Seeter Pty Ltd v The Commonwealth of Australia
[2004] FCA 1305
•12 OCTOBER 2004
FEDERAL COURT OF AUSTRALIA
Seeter Pty Ltd v The Commonwealth of Australia [2004] FCA 1305
Federal Court of Australia Act 1976 (Cth) s 43
Great Barrier Reef Marine Park Act 1975 (Cth) s 38CB(1)(c)Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 48,134
Ratepayers and Residents Action Association Inc v Auckland City Council [1986]
1 NZLR 746
Kent v Cavanagh (1973) 1 ACTR 43SEETER PTY LTD (ACN 009 144 117) T/A GREAT BARRIER REEF TUNA
(ABN 4979321) and ANOR v THE COMMONWEALTH OF AUSTRALIA and ORSNo Q 169 of 2003
SEETER PTY LTD (ACN 009 144 117) T/A GREAT BARRIER REEF TUNA
(ABN 4979321) and ANOR v DARYELLE LESLEY HESTER and ORSNo Q 173 of 2003
SPENDER J
BRISBANE
12 OCTOBER 2004
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 169 OF 2003
BETWEEN:
SEETER PTY LTD (ACN 009 144 117) T/A GREAT BARRIER REEF TUNA (ABN 4979321)
FIRST APPLICANTROBERT L. LAMASON
SECOND APPLICANTAND:
THE COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENTMLADEN BOSNIC
SECOND RESPONDENTPATRICK MYERS
THIRD RESPONDENTCATHERINE COWLING
FOURTH RESPONDENTTANIA STOKES
FIFTH RESPONDENTQ 173 OF 2003
BETWEEN:
SEETER PTY LTD (ACN 009 144 117) T/A GREAT BARRIER REEF TUNA (ABN 4979321)
FIRST APPLICANTROBERT L. LAMASON
SECOND APPLICANT
AND:
DARYELLE LESLEY HESTER
FIRST RESPONDENTMLADEN BOSNIC
SECOND RESPONDENTPATRICK MYERS
THIRD RESPONDENTCATHERINE COWLING
FOURTH RESPONDENTTANIA STOKES
FIFTH RESPONDENTJUDGE:
SPENDER J
DATE OF ORDER:
12 OCTOBER 2004
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.In proceedings Q 169 of 2003 there be no order as to costs in respect of the costs which Cooper J reserved on 4 November 2003.
2.In proceeding Q 169 of 2003, and Q 173 of 2003, there be no order as to costs in respect of the directions hearings on 7 November 2003, and 21 November 2003.
3.Otherwise, the applicants pay two-thirds of the costs of the respondents in proceedings Q 169 of 2003 and in proceedings Q 173 of 2003, those costs to be taxed if not otherwise agreed.
4.In proceedings Q 173 of 2003, there be no order as to costs between the applicants and the first respondent.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 169 OF 2003
BETWEEN:
SEETER PTY LTD (ACN 009 144 117) T/A GREAT BARRIER REEF TUNA (ABN 4979321)
FIRST APPLICANTROBERT L. LAMASON
SECOND APPLICANTAND:
THE COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENTMLADEN BOSNIC
SECOND RESPONDENTPATRICK MYERS
THIRD RESPONDENTCATHERINE COWLING
FOURTH RESPONDENTTANIA STOKES
FIFTH RESPONDENTQ 173 OF 2003
BETWEEN:
SEETER PTY LTD (ACN 009 144 117) T/A GREAT BARRIER REEF TUNA (ABN 4979321)
FIRST APPLICANTROBERT L. LAMASON
SECOND APPLICANT
AND:
DARYELLE LESLEY HESTER
FIRST RESPONDENTMLADEN BOSNIC
SECOND RESPONDENTPATRICK MYERS
THIRD RESPONDENTCATHERINE COWLING
FOURTH RESPONDENTTANIA STOKES
FIFTH RESPONDENT
JUDGE:
SPENDER J
DATE:
12 OCTOBER 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
I gave reasons for judgment in each of these matters on 25 August 2004, and indicated then that I would hear the parties on costs. I directed that the respondents file and serve any submissions with respect to costs within seven days, and the applicants file and serve any submissions with respect to costs within fourteen days.
I have had the benefit of extensive submissions by the parties on the question of costs.
The power to award costs is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). The discretion conferred by that section is one to be exercised judicially, and the primary principle is that ‘Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.’: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 48,134 at 48,136 per Toohey J.
It was submitted for the applicant that there are, in this case, special circumstances justifying some other order. It was said that there was an aspect of public interest in the application seeking judicial review of administrative action, and that if the primary principle was applied without qualification, the result would be to discourage applications for review.
