The Commissioner of the Australian Federal Police v Cranston and 65 Ors (No 10)

[2018] NSWSC 542

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	The Commissioner of the Australian Federal Police v Cranston and 65 Ors (No 10) [2018] NSWSC 542
Hearing dates:	10 April 2018
Decision date:	27 April 2018
Jurisdiction:	Common Law
Before:	Fullerton J
Decision:	See paragraph 87.
Catchwords:	PROCEEDS OF CRIME – Practice and procedure – application to limit scope of an examination under s 180 of the POC Act – application for non-dissemination orders under s 266A of the POC Act – orders restricting the publication of the reasons for judgment – costs orders.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Evidence Act 1995 (NSW) Proceeds of Crime Act 2002 (Cth) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Commissioner of the Australian Federal Police v Elzein [2017] NSWCA 142 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 Fairfax Digital Australia & New Zealand Pty Ltd v Imbrahim & Ors (2012) 83 NSWLR 52 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) 61 NSWLR 344 Les Laboratoires Servier v Apotex Pty Ltd [2016] FCAFC 27 Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384 R v McNeil (2015) 250 A Crim R 12 R v Obeid [2015] NSWSC 897 R v Qaumi & Ors (No 15) [2016] NSWSC 318 Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 State of New South Wales v Stanley [2007] NSWCA 330 The Commissioner of the Australian Federal Police v Cranston and 65 Ors (No 8) [2018] NSWSC 365 The Commissioner of the Australian Federal Police v Cranston and 65 Ors (No 8) [2018] NSWSC 365 The Commissioner of the Australian Federal Police v Cranston and Ors (No 5) [2017] NSWSC 1850 Tomanovic v Global Mortgage Equity Corp Pty Ltd (No 2) [2011] NSWCA 256 Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).
Category:	Procedural and other rulings
Parties:	The Commissioner of the Australian Federal Police (Plaintiff) Adam Michael Cranston (1st Defendant) Jason Cornell Onley (2nd Defendant) Simon Paul Anquetil (3rd Defendant) Dev Menon (4th Defendant)
Representation:	Counsel: D McLure SC / G O’Mahoney / K Anderson (Plaintiff) P Musgrave (Solicitor) (1st Defendant) R Johnson (2nd Defendant) P Lange (3rd Defendant) E Bishop (4th Defendant)   Solicitors: Criminal Assets Litigation, Australian Federal Police (Plaintiff) Musgrave Legal (1st Defendant) Pure Legal (2nd Defendant) TressCox Lawyers (3rd Defendant) Hardinlaw (4th Defendant)
File Number(s):	2017/146280

Judgment

1. HER HONOUR: On 22 March 2018 I delivered judgment in which I refused to stay the orders made on 16 May 2017 pursuant to s 180 of the Proceeds of Crime Act 2002 (Cth) (“the POC Act”) requiring each of the first to fourth defendants to be examined in relation to their affairs and the affairs of each other (The Commissioner of the Australian Federal Police v Cranston and 65 Ors(No 8) [2018] NSWSC 365).

2. On that date I made an interim order restricting publication of those reasons to persons other than the parties and their respective legal teams in order to allow for a number of issues, largely in the form of alternative relief were the stay of the examinations refused, to be addressed by the parties before final orders were made. On that date I gave directions for submissions to be filed directed to those issues. I also directed that submissions on the issue of costs be filed and that the defendants file a set of joint submissions to avoid duplication.

3. On 10 April 2018 a hearing was convened to enable the parties to address their written submissions.

4. What follows are my reasons for refusing the alternate relief sought by the defendants, the effect of which would have been to limit the scope of the pending examinations and to direct the way in which the examinations are to be conducted, including who may be present during the examinations.

5. The defendants also sought a range of ancillary orders restricting the dissemination of the information which may result from the examinations, together with a range of protective orders designed to limit what is said to be the risk of the dissemination of that information, and other coercive material in the possession of the Commissioner, to prosecuting authorities, or its derivative use by them. What follows are my reasons for refusing the orders sought by the defendants within that general category of relief.

6. Finally, the defendants also sought orders that I restrict from publication nominated paragraphs of the judgment circulated on 22 March 2018 to insure against the risk that my references to some of the evidence adduced on the stay applications, and counsel’s submission concerning that evidence, might disclose potential defences.

7. The defendants also sought a further order, albeit on an interim basis, that the transcript of the hearing of the stay application, including the evidence adduced on the application, continue to be restricted in accordance with the order made in the course of the hearing under s 319A of the POC Act that the Court be closed. At the hearing on 10 April 2018 the defendants undertook to review the transcript and the exhibits and to provide a list of transcript references to the exhibits, or parts of them, to enable the Court to make such non-publication orders as are appropriate in the circumstances.

8. These reasons include my reasons for allowing some and refusing other proposed redactions from the circulated judgment. These reasons also include my determination on the issue of costs.

The scope of the examinations

The submissions of the defendants

9. The examination orders made on 16 May 2017 were framed so as to permit the examination of each of the defendants in relation to their affairs and the affairs of other specified individuals, including each other. In making those orders I was satisfied that there was a proper factual foundation for the existence of a relationship between each of them, and between them and other nominated individuals, to justify an examination into their respective “affairs” as defined in s 338 of the POC Act.

10. I have given extensive consideration to the breadth of the definition of “examinable affairs” in the judgment refusing the stay applications. For completeness, the affairs of a person, as defined in s 338, include, but are not limited to:

(a) the nature and location of property of the person or property in which the person has an interest; and

(b) any activities of the person that are, or may be, relevant to whether or not the person has engaged in unlawful activity of a kind relevant to the making of an order under this Act.

11. In the course of submissions the first limb of “affairs” in (a) above was referred to as “the property limb” while the second limb in (b) above, “the unlawful activity limb”.

12. “Unlawful activity” is also defined in s 338 as follows:

"unlawful activity" means an act or omission that constitutes:

(a) an offence against a law of the Commonwealth; or an offence against a law of a State or Territory; or

(b) an offence against a law of a foreign country.

