FEDERAL COURT OF AUSTRALIA

SS v Australian Crime Commission (No 2) [2009] FCA 760

COSTS – which party should bear costs in relation to a withdrawn application to re-open – circumstances of the case – application to re-open based on first respondent’s late production of relevant documents – decision to withdraw application based on objection by applicant – whether such circumstances warranted costs order in either party’s favour

COSTS – costs of applicant’s notice of motion to be granted leave to make further submissions – circumstances of the case – whether costs order in applicant’s favour appropriate

Australian Crime Commission Act 2002 (Cth)

SS v Australian Crime Commission [2009] FCA 580

SS v AUSTRALIAN CRIME COMMISSION and JEFFREY PHILIP ANDERSON

NSD 50 of 2009

JAGOT J

17 JULY 2009

SYDNEY

THE COURT ORDERS THAT:

1.         Each party is to pay its own costs of preparation for and the hearing between 11.30 am and 12.45 pm on 24 April 2009 with respect to the first respondent’s (withdrawn) application for leave to re-open.

2.         The applicant is to pay the respondents’ costs of the applicant’s notice of motion filed 25 May 2009 and heard on 29 May 2009, as agreed or taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          On 29 May 2009 I made orders consequential on my decision in SS v Australian Crime Commission [2009] FCA 580 dismissing an application to set aside certain determinations made and a summons issued under the Australian Crime Commission Act 2002 (Cth) (the ACC Act). 

2                          I made the following orders with respect to the costs of the proceeding:

…

2.          Subject to order 3 below, the applicant pay the respondents’ costs, as agreed or taxed.

3.          Reserve the applicant’s costs of preparation for and the hearing between 11.30 am and 12.45 pm on 24 April 2009 with respect to the first respondent’s (withdrawn) application for leave to re-open and reserve the costs of the applicant’s notice of motion filed 25 May 2009 and heard on 29 May 2009.

3                          The parties requested that I determine the outstanding costs issues by reference to their written submissions.

4                          The first respondent (the ACC) noted in its submissions that during the course of the hearing I in fact indicated that three issues of costs would be reserved.  The order I made on 29 May 2009 omitted reference to the costs of a video-link during the hearing on 27 March 2009 when Andrew Cann of the ACC gave evidence.  The ACC submitted that the costs of this video-link should be costs in the cause and thus part of the general costs order in its favour in order 2.  The applicant (SS) did not address this issue in its submissions, presumably on the basis that the orders did not specifically reserve the costs of this video-link.

5                          I did not specifically consider the costs of the video-link when making the general costs order in order 2.  It was appropriate for the ACC to bring that matter to my attention.  It is also appropriate to record my view that there is no reason to separate the costs of the video-link from the costs of the hearing generally.  As the ACC submitted, Mr Cann is based in Canberra and the only way he could be made available for cross-examination on the day required was by video-link.  Further, the ACC was wholly successful in respect of the issues addressed by Mr Cann’s evidence.   In these circumstances the costs of the video-link on 27 March 2009 should be part of the general order that the applicant pay the respondents’ costs.  It follows that there is no need for order 2 made on 29 May 2009 to be varied.

6                          I turn now to the two issues in respect of which costs were reserved as set out in order 3, namely “the applicant’s costs of preparation for and the hearing between 11.30 am and 12.45 pm on 24 April 2009 with respect to the first respondent’s (withdrawn) application for leave to re-open and the costs of the applicant’s notice of motion filed 25 May 2009 and heard on 29 May 2009”.

7                          As to the first issue, SS submitted that costs should follow the event.  The ACC had applied for leave to re-open in order to tender a document.  The ACC had withdrawn the application for leave on SS’s objection and my indication that an explanation for the late tender was required.  Accordingly, SS submitted, the ACC should pay SS’s costs of the withdrawn application. 

8                          The ACC submitted that in producing the document it was acting consistently with its continuing discovery obligations (which I accepted in my principal reasons at [145]).  SS’s objection was based not only on lateness, but also on serious allegations lacking any factual foundation (which I also accepted at [147]).  The ACC withdrew the application for leave to re-open on the basis of SS’s objection.  In these circumstances the costs relating to the withdrawn application should be part of the costs in the cause and thus part of the general costs order in order 2.

9                          The document which the ACC sought to tender was a version of a document already in evidence from which parts had been excised on the basis of a claim for public interest immunity.  The additional part of the document sought to be tendered was relevant to the facts in issue and should not have been excised from the version of the document as originally produced on the grounds of public interest immunity.  While there was no evidentiary basis for SS’s submissions of bad faith and improper conduct and the ACC had a continuing obligation to produce relevant documents, the fact remains that the document was always in the ACC’s possession and the ACC’s actions caused it to make a late application to re-open its case.  The ACC sought to do so in an unconventional manner by attaching the document to its written submissions in reply rather than by formal application on the basis of an accompanying affidavit explaining the late production.  The ACC’s application to re-open, made during the hearing, was withdrawn in the face of SS’s objection and my indication that an explanation for the late production would be required.  In these circumstances, I am not satisfied that the ACC should have the benefit of a costs order in its favour with respect to the withdrawn application for leave to re-open.

10                        The remaining question in respect of this first issue is whether SS should have the benefit of any costs order in its favour in the circumstances identified.  Whatever the reason for the ACC’s change in position (and, in this regard, no evidence supported SS’s submissions of impropriety by the ACC), the fact is that the ACC was obliged to produce the document in the form in question.  Moreover, it was obliged to seek to tender the document in that form.  SS objected to the tender of the document causing the ACC to withdraw the tender and thus the application.  Yet SS also sought to assert that the fact that this relevant document was not in evidence involved an abuse of process.  In these circumstances I am not satisfied that there was an event in respect of which the ACC was unsuccessful warranting a costs order in SS’s favour.  At most, the ACC should not have the benefit of a costs order for this part of the hearing.  Thus, in respect of this part of the hearing, costs should lie where they fall.

11                        As to the second issue, SS’s submissions are unpersuasive. 

12                        I dealt with the circumstances of SS’s notice of motion to rely on further submissions in [141]-[143] of the principal reasons.  SS’s conduct in seeking to rely on additional submissions after judgment had been reserved without having obtained leave to do so was inconsistent with the principle of the open administration of justice.  This is particularly so given that, in those additional submissions, SS claimed that the ACC’s defence ought to be struck out when no such submission had been made orally. 

13                        Contrary to SS’s submission, the notice of motion was not necessary because the ACC refused to consent to the filing of the additional submissions.  It was necessary because SS required and had not obtained leave.  Parties are not at liberty, even by consent between themselves, simply to forward additional submissions to chambers after a judgment has been reserved on the assumption that they will be considered.  Moreover, the nature of SS’s additional submissions made necessary the further hearing on 29 May 2009.

14                        In these circumstances SS’s claim for indemnity costs in respect of its notice of motion filed on 25 May 2009 is unfounded.  Costs associated therewith should be costs in the cause and thus part of the general order for costs in the ACC’s favour.

15                        I make orders accordingly.

Associate:

Dated:         17 July 2009