Trade Practices Commission Australian Feather Mills P/L

[1992] FCA 785

JUDGMENT No. .... ZXd..! ... 22

IN THE FEDEFWL COURT OF AUSTWIA )

1

VICTORIA DISTRICT REGISTRY	1	Nos VG 279-292 of 1989
GENERAL DIVISION	1

Between: TRADE PRACTICES COMMISSION

(Prosecutor)

and :  AUSTRALIAN FEATHER MImS
PTY LTD

(Defendant)

Coram :	Ryan J
Date:	26 October 1992

Place: Melbourne

MINUTES OF ORDER

THE COURT ORDERS:

1.   That the prosecutor pay the defendant's costs of each of the proceedings herein, including all reserved costs and costs expressed to be in the cause, but excluding the costs attributable to the motions on notice herein dated 9 October 1990 and 19 October 1990, which costs are to be paid in accordance with the order of Gray J made 25 October 1990, all such costs to be taxed in default of agreement.

NOTE :	Settlement and entry of orders is dealt with in 0.36
of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	) Nos VG 279 - 292 of 1989
1
GENERAL DIVISION	)

BETWEEN: TRADE PRACTICES COMMISSION

(Prosecutor)

AND :

- AUSTWIAN FEATHER MILLS PTP LTD

(Defendant)

Coram:	Ryan J
Date:
-	26 October 1992

Place: Melbourne

REASONS FOR JUDGMENT IN RELATION TO COSTS

Rvan J: On 6 June 1991 I delivered judgment in relation to the fourteen proceedings herein, in each of which it was alleged that the defendant, Australian Feather M~lls Pty Ltd ("AFM") had contravened s.53(a) of the Trade Practices Act 1974. Each of the informations upon which the fourteen charges were brought was based on an allegation that AFM had

made a representation that continental quilts which it had	manufactured and offered for sale to the public, contained a
filling composed of specified percentages of down and feather. It was alleged that in each case the representation as to the composition of the quilt fillings, which appeared on either a label attached to the quilts or the packaging in which the quilts were sold, was false.
My judgment of 6 June 1991 followed a submission by Counsel for AFM at the close of the prosecution case that there was no case to answer in respect of the fourteen informations. I upheld this submission in relation to twelve of the fourteen informations, but found that there was a case to answer in respect of two of the informations, numbered VG 282 of 1989 and VG 285 of 1989. Following a supplementary submission of no case to answer in respect of these remaining informations, I ruled on 26 August 1991 that in the light of evidence brought to my attention that was not considered in my reasons for judgment of 6 June 1991, there was no case to answer in respect of information VG 285 of 1989. On 28 August 1991, I dismissed the remaining information, VG 282 of 1989, on the basis that, although there was evidence before the Court on which the defendant could have been convicted, I was not satisfied beyond reasonable doubt of the defendant's guilt.
Although my conclusion on each information was not identical, the major deficiency in the evidence led by the prosecution was that the procedure employed and the analysis undertaken by
Mr Heffer and his staff to arrive at the alleged percentages of feather and down in each quilt, on which the informations
were based, was not in accordance with the requirements of the relevant Australian Standard. Specifically, the Standard outlined a particular test and formula for analysis of down and feather-filled products where the species of fowl used was identifieh on the productgs labelling. This test and formula, however, was not the same on which the allegations in all 14 informations were based, despite the fact that in each case, the species of fowl used to fill the quilts was identified on or identifiable from the labelling. Various other deficiencies in the prosecution evidence, arising primarily from technical departures in testing from the procedures required by the Standard, were also relevant to my conclusions, and are identified in my earlier reasons for judgment.
Following delivery of my reasons for judgment in relation to the final information on 28 August 1991, Mr Gee QC, who appeared with Mr Hodgekiss for AFM, sought an order that the prosecutor pay AFM's costs. I invited the parties to make written submissions, which I have now had an opportunity to consider.
It is accepted by both parties that the Court's jurisdiction to award costs derives from s.43 of the Federal Court of Australia Act 1976, which jurisdiction is, subject to that section, unfettered. Section 43 provides:

"43(1)	The Court or a Judge has lurlsdiction to award costs in all proceedings before the court (including proceedings d ~ s m ~ s s e d for want of )urisdrction) other than proceedings in respect of which any other Act prov~des
that costs shall not be awarded.

