Director of Public Prosecutions (ACT) v Shui (a pseudonym) (No 3)
[2022] ACTSC 261
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions (ACT) v Shui (a pseudonym) (No 3) |
Citation: | [2022] ACTSC 261 |
Submissions last received: | 6 May 2022 |
DecisionDate: | 28 September 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [42] |
Catchwords: | COSTS – APPLICATION FOR COSTS – whether a costs order should be made – where applicant was successful – where application was made for access to affidavits pursuant to r 2903 of the Court Procedures Rules 2006 (ACT) – where application was opposed by the defendants – where applicant required leave to inspect documents – where other parties heard on application – where costs order only sought against defendants – whether costs could be readily apportioned – consideration of desirability of parties assisting the Court in novel applications – consideration of general rule that costs follow the event – ordered that there be no order as to costs |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT) |
Cases Cited: | ACCC v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609 |
Parties: | ACT Director of Public Prosecutions (Plaintiff) Vivian Shui (a pseudonym) (First Defendant) Jason Yuan (a pseudonym) (Second Defendant) May Chao (a pseudonym) (Third Defendant) Yawen Jian (a pseudonym) (Fourth Defendant) Kelvin Leung (a pseudonym) (Fifth Defendant) Vivian Pty Ltd (a pseudonym) (Sixth Defendant) The Age Company Pty Ltd ABN: 85 004 262 702 (Applicant) Commissioner of the Australian Federal Police (Interested Party) |
Representation: | Counsel E Batrouney (Applicant) G Jones (Defendants) |
| Solicitors The Age Company Pty Ltd (Applicant) AKN & Associates (Defendants) | |
File Number: | SC 110 of 2021 |
LOUKAS-KARLSSON J:
Introduction
On 6 April 2022, I published my reasons in Director of Public Prosecutions (ACT) v Shui (a pseudonym) [2022] ACTSC 62 to the parties’ representatives. Those reasons outlined why I had made orders on 24 March 2022 which had, inter alia, granted leave to the applicant to inspect and uplift certain affidavit material.
As those orders (and my reasons) clearly indicated the question of costs was to be determined on the papers following provision of my reasons for judgment. Such is a common approach to costs as it permits the parties to have access to the reasons prior to advancing submissions in respect of what the appropriate costs orders are.
In accordance with those orders, the applicant provided my chambers with written submissions on costs on 11 April 2022. By those submissions, the applicant sought its costs on a party/party basis from the defendants. The defendants provided submissions on costs on 6 May 2022. The costs submissions were dated 13 April 2022 but were, according to the defendants’ representative, accidentally not provided to chambers as the defendants believed that the costs issue was stayed pending the appeal. Nothing turns on that delay. No other party advanced any submissions concerning costs.
Before turning to those submissions and my consideration of the issue of costs it is desirable to briefly outline the subsequent delay from the provision of submissions to this decision. Following the publication of reasons to the parties, the defendants sought orders staying the uplift of the affidavit material to permit a notice of appeal to be filed and thereafter pending determination of the appeal.
Orders to that effect were made, and a notice of appeal was filed on 14 April 2022. In the result, the affidavit material has not yet been uplifted. I note that the matter has been listed in the November Court of Appeal sitting period.
In addition to seeking a stay of the orders, the defendants indicated that they opposed the publication of my reasons (at least without redactions). The applicant, in contrast, indicated that the judgment should be published without any additional redactions or pseudonymisation. That indication accompanied the provision of written submissions on costs on 11 April 2022.
Given the contest between the parties I listed the matter for further oral hearing on 29 April 2022 to hear oral submissions concerning the proposed redactions to parts of the judgment and pseudonymisation of various party names.
Ultimately, for listing reasons, that application was heard by McCallum CJ, with reasons published on 28 September 2022: Director of Public Prosecutions (ACT) v Shui (a pseudonym) (No 2) [2022] ACTSC 260. By that judgment, McCallum CJ made orders that two parties be referred to by a pseudonym, but refused the application to redact parts of Shui.
