FEDERAL COURT OF AUSTRALIA

Mansfield v Australian Crime Commission [2003] FCA 1632

NIGEL CUNNINGHAM SWIFT MANSFIELD v AUSTRALIAN CRIME

COMMISSION

W134 of 2003

CARR J

26 NOVEMBER 2003

PERTH

THE COURT ORDERS THAT:

1.         The respondent pay 60% of the applicant’s costs of the application including the costs of the respondent’s motion filed on 20 June 2003.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The question to be decided is what order should be made in respect of the costs of this application. 

2                     On 3 October 2003, for reasons which I published on that date, I made orders that the decision of an examiner, made by way of a ruling on 4 June 2003 in the course of an examination conducted under Division 2 of Part II of the Australian Crime Commission Act 2002 (Cth), be referred to him for further consideration in the light of my reasons for judgment.  The citation for that judgment and reasons is Mansfield v Australian Crime Commission [2003] FCA 1059. 

3                     I also gave the applicant liberty to apply on 48 hours notice should the examiner (or any other examiner in his place) in the conduct of an examination of the type referred to in those reasons over-rule any objection taken by the applicant to specific questions on the ground of legal professional privilege or on the ground that to compel such answers might constitute a real or substantial risk of interference with the course of justice in certain proceedings referred to in my reasons.  Finally, I ordered that the application be otherwise stood over with liberty to apply generally. 

procedural and factual background

4                     The procedural and factual background of this matter is set out in my earlier reasons for judgment.  There is no need to set that background out again. 

5                     The applicant’s solicitor has filed an affidavit setting out what has transpired since that judgment was given.  In short, the respondent initially served notice of its intention to recommence the examination of the applicant, but on 20 October 2003 advised the applicant that he had been discharged from all further obligations under the relevant summons. 

6                     Both parties had made submissions today in relation to what would be an appropriate costs order. 

7                     I think it is fair to say that each party had a degree of success in the proceedings.  The respondent was successful in its submission concerning a necessary implication of a legislative intent to exclude the privilege against self-incrimination.  The applicant was successful in relation to the point which concerned the common law immunity known as legal professional privilege.  However, I declined to grant relief on that ground on the basis that, at that stage, to do so would be premature.  In particular I did not make an order, sought by the applicant, that the examination be stayed pending the determination of the confiscation proceedings referred to in my earlier reasons.

8                     The applicant was unsuccessful in relation to the Anshun point. 

9                     The applicant was successful in relation to the questions of interference with the administration of justice or contempt of court.  The applicant sought injunctions, but I declined to grant any injunctions.  I simply referred the matter, that is, the examiner’s ruling, to him for further consideration. 

10                  One of the most frequently cited authorities in this area is Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748 where, at p 48136, Toohey J conveniently set out three propositions as follows:

‘1.        Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order …

 2.        Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that it bear the expense of litigating that portion upon which it has failed ...

 3.        The successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them.  In this sense, “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law…’

11                  I refer also to Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271-272, a decision of a Full Court of this Court.  

12                  The authorities show that the matter to be decided is one of a discretion to be exercised as a matter of impression and evaluation rather than by an attempt at a mathematically precise division of time or issues.  It may be a mistake to dissect too much and one needs to make a broad judgment as to what is reasonable in the whole circumstances. 

13                  Although I consider that the applicant was the more successful of the two parties, I think that it is appropriate and fair to reduce what would otherwise have been his costs, had he been completely successful.  I am, of course, well aware that in those circumstances the respondent will bear the whole of its costs. 

14                  Making a broad judgment as to what is reasonable in the whole of the circumstances, I consider that the applicant should have 60% of his costs.  The respondent will be ordered to pay 60% of the applicant’s costs.  Those costs are to include the costs of the respondent’s motion filed on 20 June 2003. 

Associate:

Dated:              21 July 2004