R v Carter; Ex Parte (No 2)

[1991] TASSC 113

113/1991
List "A"

COURT:                 SUPREME COURT OF TASMANIA (FULL COURT)

CITATION:            R v Carter; ex parte Gray and McQuestin (No 2) [1991] TASSC 113; A113/1991

PARTIES:  R
  v
  CARTER
  ATTORNEY-GENERAL
  GRAY; ex parte
  McQUESTIN; ex parte

FILE NO/S:  M203/1991

M205/1991

DELIVERED ON:  20 December 1991
DELIVERED AT:  Hobart
JUDGMENT OF:  Cox, Underwood and Slicer JJ

Judgment Number:  A113/1991
Number of paragraphs:  12

Serial No 113/1991
List "A"
File No M203/1991

M205/1991

THE QUEEN v CARTER AND THE ATTORNEY-GENERAL
EX PARTE GRAY AND MCQUESTIN (NO 2)

REASONS FOR JUDGMENT  FULL COURT

COX J
UNDERWOOD J
SLICER J
20 December 1991

1. No order in respect of the respondent Royal Commissioner has been sought but the respondent Attorney–General has applied for costs against both Prosecutors consequent upon the order of the court discharging the Order Nisi.

1. The Prosecutors oppose the application upon a number of grounds including:

–that the Attorney–General had sought leave to intervene;

–the disparate resources of the parties concerned;

–that the case involved matters of general importance the ventilation of which was for the benefit of the community and that citizens should not be discouraged from raising matters of public importance where the Attorney–General is a party;

–that the Prosecutors were successful in establishing the principles of law to be applied in consideration of the issues of jurisdiction, standing and the test for bias;

–that the finding of the court did not, in all respects, vindicate the actions and conduct of the Royal Commissioner.

1. We are not persuaded, given the circumstances of this case, that the normal principles applicable to the award of costs should not be applied.

1. Our decision involved a determination that it was incumbent upon the Prosecutors to have joined the Attorney–General as a party. The disparate means of the parties is not a basis, per se, for the interference with normal principles applicable to the awarding of costs and the Prosecutors claimed to have had special interests requiring protection and did not pursue their cause with the purpose of public benefit. The Attorney–General was the successful party and any comments made by the court as to particular occurrences which occurred during the course of the Commission hearing did not establish the grounds of complaint sought by the Prosecutors.

1. In our opinion there are no exceptional circumstances to warrant depriving the successful party of his costs. However, there are some matters which have persuaded us that the respondent should not receive all of his costs of the hearing.

1. The conduct of a successful party during the course of a hearing may be a consideration in an exercise of discretion adverse to the successful party. See Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129.

1. Soon after the commencement of proceedings there was a series of directions hearings which set out a time frame to enable the parties to have all matters properly before this Court. It was in the interests of all parties for there to be an early determination of the issue before a Full Court. The directions hearings established a time limit for the notification of objections to material contained in the affidavits filed by the parties and for the filing and service of affidavits. The Attorney–General did not, or was unable to, comply with the court's direction with the consequence that substantial time was taken up with submissions concerning the admissibility of certain evidence and an adjournment necessitated by reason of the ruling of the court. It may be that if notice of objection had been given at the appropriate time, the Prosecutors may have reshaped their case, abandoned the point or obtained other material to establish the facts upon which they sought to reply. As it was, it could be said that they were obliged, given the timing of the notice of objection, to attempt to defend the material already filed. We do not believe that the respondent should recover his costs on the hearing of this evidentiary matter.

1. The Prosecutors were obliged to establish a number of propositions of law before they could argue that the factual material adduced by them was of such a kind that actual or perceived bias could be found. Those propositions included jurisdiction of the court to intervene in the conduct of a Royal Commission, the standing and interest of the parties and the appropriate test of bias. In this they were successful. Indeed, at the conclusion of the legal submissions it appeared that the respondent did not take serious issue with the principles put forward by the Prosecutors. Some tentative or alternative arguments were advanced by counsel for the respondent but no serious issue joined. In the course of his opening, counsel for the Prosecutor Gray indicated to the court that he was obliged to spend considerable time in advancing legal argument because no concessions had been made by the respondent on any of the matters. No concessions were made during the course of the hearing and some time was spent by the respondent in, at least, exploring or gently testing the relevant principles. In some respects the conduct of the respondent could be likened to that of a plaintiff who, though succeeding on them, spends much of the hearing time in advancing propositions which were not in issue and which could have been more expeditiously disposed of in a different manner, (see Byrns & Anor v Davie & Ors [1991] 2 VR 568). Given the nature of this case, the position of the respondent and his responsibility as the first law officer of the State, it may have been more appropriate, if he took a position in relation to the law as he appeared to so do through his counsel, for him to give an indication during the course of the hearing that no great issue was taken with the legal principles to be applied.

1. In all the circumstances we do not feel that the Attorney–General should have all of his costs in relation to this portion of the hearing.

1. It follows from the above that the court is not disposed to award to the successful party all of the costs of the hearing. Rather than attempt a mathematical exercise in determining how much time was spent on each discrete issue, how much alternate work would have been required if another course were taken, or how much hearing time was spent over and above the time required to adequately cover a particular area, we have decided to apply a general approach and award the respondent one half of his costs on the hearing.

1. Little or none of the above has application to the issue of costs before hearing.

1. The order of the court is that, save in respect of the costs incurred in respect of the hearing of both proceedings between 28 August 1991 and 13 September 1991 inclusive as to which the Attorney–General shall be entitled to recover from the prosecutors one–half only of his costs, the prosecutor Gray shall pay the Attorney–General's costs of the proceedings numbered M203/1991 and the prosecutor McQuestin shall pay the Attorney–General's costs of the proceedings numbered M205/1991. In case there is any difficulty in implementing this order, we reserve liberty to apply.