( 2 ) Except as provided by any other Act, the award of costs
is in the discretion of the Court or Judge."

Toohey J considered the scope of s.43 in Huahes v Western Australian Cricket Association (Inc.1 (1986) 8 ATPR 40-748. His Honour observed at p.48,136:

"Subsection 4 3 ( 2 ) of the Federal Court of Australia Act 1976 vests the award of costs "in the discretion of the Court or Judge". The Federal Court Rules do not purport to qualify that discretion. The only rule to which reference is necessary is 0.62 r.15 whereby, when costs are reserved, those costs follow the event "unless the Court or a Judge otherwise orders".

The drscretion must of course be exercised judrclally. There are decisrons, both of Australran and Englrsh courts, that throw light on the way in which the discretion 1s to be exercised. I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect.

1.    Ordinarily, costs follow the event and a successful litrgant receives hrs costs ln the absence of special circ;mstances 3ustrfyrng some other order. Rrtter v Godfrey [l9201 2 K.B. 47.

2. Where a lltrgant has succeeded only upon a portron of h ~ s claim, the circumstances may make it reasonable that he bear the expense of lrtrgating that portlon upon whlch he has failed. Forster v Farsuhar [l8931 1 Q.B. 564.

3. A successful party who has falled on certaln lssues may not only be deprived of the costs of those rssues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precrse rssue in the technical pleadrng sense but any disputed question of fact or of law. Cretazzo v Lombardr (1975) 13 S.A.S.R. 4 at p.12.

There is no drfficulty in statrng the principles; t h e ~ r applrcation

to the facts of a particular case is not always easy. Also it 1s necessary to keep in mind the caveat by Jacobs J ln Cretazzo v Lombardr at p.16. His Honour sounded what he described as "a note of cautious drsapproval" of applicatrons to apportion costs according to the success or failure of one party or the other on the varrous issues of fact or law which arise in the course of a trial. His Honour commented:

"But trials occur darly rn which the party, who in the end is wholly or substantrally successful, nevertheless falls along the way on particular issues of fact or law. The ultlmate ends of justice may not be served rf a party is dissuaded by the risk of costs from canvassing all issues, however doubtful,

which might be material to the decision of the case. There

are, of course, many factors affectrng the exercise of the

drscretlon as to costs in each case, rncludrng rn partrcular, the severability of the issues, and no two cases are alrke. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to antlcrpate a favourable exerclse of the judicial discret~on as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues."

That it is appropriate to grant costs in exercise of a Court's statutory discretion in favour of a defendant who successfully defends a criminal charge is established by Latoudis v Casey

(1990) 97 ALR 45. Mason CJ in that case observed, at 49:

"In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. To burden a successful defendant with the entire payment of the coats of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the brrnging of a criminal charge whlch, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for coats or to make a qualified order for costs."

COSTS OF THE SUBSTANTIVE HEARING

The prosecutor has declined to make submissions in relation to whether I should award ordinary party and party costs in favour of the defendant, except in relation to some of the interlocutory steps preceding the substantive hearing of the informations, and has accepted that "as a general rule, costs follow the event, and a successful party should receive its costs in the absence of special circumstances justifying some other order".

