Elliott, J.D. v Sergeant Seymour, D

JOHN DORMAN ELLIOTT, KENNETH CHARLES JARRETT, PETER CAMM, PETER DAMIEN
SCANLON, and KENNETH ROBERT BIGGINS v. SERGEANT DOUGLAS SEYMOUR, THOMAS
SHERMAN, NATIONAL CRIME AUTHORITY, DIRECTOR OF PUBLIC PROSECUTIONS FOR THE
STATE OF VICTORIA, THE AUSTRALIAN BROADCASTING CORPORATION AND STEVEN MARSHALL
CRABB
No. VG410, 411 and 434 of 1993
FED No. 167/94
Number of pages - 9
Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
FOSTER J

CATCHWORDS

Practice - discretion to award costs pursuant to s 43(2) of the Federal Court of Australia Act 1976 (Cth) - operation of O 62 of Federal Court Rules.

Federal Court of Australia Act 1976 (Cth) - s 43(2)

Federal Court Rules - O 62

HEARING

MELBOURNE, 18 March 1994
#DATE 18:3:1994

Counsel for the Applicant: Mr J.L. Sher Qc with Mr P. Hanks

Instructed by: G.W.P. Aarons and Co

Counsel for the First, Second
and Third respondents: Dr C.N. Jessup QC with

Mr B.E. Walters

Instructed by: Australian Government Solicitor

Counsel for the Fourth Respondent: Mr F.X. Costigan QC with

Mr P. Jopling

Instructed by: Director of Public Prosecutions

for the State of Victoria

Counsel for the Fifth Respondent: Mr M.G. Sexton

Instructed by: Howie and Maher

ORDER

THE COURT ORDERS THAT:

1. In proceedings No VG 411 of 1993:

i) (a) the applicant pay the costs of the first, second and third respondents of and incidental to the applicant's Notice of Motion dated 30 September 1993.

(b) the applicant pay the costs of the first, second and third respondents, incurred prior to 30 September 1993, as are reasonably incidental to the relief claimed in the applicant's Notice of Motion dated 30th September 1993.

(c) the applicant pay the costs of the fourth respondent of and incidental to the applicant's Notice of Motion dated 30 September 1993.

ii) the applicant pay the costs of the first, second and third respondents of the 1st-3rd respondents' Notice of Motion, dated 30th September 1993. iii) the applicant pay the costs of the first, second and third respondents of the 1st-3rd respondents' Notice of Motion, dated 12th October 1993. iv) the costs of the applicant's Notice of Motion dated 19th October 1993 be the applicant's costs in the cause against the first, second, third, fourth and fifth respondents.

v) (a) the costs of the 1st-3rd respondents' Notice of Motion dated 3rd November 1993 be the first, second and third respondents' costs in the cause.

(b) the costs of the 1st-3rd respondents' Notice of Motion, neither filed nor served but prepared in connection with an itinerary of the applicant, dated 15th October 1993, be the first, second and third respondents' costs in the cause. vi) the applicant pay the costs of the first, second, third and fourth respondents of and incidental to the vacation of the "in camera" and non-publication orders.

2. In proceedings No VG 410 of 1993:

i) the applicant pay the costs of the first, second, third and fourth respondents of and incidental to the applicant's Notice of Motion, dated 30th September 1993.

ii) the applicant pay the costs of the first, second and third respondents of and incidental to the 1st-3rd respondents' Notices of Motion, dated 30th September 1993 and 12th October 1993.

iii) the applicant pay the costs of the first, second, third and fourth respondents of and incidental to the vacation of the "in camera" and non-publication orders.

3. In proceedings No VG 434 of 1993:

i) the applicants pay the costs of the first, second, third and fourth respondents of and incidental to the applicants' Notice of Motion dated 12th October 1993.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

FOSTER J On 23 November 1993 I gave directions that all parties in the interlocutory proceedings heard by me and disposed of on or before that date provide submissions in writing as to the appropriate cost orders to be made. The parties have complied with that direction and I now proceed to the determination of the appropriate orders.

It is convenient to make some general observations which apply in the case of all applicants.
All proceedings were interlocutory. The principal proceedings brought by each applicant await final determination in a hearing which, fairly obviously, will not take place for some considerable time.
It is clear that I have a general discretion to award costs in respect of the matters that I have dealt with, pursuant to s 43(2) of the Federal Court of Australia Act 1976. Other relevant provisions are to be found in O 62 of the Federal Court Rules. The operation of those rules is, in my opinion, correctly stated in the submissions of the first, second and third respondents, as follows:-

"(i) If no order at all as to costs is now made, the respondents' costs of the motion would be their costs in the cause: O 62 r 29. Those costs could not be taxed until the conclusion of the principal proceedings: O 62 r 3(3).

