Fraser-Adams v Heymans - [2001] NTSC 95

Fraser-Adams & Anor v Heymans & Ors [2001] NTSC 95
PARTIES:SUSAN FRASER-ADAMS and OCHRE BUILDING PTY LTD
v

DETECTIVE SERGEANT RONALD HEYMANS, DETECTIVE NEIL GRANT, JENNIFER MINNS and the DIRECTOR OF PUBLIC PROSECUTIONS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:No 66 of 2001
DELIVERED:  2 November 2001
HEARING DATES:  11 October 2001
JUDGMENT OF:  MILDREN J
REPRESENTATION:
Counsel:
Plaintiffs:M Carter
Defendants:E Hutton
Solicitors:
Plaintiffs:Thomas Berkley
Defendants:Hunt and Hunt
Judgment category classification:    C
Judgment ID Number:
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
No 66 of 2001
Fraser-Adams & Anor v Heymans & Ors [2001] NTSC 95
BETWEEN:

SUSAN FRASER-ADAMS and OCHRE BUILDING PTY LTD
Plaintiffs

AND:

DETECTIVE SERGEANT RONALD HEYMANS, DETECTIVE NEIL GRANT, JENNIFER MINNS and the DIRECTOR OF PUBLIC PROSECUTIONS
Defendants

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 2 November 2001)
MILDREN J:

