Coutts v Close

[2014] FCA 141

FEDERAL COURT OF AUSTRALIA

Coutts v Close [2014] FCA 141

Citation:	Coutts v Close [2014] FCA 141
Parties:	BRETT COUTTS v LEANNE CLOSE, ASSISTANT COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE and COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
File number:	ACD 72 of 2013
Judge:	GRIFFITHS J
Date of judgment:	28 February 2014
Catchwords:	COSTS – whether circumstances justified departure from general rule that costs should follow the event
Legislation:	Australian Federal Police Act 1979 (Cth)
Cases cited:	Canadian Pacific Tobacco Ltd vStapleton (1952) 86 CLR 1 Coutts v Close [2014] FCA 19
Date of hearing:	2-5 December 2013, 19 December 2013
Date of last submissions:	25 February 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	10
Counsel for the Applicant:	Mr F J Purnell SC and Ms K Katavic
Solicitor for the Applicant:	Maurice Blackburn
Counsel for the Respondents:	Mr G McCarthy
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	ACD 72 of 2013

BETWEEN:

BRETT COUTTS
Applicant

AND:

LEANNE CLOSE, ASSISTANT COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
First Respondent

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Second Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	28 FEBRUARY 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant is to pay the respondents’ costs of and incidental to the proceedings as agreed or assessed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	ACD 72 of 2013

BETWEEN:

BRETT COUTTS
Applicant

AND:

LEANNE CLOSE, ASSISTANT COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
First Respondent

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Second Respondent

JUDGE:	GRIFFITHS J
DATE:	28 FEBRUARY 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 3 February 2014, judgment was delivered in this matter (Coutts v Close [2014] FCA 19). The parties were informed that they should seek to agree an order for costs and, if they were unable to do so, they were given an opportunity to make written submissions in support of their respective positions, which they have now done.

2. For the following reasons, I consider that the normal rule should apply and that costs should follow the event, with the result that the applicant should bear the respondents’ costs.

3. The applicant submits that each party should bear its own costs or, alternatively, he should not be ordered to pay all the costs of the respondents because of the respondents’ delay in providing relevant documents, his ability to provide affidavit evidence and his need to issue a subpoena to the respondents in order to obtain some relevant material. He claims that his case and its conduct were impacted adversely by the respondents’ conduct. I will deal with each of those matters in turn.

   (a)       Delay by respondents in providing relevant documents

4. I do not accept the applicant’s contention that the respondents’ delay in providing certain documents had a “significant impact” on the preparation of his case. The delay in question amounted to a period of approximately 2 weeks in circumstances where the respondents failed to provide certain documents to the applicant by the promised date of 16 August 2013. They did not do so until 2 September 2013. That delay is regrettable but I do not consider that it caused any significant prejudice to the applicant in circumstances where:

   (a)the documents were provided to him approximately 3 months before the hearing commenced;

   (b)he had previously seen many of the documents in any event; and

   (c)by consent, the Court subsequently made orders extending the time by which the applicant was to file his evidence to 16 November 2013, thereby enabling the applicant to take the material, which had been provided late, into account in providing his own evidence.

   (b)      Applicant’s ability to provide affidavit evidence

5. This aspect of the applicant’s case relates to his claim that several potential witnesses were reluctant or unwilling to provide affidavit evidence in support of his substantive case because of their concerns that, by doing so, they would be in breach of various “secrecy provisions” under both the Australian Federal Police Act 1979 (Cth) and the regulations made thereunder. The applicant draws attention to the fact that, at various times around mid-2013 and while he was gathering his evidence, representatives of the Australian Federal Police (AFP) contacted potential witnesses who were current serving members of the AFP and reminded them of their secrecy obligations under the relevant provisions. There was an exchange of correspondence between solicitors on this issue which culminated in the matter being listed before the Court on 15 October 2013. In the light of some observations made by me at that time, which included drawing the attention of all the parties to authorities such as Canadian Pacific Tobacco LtdvStapleton (1952) 86 CLR 1, the applicant subsequently proceeded to obtain, file and serve affidavits from various serving AFP officers.

6. I do not consider that there was anything inappropriate in serving officers being reminded of their legal obligations under the relevant provisions. Ultimately, it was a matter for those individual officers to decide whether they would cooperate and provide an affidavit in the applicant’s case or, alternatively, require the applicant to subpoena them to give evidence. I do not consider the conduct complained of as warranting the making of a determination which is unfavourable to the respondents on the issue of costs.

   (c)       Need to issue a further subpoena

7. This issue relates to the applicant’s complaint that, having been served on 7 November 2013 with a copy of Mr Whowell’s proposed evidence, which constituted all the affidavit evidence to be relied on by the respondents he became concerned that there remained further relevant but undisclosed material in the respondents’ possession. Accordingly, steps were taken by his solicitor to issue a further subpoena. Leave was granted in Chambers on 12 November 2013 in relation to only some of the items sought under the subpoena and the applicant was informed that he would need to amend the subpoena if further material was sought. He filed a further affidavit in support of an amended subpoena on 13 November 2013, to which the respondents took objection. The objection was heard on 18 November 2013. The applicant says that he was then granted leave to file a subpoena in more limited terms which were “nonetheless substantially the same”.

8. I cannot accept that description in circumstances where, as outlined by the respondents in their submissions:

   (a)the applicant did not press for production of any of the documents in categories 5, 6 or 8 of the proposed subpoena;

   (b)the respondents did not oppose production of the documents in categories 1 and 7;

   (c)in respect of category 4, which related to a copy of the CCTV footage, the respondents agreed to provide a copy on condition that an undertaking was given that it would be returned at the conclusion of the hearing; and

   (d)in respect of categories 2 and 3, an order was made that the documents be produced on the basis that they were arguably relevant to the applicant’s argument of “Wednesbury unreasonableness”, which argument was ultimately unsuccessful.

9. In my view, it was a matter for the applicant to determine what, if any, steps he should take to require production of material which he considered to be relevant to his case and when those steps should be taken. I do not consider that the respondents’ conduct in challenging the amended subpoena was unreasonable. As noted above, the applicant and the respondents were partly successful in the positions they adopted in respect of the amended subpoena. Furthermore, orders were made on 18 November 2013 which dealt with various other matters in addition to the challenged subpoena.

10. In my view, none of these matters warrants any adjustment in the overall order as to costs in the proceedings which, in accordance with the general rule, should follow the event. An appropriate order will be made accordingly.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:       28 February 2014