R v Turner (No 18)

[2002] TASSC 22

[2002] TASSC 22

CITATION:             R v Turner (No 18) [2002] TASSC 22

PARTIES:  R
  v
  TURNER, Phillip Bruce

LEE, Mervyn Robin
JANSEN, Cornelius Marinus
COULSTON, Daren Te Ariki Charles
TEDESCO, Antonio

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  320/2000
DELIVERED ON:  3 May 2002

DELIVERED AT:  Hobart

HEARING DATES:  18 April 2002

JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Costs - Power to award.

Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497; R v Barbaro (1992) 106 FLR 387; Re Ansett Australia Holdings Ltd [1998] 1 Qd R 116, discussed.
Aust Dig Criminal Law [931]

Private International Law - Service out of jurisdiction - Service under Service and Execution of Process Act 1992 (Cth) - Service of process other than writs of summons - Subpoenas - Expenses incurred in complying with subpoena.

Aust Dig Private International Law [59]

REPRESENTATION:  

Counsel:
  Applicants (recipients of subpoenas):            P Bowen
  Accused:  B R McTaggart

Solicitors:
  Applicants (recipients of subpoenas):            Australian Government Solicitor
Accused:  Ogilvie Jennings

Judgment Number  [2002] TASSC 22
Number of Paragraphs:  14

Serial No 22/2002
File No 320/2000

THE QUEEN v PHILLIP BRUCE TURNER,
MERVYN ROBIN LEE, CORNELIUS MARINUS JANSEN,
DAREN TE ARIKI CHARLES COULSTON
and ANTONIO TEDESCO (No 18)

REASONS FOR JUDGMENT  BLOW J

3 May 2002

1. Applications have been made for orders that the accused pay the costs and expenses incurred by a number of Commonwealth entities and officers in consequence of the service upon them of subpoenas and, after the commencement of the Criminal Procedure (Attendance of Witnesses) Act 1996 on 1 July 2001, notices pursuant to that Act. The subpoenas and notices were issued at the request of solicitors acting for the accused during the preliminary stages of this criminal trial. Although the trial occupied months of hearing time, it did not get beyond the preliminary stages. The accused all pleaded guilty before the empanelment of a jury, and are to be sentenced today.

1. The subpoenas and notices were all served outside Tasmania.  Their recipients are seeking to recover all expenses incurred by them in consequence of the service thereof pursuant to the Service and Execution of Process Act 1992 (Cth), s35(1), which reads as follows:

"A person served with the subpoena is entitled to payment of an amount equal to the reasonable expenses incurred by the person in complying with the subpoena."

The notices under the 1996 Act constitute subpoenas for the purposes of the Service and Execution of Process Act.  Counsel for the accused did not oppose the making of orders under s35 for the assessment and payment of the reasonable expenses incurred by the applicants in complying with the relevant subpoenas and notices.  Accordingly I made such orders on 18 April 2002.  However there is a dispute as to what expenses constitute "expenses incurred … in complying with the subpoena" within the meaning of s35(1). 

1. The disputed expenses that the applicants are seeking to recover were incurred in the following contexts:

(a)Applications were made to me for the setting aside of two subpoenas issued on 20 April 2001.  One was addressed to the Australian Fisheries Management Authority ("AFMA").  The other was addressed to the Commissioner of the Australian Federal Police ("AFP").  The applications were heard together over several days.  I struck out from the subpoena to AFMA nearly all the paragraphs listing the classes of documents whose production was sought.  I set aside the subpoena to the Commissioner.  See R v Turner (No 5) [2001] TASSC 60. AFMA and the Commissioner incurred substantial costs in making those applications.

(b)The Office of Parliamentary Counsel spent a substantial sum obtaining advice as to issues concerning legal professional privilege.  No claim for privilege was made in respect of its subpoena. 