(ii) If costs are reserved and no further order is made, costs follow the event, i.e. they follow the ultimate costs order (if there be one) in the principal proceedings: O 62 r 15; Woods v Walsh (1989) 22 FCR 204.

(iii) If the court now orders costs in favour of the successful respondents, those costs may be taxed forthwith: O 62 r 7(1)(c)."

It is part of the submission of each applicant that the costs of the proceedings determined by me should not now be the subject of any final decision. It is contended that they should be reserved for final determination at the same time as the proceedings themselves are finally determined; or, alternatively, that they should be dealt with now, only by way of orders making them applicants' or respondents' costs in the cause or, simply, general costs in the cause.
I do not consider it appropriate to deal with the costs in these ways. The hearing before me was lengthy. Two major issues were determined: (a) whether the proceedings should continue to be heard in camera and (b) whether interlocutory orders should be made restraining the laying of charges against the applicants under Victorian law. My decisions in respect of each issue, which were adverse to the applicants, were made the subject of immediate applications for leave to appeal to the Full Court of this Court and, in respect of the second question, for leave to appeal to the High Court of Australia from the decision of the Full Court. These applications were dismissed. It is clear that the interlocutory proceedings were brought for the purpose of preventing the laying of charges. They were fully litigated, with every question of fact and law being the subject of intense and detailed debate. In my view, the proceedings were much more than mere interlocutory skirmishes. It is entirely appropriate to treat them as discrete pieces of litigation in respect of which cost orders can and should be now made.

PROCEEDINGS CONCERNING JOHN DORMAN ELLIOTT
7. I shall consider first, the interlocutory proceedings brought by and in respect of the first applicant, John Dorman Elliott ("Elliott"). These proceedings are set out, in my view correctly, in the submissions of the first, second and third respondents as follows:-

"(a) the applicant's Notice of Motion dated 30th September 1993, dismissed on 23rd November 1993;

(b) the 1st-3rd respondents' Notice of Motion dated 30th September 1993, which led to the making of orders by the court on 1st October 1993;

(c) the 1st-3rd respondents' Notice of Motion dated 12th October 1993, which led to the making of orders by the court on 13th October 1993;

(d) the applicant's Notice of Motion dated 19th October 1993, which led to the making of orders by the court on 26th October 1993;

(e) the 1st-3rd respondents' Notice of Motion dated 3rd November 1993, which was not proceeded with in circumstances explained to the court on 5th November 1993."