On 8 May 2001, I delivered reasons for judgement in this matter and in an associated matter, The Queen v Susan Fraser-Adams (20004375). In relation to this matter I made certain declarations sought by the plaintiffs, but as there were still outstanding issues to be resolved I adjourned further consideration of the summons. In relation to the application for a stay in the criminal proceedings, I refused the application. I indicated that I would hear the parties as to costs.
At the hearing, no relief was sought against the defendants Jennifer Minns or the Director of Public Prosecutions in these proceedings, notwithstanding that they were parties to the action. On 3 October 2001, this matter was finalised as between the plaintiffs and the defendants Heymans and Grant (hereinafter called “the defendants”) by orders made by consent, as well as one order which I was asked to resolve between those parties on that day.
The plaintiffs now seek orders for costs against the defendants, including an order for indemnity costs. Those orders are opposed by the defendants.
The first issue is whether the plaintiffs are entitled to an order for costs at all. Counsel for the plaintiffs, Mr Carter, submitted that the plaintiffs were ultimately wholly successful. Counsel for the defendants, Mr Hutton, opposed that application on the basis that the defendants offered to settle the action well before the hearing on substantially the same basis as the action was ultimately finalised. I do not accept Mr Hutton’s submission. There is a significant difference between the defendants' offer as contained in their solicitor’s letter of 29 March 2001 and the orders ultimately made and that difference lay at the root of the dispute between the parties. Ultimately, Mr Hutton did not press this point. The plaintiffs were clearly successful and are entitled to an order for costs.
The next point is that Mr Hutton submitted that I should only award part of the costs sought by the plaintiffs because:
the plaintiffs were unsuccessful in obtaining a stay in the criminal proceedings and that part of the plaintiffs’ costs were incurred in seeking that remedy; and
the plaintiffs were unsuccessful in their submission that there was no power to issue a warrant after Ms Fraser-Adams had been committed for trial.
The plaintiffs filed affidavits in the criminal proceedings which were used in both proceedings. Neither the plaintiffs nor any other party are seeking to recover any costs in relation to the stay application. It is not suggested that the plaintiffs cannot recover the costs of the preparation of affidavits filed in the criminal proceedings to the extent that those affidavits were relied upon in both proceedings.
The principle that the Court may, in the exercise of its discretion, deprive a party of the costs of particular issues on which that party relied and failed, is not in doubt. Neither of the issues on which the plaintiffs failed added significantly to the costs of the litigation. The material contained in the affidavits filed was not enlarged because of these issues. The time taken in Court to argue the second question was relatively small. I consider that, as the plaintiffs are not entitled to a costs order in relation to the stay application, there should be some reduction on account of counsels' fees and attendances in Court by instructing solicitors to reflect the fact that part of the application was dealt with in the Court’s criminal jurisdiction in respect of which no costs can be awarded. I consider that the plaintiffs should recover only 90% of those fees.
The next issue is whether the plaintiffs are entitled to an order for indemnity costs. The general rule is that an order for indemnity costs will not be made unless there are special circumstances: see Vivanet Pty Ltd v Power[2001] NTSC 66. In Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 at [7], Harper J listed some of the situations so far held to amount to special circumstances. Each of the circumstances to which his Honour referred involved misconduct or inappropriate conduct by the party against whom the order was made. However, the discretion is not fettered and the category of case which might warrant such an order is not closed. Indemnity costs have also been ordered where litigation has been fought as a test case; eg. Baltic Shipping Co v Dillon (The Mikhail Lermontow) (1991) 22 NSWLR 1; and sometimes where cases have been brought in the public interest (eg. Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc(No 2) (1993) 41 FCR 89; 113 ALR 257).
Mr Carter conceded that there had been no misconduct by the defendants in the sense that their conduct could be characterised as contumelious. In my reasons delivered on 8 May 2001, I said as much. I also found that although the plaintiffs were entitled to declarations that the execution of the warrant was unlawful, that the retention of the computer was unlawful and the copying of the hard drives was unlawful, I was not prepared to find that there had been a contumelious and deliberate invasion of the plaintiffs' rights. I noted that there were no guidelines which applied to this situation except by analogy; that there were no decisions of this Court on the point and that the law in this area was not in a settled state. Nevertheless, Mr Carter pressed his application on the basis that the plaintiffs’ solicitor, Mr Berkley, had suggested to the defendants the proper course to adopt. The defendants had rejected that suggestion and I found that they should not have done so. Even so, the course proposed would not have avoided the bringing of these proceedings. I do not think that this is a sufficient basis to make the order sought. Mr Carter submitted that what the defendants did was tantamount to an attack on the principle that documents which are the subject of legal professional privilege cannot be made the subject of a warrant and that the course adopted by the defendants may well have affected the ability of the plaintiff, Ms Fraser-Adams to have received a fair trial if the plaintiffs had not acted promptly. In response to that, I have found that the defendants had no intention of seizing anything other than the business records of the plaintiff, Ochre Building Pty Ltd, to the extent that they were available to be accessed on the hard drive. In circumstances such as this, it is inevitable that the Court will become involved. Notwithstanding Mr Carter’s forceful submission, I do not consider that the circumstances, whilst unusual, are sufficient to justify the making of an order that costs be taxed and paid on an indemnity basis.
The plaintiffs seek an order that the plaintiffs’ costs should include the costs of and incidental to, carrying out the orders made on 3 October 2001. That order is opposed on the basis that they are not costs in the proceeding, but I find for the plaintiffs on that issue. It is true that the orders were largely made by consent and the subject matter of the orders relate to evidence which may be obtained for the purpose of criminal proceedings, but the orders were made in this Court’s civil jurisdiction and are consequential machinery orders necessary to protect the plaintiffs' privileged and other documents, not properly the subject of the warrant.
As each party has been partly successful in relation to this application, each party is to bear their own costs of and incidental to the application heard on 11 October 2001.
There will be orders as follows:
1.   That subject to orders 2 and 3, the defendants are to pay the plaintiffs' costs of and incidental to this proceeding.
2.   The defendants are to pay 90% of the plaintiffs' costs and disbursements in relation to counsels' fees and the fees for instructing solicitors for in court attendances for the hearing conducted on 4 and 5 April 2001.
3.   That each party is to bear their own costs of and incidental to the application heard on 11 October 2001.

4. That the plaintiffs are entitled to tax their costs forthwith, such costs to be paid within fourteen days of the date upon which the costs are either agreed or certified by the taxing officer
5. I certify for two counsel for the hearing of 4 and 5 April 2001.
-------------------------------------