The submissions put by both parties have focussed upon whether this is an appropriate case for the making of a special order

awarded on an indemnity, or solicitor-client basis. The	as to costs. The defendant has contended that costs should be
prosecutor strongly opposes that contention.
In Australian TransDort Insurance Ptv Ltd v Graeme Philli~s Road TranSDOrt Insurance Ptv Ltd (1986) 71 ALR 287, Woodward J said, at 288:

"Courts in both the United Kingdom and Austra1a.a have long accepted that solicitor and client coats can properly be awarded in appropriate cases where "there is some special or unusual feature in the case to yustify the court exercising its d~scretion rn that way" (Preston v Preston [l9821 1 All ER 41 at 58). It is sometimes said that such costs can be awarded where charges of fraud have been made and not sustained; but, in all the cases I have considered, there has been some further factor which has influenced the exercise of the court's discret~on - for example, the allegations of fraud have been made knowina them to be false. or they have been irrelevant to the rssues between the parties: see ~ndrewi v Barnes (1888) 39 Ch D 6 LR Ch App 133; Forester v Read (1870) 6 LR Ch App 40; Christie v Christie (1873) 8 LR Ch App 499; Deamam Ptv Ltd (in lia) v Wriaht (No 2) 119831 2 NSWLR 354."

His Honour revisited the same point in Fountain Selected Meats JSales) Ptv Ltd v International Produce Merchants Ptv Ltd (1988) 81 ALR 397, at 401:

"I belreve that it IS appropriate to consider award~ng "solrcrtor and client" or "rndemnity' costs, whenever it appears that an action has been commenced or contrnued In circumstances where the applicant. properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some w~lful

disregard of the known facts or the clearly establrshed law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exerclse lts unfettered discretion."

See also Thors v Weekes (1989) 92 ALR 131 at 152 per Gummow J; Australian Federation of Consumer Oroanisations Inc. v Tobacco Institute of Australia Ltd (1991) 13 ATPR 41-114, at pp. 52,740-52,743 per Morling J. In each of the latter cases, the

point is made that only rarely will costs be awarded on an	indemnity basis.
In line with the principle in Latoudis v Casev (supra), I have reached the view that this is an appropriate case in which to award the defendant its costs of the substantive hearing of the informations brought against it. The defendant was wholly successful in its defence of the charges and it would be unjust and unreasonable to burden it with the substantial financial detriment of a trial which occupied some three complete Court weeks. In light of the outcome, it is clear that the charges, at least as framed having regard to the available evidence, should not have been brought against the defendant.
I am not persuaded, however, that the defendant's costs of the
substantive hearing should be awarded on anything other than a party and party basis. Although in hindsight the prosecutor was ill-advised in bringing the informations to trial, the usual factors militating in favour of an award of costs on a solicitor-client or indemnity basis are not present. It cannot be said, for example, that the allegations contained in the informations were known by the prosecutor to be false, or irrelevant. Nor can it be presumed that the informations were pursued from any ulterior motive, or in wilful disregard of

' i*

the facts or the law.

