Saad v Commissioner of the Australian Federal Police [No 2]

[2021] VSCA 263

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0015

JOSEPH SAAD and others according to the attached schedule	Applicants
v
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE [No 2]	Respondent

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JUDGES:	BEACH, SIFRIS and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	17 September 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 263

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PRACTICE AND PROCEDURE – Costs – Costs of appeal which was dismissed – Whether costs should follow the event – Whether appeal raised matter of ‘central, and national significance’ – Whether respondent should bear own costs because appeal raised matters of ‘central, and national significance’ – No reason to depart from usual position of costs following the event – Appellant ordered to pay respondent’s costs of appeal.

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REPRESENTATION:	Counsel	Solicitors
For the Applicants	Mr P Solomon QC with Mr C Juebner and Ms A Singh	Doogue and George Criminal Lawyers
For the Respondent	Ms L De Ferrari SC with Ms R Burton	Australian Federal Police

BEACH JA

SIFRIS JA

WALKER JA:

1. On 3 September 2021, this Court dismissed an appeal from orders made in the County Court dismissing applications, made pursuant to s 42 of the Proceeds of Crime Act 2002 (Cth) (‘POCA’), seeking to revoke restraining orders made under s 18 of the POCA.[1]

   [1]Saad v Commissioner of the Australian Federal Police [2021] VSCA 246 (‘Primary Reasons’).

1. In accordance with the orders we made on 3 September 2021, the parties filed written submissions as to the costs of the appeal.

1. The respondent submits that, the appeal having been dismissed, the appellants should be ordered to pay the respondent’s costs of the appeal, including any reserved costs.  As the respondent puts it:

This is the usual rule.  There is nothing to suggest this is a case warranting a departure from it.

1. The appellants submit that there is a compelling reason not to apply the usual rule.  They submit that the application for leave to appeal and the appeal ‘for the first time raised two matters of central, and national importance’.  The litigation, they submit, can be regarded as a ‘test case’.  The two matters referred to by the appellant as being of central and national importance were identified in our primary reasons as ‘Issue 1’ and ‘Issue 3’.  They were:

·whether s 75 of the Evidence Act 2008 had any role to play in determining whether an affidavit filed in support of an application for a restraining order under s 18 of the POCA is admissible; and

·whether the admissibility of the affidavit material relied upon to make a restraining order under s 18 can be challenged on a revocation application under s 42 of the POCA.[2]

[2]Primary Reasons [6].

1. In support of their contention that there should be no order as to the costs of an appeal which is a test case or which involves a matter which is of ‘central, and national importance’, the appellants relied upon this Court’s decisions in Director of Public Prosecutions v Nguyen,[3] Commissioner of the Australian Federal Police v Zhang [No 2][4] and Mai v Commissioner of the Australian Federal Police.[5]

   [3](2009) 23 VR 66 (‘Nguyen’).

   [4][2016] VSCA 191 (‘Zhang’).

   [5][2020] VSCA 38 (‘Mai’).

1. For the reasons that follow, the appellants should be ordered to pay the respondent’s costs of the appeal, including the application for leave to appeal.[6]

   [6]It is not necessary to expressly order that these costs include reserved costs. Those costs are included in the order for costs unless this Court ought otherwise orders (see r 63.22 of the Supreme Court (General Civil Procedure) Rules 2015).

1. While costs usually follow the event in litigation, from time to time this Court has determined that, in a case that may properly be regarded as a test case, no order as to costs should be made.  Nguyen is an example of such a case.  On the other hand, Director of Public Prosecutions v Ali [No 2][7] is an example of a case where this Court ruled that, despite submissions to the contrary by a losing respondent, the proceeding was not a test case and awarded costs in favour of the successful appellant.  Kyrou JA (with whom Weinberg JA agreed[8]) held that the question in the proceeding was not of the significance or general application that would be expected in a test case, and ‘nor was the proceeding conducted by any party in the public interest or on the basis that it was a test case’.[9]

   [7](2009) 25 VR 656.

   [8]Ibid 663 [33].

   [9]Ibid 664-5 [44].

1. Zhang is another example of this Court concluding that a particular proceeding was a test case.  Indeed, in Zhang, the Court concluded that the proceeding ‘was clearly a test case’, and determined that there should be no order as to the costs of the appeal.  The Court went on to say that the appellant (the respondent in the present case) had ‘obtained a judgment of wide general importance, indeed of national significance, in his favour and the respondents should not be obliged to bear the burden of his costs in obtaining that benefit’.[10]  Of course unlike the present case, Zhang was an appeal by the current respondent.

   [10]Zhang [2016] VSCA 191, [17].

1. The short answer to the appellants’ submissions on costs is that the present proceeding was not a test case. At first instance, the appellants applied pursuant to s 42 of the POCA to have restraining orders, made pursuant to s 18 of the POCA, revoked on the basis that the evidence used to obtain the restraining orders was inadmissible because it did not comply with s 75 of the Evidence Act. The appellants’ cases at first instance, and on appeal, was that s 75 of the Evidence Act applied to the affidavits relied upon by the respondent in the s 18 and s 42 applications. The appellants failed on this issue at first instance and on appeal. Self-evidently, the s 42 applications made by them were not test cases brought by them — they were simply proceedings to release the applicants’ property from restraint; nor, in our opinion, were their appeals test cases in the sense of being brought ‘in the public interest’, as opposed to being brought to further the applicants’ private interests.

1. In any event, even if the proceeding could be described as a ‘test case’, there is no rule in relation to costs orders in cases that can be so described.  Thus it would not follow from describing the proceeding as a test case that the costs discretion must be exercised in a particular way. 

1. While this Court’s decision in the present proceeding may ultimately be cited and relied upon in subsequent proceedings brought pursuant to the provisions of the POCA, this is not sufficient for there to be a departure from the usual position that costs follow the event. Merely because a case involved a matter of ‘wide general importance, indeed of national significance’ does not justify a departure from the usual rule as to costs.

1. Having been unsuccessful in their s 42 applications at first instance, the primary judge rightly ordered the applicants to pay the respondent’s costs. The appellants sought leave to appeal and appealed (as was their right) and were again unsuccessful. There is no basis for any departure from the usual rule that the costs of the appeal should follow the event.[11] 

   [11]That the ‘usual rule’ applies as the starting point in proceedings under the POCA was confirmed by this Court in Commissioner of the AFP v Opal Storm Pty Ltd [2018] VSCA 301, [71]-[72].

1. For completeness, we note that Mai is of no assistance to the appellants.  In Mai, each party enjoyed some success on appeal. That is not the basis upon which the appellants have sought a departure from the usual rule. If it had been, we would have rejected that basis as well. While we rejected the respondent’s contention that the admissibility of affidavit material relied upon in a s 18 application could not be challenged on a revocation application under s 42, this did not result in the appellants enjoying any success in this Court which would justify departing from the usual position in respect of costs.

1. There will be an order that the appellants pay the respondent’s costs of the appeal.

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SCHEDULE OF PARTIES

JOSEPH SAAD	First applicant
DIAMOND STARS PROPERTIES PTY LTD (ACN 624 399 144)	Second applicant
RAMY SAAD	Third applicant
RJ & SONS INVESTMENTS PTY LTD (ACN 607 617 603)	Fourth applicant
ALL STARS WIDE INTERNATIONAL PTY LTD (ACN 607 621 134)	Fifth applicant
and
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE	Respondent