I shall deal with the costs of these notices of motion in this order, considering first the costs of the first, second and third respondents and then, separately, the costs of the fourth respondent, the Director of Public Prosecutions for the State of Victoria. These notices of motion were all taken out in proceedings VG 411 of 1993.
It is submitted on behalf of Elliott that orders should be made for the payment of his costs, or a significant proportion of them, by the first respondent, Seymour, and that the cost orders made against him, or some defined proportion of them, should, also, by way of ancillary orders be made payable by Seymour. These orders are sought on the basis that until 4 November 1993, Seymour had not been validly sworn in as a Victorian Police Officer. Earlier swearings-in had been defective on technical grounds.
I reject these submissions. They were relied on unsuccessfully at the trial and, presumably, also on appeal. This notice of motion was the means by which Elliott sought interlocutory injunctions restraining the first, second and third respondents from laying, or participating in the laying, of charges against him under Victorian law. They were unsuccessful, both on the issues of a reasonable case to be tried and the balance of convenience. I am satisfied that Elliott should pay the costs of the first, second and third respondents of, and incidental to, these motions. Insofar as these respondents incurred costs in relation to the relief claimed by Elliott in these motions prior to 30 September 1993, they should have such costs as are reasonably incidental to the relief claimed in the motion. It will be a matter for the taxing officer to ensure that no overlapping occurs in the calculation of costs, having regard to the fact that the first, second and third respondents were represented by the same solicitor and counsel.
So far as the fourth respondent is concerned, the application is different insofar as he seeks costs on a full indemnity basis. Put compendiously, his submissions amount to an allegation that the interlocutory proceedings brought against him were an abuse of the processes of the Court. It must be remembered, however, that, although I am of the view that it is appropriate to make cost orders now in respect of these interlocutory proceedings, the principal proceedings are still on foot. Although it has been held that the interlocutory proceedings did not produce a serious issue to be tried as to entitlement to the injunctive relief claimed, the issues as to whether the fourth respondent and the third respondent were acting in excess of powers conferred by the relevant legislation has not been finally determined. In my view, it would not be appropriate to award costs in relation to the interlocutory proceedings on an indemnity basis. It is appropriate, however, that the fourth respondent's costs of and incidental to this notice of motion be awarded against Elliott.
The notice of motion referred to in paragraph (b) above sought a variation of the then existing "confidentiality" orders previously made ex parte, so as to permit the respondents to have necessary discussions and communications with relevant persons, for the purpose of taking instructions in relation to the case. This motion was necessary because the applicants, Elliott and Jarrett, had obtained non- publication orders which were ultimately vacated by the Court. I am satisfied that the first, second and third respondents are entitled to the costs of this motion.
The motion referred to in paragraph (c) above was brought by the first, second and third respondents to obtain the variation of the existing injunctions by the deletion of the words "or any other person". The motion was resisted. It was successful. In my view, it is appropriate that Elliott pay the costs of this motion.
As to Elliott's notice of motion referred to in paragraph (d) above, different considerations apply. By this motion Elliott sought to join the Australian Broadcasting Commission and Steven Marshall Crabb as additional respondents in the proceedings. He also sought leave to file and serve an amended application and statement of claim which involves additional material to that relating to the joinder application. This application was opposed by the respondents and also by the ABC which appeared by leave.
The applicant was successful in this motion. The hearing occupied approximately half a day. I am not clear why the applicant wished to bring on the hearing of this notice of motion during the course of the hearing of the other substantive motions. Nor am I clear why it was opposed by the other respondents. All parties claim their costs of the notice of motion. I am not prepared to make any order for the immediate payment of costs. I consider that the appropriate order is that the costs of this motion be applicant's costs in the cause against all respondents, except Mr Crabb, who played no part in the proceedings.
The notice of motion referred to in paragraph (e) above was filed in Court. The first, second and third respondents sought the costs of this notice of motion on the basis that it was necessitated by threatened action on the part of Elliott. In earlier proceedings, the question of Elliott's travelling overseas had been raised, with the respondents seeking orders that he be prevented from doing so pending the disposal of the interlocutory proceedings. The refusal of the interlocutory injunctions sought by Elliott have, of course, enabled him to be charged with criminal offences. It was clearly the wish of the respondents that Elliott not be overseas when the Court's decision whether the injunction should be dissolved was given. The problem had been previously dealt with by the Court's imposing the requirement that Elliott furnish, within a prescribed period of time, any itinerary of proposed travel. Prior to this motion, Elliott had provided an itinerary indicating that he intended to leave Australia during the course of the proceedings. The motion was brought to prevent this occurring. When the motion was brought Elliott abandoned his plans for overseas travel.
I think the situation is best met by ordering that the costs of the notice of motion be the respondents' costs in the cause. A similar notice of motion was prepared by the first, second and third respondents in connection with a similar itinerary of 15 October 1993. Although this notice of motion was not filed or served notification of its existence resulted in Elliott abandoning his plans. I think it appropriate that a similar order be made. Costs relating to the preparation of that notice of motion should be those respondents' costs in the cause.
In addition to these notices of motion the first, second and third respondents and the fourth respondent seek an order for costs in relation to the vacation of the "in camera" and non-publication orders, which had been made ex parte at the outset of proceedings. I heard lengthy argument and had regard to considerable evidence bearing on this question. I vacated these orders, giving a separate judgment, on 9 October 1993. The fourth respondent seeks costs on an indemnity basis, with the other respondents simply seeking party-party costs on this aspect of the case. As already indicated, I regard it as a discrete matter in respect of which an individual cost order is appropriate. I do not, however, consider that indemnity costs should be ordered. I am of the view that each of the respondents should be awarded costs of, and incidental to, the vacation of those orders. It will, of course, be necessary for the taxing officer to observe that the argument in relation to the vacation of these orders overlapped, to a not inconsiderable extent, the argument in relation to the continuance of the injunctive orders restraining the laying of the charges.

PROCEEDINGS CONCERNING KENNETH CHARLES JARRETT
19. I now consider the notices of motion brought by the applicant Kenneth Charles Jarrett ("Jarrett") in proceedings VG 410 of 1993. These were three in number, namely:

"(a) the applicant's Notice of Motion dated 30th September 1993, dismissed on 23rd November 1993;

(b) the 1st-3rd respondents' Notice of Motion dated 30th September 1993, which led to the making of orders by the Court on 1st October 1993;

(c) the 1st-3rd respondents; Notice of Motion dated 12th October 1993, which led to the making of orders by the Court on 13th October 1993."