Several factors were urged on behalf of the defendant in

outlined in some detail the occasions on which it expressed	favour of a special order for costs. First, the defendant
concerns to the prosecutor about the testing procedure underlying each of the informations. The defendant has submitted that the prosecutor should not have proceeded with the charges in light of the deficiencies which it had highlighted. These expressions of concern, however, in my view, do not warrant an award of solicitor-client or indemnity costs. The Australian Standard, which prescribed the testing procedures, is a complex and technical document, and one would expect in all contested prosecutions of this kind that questions relating to its interpretation would be raised by defendants. I have not been referred to any occasion, at least before the substantive hearing, on which the defendant raised with the prosecutor the possibility that entirely the wrong testing procedure had been adopted by the prosecution witnesses. The concerns expressed by the defendant centred on technical departures from the Standard. The correct interpretation of the Australian Standard was, of course, a matter for the Court, and I accept that the prosecutor genuinely believed, on advice, that it had a reasonable chance of securing convictions based on the evidence it had amassed. Although that evidence was ultimately rejected by the Court, the prosecution was, in my view, entitled to bring a case in reliance upon it.
The defendant also drew attention, in its submissions in relation to costs, to a letter which it had written on 4
reservations about the accuracy and appropriateness of the December 1987 to the Trade Practices Commission expressing
Australian Standard testing procedures. Again, I am of the view that this is not a relevant factor to be weighed in the context of an award of costs. Regardless of the merits of the procedures laid down in the Australian Standard, that standard was in force at the time when the informations were sworn and was reasonably to be regarded as an appropriate basis for the laying of charges of the kind involved here.
Various allegations were made by the defendant concerning the adequacy of the prosecution's preparation for trial and the scrutiny to which it subjected the evidence of Mr Heffer and his staff, who conducted the analyses which led to the bringing of charges. Although with the benefit of hindsight it is apparent that the evidence of Mr Heffer and his staff should have been scrutinized more critically, the informations were, as I have said, ultimately dismissed on a technical interpretation of the Australian Standard. As the prosecutor says in its submissions in relation to costs, the defendant's defence to the charges was multi-faceted and only partly anticipated. In the circumstances, I do not think that the prosecutor's failure to foresee the way in which the defendant's case was ultimately put should be penalized by a special award of costs.
Finally, the defendant contends that the prosecutor ought to have carefully re-examined the evidence in relation to Informations VG 282 of 1989 and VG 285 of 1989 in the light of
my reasons for decision of 6 June 1991. I do not accept this submission. In my reasons on 6 June 1991, I held that there
was a case to answer in respect of both of those remaining informations. In my view, the prosecution was entitled to assume, at that stage, that there was a reasonable possibility of securing a conviction in relation to each of those informations.
It is often difficult in litigation to anticipate all of an

- l0 -

opponent's arguments. This is particularly so where cases are vigorously defended, and where the arguments put are multi- faceted and complex. In this case, difficulties encountered by both sides in the preparation and presentation of their cases were undoubtedly exacerbated by the density of the Australian Standard and the technical nature of the evidence of testing procedures. It has not been alleged by the defendant that the prosecutor proceeded with the charges for any improper purpose, or that it relied on evidence which it knew was false. Although, therefore, it is appropriate that the prosecutor pay the defendant's costs of the substantive hearing, I am not prepared to exercise the discretion to make a special order for payment of costs on a solicitor-client or indemnity basis.

COSTS OF THE INTERLOCUTORY PROCEEDINGS

It was submitted by the prosecutor that, although in general the costs of the various directions hearings and other

ought to follow the event, the costs of some of the	interlocutory steps involved in preparing a case for trial
interlocutory steps in this case ought to be borne by AFM.
AFM has submitted that the prosecutor ought to bear the costs
of all of the various interlocutory steps leading up to trial, with the &xception of the costs attributable to an argument in relation to a subpoena addressed to the Trade Practices Commission and resolved in the prosecutor's favour by Gray J on 25 October 1990 (I note in passing that in its submissions in relation to costs A F M stated, presumably in error, that this subpoena was dealt with by Gray J on 20 December 1990).
A perusal of the Court files in these matters reveals that
some eleven interlocutory hearings were dealt with by various Judges of this Court before substantive hearing commenced on
11 February 1991. The costs of six of these hearings have
been put in dispute by the parties' submissions in relation to costs.
1. The costs of 5 December 1989
-
The prosecutor contends that each party ought to bear its own

-

costs of the interlocutory hearing held on 5 December 1989. On that date, a motion on notice filed by A F M on 30 November