13. The orders sought by each of the defendants limiting the scope of the examinations are substantially in accordance with the orders sought in paragraph 3(a) of the second defendant's notice of motion. They are set out in full in the reasons for judgment at [219]. The orders are to the effect that there be no questions asked in the examination of any of the defendants that touch upon or concern the subject matter of the taxation fraud conspiracy and, in addition, that there be no questions asked which concern (or might concern) the subject matter of any other unlawful activity in which they may have engaged.

14. That is, they seek orders that their examination be limited to the first limb of affairs in (a) above, permitting only an examination of each of them concerning property of the persons about whose affairs they are to be examined, or property in which they each have an interest. An extension of that order is also sought limiting such an examination to the location of assets with a relevant connection to the alleged tax conspiracy or to continuing investigations that may reasonably identify property suspected to be the proceeds of crimes other than the taxation fraud, including to the possibility that certain electronic payments identified by the Commissioner as the mechanism through which the fraud was perpetrated presents an incomplete picture. The order expressed in these terms was to be subject to a further prohibition on questions directed to an examinee’s defence to the taxation fraud conspiracy or their complicity in that conspiracy, including a prohibition on questioning directed to establish an examinee's guilt of that charge, either directly or indirectly.

15. In the alternative to what the defendants propose should be limits on the substantive scope of the examinations in this way, they each submit that their examination should be limited temporally so as to confine its reach to the criminal conduct particularised in the charge laid as the taxation fraud conspiracy by reference to the dates during which that criminal agreement is alleged to have been current and continuing. (During the course of submissions I was informed that the defendants have been put on notice that the prosecutor intends to amend the particulars of the taxation fraud conspiracy to allege the agreement was current and continuing between April/May 2014 to the same timeframe in 2017.)

16. It was submitted that since the POC Act is not intended to intrude on the fundamental rights of an accused, the power in s 180 to compulsorily examine a person charged with a criminal offence, although silent as to the time within which an examination of the person's affairs might or should be confined, should be strictly construed, and that any examination of that person, and any order that documents be produced at the examination, should be limited to a period of time that pertains to the criminal conduct relied upon by the Commissioner when he invoked the Court's powers under s 180 of the POC Act.

17. Support for that proposition is said to be inherent in the wording of s 180 which provides for examination about the "affairs" of a person, with "affairs" being inextricably linked to suspected criminal conduct, itself a reference to "unlawful activity", as defined. On that basis, it was submitted the examination of the defendants should not be permitted to extend beyond the period of the [charged] "affairs", being the relevant unlawful activity comprehended by the taxation fraud conspiracy.

18. The defendants further submitted that for the Court to permit the Commissioner to examine them about their examinable affairs (as defined) without restriction, would be to sanction an examination which is so overly broad and so intrinsically related to the subject matter of the criminal proceedings as to be inherently productive of unfairness. It is submitted that, for this reason, the Court should impose the restrictions that each of the defendants seek to insure against the risk that the integrity of the pending criminal proceedings will be undermined. Implicit in that submission is an acceptance of the proposition that an examination of matters the subject of the second limb of affairs could occur at a later date. Support for restrictions of the kind sought is said to be found in the fact that the matters comprehended by the second limb of the definition of affairs are not potentially fluid and changeable, but fixed and retrospective. Whether the first defendant has "engaged in unlawful activity" is not, it was submitted, going to change whether he is questioned at this time or at a later date. Further, it was submitted that there is no need for any of the defendants to be questioned as to those matters at this time, where the relevant nexus to any property they hold or over which they exercise control and the objectives of the POC Act is difficult to discern, and where the potential for prejudice to their rights at trial is exponentially increased given the unquestionable overlap between their examinable affairs and the pending criminal proceedings.

19. The defendants submitted to the extent that the discretion to limit the scope of the examinations engages the Court in a balancing exercise, any prejudice the Commissioner may suffer were the examination limited in scope has not been demonstrated. They further submitted that with the possibility that the examination may assist in locating property susceptible to a pecuniary penalty order is a contingent outcome at its highest, whilst the risk of prejudice to the integrity of the criminal proceedings is real and immediately discernible. It was further submitted that this Court should act pre-emptively by limiting the scope of the examination of each of the defendants before the examinations commence rather than waiting for what it was submitted would inevitably be the revelation of the risk of unfair prejudice materialising in the course of the examination, and where a referral of the legitimacy of the course of questioning to this Court by the approved examiner would inevitably occur (see the discussion concerning the referral power in s 192 at [272] of my reasons for judgment).

The Commissioner’s submissions

20. The Commissioner submitted that there is no principled basis for any of the proposed limitations on what he contended is his statutory right to examine the defendants in accordance with the examination power in s 180 of the POC Act and the orders the Court made pursuant to that power on 16 May 2017. The Commissioner emphasised as he did in the primary submissions he advanced on the stay application, that the statutory definition of "affairs" in s 338 of POC Act was essential to an appreciation of the permissible scope of an examination convened under Part 3 of the POC Act, and that any attempt to sever the statutory definition of affairs into two limbs, or parts, in the way proposed by the defendants is inconsistent with the specific purposes to which the power to compulsorily examine under the Act is directed, a power, in turn, directly related to achieving the statutory objectives in s 5 of the POC Act.

21. The Commissioner submitted that gathering information about an examinee’s affairs for the purposes of the POC Act, even to the extent that obtaining that information under compulsion may tend to indicate the commission of other criminal offences, is no less integral to achieving the statutory objectives in s 5 of the Act than is the information gathering power which is directed to the first limb of the definition of “affairs”. The Commissioner also pointed to the artificiality and the potential incoherence of the orders sought by the defendants limiting their examination to the first limb of "affairs" especially where, as here, they are each suspected of having engaged in a complex taxation fraud and where the structure of the agreement underpinning the taxation fraud conspiracy involves a web of financial transactions by a number of corporate entities owned or controlled by one or more of them. The Commissioner submitted that in these circumstances, questions asked at the pending examinations which are (or might be) directed to tracing and identifying the movement of funds in the acquisition of property owned or controlled by a particular defendant, might be necessarily interlinked with other potential unlawful activity by that person (or another person whose affairs may be the subject of questioning) such that there is no practical way of delimiting the scope of the examinations in the ways proposed by the defendants without inhibiting the course of the examinations and frustrating the legislative purpose to which the examinations are directed.

