Wilson-Smith v Laws
[2017] ACTMC 29
•04 October 2017
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Citation: | Wilson-Smith v Laws [2017] ACTMC 29 |
| Hearing Dates: | 20 October 2016; 07 April 2017 |
| DecisionDate: | 04 October 2017 |
| Before: | Magistrate Morrison |
Decision: Catchwords: | See paragraph [68] CIVIL LAW – Costs – subpoena in criminal proceedings set aside - alleged breach of Harman undertaking – power to make costs order – whether costs order should be made – indemnity costs refused – order for costs made on ordinary basis. |
Legislation Cited: | Court Procedure Rules 2006 (ACT). |
Cases Cited: | Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386. Stanizzo v Complainant [2013] NSWCCA 295. |
| Parties: | Commissioner of the Australian Federal Police (First Applicant) |
| Representation: | Counsel Solicitors |
| File Number: | CC 698 of 2016 |
MAGISTRATE MORRISON:
On 12 October 2016 I made an order that a subpoena issued at the request of the Defendant and addressed to the Commissioner of the Australian Federal Police (“Commissioner”) be set aside, except to the extent that it related to documents which had already been delivered up without objection. The order was made on the application of the Commissioner. Costs were reserved.
The Defendant later pleaded guilty to the charge against her. The matter was subsequently relisted before me by the Commissioner seeking an order for costs of the application to set aside the subpoena. Directions were made for the filing and service of material and outlines of argument and the application was heard by me on 7 April 2017. The Director of Public Prosecutions appeared at earlier mentions of the application but, with the approval of the Court, played no part in the hearing of the application.
I refer to the Defendant, who was the First Respondent to the costs application as “the Respondent” in these reasons.
In the course of getting the application ready for hearing it became apparent that if it was successful, a question would arise as to whether any order should require that the costs be paid by the Respondent’s lawyers. That in turn gave rise to questions of whether the Respondent ought to be separately represented on the application. In the end result the Respondent’s lawyers gave an undertaking to the court that, if a costs order was made against the Respondent, the Respondent’s lawyers would pay those costs.
Part of what was in contest between the parties was an allegation on behalf of the Commissioner that the Respondent used information obtained through a discovery process in unrelated proceedings in breach of the implied undertaking commonly referred to as the Harman undertaking. The reference to Harman is a reference to the decision in Harman v Secretary of State for the Home Department [1983] 1 AC 280. See also Hearne v Street; [2008] HCA 36; 235 CLR 125.
The Commissioner’s allegation was that the breach comprised both the use of relevant information in the decision-making behind seeking the issue of the subpoena and the use of that information in responding to the application to set aside the subpoena.
The Respondent does not concede that the use of the information constituted a breach of the implied undertaking in any way.
The Respondent also raised a threshold jurisdictional question - that being whether this court has power to make the costs order sought in any event. I deal first with that threshold jurisdictional question.
It is not in contest that the Magistrates Court has implied power to make orders to prevent an abuse of its processes, which includes a power to set aside a subpoena under circumstances where requiring compliance with it would constitute an abuse of process.
What is in contest is whether that implied power extends to or carries with it an ancillary or incidental power to make a costs order against a defendant in favour of a third party when a subpoena is set aside.
The question was addressed in this jurisdiction, at least in relation to powers exercisable by the Supreme Court in Barbaro v The Queen (1992) 108 ACTR 1 at [4] (‘Barbaro’) where Miles CJ expressed himself in these terms:
The power of the court to control abuse of its own process is part of its inherent jurisdiction and the power to award costs is ancillary to the power to control abuse of process. As Hunt J said in Darcey v Pre-term Foundation Clinic [1983] 2 NSWLR 497 at 504: “To deny the court the jurisdiction to make such an order would be to encourage outrageous subpoenas such as the one in question here, and to bring the administration of justice into disrepute among right-thinking people.
In response to the Commissioner’s reliance upon the decision in Barbaro, the Respondent submits that it provides only limited support for the Commissioner’s argument, going on to describe it as ‘outdated authority the foundation for which has been thoroughly undermined’.
In support of that submission the Respondent raises several arguments.
The first is that Barbaro dealt with the inherent power of the Supreme Court and not the implied jurisdiction of an inferior court.
The distinction between inherent jurisdiction and jurisdiction by implication has been described as “fundamental” – see Grassby v The Queen (1989) 168 CLR 1. That such a distinction exists was not in contest before me.
