R v Dunkerton, R v Eaton, R v MTI, R v Johns, R v Johnson and R v Wills
[2011] NTSC 25
•31/03/2011
R v Dunkerton, R v Eaton, R v MTI, R v Johns, R v Johnson and R v Wills [2011] NTSC 25
PARTIES: The Queen
v
Dunkerton, Ross Ian
Eaton, Scott Anthony
MTI
Johns, Philip Craig
Johnson, Paul Anthony
Wills, Darren James
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: 20503147, 20428895, 20428636, 20503195, 20503235 and 20503225
DELIVERED: 31 March 2011
HEARING DATES: 1 June 2007
JUDGMENT OF: KELLY J
CATCHWORDS:
Supreme Court Rules, r 42.06; 42.11.
Australian Securities Commission v Aust-Home Investments Ltd and Ors (1993) 11 ACSR 136, considered
Deposit & Investment Co Ltd (receivers appointed) & Ors v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267; Hadid v Lenfest Communications Inc & Ors; Lenfest Communications Inc v Hadid (1996) 144 ALR 73; King v GIO Australia Holdings Ltd (2001) 116 FCR 509; Pyramid Building Society (In Liq) & Ors v Farrow Finance Corporation (In Liq) & Ors; ex parte Farrow, Clarke & Lawson [1995] 1 VR 464, cited
REPRESENTATION:
Counsel:
Plaintiff: S Maharaj QC
Defendants: C McDonald QC
Solicitors:
Plaintiff: Commonwealth Director of Public Prosecutions and Australian Government Solicitor
Defendants: Maleys
Judgment category classification: C
Judgment ID Number: KEL11009
Number of pages: 6
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINR v Dunkerton, R v Eaton, R v MTI, R v Johns, R v Johnson and R v Wills [2011] NTSC 25
No. 20503147, 20428895, 20428636, 20503195,
20503235 and 20503225BETWEEN:
THE QUEEN
Plaintiff
AND:
ROSS IAN DUNKERTON
SCOTT ANTHONY EATON
MTI
PHILIP CRAIG JOHNS
PAUL ANTHONY JOHNSON
DARREN JAMES WILLS
Defendants
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 31 March 2011)
In the course of this matter the defendants issued subpoenas to the Australian Crime Commission, the Board of the Australian Crime Commission and the Chairman of the Australian Crime Commission (who was also the Commissioner for Australian Federal Police).
The people and bodies to whom the subpoenas were issued made application to set aside those subpoenas.
By consent, Angel J made an order on 7 February 2007 setting aside the subpoenas and certain documents were informally produced to the solicitors for the defendants by the subpoenaed parties voluntarily.
The subpoenaed parties made application to Angel J for an order for costs in relation to those subpoenas. Angel J heard some argument on 1 June 2007 and made a direction for the submission of written submissions.
Counsel for the defendants, Mr McDonald QC, filed and served written submissions on costs on 14 June 2007 and Ms Maharaj QC filed written submissions in reply on 19 June 2007. Both parties have also supplied lists of authorities.
As the costs application was not finalised before Justice Angel retired due to ill health, the matter has been passed to me to make a decision on the costs application on the papers.
I have had access to the relevant transcripts, the submissions and lists of authorities.
The application by the subpoenaed parties is for “an order for costs in complying with subpoenas that the defendants caused to be issued on 28 November 2006”.[1]
In my view the application must fail.
The application for costs was made pursuant to Rule 42.11 of the Supreme Court Rules which provides (relevantly):
42.11. Costs and expenses of compliance
(1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.
(2) If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court's usual procedure in relation to costs.
There can be no doubt that the Court has power under this rule to order the defendants to pay the subpoenaed parties’ costs of complying with the subpoena. Ms Maharaj cited a number of cases in which the Federal Court had exercised this power, including Hadid v Lenfest Communications Inc & Ors; Lenfest Communications Inc v Hadid,[2] Pyramid Building Society (In Liq) & Ors v Farrow Finance Corporation (In Liq) & Ors; ex parte Farrow, Clarke & Lawson,[3] King v GIO Australia Holdings Ltd[4] and Deposit & Investment Co Ltd (receivers appointed) & Ors v Peat Marwick Mitchell & Co.[5]
In each of these cases, the costs which were ordered to be paid were the costs of complying with the subpoenas. The difficulty faced by the subpoenaed parties in this application is that they didn’t comply with the subpoenas.
Rule 42.06 provides (relevantly):
(4) The addressee must comply with a subpoena to produce:
(a) by attending at the date, time and place specified for production and producing the subpoena or a copy of it and the document or thing to the Court or to the person authorised to take evidence in the proceeding as permitted by the Court; or
(b) by delivering or sending the subpoena or a copy of it and the document or thing to the Registrar at the address specified for the purpose in the subpoena, so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production.
The addressees of the subpoenas in question did none of these things. Rather, they appeared by counsel and made application to set aside the subpoenas and an order was made by consent setting aside the subpoenas on 7 February 2007. At the hearing before Angel J on 1 June 2007, the following exchange occurred:
HIS HONOUR: … What costs have been incurred in complying with the subpoenas that were set aside?
MS MAHARAJ: … Your Honour, I’m not in a position to give your Honour the exact figures, but your Honour would recall that three subpoenas were issued and that required legal advice to be given and issues of public interest immunity and suppression issues to be considered. … So all in all, your Honour, advice was taken and given and it required presence by counsel. I appeared with my instructors on 6 and 7 February, your Honour, largely because a subpoena was served on the Commission of Australian Federal Police and the Commissioner was represented through me to make submissions to your Honour as to why he didn’t appear on that day and agreement was reached.
It is not appropriate for the Court to order that the defendants pay the subpoenaed parties’ costs of complying with subpoenas which were not complied with.
The subpoenaed parties have not made application on any other basis for their costs of the application to set aside the subpoenas.
If the application to set aside the subpoenas had been argued and determined on its merits, the Court would have had the power to make an appropriate costs order – ie, in the absence of special circumstances, an order that the losing party pay the costs of the successful party of that application. Though not a party to the principal proceeding, the subpoenaed parties would have been “parties” to the application to set aside the subpoena.
However, the application to set aside the subpoenas was settled. An order was made by consent setting aside the subpoenas and the subpoenaed parties voluntarily produced certain documents which had been sought by the defendants. In those circumstances, in the absence of a hearing on the merits, even if an application had been made for costs of the application to set aside the subpoenas, it is difficult to see what costs order the Court could make other than that each party pay its own costs.[6]
The application by the subpoenaed parties for an order that the defendants pay the subpoenaed parties’ costs of complying with the subpoenas is therefore dismissed.
[1] Written submissions in reply filed by Ms Maharaj QC on 19 June 2007.
[2] (1996) 144 ALR 73.
[3] [1995] 1 VR 464.
[4] (2001) 116 FCR 509.
[5] (1996) 39 NSWLR 267.
[6]See eg Australian Securities Commission v Aust-Home Investments Ltd and Ors [1993] FCA 401; (1993) 11 ACSR 136, (1993) 116 ALR 523 (1993) 44 FCR 194 (26 August 1993) at paragraphs [28] to [31]
0
0
0