22. The Commissioner also submitted that the imposition of a temporal limitation on the scope of the pending examinations is predicated on the flawed proposition that the reach of the Commissioner's rights under the POC Act is circumscribed by the terms upon which a proposed examinee might have been charged criminally with the offences that were the subject of the reasonable suspicion relied upon by the Commissioner when he applies for the examination orders.

23. The Commissioner further submitted that the known or suspected extent of unlawful activity of any of the defendants at the time that examination orders were sought in May 2017 ought not be assumed to be the only basis upon which orders might ultimately be sought in the substantive civil forfeiture proceedings. The Commissioner submitted that where there exists a reasonable basis for suspecting that nominated property is the proceeds or instrument of particular unlawful activity, a legitimate use of the examination power is to explore whether there is any related property that may be similarly described. In any event, so it was submitted, documentary material an examinee is required to produce compulsorily under an examination notice (as has occurred in this case), and information that might be adduced compulsorily under questioning directed to an earlier point in time, may inform whether other unlawful activity suspected of having occurred at a later point in time in fact occurred.

24. It was submitted that as a matter of linguistic logic and forensic practicality any temporal or substantive limitation of the kind proposed by the defendants would render the examination process either ineffective for the statutory purposes in the POC Act to which the examinations are legitimately directed or unreasonably inhibit the achievement of the statutory objectives in s 5 of the Act.

Consideration

25. I am not persuaded that a sufficient basis has been made out for the orders the defendants seek as concerns the scope or the reach of the pending process of examination. The Commissioner did not submit that the Court is without power to confine the scope or reach of an examination, whether that be at the time orders are made or on the application of the examinees or the Commissioner himself at some later time. The Commissioner did submit that in order for the alternative relief sought by the defendants to be granted I would need to be satisfied not only that there is a proper basis for the exercise of the power, but that the orders confining the scope and conduct of the examinations in the way proposed by the defendants are the only practical means of addressing the various bases upon which it is said the defendants will be prejudiced or their legitimate interests as criminal accused put at risk by being required to submit to a compulsory process of examinations.

26. Insofar as the principles that informed the discretionary exercise engaged by the power to stay the examinations in s 312 of the POC Act ought be imported into the alternative relief sought by the defendants (the applications for a stay having been refused), the Commissioner submitted that the alternative relief the defendants seek is fundamentally inconsistent with the reasons the stay applications were refused. The Commissioner submitted, mostly by way of emphasis, that having regard to the Court’s primary reasoning in refusing to stay the examinations, there continues to be no identification of any legitimate forensic choice that any of the defendants would be likely to make in the conduct of their defence to the criminal proceedings which is at risk of being lost were the examination to proceed unrestricted as to substance or time. The Commissioner submitted that the bare possibility that a forensic choice might be lost, or that there might be a risk of unfair prejudice that materialises in the course of the examination, does not support the proposition that the examination should be limited prospectively.

25. It is important to recognise that the examination process as envisaged in Chapter 3 Part 3-1 of the POC Act is an administrative process under the supervision of an approved examiner. That being the case, it is not the role of this Court to manage that process prospectively unless the Court is satisfied that that is necessary to make orders that will bind the examiner in the conduct of the examination to ensure the integrity of the accusatory processes of criminal justice, or the Court is otherwise satisfied (again prospectively) that there is a real and identifiable risk that in the course of a compulsory examination the defendants will be obliged to provide information to their detriment as civil litigants or to their prejudice as individuals facing serious criminal charges, albeit with their criminal trial some years hence.

26. I have not reached that point of satisfaction on the evidence before me. I did not consider it appropriate and neither was I invited to enquire of the Commissioner as to the form, structure or content of the pending examinations of the four defendants, even less so to interrogate Mr McLure of senior counsel, who appears on the Commissioner's behalf in these proceedings, as to any forensic objectives to which he may be privy from the solicitors in CACT or CAL who instruct him in these proceedings and under whose instruction the examinations will be convened and conducted. The Court has every reason to anticipate that the power to compulsorily examine each of the defendants granted to the Commissioner on his application in May 2017 will be exercised conformably within the statutory purposes to which the examinations are directed, and that the Commissioner’s expressed concern in the evidence given by Assistant Commissioner Gaughan that the integrity of the criminal process is not undermined by those he instructs to exercise that power on his behalf will be heeded.

27. In coming to that conclusion, my reasons for rejecting the stay applications accepted that the risk of the disclosure of the product of the examination process to the prosecutorial authorities (encompassing necessarily the risk the disclosure of any defences to the taxation fraud conspiracy that may be revealed in the course of the examination) has been substantially minimised by the various structures and processes the Commissioner has put in place to address that risk.

Dissemination orders (under s 266A of the POC Act) and other protective orders

30. Each of the defendants also seek orders substantially in accordance with paragraph 3(b) of the second defendant’s notice of motion as follows:

Paragraph 8 of orders made on 21 June 2017 is varied to provide that, until further order, disclosure is prohibited to the authorities listed in s 266A of the Act, including the Australian Taxation Office, or to any other person except those persons listed in the schedule to be provided to the Court by the plaintiff who are members of the AFP Criminal Assets Confiscation Taskforce and who are quarantined from the prosecution team, of written or oral responses to questions and any material produced in connection with the examination of the first, second, third or fourth defendant or Mr Daniel Clarke (pursuant to ss 39 and 180 of the Proceeds of Crime Act 2002) and any material obtained derivatively therefrom.

31. The defendants conceded that an order in these terms is beyond the scope of s 266A of the POC Act. They submitted that in addition to the Court’s inherent power to make the order pursuant to s 23 of the Supreme Court Act 1970 (NSW) there is an implied power in s 180 (and related sections) of the POC Act insofar as that section authorises the defendants to provide information under compulsion.

32. The Commissioner submitted that consistent with the approach taken by him during the course of the substantive hearing of the notice of motion, he would consent to a further order, in appropriate terms, to the extent that the Court considers it necessary, to clarify the existing order made under s 266A(2)(b) on 21 June 2017 with the source of power to make that further order within the terms of s 266A(2)(b) itself.

33. The Commissioner submitted that the further order sought by the defendants is not authorised by s 226A and, although it may be authorised by the Court's inherent power, there is no warrant for its exercise.