Nor is it in contest that this court has implied jurisdiction to prevent abuse of process. To that extent the relevant inherent power of the Supreme Court and the implied power of this court at least cover the same ground. There is authority to support the existence of other similarities.
In Canham v Magistrates Court (2014) 9 ACTR 84 at [29] Her Honour Penfold J analysed the extent of this Court’s implied powers to prevent abuse of process. Her Honour’s reasons included the following:
That is, the Magistrates Court’s jurisdiction and powers include not just the jurisdiction and powers explicitly provided for by relevant legislation but also:
by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power.
That statement, initially made by Bowen CJ in Jackson v Sterling Industries Ltd (1986) 12 FCR 267 was endorsed by the majority of the High Court in Jackson v Sterling Industries Ltd (1987) 162 CLR 612, and by Mason P in Shirvanian at 183.
In her submissions the Respondent did not go on to develop her argument by pointing to any manner in which the distinction between inherent and implied powers was, of itself, relevant to the existence or otherwise of a power to award costs which was incidental or ancillary to the implied power to control abuse of process. In the circumstances the Respondent’s submission that Barbaro should be distinguished because it dealt with inherent rather than implied powers is rejected.
In her submissions the Respondent went on to argue that there is ‘arrayed against the existence of any such implied power to award costs ..... the long standing principle that the award of costs in criminal matters is a creature of statute’.
The submission is not to the point. The Commissioner does not argue for the existence of some implied broad jurisdiction to award costs in criminal matters, but rather a limited ancillary or incidental power triggered only by the court’s exercise of its implied power to prevent abuse of its process.
The Respondent also argued that the decision in Barbaro was made in the context of the then applicable Supreme Court Rules; and not ‘the current comprehensive regime’ found in the Court Procedure Rules 2006 (ACT) (“Rules”) or the limitations apparent in s244 of the Magistrates Court Act 1930 (ACT).
The effect of the existence of the delegated power to make rules in respect of ‘costs payable to defendants in particular circumstances’ has been the subject of judicial consideration in this jurisdiction in R v Bui [2011] ACTSC 102 and R v Richardson (2016) 307 FLR 8, but those decisions dealt only with the question of costs payable to defendants.
No part of schedule 1 (Subject matter for rules) to the Court Procedures Act 2004 purports to provide for the making of rules about costs in favour of third parties. No provision of the Magistrates Court Act 1930 (ACT) touches upon the subject.
In the circumstances the current costs regime is not relevantly different to that existing when Barbaro was decided.
The Respondent also argues that Barbaro ‘has also been overruled ..... by a number of subsequent appellate court authorities’ citing Stanizzo v Complainant [2013] NSWCCA 295 and Re Ansett Australia Holdings Limited [1998] 1 Qd R 116.
In Stanizzo, an accused in criminal proceedings issued a subpoena but did not appear on the hearing of a motion to set it aside. The District Court set aside the subpoena in the absence of the accused and ordered that he pay the costs of the application. The Court of Criminal Appeal determined that the District Court had no power to do so.
The difficulty for the Respondent in seeking to rely upon Stanizzo is that there is no reference in the reasons to the court’s implied power to control abuse of its process or to any consideration of whether a power to order costs exists as incidental or ancillary to such an implied power. On the face of the reasons, that question was not argued before the Court. Given that the accused had not appeared on the motion to dismiss the subpoena it cannot be said that the judge at first instance (Solomon DCJ) was necessarily exercising a power to prevent abuse of the Court’s process, as opposed to e.g. exercising a procedural power triggered by a party failing to appear on the hearing of a motion. Indeed the reasons indicate that the Court of Criminal Appeal’s focus was on the question of whether a broad power to award costs in criminal proceedings could be implied rather than whether there existed a costs power incidental or ancillary to the implied power to control abuse of process (and therefore limited in its exercise to such circumstances).
In Re Ansett McKenzie J dealt with an application for costs of a successful application to set aside a subpoena. His Honour determined that he did not have power to make a costs order, but the basis for his conclusion, as set out in His Honour’s reasons, calls for careful consideration.
The Applicant had relied upon s 221 of the Supreme Court Act 1995 (Qld) which was in the following terms:
The Supreme Court shall have power to award costs in all cases lawfully brought before it and not provided for otherwise than by this section.
His Honour pointed out that s221 reproduced what had previously appeared as s58 of the Supreme Court Act 1867. His Honour referred to the decision in Knight v F.P. Special Assets Ltd (1992) 174 CLR 178, to the effect that the rules of the Supreme Court were of such breadth that s58 was deprived of any practical operation, and concluded that s221 was not a basis for the making of the order sought.