(c)The Commissioner of the AFP was served with more subpoenas, and is seeking to recover a substantial sum paid by way of counsel's fees in relation to a series of claims for public interest immunity.  The AFP engaged senior and junior counsel to edit out the affected parts of running sheets and other documents after establishing that defence counsel would accept such counsel's decisions as to which parts of the documents were properly the subject of public interest immunity claims. 

1. Counsel for the applicants sought directions that all these expenses be included in the assessments to be made pursuant to my orders under the Service and Execution of Process Act, s35(1).  Counsel for the accused submitted that none of these matters fell within the scope of s35(1).  Counsel for the applicants submitted that, in the alternative, I should make costs orders under the general law requiring the payment of all these expenses by the accused.  Counsel for the accused opposed the making of any costs orders, and submitted that I had no jurisdiction to make any such orders. 

1. There are a number of reported decisions concerning the Federal Court Rules, O27, r4A, which are useful in relation to the question of what expenses constitute "reasonable expenses incurred … in complying with the subpoena".  That rule empowers the Federal Court or a judge thereof to order the party who requested the issue of a subpoena to pay a non-party an amount to compensate for "expense or loss in complying with the subpoena".  In Fuelexpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284, the recipient of a subpoena produced documents to the court, but incurred legal fees for advice and representation in relation to claims for legal professional privilege and an application for an order restricting inspection of some documents because they were commercially sensitive and therefore confidential. Lockhart J held that such fees were, for the purpose of r4A, incurred in complying with the subpoena. In Hadid v Lenfest Communications Inc (1996) 65 FCR 350, the recipient of some subpoenas sought legal advice as to whether or not it was required to disclose documents considered confidential. The court ordered documents to be produced for inspection by persons who gave appropriate confidentiality undertakings. The recipient incurred further expense in having its solicitors check that the undertakings had been properly given. Hill J held that the costs of obtaining the advice and ensuring compliance with the undertakings were costs within the scope of r4A. It was accepted by counsel in that case that r4A did not extend to the cost of an unsuccessful motion to set the subpoenas aside. In Mowie Fisheries Pty Ltd v Switzerland Insurance Australia Ltd (Tamberlin J, 23 July 1996, unreported), AFMA was the recipient of a subpoena and recovered under r4A legal costs incurred by it in seeking advice and having an undertaking drafted as to confidentiality. 

1. These authorities all establish that the obtaining of advice by the Office of Parliamentary Counsel and the legal fees incurred by the Commissioner of the AFP in relation to public interest immunity claims fall within the scope of s35(1).  I am unaware of any authorities to the contrary.  I have therefore decided to give directions that those expenses are to be taken into account in the assessments that I ordered on 18 April.

1. However I think the legal fees incurred on the applications to set aside subpoenas are in a different category.  When those applications were made, argued and determined, the recipients of those subpoenas were not complying with them.  They were seeking not to comply with them.  The costs incurred in having much of the AFMA subpoena struck out, and in having the first AFP subpoena set aside in its entirety, were incurred not in complying with those subpoenas, but in seeking to avoid complying with them.  Accordingly, I will direct that those costs not be taken into account in the assessments that I have ordered.