1989 seeking a change of venue from Melbourne to Sydney was

returnable before Sweeney J. His Honour adjourned the motion until 14 December 1989. The prosecutor has submitted that the

adjournment of the motion was necessary because of late	service of the motion and supporting affidavits by A F M . It is
further alleged that Counsel appeared for A F M at the hearing on 5 December, despite the fact that the prosecutor had indicated its intention to apply for an adjournment.
The report on the Court file of the hearing held on 5 December
1989 reveals that the order adjourning the motion on notice
was made by Sweeney J with the consent of both parties. No order as to the costs of the hearing of that day was made. In my view, it would be inappropriate to make now a special order for the costs of 5 December 1989. The prosecutor had the opportunity at the time to raise the question of the costs of the adjournment with the defendant, and could have applied to be heard before Sweeney J on the question. Its apparent failure to do so, coupled with the fact that the orders of his Honour were made with the consent of both parties, strengthens my view that the costs of 5 December 1989 ought to follow the costs of the hearing of the adjourned motion. I refer in this context to 0.62 r.29 of the Rules of this Court, which provides :

"Subject to this Order, the costs of any applrcation or other step in any proceedrngs shall, unless the Court otherwrse orders, be deemed to be part of the costs of the cause of the party in whose favour the application or other step is determined and shall be pard and otherwise dealt wrth in accordance wrth the provisions of this Order. "

See also Woods v Walsh (1989) 22 FCR 204 per Lee J at 206-207.

The costs of 14 December 1989

The adjourned motion filed on 30 November 1989 for change of

venue was heard and refused by Northrop J on 14 December 1989. The prosecutor submits that the costs of the motion of that day should be borne by the unsuccessful party, AFM.

Northrop J ordered at the conclusion of the hearing on 14 December, after directing a timetable for request and supply of further and better particulars of claim, that the costs of both parties of that day be costs in the cause.

The meaning of the term "costs in the cause" was considered by a Full Court of the Supreme Court of NSW in Dubbo Refriaeratina CO v Rutherford (1898) 14 WN (NSW) 180. Darley CJ, with whom Stephen and Cohen JJ concurred, noted (at 182):

"The costs of both comrssions were ordered to be costs in the cause, but it is now sard that although the evidence was accepted by the jury as ln favour of the defendant, the plaintiffs are entitled to the costs because they are entrtled to the general costs of the action. "Costs in the cause" merely means costs not now drsposed of; after the trial they have to be dlsposed of with the costs of the trial, which are themselves costs rn the cause, according to certarn settled princrples of law which the Prothonotary has followed. Issues are drvisible, and rf some rssues are found for the defendant, although the plaintiff may be the successful party in the action, still the defendant gets the costs of those issues upon whrch he has succeeded, although they may at frrat have been costs in the cause."

The authority just cited makes it clear that the Court has the discretion to award the costs of an interlocutory step, which have been made costs in the cause, to the party who succeeds on the interlocutory step, even where that party ultimately fails in the event. There is, however, in my view, a strong inference, where the Judge hearing an interlocutory application orders the costs of that application to be costs in the cause, that the costs of the interlocutory step ought

to follow the event. There may be many reasons for ordering	that the costs of an interlocutory application be costs in the
cause; usually, however, it will flow from a recognition that the interlocutory application was a necessary or appropriate step in the pre-trial process. The successful party always has the opportunity to argue before the Judge determining the
interlocutory application that a specific order for costs
against the unsuccessful party should be made then and there. Only special cases, therefore, warrant a departure from the
principle which I consider to be implicit in an order that costs of an interlocutory application be in the cause, that those costs follow the award of costs of the substantive hearing.
For this reason, I am not disposed to upset the clear purport of Northrop S's order of 14 December 1989, which was that the costs of the motion for change of venue should follow the costs of the trial on the substantive issues. Accordingly I order that the prosecutor pay the defendant's costs of the motion dated 30 November 1989, including the costs referable to that motion of 5 December 1989.
3. The costs of 28 Mav 1990
On 28 May 1990 a directions hearing was held before myself to enable the parties to make submissions in relation to the listing of these matters for trial. The prosecutor applied to have the matters listed for immediate trial. That application
was opposed by AFM, primarily on the basis that tests on the composition of the quilts, on which it intended to rely, had
not been completed. I ordered that the matters remain in the list of cases to be fixed for trial, but made no order as to costs.
I do not zonsider it appropriate in the circumstances to award the prosecutor its costs of 28 May 1990. The proceedings on that day were by way of a general directions hearing which

was, in my view, reasonably necessary as part of the pre-trial process. The costs of that day should follow the costs of the event.