34. The Commissioner submitted that the approach proposed by the defendants, in particular an approach which would require the Commissioner to provide to the Court (however constituted) a list of those members of the Criminal Assets Confiscation Task Force who are quarantined from those members of the AFP whose responsibility it is to investigate and prosecute criminal conduct, is both unwarranted and unworkable. It will not only require the Court’s continual involvement in the maintenance of such a list but, in circumstances where there is a likelihood of personnel changing roles and functions within that task force from time to time, and within Operation Elbrus more generally, it is not only likely but inevitable that the maintenance of such a list will continue for years, given the fact that the criminal prosecution is ongoing and that any trial of the defendants is not likely to be listed for some considerable time.

35. These orders were said by the defendant to be necessary having regard to what I referred to at [89] of the primary judgment while referring to Basten JA’s observations in Commissioner of the Australian Federal Police v Elzein [2017] NSWCA 142 at [79]. That passage and my reference to it cannot sensibly be construed as a finding that the form and effectiveness of an order under s 266A(2)(b) is in doubt. To the extent that Basten JA had difficulty seeing how the Commissioner as the authority under the Commonwealth who has the function of investigating and prosecuting offences could prohibit disclosure to himself, his Honour did not have the advantage of the evidence adduced by the Commissioner in the stay proceedings where the prohibitions on disclosure of coercive information and the protection to ensure against the risk of its disclosure to the prosecuting authorities was addressed, and at some considerable length.

36. I am not persuaded that an order of the kind proposed by the defendants is necessary. I will consider any application to clarify the terms of the existing order made under s 266A(2)(b) noting the Commissioner's willingness to accede to an order assuming it can be drafted in acceptable terms.

37. The defendants also seek a further order in the following terms:

In the event that an information production notice is served by the Commissioner of Taxation on the Commissioner of the Australian Federal Police or staff of the Australian Federal Police, the Commissioner of the Australian Federal Policy is to notify the first to fourth defendants and is to give them an opportunity to be heard on any application to a Court to vary the notice or to have the notice withdrawn.

38. This order appears to have been sought responsive to my observation at [151] in the reasons for judgment in dismissing the stay application:

“in the unlikely event that an information production notice was served by the ATO, I would be satisfied that the AFP would move the Court to either have the order varied or to have the notice withdrawn or set aside, whether on an ex parte application or after notice to the defendants to ensure that they had a right to be heard

39. I do not regard it as appropriate in light of those remarks to make an order in the terms sought. While I expressed the reasonable expectation that any notice served on the Commissioner of the Australian Federal Police under the authority of the Commissioner of the Australian Taxation Office would only be complied with after notice to the defendants, I do not regard it as appropriate in these proceedings that I make a binding order to that effect, particularly in circumstances where the Commissioner of the Australian Taxation Office was not represented in the proceedings and where his interests may not be coterminous with the interests of the Commissioner of the Australian Federal Police on this issue or more generally.

Who may be present at an examination

40. Each of the defendants seek orders in accordance with paragraph 3(c) of the second defendant’s application in the following terms:

No person may be present at any examination of the first, second, third or fourth defendants other than the examiner, legal representatives for the Australian Federal Police quarantined from the prosecution team, the examinee and any legal representatives for the examinee.

41. In my view, where the question of who may be present during the examination is a matter for the approved examiner as contemplated by s 188(2) of the POC Act, and where the conduct of the examination is solely within the purview of the approved examiner, save only for occasions where the intervention of this Court is sought on the question of law, it is neither appropriate nor necessary at this time that an order be made in the terms sought by the defendants.

Keeping of records and liberty to apply to inspect them

42. Each of the defendants seek orders substantially in accordance with those that appear in paragraph 3(d)-(e) of the second defendant’s notice of motion as follows:

The plaintiff is to take sufficient steps and keep (and ensure the keeping by others, as the case may be, of) sufficient records of the use of:

(i) written or oral responses to questions and any material produced in connection with the examination of the first, second, third or fourth defendant or Mr Daniel Clarke (pursuant to ss 39 and 180 of the Proceeds of Crime Act 2002) and any material obtained derivatively therefrom; and,

(ii) questions asked at any examination of any person and whether those questions arise from answers given or information obtained, directly or derivatively, from any examinations of the first, second, third or fourth defendants” Cash

in order to make those orders effective and to permit compliance with those orders to be tested by the Court or the first, second, third and fourth defendants and fully proven by the plaintiff.

The first, second, third and fourth defendants have liberty to apply for an order allowing the examination and review of the records of use referred to in the will preceding paragraph.

43. The suggested analogy with freezing orders, and other mechanisms in the Uniform Civil Procedure Rules 2005 (NSW) whereby parties to litigation are able to confirm that the orders of the Court made under that regime are complied with and enforced, are inapposite in the present context. Moreover, the imposition on this Court’s judicial time and administrative resources such as to give effect to the orders is neither justified nor warranted. It is not the Court’s role or function to dictate the way in which the Commissioner manages the information gathered by him from his examination of the defendants (including information derived from the provision of the Sworn Asset Statements) otherwise than in circumstances where it can be clearly demonstrated that those processes are deficient and the administration of criminal justice at risk by that information being leaked to the prosecution. For the reasons articulated in the primary judgment, I am not of the view that those circumstances present at this time in light of the evidence adduced by the Commissioner in resisting the orders sought by each of the defendants and my findings as to the adequacy of that evidence in addressing the risks of the leakage of Coercive Material to the prosecuting authorities.

Orders restricting publication of the reasons for judgment

44. The relevant legal principles that apply where the publication of a judgment is sought to be restricted are settled, irrespective of whether the orders are sought under the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the CSNPO Act”) or the courts inherent powers in s 23 of the Supreme Court Act.

45. To the extent that either of these sources of power are invoked on the application of the defendants, for present purposes it is unnecessary to do more than to acknowledge the agreed position of the parties in final submissions that the only basis upon which a non-publication order might be made is where I am satisfied that to do otherwise would undermine the fairness of the defendants’ pending trial.

46. It is also unnecessary for present purposes to do more than note that whilst in each case where a non-publication order is sought, the question whether to make that order must be determined according to the facts particular to the case under consideration and, for that reason, to note that any assistance derived from authorities in which non-publication orders have been sought and or ordered is relatively limited, save to the extent that the application of settled principle dictated the outcome.