In relation to the motion in paragraph (a), Jarrett supported the submissions made on behalf of Elliott. The same order is appropriate, namely that Jarrett pay the costs of the first, second, third and fourth respondents of, and incidental to, this motion.
On the same basis I order that Jarrett pay the costs of the first, second and third respondents of and incidental to the notices of motion referred to in paragraphs (b) and (c) above.
Jarrett also opposed the vacation of the previous "in camera" and non-publication orders. Through his counsel, he adopted arguments put on behalf of Elliott and made some additional submissions. Accordingly, in my view, he should be ordered to pay the costs of the first, second third and fourth respondents of, and incidental to, that aspect of the case.
It will be necessary for the taxing officer to have regard to the fact that less time was taken in Court in relation to Jarrett's submissions than was required for the corresponding submissions put on behalf of Elliott and that, for the most part, the respondents dealt with the submissions as though they were common to both applicants.

PROCEEDINGS CONCERNING PETER CAMM, PETER DAMIEN SCANLON AND KENNETH ROBERT BIGGINS
24. I come, then, to the costs of the notice of motion brought by the applicants Peter Camm, Peter Damien Scanlon and Kenneth Robert Biggins ("Camm, Scanlon and Biggins") in proceedings VG 434 of 1993. This notice of motion was dated 12 October 1993 and was dismissed along with the notices of motion of the other applicants on 23 November 1993.

This notice of motion was taken out after the "in camera" and non-publication orders had been vacated. It was clearly taken out in circumstances where it was known to Camm, Scanlon and Biggins that charges would be laid against them, unless they took steps to join in the applications made by Elliott and Jarrett and thereby obtain the interlocutory protection which had been afforded to those applicants. They supported the case brought by those applicants seeking interlocutory injunctive relief pending the final determination of the proceedings. I consider that the same cost order should be made in respect of their notice of motion, namely that they pay the costs of the first, second, third and fourth respondents of and incidental to it.
It may be noted that these applicants, through their counsel, played very little part in the proceedings. For the most part they adopted the submissions put on behalf of Elliott. The taxing officer will, no doubt, pay due regard to the comparatively small degree of their participation and the limited extent to which the respondents would have been involved in resisting this notice of motion as opposed to the other notices of motion. It may also be noted that these applicants did not join in the allegations of conspiracy which were a significant part of the case brought by Elliott and Jarrett.

Accordingly, I make the following orders:

1. In proceedings No VG 411 of 1993:

i)(a) the applicant pay the costs of the first, second and third respondents of and incidental to the applicant's Notice of Motion dated 30 September 1993.

(b) the applicant pay the costs of the first, second and third respondents, incurred prior to 30 September 1993, as are reasonably incidental to the relief claimed in the applicant's Notice of Motion dated 30th September 1993.

(c) the applicant pay the costs of the fourth respondent of and incidental to the applicant's Notice of Motion dated 30 September 1993.

ii) the applicant pay the costs of the first, second and third

respondents of the 1st-3rd respondents' Notice of Motion, dated 30th September 1993.

iii) the applicant pay the costs of the first, second and third

respondents of the 1st-3rd respondents' Notice of Motion, dated 12th October 1993.

iv) the costs of the applicant's Notice of Motion dated 19th

October 1993 be the applicant's costs in the cause against the first, second, third, fourth and fifth respondents.

v) (a) the costs of the 1st-3rd respondents' Notice of Motion dated

3rd November 1993 be the first, second and third respondents' costs in the cause.

(b) the costs of the 1st-3rd respondents' Notice of Motion, neither filed nor served but prepared in connection with an itinerary of the applicant, dated 15th October 1993, be the first, second and third respondents' costs in the cause.

vi) the applicant pay the costs of the first, second, third and

fourth respondents of and incidental to the vacation of the "in camera" and non-publication orders.

2. In proceedings No VG 410 of 1993:

i) the applicant pay the costs of the first, second, third and

fourth respondents of and incidental to the applicant's Notice of Motion, dated 30th September 1993.

ii) the applicant pay the costs of the first, second and third

respondents of and incidental to the 1st-3rd respondents' Notices of Motion, dated 30th September 1993 and 12th October 1993.

iii) the applicant pay the costs of the first, second, third and

fourth respondents of and incidental to the vacation of the "in camera" and non-publication orders.

3. In proceedings No VG 434 of 1993:

i) the applicants pay the costs of the first, second, third and

fourth respondents of and incidental to the applicants' Notice of Motion dated 12th October 1993.

[1994] FCA 167

18 MARCH 1994