4. The costs of 6 Se~tember 1990

By a motion on notice dated 4 September 1990 returnable on 6

September 1990, AFM sought an order, amongst others:

"That the above Prosecutor be required to comply w ~ t h	the second
Order made bv Mr Justice Woodward on March 2 1990 and DrOduCe to the	-

defendant:-

(L) The duplicated test specimens each of approximately 5 grams;

and

(ii)  A collection of small specimen bags contaming the components

separated by Heffer."

Woodward J's order of 2 March 1990 read, in relevant part:

"2. That upon the defendant by its Counsel undertaking that,
subject to any alteration or damage properly and necessar~ly
occasioned to the products the subject of summonses VG 281 to 292
inclusive by reason of testing, it wrll keep the products safe and
return the products at ~ t s own expense to the prosecutoL- immedrately
upon completion of testing, [the Court orders that] the prosecutor on
or before 30 March 1990, make avarlable to the defendant for
Lndependent testing the products the sub~ect of summonses VG 281 to

292 inclusive."

On 6 September, I adjourned to 11 October 1990 the motion,

together with a motion by the prosecutor dated 14 August 1990 to have the cases listed for trial forthwith. I further ordered that the costs of both parties of that day be reserved.

The prosecutor contends that the adjournment on 6 September 1990 was occasioned by both the short service upon it of AFM's motion dated 4 September, and the unavailability of AFM's Counsel to argue either the motion dated 14 August or the motion dated 4 September on 6 September. Accordingly, the prosecutor has submitted that the parties ought to bear their own costs of the hearing on 6 September.

Argument on the prosecutor's motion dated 14 August 1992 became unnecessary when, on 13 September 1990, the parties were advised that the cases had been listed for a trial of fifteen days duration commencing on 11 February 1991. The defendant's motion dated 4 September 1990 was resolved in the defendant's favour by orders made by consent by Gray J on 11 October. The consent orders specified that the costs of the motion dated 4 September were to be reserved.

Order 62, rule 15 of the Rules of this Court, provides:

"Where t h e c o s t s of a motion, application or other proceeding are reserved by t h e court o r a Judge, t h e c o s t s s o reserved s h a l l fo l low t h e event unless t h e Court or a Judge otherwise orders ."

that reserved costs shall follow the event. An order that	This rule establishes a prima facie, but rebuttable principle
costs be reserved carries the implicit conclusion that it is inappropriate, in the circumstances, to make then and there a specific order for costs against either party. Similarly, where the parties have consented to an order that costs be reservedf2they have implicitly accepted that no specific order for costs one way or the other ought to be made at the time. In this case, the prosecutor was under no obligation to
consent to an order that costs be reserved. I consider that appropriate opportunities were open to the prosecutor on both 6 September and 11 October 1990 to argue that a specific costs order in its favour should have been made in relation to AFM's motion dated 4 September. Accordingly, I am not prepared now to make a special order as to the costs of 6 September 1990. The costs of that day should follow the costs of the event.
5. The costs of 25 October 1990
-
On l1 and 25 October 1990, Gray J heard argument on a motion on notice brought by the prosecutor dated 9 October 1990 and on a motion on notice dated 19 October 1990 brought by the defendant. The prosecutor's motion was for an order, amongst others :

"2. That pursuant to Order 27, Rule 9 the subpoena for production served upon the prosecutor on 5 October 1990 be set aside on the grounds that the subpoena

(a) rs flshing, vexatious and oppressive,

(b) seeks production of documents which this Honourable Court decided on 16 March 1990 need not be produced."