His Honour went on to consider whether there was an inherent or implied power to order costs. His Honour made reference to authorities including Barbaro before concluding that he had no such power. Despite the reference to Barbaro His Honour appears to have been asked to approach the question in the same way in which it was approached in Stanizzo – that is whether a broad power to award costs in criminal proceedings could be implied, against the background of the costs regime in that jurisdiction, rather than whether there existed a costs power ancillary or incidental to an implied power to control abuse of process (and therefore limited in its exercise to such circumstances). So much is evident from His Honour’s observation that ‘(i)t cannot be said that the question of costs has been left wholly unaddressed in view of the provisions, albeit very limited, in the Code. In my view an inherent or implied power to award costs in the present case cannot be implied.’
The Respondent also referred in submissions to the decision of Wood J in DPP v Boykin (NSWSC 21 June 1994, unreported).
In Boykin Wood J concluded that the power of a Magistrate to prevent an abuse of the courts process by granting a stay in criminal proceedings did not extend to a power to order the Director of Public Prosecutions to pay a defendant’s costs.
The decision in Boykin can be distinguished on a number of grounds.
Speaking of the argument for the existence of a relevant implied power His Honour Wood J said:
‘In substance the case for its existence is only marginally stronger than the argument for its existence in any case where a prosecution fails. The absence of a general implied power to make costs orders, and the fact that a stay will largely address the hardship suffered by a defendant faced with an abuse of process, leads me to the view that the relevant power to order costs against the DPP does not exist, as an implied power.’
The costs order in Boykin was an order inter partes – that is an order that the DPP pay the defendant’s costs. The appeal was decided against the background of the limited statutory costs regime then in existence in NSW. The legislation, as it appears in the extract in His Honour’s reasons, prohibited the making of a costs order in favour of a defendant except in very limited circumstances, probably best described as involving some fault or unreasonableness on the part of the police or prosecution. The breadth or limits of express statutory powers to make orders inter partes necessarily affects the existence (and breadth or limit of) powers which can properly be implied to make orders inter partes. No such considerations arise in the circumstances before me.
In addition His Honour’s conclusions about what was required to ‘address the hardship’ flowing from an abuse of process necessarily involved different considerations to those relevant in the context of orders sought between one party to the proceedings and a third party.
I mention also the decision in Markisic v Vizza [2002] NSWCCA 53. In Markisic the NSWCCA determined that an appeal to it was not competent. In dealing with costs of the appeal, the Court said this:
‘The Court of Criminal Appeal has implied power to control abuse of its processes. This purported appeal from McClellan J is an abuse of process. It is an incident to such a power to control abuses of its processes that the court has implied (or inherent) power to order the applicants to pay the respondents' costs. See Darcey v Pre-Term Foundation Clinic (1983) 2 NSWLR 497 at 503; R v Barbaro (1992) 106 FLR 387 at 389; and Director General, Department of Community Services v Houdek [1999] NSWSC 1031. The dichotomy between implied and inherent powers matters not in this context.’
The New South Wales Court of Criminal Appeal is a statutory court. Whatever might have been intended by the reference to ‘.... implied (or inherent) power ......’ it is apparent that the Court saw any distinction as irrelevant to its power to make a costs order.
The decision is Markisic was referred to with approval by Spigelman CJ (with whom Basten JA and Hislop J agreed) in Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386 where His Honour said, speaking of the respondents application for costs, that ‘the submissions did not identify in any respect what it was that could have constituted an abuse of process sufficient to invoke the implied power affirmed by this Court in Markisic’.
Markisic was also referred to with approval by Spigelman CJ (Mason P., McClellan CJ at CL., and Hiodden and Howie JJ agreeing) in R v JS (No 2) (2007) 179 A Crim R 10. In JS the Court had rejected an attempt by the Crown to appeal from an acquittal by directed verdict in favour of the respondents. The respondents sought their costs of the appeal. The key issue was whether the NSWCCA had the power to make an order for costs. The Court decided that it had no power to make the costs order sought. Spigelman CJ rejected an argument that the Court’s power to award costs was ‘generally at large’, confirming the need to ‘identify an express or implied statutory power to make such an order’. His Honour then continued:
The Respondent has failed to identify any relevant statutory provision.
