The Commissioner of Australian Federal Police v Cole (No 2)

[2018] NSWSC 1123

Supreme Court

New South Wales

Medium Neutral Citation:	The Commissioner of Australian Federal Police v Cole (No 2) [2018] NSWSC 1123
Hearing dates:	On the papers
Date of orders:	20 July 2018
Decision date:	20 July 2018
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	For these reasons, I order that Mr Cole must bear the Commissioner’s costs, as agreed or assessed, other than those incurred in preparation of Mr Lee’s affidavit and those connected with the adjournment of the hearings listed on 2 and 24 November 2017 and 28 February 2018.
Catchwords:	COSTS – some departure from the usual costs order – general rule that costs follow the event – proceeds of crime – where adjournments necessitate by ill health – orders made
Legislation Cited:	Civil Procedure Act 2005 (NSW) Proceeds of Crime Act 2002 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Commonwealth of Australia v Gretton [2008] NSWCA 117 The Commissioner of Australian Federal Police v Cole [2018] NSWSC 953
Category:	Costs
Parties:	The Commissioner of the Australian Federal Police (Plaintiff) Stuart James Cole (Defendant)
Representation:	Counsel: D Tynan (Plaintiff)   Solicitors: Australian Federal Police, Criminal Assets Litigation (Plaintiff) Nyman Gibson Miralis (Defendant)
File Number(s):	2017/251156
Publication restriction:	Nil

Judgment

1. In The Commissioner of Australian Federal Police v Cole [2018] NSWSC 953 I made orders under ss 19 and 38 of the Proceeds of Crime Act2002 (Cth), rejecting the case which Mr Cole advanced on the matters in issue. Mr Cole seeks a departure from the usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW), relying on an affidavit sworn by his solicitor Mr Woolf. His case is that each party should be ordered to pay their own costs, given the costs he incurred as the result of adjournments sought by the Commissioner and those involved in responding to an affidavit sworn by Federal Agent Lee in February 2018.

2. The Commissioner relies on an affidavit sworn by a solicitor Mr Walker, employed by the Australian Federal Police in its criminal assets litigation team.

3. There is no issue as to the Court’s powers to make the orders sought under s 98 of the Civil Procedure Act2005 (NSW). Mr Cole relied on the observations of Hodgson JA in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121], where in issue was the consequences of the making of a Calderbank offer:

“121   In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant’s responsibility because the plaintiff was caused to incur costs by the defendant’s failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled: cf Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ. Departures from the general rule that costs follow the event are broadly based on a similar approach.”

4. It was not in issue that the reason for most of the Commissioner’s repeated adjournment applications was the undoubted ill health of Mr Earl, the officer who had sworn the affidavit which supported the Commissioner’s original application, in accordance with the requirements of s 19 of the Proceeds of Crime Act.

5. It was Mr Cole’s case that the Commissioner was responsible for the adjournments sought and granted for the 19 October, 2 and 24 November 2017 and 28 February 2018 hearings. The circumstances were, Mr Cole submitted, beyond his control and not the result of his opposition to the Commissioner’s application. It was in January 2017 that the Commissioner advised him that a new affidavit would be sworn by Federal Agent Lee, which was relied on at the final hearing.

6. Mr Cole thus contended that the Commissioner was responsible for the costs which he incurred in respect of the adjournments and in responding to the affidavit sworn by Mr Lee. In the result it was unfair and unreasonable for him to bear the Commissioner’s costs.

7. In the submissions advanced for the Commissioner, it was accepted that the adjournments of the hearings on and after 2 November were sought in the expectation that Mr Earl would recover. The adjournment of the 19 October hearing, however, had resulted from the service of Mr Cole’s affidavit only on 11 October. The adjournments were consented to. When Mr Earl did not recover, it was necessary for Mr Lee’s affidavit to be prepared and relied on as it was, Mr Lee having formed similar opinions to those earlier formed by Mr Earl, on the same materials.

8. In the result, the Commissioner contended that there should be no departure from the usual order, the costs order Mr Cole sought not fairly reflecting the Commissioner’s success on the application. Mr Cole had not advanced a positive evidentiary case and what was in issue finally turned on whether the Commissioner had established, on the balance of probabilities, that there were reasonable grounds for the suspicions Mr Lee deposed he held: The Commissioner of Australian Federal Police v Cole at [11].

9. In the circumstances which have arisen, I am satisfied that there must be some departure from the usual costs order, if justice is to be done between these parties, but not on the basis sought by Mr Cole.

10. There must be a costs order made in favour of the Commissioner, reflecting the success achieved on what was put in issue by Mr Cole, he having cross-examined Mr Lee as he did. Mr Cole should not, however, have to bear the additional costs involved in the preparation of Mr Lee’s affidavit, the need for which arose for reasons entirely unconnected with him. Nor should he have to bear the Commissioner’s costs of the adjournment applications necessitated by Mr Earl’s ill health, to which he consented, consistently with his obligations under s 56 of the Civil Procedure Act.

11. Neither the reasons for those adjournments, nor the course which the Commissioner pursued as the result of Mr Earl’s unfortunate illness, were matters over which Mr Cole had any control. Accordingly, it would be unjust to require him to bear the additional costs thereby incurred by the Commissioner, for reasons for which he had no responsibility.

Orders

12. For these reasons, I order that Mr Cole must bear the Commissioner’s costs, as agreed or assessed, other than those incurred in preparation of Mr Lee’s affidavit and those connected with the adjournment of the hearings listed on 2 and 24 November 2017 and 28 February 2018.

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