47. The Commissioner's submissions directed to this issue were comprehensive as was counsels’ review of a series of recent authorities that have considered whether a non-publication order ought be made with criminal proceedings pending.

48. The Commissioner submitted that the cases in which non-publication orders have typically been made are those in which:

1. there was concrete evidence before the Court establishing that the subject matter of the pending criminal trial had received or would receive media publicity that was particularly extensive, dramatic or inflammatory;

2. the material which would otherwise be publishable would be particularly prejudicial (for example, due to its graphic nature or the disclosure of violent criminal activities); or,

3. the pending criminal trial was imminent and publication would be likely to compromise the impartiality of potential jurors.

See generally John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) 61 NSWLR 344; Fairfax Digital Australia & New Zealand Pty Ltd v Imbrahim & Ors (2012) 83 NSWLR 52; R v Obeid [2015] NSWSC 897; R v McNeil (2015) 250 A Crim R 12; R v Qaumi & Ors (No 15) [2016] NSWSC 318; Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384.

49. The Commissioner submits that there is nothing in the judgment which warrants the making of a non-publication order in terms sought be each of the defendants since, in the disposition of their applications for a stay of examination orders and related relief of various kinds, the judgment focusses on a range of issues of fact and law limited to that determination, none of which has any relevant bearing on the pending trial, such as might impact adversely upon the trial itself or the need to ensure a jury’s impartiality. The Commissioner summarised the issues the subject of judgment to include:

1. The efficacy of the measures the Commissioner has put in place to address the risk of leakage of coercive material to persons involved in the criminal investigation or prosecution of the defendants;

2. The extent to which real and not theoretical prejudice may be said to result from the examinations;

3. Having regard to the value of assets already restrained by the Commissioner and the information available to him concerning the suspected value of benefits derived from the taxation fraud conspiracy, the utility of the prospective examinations of each of the defendants.

50. The Commissioner submitted that publication of the reasons for the determination of those issues, amongst others, could not be said to give rise to a risk of any material prejudice to the defendants in their prospective criminal trials. The first issue relates to the AFP’s internal systems and practices and does not concern in any way any alleged criminal conduct of the defendants. The second primarily concerns the application of legal principle as applied to the facts as I found them to be. The third goes no further than the Court being satisfied that there were reasonable grounds for suspecting that each of the defendants was involved in a taxation fraud conspiracy, the existence of further unidentified tainted property, and the risk of the dissipation of property and proceeds of criminal offending in the event that the examinations of the defendants were stayed.

51. In this respect, the present case is readily distinguished from other cases in which a determination of the issues in a judgment involves the Court’s assessment of the strength of the prosecution case, in the sense of the Court assessing the prospects of the prosecution proving the elements of the charges laid by indictment and where the Court comments upon, or has occasion to refer to, the viability of potential defences to those charges. The significance of this distinguishing factor was emphasised in R v Qaumi & Ors (No 15) [2016] NSWSC 318 (at [47]). While it may be accepted that there is a significant degree of factual overlap between the issues raised by the POC Act proceedings and the pending criminal proceedings, for a range of reasons identified in the judgment, the factual matrix underpinning the conspiracy change, proof of which is essential to proof of guilt on the one hand, is in contrast to the facts and circumstances by which a defendant might be liable to forfeiture orders, together with differences in the burden and standard of proof in each proceeding.

52. The present case is also clearly distinguishable from those cases where resolution of the issues in a judgment necessarily discloses a defendant’s prior criminal conduct or where the alleged criminal conduct the subject of pending criminal proceedings is the subject of comment or analysis. No such concern arises from the judgment.

53. A further matter that needs to be considered is the evidence that is likely to be adduced by the prosecution and the extent to which that is revealed or discussed in the judgment. The extent to which there was any detailed consideration of evidence in that category is fairly summarised in the defendants’ written submissions as follows:

1. At paragraph [9] of the judgment, there is reference to the first Burtenshaw affidavit on which the Commissioner relied in seeking orders for examinations and for the provision of Sworn Asset Statements, and the suspicions to which he deposed. At [24] there is a further reference to his concerns that the identification of property that might be the subject of further applications for restraining orders might be impeded were the examinations delayed.

2. At paragraph 39 to 40 there is reference to the Sworn Asset Statements provided by each of the defendants. There is, however, no disclose of the content of those statements or the form of the content of what the Commissioner anticipates will be revealed under a course of compulsory questioning.

3. At paragraphs 51 to 53 there is reference to statements of facts served by the CDPP in the criminal proceedings and the essential features of the defendants suspected complicity in the taxation fraud conspiracy, including a reference to their use of particular bank accounts, and intercepted communications, however, again the content of that evidence is not further detailed nor referred to.

4. At paragraphs 114 to 140, the evidence of Assist Commissioner Gaughan concerning the internal structure of the AFP and its systems to prevent leakage of coercive material is described in some detail. The basis upon which the defendants urged that this evidence be restricted is not the subject of any elaboration .

5. At paragraphs 159 to 160, the Crocodile Report is identified as a document referred to in the first Burtenshaw affidavit as part of the material grounding Federal Agent Burtenshaw’s suspicions as to the existence of the taxation fraud conspiracy and the defendants’ complicity in it. There is no reference to specific parts of the report or the basis upon which it was prepared by the Audit team otherwise than in very general terms .

54. In short, the Commissioner submits that there is nothing in the judgment that gives rise to a real risk of unfairness in the conduct of the defendants’ criminal trials or prejudice to the proper administration of justice. Insofar as the evidence relates to the offences the defendants are suspected of having committed, the Commissioner submitted that there has been no disclosure of the detailed contents of the relevant source material (such as the defendants’ tax records or personal communications) and no disclosure of the contents of any coercive material and finally, no disclosure of potentially privileged material. For those reasons he submitted there is no foundation for any redaction of any part of the reasons for judgment. He submitted that the publication of the judgment is unlikely to attract sustained or intense media interest and even less likely to affect the impartiality of jurors who may be empanelled some years from now.

54. The defendants’ seek redaction of nominated paragraphs of the judgment on the basis that they disclose or suggest a defence to the taxation fraud conspiracy, as to which the Commissioner makes the following submissions:

1. Paragraph [25] goes no further than an acceptance by the Court that there was a legitimate concern as to a risk of dissipation of property, such as to justify the initial restraining orders. It does not disclose or indicate the content of any defence.

