competing submissions, extending time in which to make applications under s 42 of the Act to revoke the restraining orders that, at that time, applied to the defendants’ property. Consent orders as to a motor vehicle were also made in favour of Ms Kuzniatsova. I ordered written submissions should be filed on the question of costs.

Submissions

4. It is submitted that Mr Cacu was substantially successful in that he obtained stays of the ex parte orders for compulsory provision of financial information and subjecting him to examination as to his affairs, together with an extension of time under s 42. It is true that he sought a stay of the whole of the proceeds action but the argument for the general stay was essentially the same as that in respect of the limited stay, so that the former issue did not take up any significantly greater time or, for that matter, argument. So far as Ms Kuzniatsova is concerned, she was unsuccessful in obtaining a stay of any kind. However, the issues affecting her also are relatively minor. She relied on the same arguments as were put forward by Mr Cacu; the reason that she did not succeed was that she had not been charged, a fact to which was not in dispute. Accordingly, although it was necessary for the plaintiff to read material that related only to and make submissions about her application, in truth, the only matters which concerned her alone comprised only a negligible proportion of the total work that was necessary for the purpose of the proceedings.

5. Accordingly, it is submitted that Mr Cacu should have all of his costs of his motion for a stay, since he succeeded in obtaining, in very large part, the relief he sought and that little, if any, additional work was entailed in respect of that part which he lost. It is therefore submitted that, in accordance with the usual rule, so far as he is concerned, it is inappropriate to separate the issues and costs should follow the event. Furthermore, although Ms Kuzniatsova failed to obtain the orders she sought, her case was so tied up with that of Mr Cacu, and was so shortly disposed of, it is reasonable that her costs should not include any of the costs of the matters that both relied on.

6. The submissions made on behalf of the Commissioner, not surprisingly, focused on the failure of Mr Cacu to obtain a stay of the entire proceeds action. It is also submitted that, so far as Ms Kuzniatsova’s application concerned release from custody of the motor vehicle, the essential issue was whether she held an exemption that allowed her lawfully to drive the vehicle, an issue addressed in the plaintiff’s evidence and written submissions. Shortly before the hearing, this information was eventually provided and the plaintiff agreed to the vehicle’s release. Had the information sought been provided earlier, the consent order could have been made before the undertaking of work which was necessary for the hearing. The Commissioner had also sought orders and made written submissions in relation to a Turkish bank account, the orders in respect of which were consented to by the defendants before the hearing. It is submitted that the Commissioner was successful on that matter and, accordingly, should have costs in that respect.

7. It is submitted for the Commissioner that it would be time consuming and impractical, perhaps even impossible, to divide the parties costs into those which relate to the first and second defendants’ respective applications or separate out the application for a general stay as opposed to a specific stay, let alone to identify the costs of matters that were ultimately the subject of consent orders. It is therefore submitted that the appropriate order is that the parties should bear their own costs.

Conclusion

8. As already stated, the application for a general stay did not really involve any significant additional argument, let alone the consideration of additional evidence. Overwhelmingly, the focus of this argument was on Mr Cacu’s situation. It is true that the question of staying any orders in respect of Ms Kuzniatsova differed from those affecting Mr Cacu because she was not charged with any criminal offence. However, her application called for little more than passing discussion in light of that distinction, whilst the fundamental principles were necessarily argued in the context of Mr Cacu’s application. In my view, leaving aside the costs involved in the matters which were the subject of consent orders, costs should follow the event. Separating the costs relating to the narrower relief and the wider is not practicable. Accordingly, I order the Commissioner to pay the applicant’s costs of and relating to his motion for a stay of proceedings. In respect of Ms Kuzniatsova’s motion, she is to pay the Commissioner’s costs concerning her stay application, not including the costs of matters relating to Mr Cacu’s motion. (It follows that she is not to pay any costs of the hearing.)

9. So far as the consent orders are concerned, it seems to me they should be separately considered and it is fair to require each party to pay their own costs.

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Decision last updated: 14 December 2015