Although I received submissions on costs in April and May, I indicated to the parties that the decision on costs would be made following McCallum CJ’s decision. That approach was, in my view, preferable as it prevented the need for any further hearing on redactions. Rather, if necessary, these reasons could have been redacted in accordance with her Honour’s orders concerning the substantive judgment.
No party raised any objection to that proposed approach.
Applicable Principles and Submissions
I do not understand there to be any dispute between the parties as to the general principles relevant to costs.
Those principles were recently summarised by McWilliam AJ in Mohamed v Adrija Pty Ltd (No 3) [2022] ACTSC 256 at [5]-[6] where her Honour stated:
The Court’s discretion with regard to awarding costs (see r 1721 of the Court Procedures Rules 2006 (ACT)) is unfettered, save that it is to be exercised judicially: Perisher Blue Pty Limited v Chubb Fire Safety Limited [2014] ACTCA 43 at [41]-[42]. The purpose of a costs order is to reach a fair and just result: Cooper v Singh [2017] ACTCA 21 at [14]-[16]. The making of a costs order in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires: Gray v Richards (No 2) [2014] HCA 47; 315 ALR 1 at [2].
The ordinary consequence is that costs follow the event: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [67], [134]. Further, a court should ordinarily award the costs of the proceedings to a successful party without attempting to differentiate between the issues on which the party succeeded and any issues on which the party failed unless the issues on which the party did not succeed occupied the bulk of the time of the proceedings: Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338; 254 ALR 328 at 330-331, cited in Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [17]-[18].
The issue that arises in this case is whether a non-party should be awarded its costs arising from an application for leave to be granted to view affidavit material.
In relation to that issue, the applicant submitted that it was successful in obtaining leave to uplift and inspect the documents with the minimum redactions necessary. In accordance with the usual rule that costs follow the event, the applicant submitted that it should receive its costs.
The applicant correctly noted that while it required leave of the Court pursuant to r 2903 of the Court Procedures Rules 2006 (ACT), the application was opposed by the defendants. In contrast, the applicant submitted that the AFP consented to the release of affidavits in a redacted form.
The applicant further submitted that the Court rejected the principal submissions advanced by the defendants.
Finally, the applicant referred me to two decisions of the Federal Court where judges had ordered a party to pay the costs of a non-party who had been granted access to documents on the Court file: Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; 154 FCR 293, [40] (Llewellyn) and ACCC v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609, [10] (ABB). The applicant submitted that “there are examples of cases in which those opposing the grant of leave have been ordered to pay the costs of a successful non-party”. I will consider both of those decisions and that submission in more detail below.
The defendants submitted that “having regard to principles that apply to costs in general – the appropriate order is that there be no order as to costs”. That submission, unhelpfully, did not refer to any authorities that the defendants submitted would lead to that conclusion.
In support of that overarching submission, the defendants noted the following factors:
(a) Leave was required regardless of the position taken by the parties;
(b) Submissions were made by each party to assist the Court “in the grant of that leave”;
(c) It could not be said that any party succeeded in whole.
This final factor appeared to relate to the defendants’ submission that my reasons in Shui “effectively adopted the alternative argument provided by the defendants”.
Consideration
Before turning to broader matters, it is convenient to address the submissions concerning the success of the application. That is because as a general rule costs follow the event: Oshlackv Richmond River Council [1998] HCA 11; 193 CLR 72.
I do not accept the defendants’ submission that “it could not be said that any party succeeded in whole”. As is apparent from my reasons in Shui, the applicant sought leave to uplift and inspect various documents. Ultimately, the applicant succeeded in that application. While the defendants advanced some submissions (in the alternative) as to redactions to those affidavits, the principal submissions advanced by the defendants were that leave should not be granted. I did not accept those submissions.
In my view, the defendants’ submission that I adopted the alternative argument advanced by the defendants overlooks the central argument that was before the court, namely, whether access to the documents should be granted at all. The issue of what redactions, if any, should be made to those documents was a secondary or subsidiary issue that only arose were access to be granted.