2. Paragraph [113] records a submission made on behalf of the defendants as to the value of restraining assets exceeding the value of benefits derived from the taxation fraud. It does not disclose or indicate the content of any defence to the criminal charges; the value of restrained assets being entirely irrelevant to those charges.

3. Paragraphs [161] to [164] record an objection to the admissibility of the Crocodile Report based on hearsay. That objection did not disclose or indicate the content of any defence. At most it might indicate that objection will be taken to the Crocodile Report in the event that the prosecution sought to adduce evidence of the report or its contents in proof of its case at trial. It is not insignificant that the basis for dealing with such an objection in a trial context would differ markedly from the approach taken by the parties in submission in these proceedings since at trial s 75 of the Evidence Act 1995 (NSW) would have no application.

4. Paragraphs [173] to [184] record submissions made as to the use of the Crocodile Report as evidence on the stay applications. In particular, they record the defendants’ submissions that the Crocodile Report provides no proper basis for an analysis of the quantum of unpaid tax and the quantum of benefits derived from the alleged conduct of the defendants. Those submissions are described at a high level of abstraction, referring, for example, to a range of criticisms including relying on bank statements as representing the payment of funds otherwise due to the ATO and to the ATO’s approach in assessing a taxpayers liabilities in a way that is most adverse to that individual or entity.

5. Paragraphs [189], [221] and [245] record the tender by the first, second and third defendants of asset value schedules. These amounts were schedulised to reflect the items of restrained property particular to each of the defendants and the value ascribed to them. No defence is disclosed or indicated by those documents or the references in the judgment to their preparation or by the submissions of the parties concerning them.

6. The fourth sentence of paragraph [256] records a finding that there are “legitimate questions” as to the source or ownership of restrained property and other property over which the third defendant might exercise control. The publication of these submissions cannot give rise to any material prejudice in the conduct of the criminal proceedings if for no other reason that no defence is disclosed or indicated.

7. Paragraphs [279], [280] and [283] address the evidence of Federal Agent Burtenshaw and Assistant Commissioner Gaughan and their expressed concerns and suspicions about the existence of additional unidentified property under the effective control of the defendants and the risk of such property being dissipated. Without disclosure of the detailed content of source material underlying the suspicions, the reasons for judgment do not give rise to any prejudice of a kind that would attract the Court’s power to make non-publication orders.

8. The last five sentences of paragraph [302] are said by the Commissioner to be expressed at such a high level of abstraction that it falls far short of disclosing the substance and detail of any defence that might be advanced at a criminal trial in the future.

56. In the result I am not satisfied there has been a sufficient basis made out to justify non-publication orders sought by the defendants under statute or at common law.

Costs

57. To the extent that the defendants submit that any costs order against them ought be limited by reason of the fact that the alternate relief they each sought has been granted, in light of the foregoing, that submission must be rejected.

58. The defendants also claim to have been partly successful on the basis that after the (amended) notices of motion were filed and before the dates for the hearing were fixed, the Commissioner consented to an order under s 266A of the POC Act. They submitted that, to a large extent, that order dispensed with the need for the Court to contend with the raft of orders in varying terms sought by each of them directed to protecting against the risk of disclosure of their Sworn Asset Statements and the product of their compulsory examinations in the event that the applications to stay the examination orders were refused. Were that a proper construction of the state of affairs that presented at the hearing of the motions, that is, were each of the notices of motion amended so as to relieve the Court of having to deal with some of the orders sought, or to relieve the Court of having to deal with submissions concerning that relief, it may have been appropriate to reflect that in a costs order. However, that was not the approach taken by the defendants. That much is obvious both from the submissions filed in advance of the further hearing on 10 April 2018 and from the attitude of the defendants at the commencement of the hearing in September 2017 when they were each specifically invited by the Court to identify the orders that were to be pressed in the notices of motion upon which they each moved. The Commissioner’s evidence had been filed by that time and the order under the s 266A in place for some months.

59. I am not of the view that on any fair construction of the way in which the proceedings unfolded, and the various issues that have been litigated at length in September and November 2017 and again in March 2018, that it can fairly be said that the defendants were partially successful in respect of any of the relief they were invited to identify on the first day of the hearing, or the relief sought at any other time in the course of the hearing.

60. The Commissioner submits that consistent with the costs power in s 98 of the Civil Procedure Act 2005 (NSW) and Part 42 r 1 of the UCPR there is no reason to vary the ordinary principle that costs should follow the event. To that end, the Commissioner seeks an order that each of the defendants pay the Commissioner's costs of the notice of motion in which they were the moving party. He also seeks an order for costs in respect of the fourth defendant’s notice of motion the subject of a judgment published on 25 August 2017 (The Commissioner of the Australian Federal Police v Cranston and Ors (No 5) [2017] NSWSC 1850).

61. The defendants seek an order that the ordinary rule as to costs be departed from consistent with the fundamental principle that the awarding of costs is essentially one of fairness.

62. The defendants’ primary submission is that there be no order as to costs or, in the alternative, that the costs associated with litigating the notices of motion be regarded as costs associated with the substantive proceedings and that they be reserved until the conclusion of those proceedings. I do not consider that any basis has been made out for treating the costs of the notices of motions in which each of the defendants was a moving party, and in respect of which they were wholly unsuccessful, in that way.

63. In the alternative, the defendants submitted that the Commissioner should be ordered to pay their costs (or that the Commissioner’s costs should be discounted) as they relate to two issues which were said to be distinct, dominant and separable from the relief they sought (and as to which they were unsuccessful), being issues the resolution of which they contend was adverse to the Commissioner such as to warrant a departure from the general principle that costs follow the event.

64. Those two issues are identified in the submissions as:

1. the “expert evidence issue”; and

2. the “value of benefits issue”.

65. The defendants also submit that they are entitled to an order that any costs order made at this time be limited to the costs associated with the proceedings but only as and from 8 September 2017 (being the date upon which the current version of the SOP was issued) but excluding:

1. costs relating to the challenge to the admissibility of Mr Forno’s evidence (“the expert evidence issue”);

2. costs incurred in challenging the Commissioner’s assessment of the value of the alleged benefits derived by the defendants from the taxation fraud conspiracy; and

3. costs incurred in relation to the question of the admissibility of the Crocodile Report (“the value of benefits issue”).

