Legal Research
Cases
Wilson-Smith v Laws

Wilson-Smith v Laws

Case [2017] ACTMC 29 4 October 2017

Type to search within this case.

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). Court Procedures Act 2004 (ACT) schedule 1. Magistrates Court Act 1930 (ACT) s 244. Supreme Court Act 1867 (Qld) s 58. Supreme Court Act 1995 (Qld) s 221.
Cases Cited:	Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386. Australian Securities Commission v Aust-Home Investments Ltd and Others 116 ALR 523. Barbaro v The Queen (1992) 108 ACTR 1. Botany Bay Instrumentation v Stewart [1984] 3 NSWLR 98. Canham v Magistrates Court (2014) 9 ACTR 84. Darcey v Pre-term Foundation Clinic [1983] 2 NSWLR 497. DPP v Boykin (NSWSC 21 June 1994, unreported). Ex Parte Lai Qin [1997] HCA 6. Francis Pires v DibbsBarker Canberra Pty Ltd [2014] ACTSC 283. Grassby v The Queen (1989) 168 CLR 1. Harman v Secretary of State for the Home Department [1983] 1 AC 280. Hearne v Street; [2008] HCA 36; 235 CLR 125. Jackson v Sterling Industries Ltd (1986) 12 FCR 267. Jackson v Sterling Industries Ltd (1987) 162 CLR 612. Knight v F.P. Special Assets Ltd (1992) 174 CLR 178. Markisic v Vizza [2002] NSWCCA 53. R v Bui [2011] ACTSC 102. R v JS (No 2) (2007) 179 A Crim R 10. R v Richardson (2016) 307 FLR 8. Re Ansett Australia Holdings Limited [1998] 1 Qd R 116. Re: Minister for Immigration and Ethnic Affairs (Cth). Stanizzo v Complainant [2013] NSWCCA 295.
Parties:	Commissioner of the Australian Federal Police (First Applicant) Director of Public Prosecutions (Second Applicant) Catherine Laws (First Respondent) Ken Cush & Associates (Second Respondent)
Representation:	Counsel Mr Oram (First Applicant) Mr McMahon (Respondent) Solicitors ACT Government Solicitors (First Applicant) Ken Cush & Associates (Respondent)

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wilson-Smith v Laws

Details

AGLC: Wilson-Smith v Laws [2017] ACTMC 29
Case: [2017] ACTMC 29
Decision Date: 04 October 2017

CaseChat Overview and Summary

The Magistrates Court of the Australian Capital Territory dealt with an application by the Commissioner of the Australian Federal Police (Commissioner) seeking an order for costs from Catherine Laws (Respondent) for setting aside a subpoena issued by the Commissioner. The subpoena was set aside by Magistrate Morrison on the grounds that it was an abuse of process, as it lacked a legitimate forensic purpose, and in some instances, was a fishing expedition. The Respondent's legal representatives argued that the court did not have the power to make a costs order in such circumstances. The court, however, found that it had the power to make such a costs order as an ancillary or incidental power to its implied power to prevent an abuse of its process.

The court also rejected the Respondent's argument that the costs order should not be made because there was no finding of a breach of the Harman undertaking. The court concluded that the Commissioner's application was always likely to succeed, and the costs order should be made on the ordinary basis.

The final orders made by the court were as follows:

1. The Respondent is to pay the Commissioner's costs of the application to set aside the subpoena.
2. The Respondent is to pay the Commissioner's costs of the costs application.
3. Order 2 does not take effect if either party, within 14 days from the date of the decision, requests that the Associate re-list the matter for the purpose of seeking some other costs order. The court 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.

Orders