Despite the applicant’s success, I note that the statement in Oshlack is merely a general rule. The overarching question for me to consider is whether in the context of this particular application I should exercise the discretion to make an order for costs where a non-party has been granted access to documents on the Court file.
No party referred me to any authority in this Court that addressed that issue.
While there are several Federal Court decisions where costs orders have been made following a successful or unsuccessful application for access to documents on a court file, in those cases there is little reasoning explaining why in those cases a costs order was appropriate. For example, in Llewellyn, Rares J stated at [39]-[40]:
… I am of opinion that the costs which have been properly incurred by the two news organisations who applied to me yesterday for access to the file ought be recovered by them. Although there was no formal application on notice made, the circumstances of the case were such as required urgency. The parties were all able to be represented by competent legal practitioners and to present arguments of some complexity and assistance to the court.
I am of opinion that the power of the court to make an order for costs in favour a person who has applied, when it is sought to deny them access under O 46 r 6, is clear. It is appropriate that such an order for costs be made. The two news organisations only seek an order as against Nine Network. I am of opinion that I should make an order that Nine Network pay the costs of the application yesterday and today to the court.
In ABB, Finkelstein J stated at [10]:
This case comes up on appeal from a decision of the Registrar. The Registrar made orders giving Energex access to the documents in question. As I am in agreement with the orders made below, I propose to dismiss the appeal. Energex should have its costs.
In Williams v Forgie [2003] FCA 991, Heerey J awarded costs to The Herald and Weekly Time, stating at [18] that:
There will also be an order that the Commissioner pay HWT’s costs of the application.
Finally, in Reynolds v JP Morgan Administrative Services Australia Limited (No 2) [2011] FCA 489, Rares J, after indicating that the application for access would be refused, stated at [32]:
… Although each of JP Morgan and Mr Johnson put substantive arguments, the parties all made common cause against Fairfax’s application. It was not necessary for each party to be separately represented to oppose that application. Only one set of costs should be ordered against Fairfax. That can be apportioned equally between JP Morgan and Mr Johnson, or as they may otherwise agree, each of whom made substantive submissions.
As can be seen from the above, none of the decisions appear to grapple with any submission that leave was, in any event, required to access the documents. Indeed, it does not appear that in any of the cases discussed above, the Court had the advantage of submissions on costs (or at least the judgments do not refer to any such submissions) prior to the making of the costs order.
While it is clear that in each of the cases, the respective judge felt that a costs order was appropriate, there is no explanation in any of those judgments explaining why a costs order was appropriate. In my view, those authorities do not assist the applicant. While it is true that in the two cases the applicant referred to (and indeed in the other Federal Court decisions discussed above) a costs order was made, it is equally clear that decisions on costs turn on the particular matters before each court.
In contrast to the earlier Federal Court decisions, in Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149 (Oldham), Mortimer J discussed why an order as to costs would not be made following an unsuccessful application for leave to inspect document on the court file. Her Honour stated at [54]-[59]:
Ms Oldham submits Mr Scott should pay the costs of the application. The application has been unsuccessful and the usual order is that costs would follow that event. In reply, Mr Scott did not make any submissions about the appropriate costs orders.
It is unlikely that if the application had been successful, I would have ordered Ms Oldham (who actively resisted the application) to pay the legal costs of Mr Scott. The question is whether it is appropriate to order Mr Scott to pay Ms Oldham’s legal costs.
Section 43 of the Federal Court Act empowers the Court to make orders for costs “in a proceeding”. That power extends to an order for costs against a non-party, although in such circumstances the power “must be exercised judicially and in accordance with general legal principles pertaining to the law of costs”: see Knight v F.P. Special Assets Limited [1992] HCA 28; 174 CLR 178 at 192, citing with approval the Court of Appeal of British Columbia in Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455 at 462. The non-parties against whom costs orders might be made generally have some discernible connection to the proceeding, such as legal practitioners or receivers of a party.
Although this application is made “in” the proceeding between Ms Oldham and the respondents, in substance the subject matter and purpose of the application is completely divorced from this proceeding.