66. The defendants contend that even were I to regard the Commissioner as respondent to the notices of motion as wholly successful (the notices of motion being dismissed in whole and not in part) they were successful on the discrete issues of fact and law in each of (i)-(iii) above including, significantly, the “value of benefits issue” in (ii) and (iii) above which necessitated the Commissioner filing evidence after the proceedings adjourned part heard in September 2017 to meet the objection taken to the Commissioner’s reliance on the hearsay references to the Crocodile Report in Federal Agent Burtenshaw’s first affidavit. They submitted it is just and fair that they not be required to pay the Commissioner’s costs without accounting for what they maintain was their success in addressing both the admissibility and the weight to be afforded large parts of the evidence as they relate to the issues in (ii) and (iii) above and the issue of admissibility in (i) above.

67. A principled approach to considering that submission can be found in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 where the Court of Appeal summarised the principles established in Elite Protective Personnel Pty Ltd & Anor vSalmon (No 2) [2007] NSWCA 373 (see also Tomanovic v Global Mortgage Equity Corp Pty Ltd (No 2) [2011] NSWCA 256; 288 ALR 385 and the full Court of the Federal Court in Les Laboratoires Servier v Apotex Pty Ltd [2016] FCAFC 27; 247 FCR 61). Those principles can be summarised as follows:

● Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).

● In relation to trials … it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.

…

● Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).

● A separable issue can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].

● Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272.

The evidence of Trent Forno

68. Mr Forno holds a Bachelor of Laws from the Queensland University of Technology and is currently enrolled in a general Master of Laws at the University of Sydney. He has held a practising certificate in Queensland since September 1998 and was admitted a solicitor of the High Court of Australia in July 2002. He is currently employed as the Managing Partner of the Brisbane office of the law firm Minter Ellison.

69. In accordance with directions I gave for the filing and service of evidence on which the parties proposed to rely on the applications to stay the examination orders (and the alternative relief sought in the event that the stay all applications were refused) the plaintiff filed and served an affidavit from Mr Forno dated 22 August 2017 to which he annexed a report he prepared after being retained by the Commissioner to review the policies and practices internal to the operation of CACT and CAL as at that date, and to report upon whether they were effective to prevent the unauthorised disclosure of coercive materials. Mr Forno was asked to give particular attention to whether the SOP (in the form current as at the date of his report) was effectively implemented and whether there were any improvements that might be made to the systems of information management and control inherent in the SOP.

70. Mr Forno was provided with a large number of documents to review, including the document management software utilised by the AFP to collate and contain the information obtained compulsorily under the POC Act. Mr Forno also interviewed a number of employees and attended a SOP training session.

71. At the commencement of the hearing in September 2017, objection was taken by each of the defendants to the tender of Mr Forno’s report and any evidence concerning its preparation or the opinions expressed in it. To the extent that his affidavit traversed that material, his affidavit was also objected to. Mr Game SC (at that time senior counsel appearing for the first defendant) objected to the report on the basis that the opinions Mr Forno expressed did not satisfy the tests for the admissibility of expert opinion in s 79 of the Evidence Act 1995 (NSW). After Mr Forno gave evidence on the voir dire and was cross-examined, and after both Mr Game and Mr McLure had addressed their written submissions directed to the question of admissibility, I upheld the objection. I did so principally because I was not satisfied that there was an identified area of specialised knowledge, training or experience comprehended by the concept of "the integrity of policies and practices protecting unauthorised disclosure of information within and between law enforcement agencies” (see Honeysett v R [2014] HCA 29; (2014) 253 CLR 122) or, if there was such an area, that Mr Forno was an expert in it such as to justify the admission of his ultimate conclusions as to the efficacy of the systems and procedures for information management and control within the AFP.

72. Although there were some parts of the report and Mr Forno’s evidence more generally that survived that ruling, none of the parties referred to that evidence in their closing submissions.

73. The objection taken to Mr Forno’s evidence and the tender of his report was confined to the application of s 79 of the Evidence Act. Mr Forno’s evidence given on the voir dire was similarly confined, with cross-examination focused to the issue of admissibility. In total, the objection to the admission of the evidence and the resolution of that objection occupied relatively little court time in the context of the length of the proceedings which extended over a number of sitting days. That is borne out by the following transcript references: T13.30-14.6; T38.7-.19; T40-62; T64-69.25. Although the issue did not occupy undue Court time nor the need to reserve the question of admissibility such as might have required the parties to conduct the proceedings without a ruling on that aspect of the Commissioner’s case, I can reasonably assume that the time and cost associated with the preparation of the report was not inconsiderable.

74. I am satisfied that the admissibility of Mr Forno’s evidence was separable from the wide ranging issues of fact and law enlivened by the relief sought by the defendants, most of which remained in contest throughout the proceedings and throughout the wide-ranging submissions of the parties at the conclusion of proceedings. Although I do not regard it as a matter that can fairly be said to have dominated proceedings, I am satisfied that fairness dictates that the defendants should not be obliged to pay the Commissioner’s costs as they relate to Mr Forno’s evidence and that the Commissioner’s entitlement to costs as the successful respondent to the notices of motion should be discounted accordingly. I am also satisfied that the Commissioner pay the defendants’ costs associated with the challenge to Mr Forno’s evidence.

The Crocodile Report and the “value of the benefits derived” issues

75. The defendants submitted that neither of these issues resulted in a finding in the Commissioner’s favour in the reasons for judgment and, for that reason, the costs associated with the Commissioner’s defence of the admissibility of the Crocodile Report, including adducing evidence from Mr Ramsden concerning its preparation to address the challenge to the tender as hearsay, ought not be recoverable. It was submitted that the consideration of the issues of fact and law as they relate to both (ii) and (iii) involved considerable time both in argument and in the time at the hearing over three days in September 2017 and that the hearing was adjourned until 12 November 2017 to accommodate them.

