Hoth Mai v Commissioner of the Australian Federal Police

[2021] HCATrans 220

[2021] HCATrans 220

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M26 of 2020

B e t w e e n -

TITCHIANG HOTH MAI

Applicant

and

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Respondent

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON THURSDAY, 16 DECEMBER 2021, AT 10.01 AM

Copyright in the High Court of Australia

HER HONOUR:   On 11 September 2020, Justice Nettle and I refused an application for special leave to appeal in this matter.  No order as to costs was made at the time of the determination. 

On 26 October 2021, the respondent wrote to the Registry of this Court requesting that the costs of the unsuccessful application be ordered in his favour.  I directed the parties to file submissions on the issue of costs.                Having considered those submissions, I would make an order as to costs in favour of the respondent.  I publish my reasons.

The orders of the Court are:

1.The applicant pay the respondent’s costs of the application for special leave to appeal filed on 2 April 2020.

2.The costs to be paid by the applicant under order 1 include the costs incurred in relation to the parties’ submissions on the issue of costs made in November 2021.

I publish those orders.  I direct that the reasons as published be incorporated into the transcript.

On 11 September 2020 Nettle J and I refused the application for special leave to appeal in this matter[1].  Nettle J has since retired.  No order for costs in favour of the respondent was made.  None was sought when the Court pronounced orders.  The respondent says that he had, in his written submissions responding to the application for special leave to appeal, foreshadowed that an order for costs in his favour would be sought.  It was there said that no “special order” for costs would be sought in the event that the application was dismissed.  That was to mean, the respondent says, that the usual rule as to costs would apply.

[1]Hoth Mai v Commissioner of the Australian Federal Police [2020] HCATrans 145.

This request for costs to be ordered under r 50.01 of the High Court Rules 2004 (Cth) was made by the respondent to the Court on 26 October 2021. The delay in doing so is said to have been due to a combination of oversight and the circumstance of a lockdown during the COVID-19 pandemic.

The proceedings which were the subject of the application for special leave to appeal were brought by the respondent against the applicant under the Proceeds of Crime Act 2002 (Cth) (“the POC Act”). Section 323 of the POC Act provides:

“323   Costs

(1)      If:

(a)a person brings, or appears at, proceedings under this Act before a court in order:

(i)to prevent a *forfeiture order or *restraining order from being made against property of the person; or

(ii)to have property of the person excluded from a forfeiture order or restraining order; and

(b)the person is successful in those proceedings; and

(c)the court is satisfied that the person was not involved in any way in the commission of the offence in respect of which the forfeiture order or restraining order was sought or made;

the court may order the Commonwealth to pay all costs incurred by the person in connection with the proceedings or such part of those costs as is determined by the court.

(2)The costs referred to in subsection (1) are not limited to costs of a kind that are normally recoverable by the successful party to civil proceedings.”

The applicant does not suggest that she is a person to whom the section applies. Rather it is her submission that the section is the sole source of jurisdiction to make an order for costs in proceedings under the POC Act. It follows that the respondent cannot seek costs, the applicant contends.

In Diez v Director of Public Prosecutions[2] the Court of Appeal of the Supreme Court of New South Wales held that s 101(1) of the Proceeds of Crime Act 1987 (Cth), which was in virtually the same terms as s 323 of the POC Act, did not preclude a person seeking an order for costs under the court’s general power to award costs. The provision was said not to be an exclusive code on the subject of costs. It merely set out “a non‑exclusive delineation of a set of circumstances in which the court has a discretion to order all, some, or no costs against the Commonwealth”[3].  The availability of the court’s general power was not doubted in the more recent decision in Gwe v Commissioner of the Australian Federal Police (No. 2)[4], which concerned s 323 of the POC Act. Consistently with the approach in Diez, the Court of Appeal of the Supreme Court of Victoria has also held that the usual presumption, that costs follow the event, applies to proceedings under the POC Act[5].  No error is apparent in the reasoning in these cases.

[2](2004) 62 NSWLR 1 at 19 [62].

[3]Diez v Director of Public Prosecutions (2004) 62 NSWLR 1 at 15 [47].

[4](2020) 103 NSWLR 535.

[5]Commissioner of the Australian Federal Police v Opal Storm Pty Ltd [2018] VSCA 301 at [71]-[72].

The applicant contends that these decisions failed to take into account the common law rule that the Crown neither pays nor receives costs[6].  The applicant’s argument necessarily equates the respondent, the Commissioner of the Australian Federal Police, with the Crown.  This is incorrect.  The Commissioner is the accountable authority of an entity, the Australian Federal Police, which has statutory functions[7] and in many respects carries out these functions independently of the executive government.

[6]See Attorney-General of Queensland v Holland (1912) 15 CLR 46 at 49 per Griffith CJ.

[7]See Australian Federal Police Act 1979 (Cth), ss 6 and 8.

Moreover, although the rule continues to exist at common law, it is subject to exclusion by necessary implication[8].  The rule has been regarded as displaced by statute in civil proceedings and in summary criminal proceedings in all States and Territories.  Its application in criminal prosecutions on indictment, and criminal appellate proceedings, differs in those jurisdictions depending on the terms of the legislation authorising the awarding of costs[9].

[8]Attorney-General of Queensland v Holland (1912) 15 CLR 46 at 49 per Griffith CJ.

[9]Dal Pont, Law of Costs, 5 ed (2021) at 919, 929 and 951.

Section 26 of the Judiciary Act 1903 (Cth) provides that this Court and its Justices have jurisdiction to award costs in all matters brought before the Court. It has been recognised as displacing the common law rule in applications for special leave to appeal against conviction[10]. The rule has also been held to have been displaced in federal law by s 64 of the Judiciary Act[11].

[10]See R v Martin (1984) 58 ALJR 217 at 218; R v Whitworth (1988) 164 CLR 500 at 501.

[11]Re Minister for Immigration and Multicultural Affairs; Ex parte Goldie (2004) 217 CLR 264 at 267 [3].

The applicant also submits that the Court should exercise its discretion against the respondent because of its significant delay in bringing this application.  It is true that the delay is significant, but the applicant points to no prejudice suffered by her as a result of the delay.  The applicant was on notice of the respondent’s intention to seek costs.

There will be orders that the applicant pay the respondent’s costs of the application for special leave, including the costs incurred in relation to the submissions made on the issue of costs.

The Court will now adjourn to 3.30 pm on Monday, 7 February 2022.

AT 10.02 AM THE MATTER WAS ADJOURNED