FEDERAL COURT OF AUSTRALIA

P v Australian Crime Commission (No 3) [2008] FCA 1520

P v AUSTRALIAN CRIME COMMISSION and ANOR

NSD373 OF 2006

EMMETT J

3 OCTOBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicant to pay 40% of the costs of the Interveners of their motion of 24 July 2008.

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

REASONS FOR JUDGMENT

1                     On 29 August 2008, I gave my reasons for orders that I had made and orders that I proposed to make in relation to three applications before the Court.  The applications involve access to material on the Court file and disclosure of certain particulars in relation to the proceeding.  As I indicated in my reasons, there were three applications, one by the applicant, one by the respondents and one by Nationwide News Pty Limited and John Fairfax Publications Pty Limited (the Interveners).  Following the disposal of the motions, the Interveners have asked for their costs of the motion against the applicant.  The Interveners do not seek costs against the respondents.  The applicants do not seek costs against the Interveners and the respondents do not seek costs against anyone. 

2                     As I indicated in my reasons, there were four categories of material that were the subject of dispute.  One concerned documents that are the subject of the applicant’s legal professional privilege.  While the application for access to that material was pressed by the Interveners, no great attempt was made, if any attempt was seriously made at all, to press the application for access.  Nevertheless, the application for access was not abandoned. 

3                     Secondly, the Interveners pressed for access to material on the Court’s file consisting of affidavits that have not been read and parts of read affidavits that were either rejected or not read.  The Interveners were unsuccessful in relation to that aspect of their motion.  Again, they did not abandon the application for access, although it is probably fair to say that not a great deal of time was taken up with that part of the application.  On the other hand, it was a matter of some principle and, as I have said, was pressed. 

4                     The third category of material is material that would identify the applicant.  The circumstances in which the anonymity of the applicant and a former applicant was maintained are set out in my earlier reasons.  The applicant says that the question of maintaining anonymity was not really pressed by him.  Nevertheless, there was some argument devoted to the question of the identity and there was some complexity involved in that argument.  In respect of that aspect, the applicant ultimately was not successful in so far as he sought to maintain anonymity. 

5                     Finally, there was material in affidavits and exhibits that have been received into evidence that was previously the subject of orders under s 50 of the Federal Court of Australia Act 1976 (Cth).  Again, in respect of that material, the applicant was unsuccessful in maintaining the continuation of s 50 orders. 

6                     It is clear that both the Interveners and the applicant have had a measure of success in relation to their respective applications.  However, on balance, I consider that the Interveners have had the better of the result in terms of matters of substance.  That is not necessarily the end of the matter, having regard to the particular status of the Interveners.  That is to say, the Interveners had no interest in the substantive proceeding but only in obtaining access to material that they wished to see.  In one sense, their interest is that of the public in maintaining open justice.  It may be however, that an inference can be drawn that the Interveners were also interested because of the commercial advantage that they perceived may have been available to them if the identify of the applicant were disclosed and other material relating to his affairs were available to them.

7                     Be that as it may, by intervening, the Interveners exposed themselves to possible liability for costs, to the extent that they were unsuccessful.  It is clear that the Court has a discretion to order that costs be paid to interveners in circumstances such as these.  I do not consider that there is any particular principle to be applied in relation to the manner in which the discretion should be exercised simply because the Interveners represent the media.  In all of the circumstances, I consider that it is appropriate for the Interveners to have some of their costs but that that proportion of their costs be limited.

8                     I propose to order that the applicant pay 40% of the Interveners’ costs of their application for access to the material in question.

Associate:

Dated:         21 October 2008