76. In paragraphs [158]-[173] of the judgment I dealt with the initial objection to the tender of the Crocodile Report and, as is obvious from the way in which that matter was dealt with, there was significance in the fact that following service of an affidavit by Mr Ramsden the objection to the tender of the report was withdrawn. I do not accept any suggestion that the proceedings were adjourned part heard in September 2017 to accommodate that objection (the proceedings were adjourned for the simple reason that the available hearing time was not sufficient to deal with all of the issues that had been raised the hearing thus far) or that it was not open, in the interim, for the Commissioner to serve additional evidence to address the hearsay objection.

77. What remains of significance on the issue of costs is that each of the defendants required Mr Ramsden to attend for cross-examination at the resumed hearing in November 2017 for what, it must be assumed, given the way in which the cross-examination was conducted by Mr Bruckner on behalf of all four defendants, they each perceived would be to their forensic advantage, either in these proceedings or more generally, including in the pending criminal proceedings.

78. What is also of significance is that while I accepted that the tax liability of the various corporations implicated in the taxation fraud is not equal to the value of the benefits the Commissioner alleges the four defendants derived from their criminal involvement in the fraud, I did not disregard Mr Ramsden's evidence, or the approach taken by the audit team to the preparation of the Crocodile Report and his commentary upon it (in large part elicited from him in cross-examination) of no weight in the ultimate determination of the stay applications in the way the defendants submitted I should in the extensive submissions they filed directed to that specific issue.

79. I am not of the view that the defendants have made good the submission that costs related to the Crocodile Report or the value of benefits issue should be the subject of a special costs order in their favour. The defendants also submit that they should not be obliged to pay the Commissioner's costs while various iterations of the information management regimes internal to the AFP issued responsive to improvements and modifications that were made to those systems from time to time during the preparation of the matters for hearing.

75. It is clear from the evidence adduced in the hearing that both before and at the time the defendants filed their notices of motion (as amended) in June 2017, the Commissioner had in place various policies and practices in respect of the protection of confidentiality of coercive material and to prevent its dissemination to the prosecuting authorities.

76. The first regime was said by the defendants to be that no formal policy specifically directed to issue existed as at 20 June 2017, a conclusion which is in turn said to follow from the affidavits of Stefan Jerga of 20 June 2017 at [19]-[23]; Lynne Booth of 21 June 2017 at [10]-[13], [16]-[22]; and Scott Murphy of 21 June 2017 at [11]-[13]. I note these affidavits were served by the Commissioner as part of the evidence upon which he intended to rely at an early stage but that as of 8 September 2017, the defendants were advised they would not be read and that the Commissioner would be reading and relying on the affidavit of Federal Agent Burtenshaw of 15 May 2017, together with the affidavits of A/Commissioner Gaughan and Mr Forno of 22 August 2017. While the paragraphs cited above do not disclose any “policy” per se, what is significant is that the deponents refer to the measures in place to secure and contain the Coercive Material that was at that time in the Commissioner’s possession.

77. The second policy is said to be that which existed at 22 June 2017. It took the form of a joint directive issued by Commander Crozier and MCAL Jerga which was updated on 27 June 2017. That policy and its provenance was the subject of review in my reasons for refusing the stay applications. The third policy is said to be the SOP which originally issued on 16 August 2017 and was amended on 5 September 2017. It was also the subject of extensive consideration in the judgment.

78. The defendants submitted that the serial amendments the Commissioner has made to his internal information systems has resulted in them unreasonably incurring costs in seeking to establish they were either wholly defective or at least ineffective to protect against the real and identifiable risk of prejudice by the leakage of coercive material and, for that reason, the Commissioner should only be entitled to a costs order after the date the final version of the SOP issued.

79. I do not accept that submission. If upon service of the evidence upon which the Commissioner intended to rely as respondent to the notice of motion, the defendants, or any of them, had resolved to the view that the refined systems of information management and control in the SOP were a considerable advance on pre-existing systems, or were likely to be viewed as such by the Court, and that the applications to stay the examination process and the various relief sought in respect of the Sworn Asset Statements might not succeed for that reason, it may have been the case that the Commissioner would not have recovered his costs thrown away by the notices of Motion not being pursued. That was not, however, the approach taken by the defendants. To the contrary, there was a focused challenge to the sufficiency of the SOP in the cross-examination of Assistant Commissioner Gaughan with lengthy submissions directed to what was said to be patent defects in its structure and content.

80. As is obvious from the judgment, that challenge was not made good. That being the case there is no basis for displacing the ordinary rule that costs follow the event other than in respect of Mr Forno’s evidence, and no basis for the costs order to be temporally confined in the way proposed by the defendants.

81. Accordingly, I make the following orders;

1. The first defendant’s amended notice of motion of 26 June 2017 is dismissed. I order that the first defendant pay the Commissioner’s costs as respondent to the notice of motion, excluding the costs relating to the preparation of, and the adducing of evidence from Mr Trent Forno, including such costs as relate to the successful challenge to the admissibility of his evidence. I further direct that the Commissioner pay the first defendant’s costs associated with Mr Forno’s evidence and the successful challenge to the admissibility of that evidence.

2. The second defendant’s further amended notice of motion of 11 September 2017 is dismissed. I order that the second defendant pay the Commissioner’s costs as respondent to the notice of motion, excluding the costs relating to the preparation of, and the adducing of evidence from Mr Trent Forno, including such costs as relate to the successful challenge to the admissibility of his evidence. I further direct that the Commissioner pay the second defendant’s costs associated with Mr Forno’s evidence and the successful challenge to the admissibility of that evidence.

3. The third defendant’s amended notice of motion of 26 June 2017 is dismissed. I order that the third defendant pay the Commissioner’s costs as respondent to the notice of motion, excluding the costs relating to the preparation of, and the adducing of evidence from Mr Trent Forno, including such costs as relate to the successful challenge to the admissibility of his evidence. I further direct that the Commissioner pay the third defendant’s costs associated with Mr Forno’s evidence and the successful challenge to the admissibility of that evidence.

4. The fourth defendant’s further amended notice of motion of 27 June 2017 is dismissed. I order that the fourth defendant pay the Commissioner’s costs as respondent to the notice of motion, excluding the costs relating to the preparation of, and the adducing of evidence from Mr Trent Forno, including such costs as relate to the successful challenge to the admissibility of his evidence. I further direct that the Commissioner pay the fourth defendant’s costs associated with Mr Forno’s evidence and the successful challenge to the admissibility of that evidence.

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Decision last updated: 27 April 2018