Re Ansett Australia Holdings Ltd - [1997] QSC 79

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane No.2693 of 1997

Before the Hon. Mr Justice Mackenzie

[Re Ansett Australia Holdings Ltd]

IN THE MATTER of
THE SUPREME COURT ACT 1867

and

IN THE MATTER of AN APPLICATION BY
ANSETT AUSTRALIA HOLDINGS LIMITED

JUDGMENT - MACKENZIE J.

Judgment Delivered 7 May 1997

CATCHWORDS: COSTS - summons to set aside criminal subpoena - whether power to award costs; if so, factors influencing such a decision - whether legislative basis for power - O. VIA Criminal Practice Rules - Ss. 660, 694, 671F(1) and 704 Criminal Code - s.221 Supreme Court Act 1995 -s.58 Supreme Court Act 1867 - O. 91 r. 1 Supreme Court Rules - whether inherent or implied basis for power.

COSTS - whether costs against respondent accused or their solicitors - whether subpoena oppressive, vexatious and an abuse of court - object of jurisdiction to award such costs - scope of solicitor's duty to court - conduct in responding to other side's enquiries.

Counsel:B. Porter (solicitor) for the applicants.

A. Kimmins for the respondents

Solicitors: Allen Allen & Hemsley for the applicants.
P.S. Russo & Associates for the respondents.

Date of Hearing: 4 April, 1997

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane No.2693 of 1997

Before the Hon. Mr Justice Mackenzie

[re: application by Ansett Australia Holdings Ltd]

IN THE MATTER of
THE SUPREME COURT ACT 1867

and

IN THE MATTER of AN APPLICATION BY
ANSETT AUSTRALIA HOLDINGS LIMITED

JUDGMENT - MACKENZIE J.

Judgment Delivered 7 May 1997

This is an application for costs of a summons to set aside a subpoena in the matter of the Queen v. Popescu and Poradin. A subpoena duces tecum was served on Ansett Australia Holdings Limited ("Ansett") requiring, in respect of 26 named persons employed at Sydney airport on 10 October 1995 and 9 such employees at Brisbane airport, all files (including but not limited to personnel files) of the employees. The subpoena also required the production of all operating procedure manuals directives or information in relation to security at Ansett's domestic terminals (including but not limited to procedures concerning x-ray machines to ascertain whether there are gums or weapons in the luggage) and the power and authority of persons in Ansett's employ or with the authority of Ansett to undertake such security precautions, including but not limited to Sydney airport. The subpoena also required production of all operating procedure manuals, directives or information in relation to the power and authority of persons in Ansett's employ or with the authority of Ansett to open and search luggage.
The subpoena was headed as being issued in the criminal jurisdiction in the matter of the Queen v. Remus Poradin and Stephen Popescu. The offence alleged was possession of heroin. Disclosure of any relevant material would principally have been of benefit to Popescu in whose luggage the drug was found. Poradin's case, as appeared from his trial in which the jury was unable to agree, was that he had merely accompanied Popescu to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Ansett Australia Holdings Ltd

Details

AGLC: Re Ansett Australia Holdings Ltd [1997] QSC 79
Case: [1997] QSC 79
Decision Date: 7 May 1997

CaseChat Overview and Summary

Ansett Australia Holdings Limited filed an application for costs related to a summons to set aside a criminal subpoena issued in the matter of The Queen v. Poradin and Popescu. The subpoena, which was issued late and was overly broad, required Ansett to produce various files and security information. Despite Ansett's attempts to discuss the subpoena with the respondents' solicitors, no response was received, leading Ansett to apply to set aside the subpoena. The court was tasked with determining whether it had the power to award costs in such a scenario and, if so, whether those costs should be charged against the respondents or their solicitor. The court considered relevant authorities and statutory provisions but ultimately concluded that there was no inherent or implied power to award costs in this context. Consequently, the summons for costs was dismissed, and no costs were ordered.

Orders