1. It is therefore necessary for me to consider, in relation to the applications for the setting aside of the two relevant subpoenas, whether I can and should make an order for costs.  At common law, as a general rule, courts had no inherent jurisdiction to award costs.  See Knight v F P Special Assets Ltd (1992) 174 CLR 178 per Mason CJ and Deane J (with whom Gaudron J agreed) at 182, and per Dawson J at 193. In some Australian jurisdictions, Supreme Courts have been conferred with statutory costs powers exercisable in all jurisdictions, including their criminal jurisdictions. See, for example, the Supreme Court Act 1933 (ACT), s23(1). However that is not the situation in Tasmania. Under the Supreme Court Civil Procedure Act 1932, the general jurisdiction to award costs that is conferred by s12 does not apply in criminal causes, matters or proceedings, by reason of an exclusion in s9(1)(a). The Crimes Act, s20(1)(a)(ii), empowers a court before which a person is convicted of a Federal offence to make a conditional release order requiring that person to comply with a condition "that he will … pay such costs in respect of his prosecution for the offence or offences (if any), as the court specifies in the order (being … costs that the court is empowered to required the person to … pay)".  This provision is not applicable unless there is a power to award costs that exists independently of s20.  There does not appear to be any Federal legislation conferring any power to award the costs sought in respect of the two subpoenas. The Criminal Code, s425(1), empowers the Court, on the conviction of a person for a crime, to "condemn that person to pay the whole or part of the costs or expenses incurred in or about the prosecution and conviction for the crime of which he is convicted".  But, in my view, the costs of the applications to have the two subpoenas set aside were not incurred in or about the prosecution and conviction of the accused.  They were incurred in the course of their defence.  There is no Tasmanian statute conferring or confirming jurisdiction on this Court to make an order for the payment by an accused person of the costs of an application for the setting aside of a subpoena or witness notice issued at the request of that person or his or her lawyers.

1. There is a long line of authority suggesting that, as an exception to the usual common law rule, common law and statutory courts have an inherent non-statutory power to award costs that is ancillary to their powers to prevent abuses of process.  In Thrustout v Shenton (1829) 10 B & C 110, 109 ER 392, the Court of King's Bench, after granting the plaintiff judgment in ejectment, made an order for the payment of the costs by a person who was not a party to the action. Bayley J said at 10 B & C 111, 109 ER 392, "The Court will exercise an equitable jurisdiction over the proceedings in actions of ejectment, which, for the purposes of justice and convenience, may be said to be peculiarly its own creature." The words "an equitable jurisdiction" no doubt referred to the non-statutory jurisdiction to make orders as to costs that was exercised by the Court of Chancery in those days. That case was followed in Doe d Masters v Gray (1830) 10 B & C 615, 109 ER 579, and Hutchinson v Greenwood (1854) 4 El & Bl 324, 119 ER 125. In Hutchinson, Lord Campbell CJ explained the basis of the jurisdiction as follows (at 4 El & Bl 326, 119 ER 126):

"The principle is that the individuals who order an appearance to be entered in ejectment, in the names of those not really defending the suit, abuse our process, and that, as they substantially are the suitors, we have jurisdiction to make them pay the costs."

Other instances in which order for costs were made against non-parties when there had been abuses of process were referred to by McHugh J in Knight v F P Special Assets Ltd (supra) at 211 - 213. In Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 at 504, Hunt J took the view that the jurisdiction of a court of petty sessions to control an abuse of its process enabled such a court to make an order for costs in the absence of any statutory power to do so, but cited no authority that dealt with the critical point. That case was relied on in the Supreme Court of the Australian Capital Territory by Miles CJ in R v Barbaro (1992) 106 FLR 387. In that case a subpoena to the Commissioner of the AFP was issued at the request of an accused person, but set aside as an abuse of process. Miles CJ ordered the accused to pay the Commissioner's costs of and incidental to the application to set aside the subpoena, saying, at 389:

"The power of the Court to control abuse of its own process is part of its inherent jurisdiction and the power to award costs is ancillary to the power to control abuse of process."

However that court had a statutory power to award costs, to which his Honour did not refer in his reasons, pursuant to the Supreme Court Act 1933 (ACT), s23(1), which was previously the Australian Capital Territory Supreme Court Act 1933 (Cth), s15(1). See Carter v Managing Partner, Mallesons Stephen Jaques (1994) 11 WAR 159 per Malcolm CJ at 179 - 180.

