FEDERAL COURT OF AUSTRALIA

Clements, Dunne & Bell Pty Ltd v Commissioner, Australian Federal Police [2002] FCA 339

CLEMENTS, DUNNE & BELL PTY LTD v COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

V 210 OF 2000

NORTH J

27 MARCH 2002

MELBOURNE

THE COURT ORDERS THAT:

1.                  The orders made on 20 December 2001 are varied by adding to paragraph 2 after the words “to the proceedings”, the following “excluding the costs ordered by Registrar Fary on 11 October 2001”.

2.                  The applicant pay the respondent’s costs of the preparation of the written submissions on the question of costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT (3)

1                     On 20 December 2001 it was ordered, inter alia, that the applicant pay the respondent’s costs of and incidental to this proceeding.

2                     As the parties had not argued the question of costs at the trial of the proceeding, liberty was reserved to the parties to seek a variation of the costs order.

3                     Written submissions have been filed by the parties, including a submission in reply by the applicant. 

4                     The applicant seeks three variations to the costs order as follows:

1.                  To allow a set off for the costs orders made by Registrar Fary on 11 October 2001 in relation to a notice of motion filed on 25 August 2000.

2.                  To require the respondent to pay the applicant’s costs of and incidental to this issue determined by the first judgment given in this proceeding on 6 October 2000.

3.                  To require the respondent to bare its own costs of the preparation of certain specified affidavits which describe the activities of Mr Petroulias and the promoters of the PIC schemes.

5                     The respondent does not appose a variation to reflect the applicant’s first claim relating to Registrar Fary’s order.  That variation will be made to the costs order.

6                     The respondent contends in relation to its second claim that it was successful on the argument dealt with by the first judgment.  The hearing of the argument in this proceeding was divided into parts as a convenient and efficient way of dealing with the proceeding.  By taking the arguments in stages it was possible that the overall time take, and hence the expense, of litigating the issues would be minimised.  Thus, for instance, the question of waiver was also separated for argument.  In the event it was not necessary to determine that issue.  Had the initial argument occurred together with the crime / fraud exception arguments, there would have been little force in any claim that the applicant had its costs of the issue, even though successful on it.  The fact that the arguments were held on separate days does not add to the strength of the applicant’s argument.  The usual starting point is that costs of the proceeding following the event, that is to say, the result of the proceeding itself.  I am not persuaded that, in this case, the applicant should get its costs of the issue dealt with in the first judgment.

7                     There may have been more force in the argument that the parties should bear their own costs of the issue dealt with in the first stage of the proceeding.  Such an order would take account of the fact that the respondent apposed an argument which was accepted by the Court.  However, the respondent’s opposition must be seen in the light of the fact that it was denied access to the documents in question, and had to argue about their contents blindfolded.  In these circumstances, the respondent was justified in opposing the applicant’s argument, and should receive his costs.  The order will not be varied to reflect the applicant’s second claim.

8                     In the final claim for a variation to the costs order, the applicant contends that the respondent’s case was that privilege did not arise because of the applicant’s conduct in implementing the productivity incentive scheme.  It follows, so it was submitted, that the cost of leading evidence as to the conduct of Mr Petroulias and other promoters, conduct of which the applicants were not aware, should not be borne by the applicant. 

9                     The reasons for judgment delivered on 20 December 2001 explain how the activities of Mr Petroulias and other promoters were relevant to the issues determined against the applicant.  There is no basis for refusing the respondent his costs of the preparation of the particular affidavits.  The order will not be varied to reflect the applicant’s final claim.

10                  In the result, the orders made on 20 December 2001 will be varied by adding to par 2 after the words “to the proceedings”, the following : “excluding the costs ordered by Registrar Fary on 11 October 2001”.

11                  It should be made clear that the varied order for costs includes an entitlement of the respondent to his costs of the preparation of the written submissions on the question of costs.

Associate:

Dated:              27 March 2002