Mr Scott was entitled to apply for leave under r 2.32(4), and did so in compliance with the manner the Court required. Ms Oldham chose to participate in the application but was not required to. Since she is legally represented in this proceeding and the submissions on her behalf were signed by senior and junior counsel, it is fair to infer she may have incurred legal costs by reason of her participation. In the circumstances as revealed by the evidence, it is understandable why she chose to participate. However, those are not costs which on any view it would be reasonable at the end of this proceeding (and in the event she is successful) to require the respondents to compensate her for. Rather she must bear them herself, or Mr Scott must bear them.
The matter is finely balanced, but I have decided it is not appropriate to award costs against Mr Scott on this application. The distance between his interests and those of the parties to this proceeding have told against him on the exercise of discretion under r 2.32(4), and, in his favour, that distance suggests he should not be subject to an adverse costs order in the proceeding. Further, in the exercise of the costs discretion, it is appropriate that I take into account the fact he sought inspection for the purpose of advancing an appeal against a criminal conviction. There would be some injustice in making a costs order against him, where his application was said to inform part of the exercise of his right to appeal a conviction and to pursue all lawfully available grounds in that appeal.
(emphasis added)
In my view, while the matter is finely balanced, for the following reasons, it is appropriate that there be no order as to costs in this case. The result of that order is that each party will bear its own costs of the application.
First, I accept the defendants’ submission that this is a situation where the applicant required leave of the Court to inspect and uplift the affidavit. While it is true that the defendants made submissions as to why leave should not be granted, the applicant would have been required to file its application in any event and may have been required to provide written or oral submissions outlining why leave should be granted.
In the result, it is clear that the applicant would have been required to incur costs whether the application was opposed by the defendants or not. While it seems likely that due to the opposition by the defendants the applicant’s costs may have been higher than otherwise would have been the case, this is not a matter the applicant has addressed in its submissions or provided the Court with any evidence.
Second, I agree with the reasoning of Mortimer J in relation to what would have occurred had the application been refused. Namely, that the fact that the defendants chose voluntarily to participate in the application would tend against them being entitled to any costs order had the application been refused.
That fact also tends against the exercise of discretion to award costs to a successful applicant in this scenario. Were it otherwise it seems to me that applicants would be in the envious position of being entitled to costs where successful on these types of applications, but not being subject to adverse costs orders where leave was refused.
Third, while the applicant was successful in its application, the application was a novel one – with no previous decision in the Territory regarding third-party access to affidavit material in a Confiscation of Criminal Assets Act 2003 (ACT) matter. In the result, the Court was assisted by the submissions from all parties as to the principles that should apply in the weighing of the discretion whether to grant access to the affidavit material. On one view, in participating at the hearing the defendants were assisting the Court by filling the role of a contradictor. Indeed, as outlined above, even had no opposition been made to the application, the applicant would need to persuade the Court that access should be granted to the material. Were costs ordered against the defendants, the Court may not have the assistance of competing submissions in future applications.
Fourth, were costs to be ordered there would be, in my view, not insignificant complexity in apportioning the costs of the hearing. In particular, while no costs order is sought against the DPP or the AFP they participated in the application. It seems to me that the defendants should not be required to pay costs referable to responding to submissions or correspondence from the other parties who participated in the application. Further, as outlined above at least a portion of the costs would have been incurred by the applicant even had the application not been opposed. This application was a relatively narrow one that did not require significant court time. Trying to apportion what is likely to be a relatively small costs award may itself require significant consideration by the parties’ lawyers or further court time. That matter, in my view, tends against the award of costs in this case.
Fifth, although not directly analogous to the applicant in Oldham (who sought the material to assist him in a criminal appeal) a significant aspect of the defendants’ opposition to access to the material were their concerns as to potential criminal proceedings being commenced were the material to become public. While I did not accept that submission, it could not be said (and there is no submission from the applicant to this effect) that the defendants did not advance that submission other than in a bona fide manner. In my view, this factor also tends against the making of a costs order in this case.
In my view, the appropriate order is that there be no order as to costs.
Orders
There be no order as to costs.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Andrew Ray Date: 28 September 2022 |
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