As part of its implied jurisdiction this Court has power to control abuse of process and, as an incident of that power, may order a person who has abused that process to pay the other party’s costs... The Appellant’s conduct could not be said to constitute an abuse of process.
It is apparent from the comments just referred to in JS, (although obiter only) that the Court did not regard the absence of an implied power to make a costs order generally in criminal proceedings as a barrier to the existence of a power to make such an order incidental to the power to control abuse of its process.
I accept that the decision of Miles CJ in Barbaro dealt with the powers incidental to the inherent power of the Supreme Court rather than those incidental to the implied power of this court. Nevertheless it is highly persuasive and the Respondent’s arguments do not persuade me that there is any rational basis for distinguishing between the extent of powers incidental or ancillary to an inherent power to prevent abuse of process (as referred to in Barbaro) and those incidental or ancillary to the implied power in this Court to do the same.
In the circumstances I conclude that this Court’s implied power to prevent abuse of process includes an incidental or ancillary power to order costs where it is otherwise appropriate to do so.
What remains for consideration is whether, in the circumstances, a costs order should be made.
The decision to set aside the subpoena except to the extent that it related to certain documents already produced was handed down by me after a short hearing on 12 October 2016 and with limited opportunity for the preparation of detailed reasons.
For the purposes of the argument which took place the documents sought under the subpoena were described by reference to categories. From the transcript of the reasons delivered on that day it is apparent that I determined the subpoena should be set aside for the following reasons:
a. Insofar as the category 1, 2 and 3 documents were concerned, the issue of the subpoena was tantamount to an application for discovery.
b. Insofar as the category 4 and 5 documents were concerned, I was told from the bar table by Ms Sharmin appearing for the Respondent that the lawyers were in possession of certain information which had come into their possession via a process of discovery in unrelated proceedings. I was told that the information made a connection between what was sought in the subpoena and a proposed attack on the credit of Constable Yates at the upcoming hearing, but no evidence about that was put before me. In the absence of any evidence to that effect, no legitimate forensic purpose had been identified.
c. Insofar as the category 6 documents were concerned, the issue of the subpoena was a fishing expedition.
In Botany Bay Instrumentation v Stewart [1984] 3 NSWLR 98 Powell J after setting out an extensive list of circumstances in which subpoenas have been set aside went on to say ‘..... it is difficult to avoid a conclusion that, in reality, the court’s jurisdiction to set aside a subpoena is but one aspect of the court’s jurisdiction to prevent an abuse of process, and that the particular classes of case which I have recorded above are to be regarded as no more than examples of situations which the courts, in the past, have held, and, in the future, would hold, to be cases of an abuse of process.’
Notwithstanding that the subpoena in relation to different categories of documents was set aside for different reasons, in each case, the decision to set it aside was an exercise of this Court’s implied power to prevent abuse of its process.
The Respondent’s submissions are to the effect that something more than a conclusion that the issue of the subpoena amounted to an abuse of process is required before a costs order can be made. Whether the point is couched in terms of whether it is appropriate to exercise the discretion to make an order or whether the jurisdiction exists only if and when it is appropriate to make such an order is of no consequence for present purposes.
In support of its submission the Respondent relies upon some observations of Miles CJ in Barbaro and the decision of Mossop J in R v Richardson (2016) 307 FLR 8.
In Barbaro His Honour Miles CJ expressed himself in terms of ‘(w)hen a subpoena is both vexatious and oppressive, I can see no reason why, other things being equal, the party causing it to issue should not pay the costs of an application to set it aside .......’. It is clear that those comments were made in the context of His Honour having concluded that the subpoena before him was both vexatious and oppressive and were not intended to amount to a pronouncement on the law to be applied in all cases involving the setting aside of subpoenas.
In Richardson Mossop AsJ (as His Honour then was) dealt with an application by the Director of Public Prosecutions to set aside a subpoena issued by an accused after committal but prior to his arraignment. The Director’s application to set aside the subpoena was dismissed. The accused sought his costs in resisting the application. His Honour determined that he did not have the power to make such an order. In reaching his conclusion His Honour recorded that the circumstances before him did not ‘warrant the invocation of the inherent power of the Court to protect its own processes from abuse’.
It follows that the decision in Richardson does not support the Respondents submission.
In the end result I am not persuaded that, a court having set aside a subpoena as an abuse of process, there exists any other necessary pre-condition to the making of a costs order. Having said that the discretionary nature of an order for costs requires consideration of all of the relevant circumstances.
