Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police (No 2)

The Construction, Forestry, Mining and Energy Union sought judicial review of decisions made by the Australian Federal Police in relation to the execution of a warrant and the procedures followed during a search. The Federal Circuit Court was asked to determine whether the execution of the warrant was unlawful and to consider the requirements for providing occupiers with a copy of the warrant and documents seized. The case also considered the Court’s discretion in relation to the allocation of costs, particularly in light of the plaintiff’s partial success and the absence of amendments to the Originating Application despite different oral submissions.

The court considered the principles governing the award of costs in judicial review cases, particularly in light of the plaintiff’s partial success on the issues raised. The court also examined the requirements under the Crimes Act 1900 (ACT) for the provision of copies of the warrant and seized documents to the occupiers. The court noted the importance of adherence to statutory requirements and the probative value of information used to obtain the warrant. Given the differing outcomes for the plaintiff on various issues, the court had to determine how to apportion the costs between the parties.

The court confirmed the costs order made on 12 October 2015, with the defendant to pay 85 per cent of the plaintiff’s costs, including reserved costs. The court found that the plaintiff had not succeeded on all issues and that the oral submissions differed from those in the Originating Application without any application to amend it. The court exercised its discretion to apportion costs in light of the plaintiff’s partial success and the defendant’s lack of success on the key issue of the warrant’s unlawfulness. The court held that the modified order as to costs was appropriate given the circumstances of the case.