In my judgment, there is an element to this case which takes it outside the circumstance of being a matter of purely self interest. The question is whether the fact that there is some broader element with public interest character to it, in addition to the clear self interest, is such a special circumstance that would justify departing from the usual order.
The applicant relies on observations by Richardson J in the New Zealand Court of Appeal in Ratepayers and Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746 at 750:
‘Any Court exercising a discretion in the interests of justice in the particular case must have regard to any public interest considerations which the litigation serves. The emphasis placed on the rule of law reflects our society’s insistence on providing controls on the exercise of power. As the development of public law in common law jurisdictions amply demonstrates, compliance with the law by those acting under statutory powers is itself a matter of public interest and the availability of judicial review … is a statutory recognition of the need to provide adequate procedures for testing the purported exercise of statutory powers. Finally, the freer approach to standing reflects … the feeling that the law must somehow find a place for the disinterested citizen in order to prevent illegalities in government which otherwise no one would be competent to challenge …’
There are some aspects of application Q 169 of 2003 which have to be considered specifically. I accept, first, that there was a lack of specificity in the charges which were alleged to ground the warrant and, with it, the difficulty of knowing what documents and things were within the authorisation to seize. The terms of the legislation itself, in particular s 38CB(1)(c) of the Great Barrier Reef Marine Park Act 1975 (Cth), is of some difficulty, a difficulty which is, thankfully, relatively rare. I accept that there is a public interest aspect to the question of the confidentiality of log books, even in the context where it is alleged by prosecuting authorities that they have a relevance to the commission of offences.
It seems to me that the observations of Fox J in Kent v Cavanagh (1973) 1 ACTR 43, on which the applicants rely, have considerable resonance in the circumstances of the present matter. Fox J, in making no order as to costs, said at 55:
‘It seems to me undesirable that responsible citizens with a reasonable grievance who wish to challenge Government action should only be able to do so at the risk of paying costs to the Government if they fail. They find themselves opposed to parties who are not personally at risk as to costs and have available to them almost unlimited public funds. The inhibiting effect of the risk of paying costs is excessive and not in the public interest.’
I think there are special circumstances in proceedings Q 169 of 2003 justifying a departure, at least in part, from a rigid application of the general rule that costs follow the event.
Proceedings Q173 of 2003 sought review of the decisions of Daryelle Lesley Hester made on 27 October 2003 and 31 October 2003 to issue warrants to a Federal Agent, Mladen Bosnic and others to search designated vessels, two properties and a particular motor vehicle. I see no reason why, in that proceeding, the ordinary rule as to costs would not follow. It appears to me that the contention by the applicants that the decision of the Magistrate to issue the warrants was affected by legal error was quite speculative, unsupported by evidence, and I would, in the absence of other considerations, order that the applicants in proceeding Q173 of 2003 pay the costs of and incidental to that application, including any reserved costs, to be taxed if not agreed.
In proceedings Q169 of 2003, which is based on the Judiciary Act 1903 (Cth), Cooper J made orders in relation to the interlocutory application filed in those proceedings, and reserved the question of costs. Having regard to the orders of Cooper J made on 4 November 2003, in my opinion there should be no order made in respect of the costs which his Honour reserved on 4 November 2003.
When the matter was mentioned before me for directions on 7 November 2003, the matter was adjourned to 13 November 2003. In respect of that directions hearing, I think it appropriate to order that there be no order as to costs.
On 13 November 2003, I refused the application for interlocutory relief restraining the respondents from having access to and inspecting the materials seized, and reserved the costs. I see no reason why the ordinary rule would not apply in respect of those reserved costs, and I would order that the applicants pay the costs of and incidental to the application for interlocutory relief heard on 13 November 2003, those costs to be taxed if not agreed.
I think that there should be no order as to the costs of the directions on 21 November 2003.
Both matters were heard together over three days in Cairns. Considerably more time was occupied by proceedings Q 169 of 2003. Serious administrative difficulties would arise in the assessment of costs that I would otherwise have ordered to be paid.
I think it better, in all the circumstances, to adopt a rather broad-brush approach and, save for the particular orders as to no costs in respect of the costs reserved on 4 November 2003, and in respect of the directions hearings on 7 November 2003 and 21 November 2003, to order that the applicants in both proceedings pay two-thirds of the costs of the respondents of both proceedings.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender . Associate:
Dated: 12 October 2004
Counsel for the Applicant: Mr Ian Hanger QC, with Mr John Korn Solicitor for the Applicant: Bottoms English Lawyers Counsel for the 1st - 5th Respondents: Mr Milton Griffin SC Solicitor for the 1st - 5th Respondent: Commonwealth Director of Public Prosecutions Date of Hearing: 2-4 March 2004 Date of Judgment: 25 August 2004 Date of Judgment on Costs: 12 October 2004
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