In the Commissioner’s reasons much emphasis was placed on what was alleged to be a breach by the lawyers for the Respondent of the implied Harman undertaking.
I have already referred to the reasons for which I set aside the various categories of documents sought in the subpoena. My decision was not based upon a conclusion that the lawyers had breached the implied Harman undertaking. It was suggested to me in submissions from the bar table that the Respondent’s lawyers were in possession of information (the use of which the Commissioner says amounted to such a breach) which established a legitimate forensic purpose for seeking the category 4 and 5 documents, but no evidence to that effect was put before me, leading to my conclusion that no legitimate forensic purpose had been identified. I made no finding that the lawyers had breached any implied Harman undertaking. It was not necessary for me to do so to deal with the application to set aside the subpoena.
The evidence filed in support of the Commissioner’s application includes the affidavit of Ms Noble of 18 October 2016 which annexes, amongst other things, relevant written communications exchanged between the ACT Government Solicitor and the Respondent’s lawyers.
Annexure A to the affidavit is a letter dated 5 October 2016 sent by Ms Noble to the Respondent’s lawyers. It identifies a range of objections to the material sought under subpoena, including ‘no legitimate forensic purpose, categories that contain a lack of particularity and categories that are tantamount to seeking discovery’. As to the reference to lack of particularity a review of the transcript demonstrates that such considerations did form part of my deliberations in relation to category 6 of the documents sought under the subpoena.
The response from the Respondent’s lawyers did not constructively engage with Ms Noble on the points of objection raised in her letter. I do note that the subpoena was returnable the following day (6 October 2016) and that the hearing was due to commence on 18 October 2016. The hearing date had however been set at a mention on 4 July 2016. The subpoena was not issued until 23 September 2016. To the extent that anything produced to the lawyers under discovery influenced the decision to issue the subpoena, annexure S to Ms Noble’s affidavit demonstrates that documents were produced to the lawyers on or about 3 May 2016.
There is nothing in the material before me to explain why the relevant subpoena was not issued until 23 September 2016.
It is fair to say that Ms Noble’s letter squarely identified grounds for objection which I subsequently accepted as constituting a proper basis for setting aside the subpoena.
The grounds for objection to the subpoena were self evident given the way in which the schedule to the subpoena was expressed. The objections were not based upon any pedantic approach to mere matters of expression in the language used in the schedule. Rather, they went to the fundamental considerations which formed the basis for my decision to set aside the subpoena as referred to in the reasons given. On the basis upon which the Respondent argued its case before me, the Commissioner’s application was always likely to succeed.
In the circumstances a costs order should be made in favour of the Commissioner.
The Commissioner’s application is for costs on an indemnity basis. I would not make an order for costs on an indemnity basis without evidence of the costs agreement in existence between the relevant parties because to do so would be to make an order without any knowledge of its practical effect. See Francis Pires v DibbsBarker Canberra Pty Ltd [2014] ACTSC 283. No evidence about any costs agreement is before me.
My reasons for setting aside the subpoena did not extend to a finding that the Respondent’s lawyers had breached the implied Harman undertaking because it was not necessary for me to make such a finding to deal with the application. The application having been decided without that finding, it would not be appropriate for me to make any such finding now for the purposes of the costs application. To do so would be tantamount to an impermissible hypothetical determination – see Australian Securities Commission v Aust-Home Investments Ltd and Others 116 ALR 523 at 530; Re: Minister for Immigration and Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6.
I have concluded that the Commissioner’s application to set aside the subpoena was always likely to succeed but that, of itself does not persuade me that the costs order should be made on anything other than the usual basis. In the circumstances the Commissioner should have his costs assessed on the ordinary party and party basis.
I did not hear detailed submissions on the question of costs of the costs application. The costs application has been successful and in the ordinary course the Commissioner should have its costs of that application also. The orders I make therefore are in the following terms:
Order 1 - The Respondent is to pay the Commissioner’s costs of the application to set aside the subpoena.
Order 2 - The Respondent is to pay the Commissioner’s costs of the costs application.
Order 3 - Order 2 does not take effect if either party, within 14 days from today, requests that my Associate re-list the matter for the purposes of seeking some other costs order.
I record that I have made the orders against the Respondent on the basis of the undertaking given to the Court that, if such an order was made, the lawyers for the Respondent would pay the costs.
I certify that the preceding sixty nine [69] paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate P J Morrison.
Associate: Matthew Bautz
Date: 04 October 2017
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