FEDERAL COURT OF AUSTRALIA

Voustinellos v Beveridge [1999] FCA 1113

ADMINISTRATIVE LAW      )

COSTS                                    ) – application raising important question of the administration of the office of the Commissioner of Taxation – fundamental right to fair trial also involved – costs order in favour of Commissioner refused.

Federal Court of Australia Act 1976 (Cwth), s 43

Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 cited

Chonka v Palmer [1999] FCA 763 cited

Shelton v Repatriation Commission (1999) 85 FCR 587 applied

Ahnee v Director of Public Prosecutions [1999] 2 WLR 1305 applied

VOUSTINELLOS v MALCOLM BEVERIDGE & ORS

N 69 of 1999

Burchett J

5 August 1999

Sydney

EX TEMPORE REASONS FOR JUDGMENT

1                     I congratulate the parties on working out what seems to me to be a sensible and just solution to the problem of this case.  I note the matters set out in the short minutes which I initial.  I make the order contained in those short minutes.

2                     In this matter, the solution has been found by consent, and the only problem which has been raised before me is that counsel appearing for the Commissioner of Taxation has sought an order for costs.  That requires me to indicate very briefly the nature of the case.  It is one in which a prosecution has been brought against a taxation officer, who is alleged to have had unauthorised access to a taxation office computer.  A question arose at the committal hearing, before a magistrate, concerning the production of records produced from the computer.  On the one hand, the prosecution sought to rely on records in the course of proving the alleged unauthorised access.  On the other hand, the defence sought to have records produced to support a contention which, I think, ultimately amounts to a contention of an implied authorisation, to be established, at least in part, on the basis of evidence that other officers had had similar access.

3                     The magistrate expressed, in strong terms, the view that if the defence were unable, as he held it was, to obtain production of the records it sought to rely on, the prosecution should not be permitted to rely on the records which it required.  In the homely phrase used by the magistrate, sauce for the goose was sauce for the gander.

4                     In that situation, the matter was brought before me.  The objection which one would normally have expected to be raised in reliance on Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 187, and other authorities which I collected recently in Chonka v Palmer [1999] FCA 763, was not raised.  Indeed, the prosecution was as anxious that I should deal with the matter as was the defence which actually made the application to the Court.

5                     It seems to me that, since the application arises so directly out of a criminal proceeding, the normal rule should apply as between the applicant, who is the defendant before the magistrate, and the Director of Public Prosecutions; and Mr Johnson, who appears for the Director, seems to accept that.  He seeks no order for his costs.  Costs are sought by the Commissioner of Taxation, who was joined as a separate party, having regard to the fact that the basis of the problem that had arisen before the magistrate lay in the statutory provisions restricting the disclosure of information by the Commissioner, and in the attitude which the Commissioner had quite properly taken of seeking to govern his conduct in respect of the proceeding in accordance with his statutory obligations.  What that means, of course, is that it was probably necessary to join the Commissioner as a party, and if he had not been initially joined he may well have been added.  I think there was an important question underlying this case of the administration of the taxation office:  cf Shelton v Repatriation Commission (1999) 85 FCR 587 at 590.  There was also, obviously, an important question of the fundamental right to a fair trial underlying the position of the applicant.

6                     Both of these factors suggest to me that the appropriate order to make is that there be no order as to costs.  As regards the significance, for this purpose, of the applicant's reliance on a fundamental right, reference may be made to the recent decision of the Privy Council in Ahnee v Director of Public Prosecutions [1999] 2 WLR 1305 at 1315.  Accordingly, I decline to make any order as to costs.

Associate:

Dated:              13 August 1999