The defendant's motion dated 19 October 1990 was for orders,

amongst others: 

"1. That if any statement or proof of evldence from any witness proposed to be called by the Prosecutor in the abovementioned proceedings is presently in existence, a copy of such statement or proof of evidence is to be served on the Defendant wrthin 48 hours of the making thereof.

2.     That the Defendant, withln 21 days of service on it of a

statement or proof of evldence in accordance with paragraph 1 above, shall notify the Prosecutor in wrlting whether the maker of such statement or proof of evrdence is required to attend for cross- examrnation, and as to any objection as to the admissibility of any part of such statement or proof of evrdence or any document referred to therern.

3. That the Prosecutor provide to the Defendant copies of documents intended to be relied upon at the hearing on or before the 19th January, 1991.

Q. That the Prosecutor in addition to (3) above, provide inspection of original documents intended to be relied upon at the hearing on or before the 29th January, 1991"

The prosecutor was wholly successful in relation to its motion on notice dated 9 October 1990. The defendant succeeded in relation to its motion dated 19 October 1990. Gray J ordered on 25 October, insofar as the costs of the two motions were concerned:

"5. That the defendant pay the prosecutor's costs of the notice of motion herein flled on 9 October 1990.

6. That the proeecutor pay one half of the defendant's costs of the notice of motion herein flled on 19 October 1991."

The latter of the two orders just cited was apparently made by Gray J because some of the orders sought by the defendant in its motion had previously been the subject of orders by myself on 16 March 1990.

The prosecutor has contended that the orders of Gray J of 25

October 1990 should stand. The defendant has submitted that	the prosecutor ought to be required to pay the defendant's
costs of 11 and 25 October.
I am not prepared to vary the orders of Gray J of 25 October 1990. His Honour had the benefit of hearing submissions as to costs by both parties and reached a clearly expressed view as to how the burden of those costs should be borne. The orders should stand.
6. The costs of 20 December 1990
-
On 20 December 1990, subpoenas for production addressed by AFM to Mr Heffer and the Quilted Products Manufacturers Association of Australia Inc ("QPMAA") were returned before Gray J. His Honour made orders granting leave to both parties to inspect and copy the documents so produced, and imposed various terms as to confidentiality.
The prosecutor has submitted that as the subpoenas were addressed to third parties, the costs of the third parties and the proceedings of that day should be borne by AFM.
Gray - J made two orders in relation to the costs of 20 December 1990:

"4. That the defendant pay to the QPMAA and David J Heffer &

Associates Pty Ltd an amount to compensate for such expense or loss that has been reasonably ~ncurred or lost by it in comply~ng with the Subpoena addressed to it and that the amount be fixed by the Taxing
Off rcer.

.	.	.
5.	[That the closts of t h ~ s	day be reserved."

to make a specific order for costs against AFM in relation to	It seems to me, again, to be inherent in Gray J's decision not
the prosecutor's costs of 20 December 1990, that his Honour was of the view that the return of the subpoenas on that day was an appropriate and proper part of the pre-trial process. No suggestion has been made by the prosecutor to the contrary in its submissions to the Court in relation to costs. Accordingly, I am not disposed to interfere with the usual presumption that the reserved costs of that day follow the event.
CONCLUSION
It accordance with the above reasons for decision, the order of the Court will be that the prosecutor pay the defendant's costs of each of the proceedings herein, including all reserved costs and costs expressed to be in the cause, but excluding the costs attributable to the motions on notice dated 9 October 1990 and 19 October 1990, which costs are to be paid in accordance with the order of Gray J made 25 October 1990. All costs should be taxed in default of agreement.

I certify that this and the preceding
nineteen (19) pages are a true copy of the

Reasons for Judgment herein of his Honour

Mr Justice Ryan.

hsociate: v&,Lr

Date:

26 & c h b (142

Solicitor for the Prosecutor:	Director o f Public Prosecutions
Solicitor.for the Defendant:	Hickson, Lakeman and Holcombe