1. R v Barbaro was distinguished by Mackenzie J in Re Ansett Australia Holdings Ltd [1998] 1 Qd R 116. That was another case in which a subpoena issued in the context of criminal proceedings at the request of the accused was so wide as to constitute an abuse of process, and an application was made by its recipient for an order that the accused pay the costs of an application to set it aside. Mackenzie J pointed out, at 121, that the Criminal Code (Qld) includes limited provisions relating to costs. He referred to sections relating to the costs of an aggrieved person in cases of indictable offences relating to the person, private prosecutions, criminal appeals, and an immunity of an accused person from the payment of fees. At 125, he reached the following conclusion:

"It cannot be said that the question of costs in criminal proceedings has been left wholly unaddressed in view of the provisions, albeit very limited, in the Code. In my view an inherent or implied power to award costs in the present case cannot be implied. In the absence of any inherent implied or statutory power to award costs the summons must be dismissed."

1. The Criminal Code (Tas) also contains limited provisions as to costs..  I have already referred to the provision for the recovery of costs from convicted persons in s425.  Under s414, the Court of Criminal Appeal has the power to make such order as to the costs of an appeal as it thinks fit.  Under s388AA(6)(c), the Crown is required to pay the costs of the legal representation of any person heard before the Court of Criminal Appeal on a reference by the Attorney-General.  There are provisions for the payment of the costs of successful defendants in criminal defamation cases in ss223, 224 and 225.  Under s307A(4), the Crown can be ordered to pay an accused person any reasonable additional costs which he or she may incur by reason of a change of venue.  However I think ss307A(4) and 388AA(6)(c) can have no bearing on the matter.  If, at common law, this Court had a power to award costs that was ancillary to the power to control abuse of its process in its criminal jurisdiction, that power was either taken away by the enactment of the Criminal Code or it was not.  If such a power existed, Parliament either intended the Criminal Code to cover the field in relation to the power to award costs in the criminal jurisdiction, or it did not.  The subsequent amendments conferring new costs powers have no bearing on the question whether the Criminal Code was intended to cover the field.

1. The picture becomes more murky when one considers the statutory costs powers of the court of petty sessions that was the subject of Darcey v Pre-Term Foundation Clinic (supra).  Under the Justices Act 1902 (NSW), s41A(1), that court could order an informant to pay the costs of a defendant who was discharged, or who was committed for trial for an indictable offence not identical to the one with which that defendant had been charged. Under s81 thereof, that court could order an unsuccessful defendant to pay professional costs and "court costs". In that case, Hunt J considered these provisions and concluded that there was no statutory power to award the costs of an application to set aside a summons in the nature of a subpoena, but apparently did not consider whether the applicable statute was intended by Parliament to cover the field in relation to costs.

1. If this Court has a common law power to award costs that is ancillary to its power to prevent the abuse of its process, the reason it has that power is that awards of costs can be used to discourage abuses of process.  At common law, no costs powers existed for the purpose of doing justice to parties who had been successful in litigation, but had incurred costs because of the conduct of their opponents.  Thus, if this Court has a power to award costs in the present circumstances, that power exists only for the purpose of discouraging abuses of process, and should be exercised in the Court's discretion with that purpose in mind.  In this Court's criminal jurisdiction, the issue of subpoenas or witness notices like the subpoenas to which the present application relates is very rare.  I therefore see no need to discourage the issue of similar documents by making a costs order.  If the power to award costs exists, I do not think this is an appropriate case for it to be exercised.  I therefore need not decide whether the common law gave the Court such a power, nor whether the Criminal Code took it away.

1. For these reasons, I refuse to make any order for costs, and give the following directions as to the assessments ordered by me on 18 April 2002:

(a)The Australian Fisheries Management Authority and the Commissioner of the Australian Federal Police are not entitled to recover the expenses incurred by them of and incidental to their applications to set aside the subpoenas issued on 20 April 2001.

(b)The Office of Parliamentary Counsel is entitled to recover the reasonable expenses incurred by it in obtaining advice as to issues concerning legal professional privilege.

(c)The Commissioner of the Australian Federal Police is entitled to recover the reasonable expenses incurred by him by way of legal fees relating to claims for public interest immunity arising in consequence of the service on him of subpoenas and/or witness notices.