FEDERAL COURT OF AUSTRALIA

Sayer-Jones v Detective Senior Constable Bell [2015] FCA 765

THE COURT NOTES:

1.    The undertaking given by the solicitor for the respondent to file electronically as soon as practicable the Respondent’s Submission as to Costs.

THE COURT ORDERS THAT:

2.    Leave be granted to the applicant to discontinue the whole of the present proceeding.

3.    The requirement under the Federal Court Rules 2011 that the applicant file a Notice of Discontinuance be dispensed with.

4.    The applicant’s oral application to discontinue the proceeding made earlier today (24 July 2015) be sufficient to effect a discontinuance.

5.    Pursuant to r 40.02(b) of the Federal Court Rules 2011, the applicant pay the respondent’s costs of and incidental to this proceeding on the lump sum basis assessed in the amount of $800 exclusive of GST.

6.    Execution of the order for costs made in par 5 above be stayed for a period of seven (7) days from the date of these Orders.

7.    Pursuant to r 2.32(3) of the Federal Court Rules 2011, inspection of the affidavits filed in this proceeding by the applicant not be permitted without the prior leave of a judge.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1    The applicant seeks the leave of the Court to discontinue the whole of the present proceeding upon the basis that there be no orders as to the costs of the proceeding.

2    The respondent does not oppose leave being granted to the applicant to discontinue the proceeding but seeks an order that his costs be paid by the applicant. In particular, the respondent seeks an order for lump sum costs pursuant to r 40.02(b) of the Federal Court Rules 2011 (FCR) in the amount of $1,000.

3    In support of his application for lump sum costs, the respondent tendered the Costs Agreement between the New South Wales Crown Solicitor’s Office and the New South Wales Police Force dated 21 July 2015 which relates to this matter together with the Crown Solicitor’s summary of time spent on the matter, which summary includes a brief description of the work done. The value of the work done to date according to that summary is $1,491.50. Therefore, the amount sought on the lump sum basis is approximately two-thirds of the actual costs incurred by the respondent.

4    In some cases it is inappropriate to delve into the merits of the case itself when dealing with an argument about costs. This is not such a case. In order to explain this it is necessary to give a brief narrative of the history of the matter in this Court and the circumstances which led to the commencement of the present proceeding.

5    On 13 July 2015, the applicant attended at the Registry of the Court seeking to file his Originating Application together with an affidavit in support thereof sworn by him on the same day. The question of whether the Court should accept those documents for filing was referred to the Duty Registrar who then referred it to me as Duty Judge. It was decided that it would be inappropriate to prevent the applicant from filing the Process, particularly in circumstances where he was insisting that it be filed and where he had a claim for interlocutory relief which appeared, on its face, to be relatively urgent. For these reasons, the Originating Application and the affidavit in support sworn by the applicant were accepted for filing and made returnable before me last Friday, 17 July 2015.

6    In his Originating Application, the applicant sought the following relief pursuant to s 39B of the Judiciary Act 1903 (s 39B):

1.    A declaration that the execution of the search warrant (871/2015 issued at the Downing Centre Local Court) on 15th May 2015 was invalid due to non-compliance with section 3H(l) of the Crimes Act 1914 (Cth).

2.    A declaration that the execution of the search warrant breached the terms of section 3H(l) of the Crimes Act 1914 (NSW).

3.    A declaration that Detective Brent Bell breached section 3H(1) by failing to provide a copy of the search warrant as required by law.

4.    An order prohibiting the introduction or tender into evidence of all material seized during the course of the search warrant in any criminal or civil proceedings.

5.    An order prohibiting the introduction or use of all material seized during the course of the search warrant.

6.    An order prohibiting the use of any information gained from the material seized during the course of the search warrant by any NSW police officer or any law enforcement agency or the Commonwealth Director of Public Prosecutors or any other prosecutorial agency.

7.    An order prohibiting the use of any evidence in any further investigation gained as a result of the search warrant (871/2015) which was executed.

8.    Any other such order as the Court sees fit.

7    The applicant also sought the following relief by way of interlocutory relief:

1.    An order placing the items seized in the custody of the Court;

2.    An order prohibiting the use of all the items seized during the Federal Court search warrant until the substantive claim is decided by this Court;

3.    An injunction to restrain any use of all material seized during the execution of the search warrant (871/2015) in any criminal proceedings including the tender of evidence, the use of evidence; and any further investigation from information gained as a result of the warrant’s execution;

4.     An order placing the items seized into the custody of the Federal Court until the claims for substantive relief are decided by this Honourable Court.

8    The applicant relied upon s 39B as the sole source of the Court’s power to grant the relief which he claimed. No reliance was placed upon any other statutory provision as the relevant source of power.

9    The search warrant in question had been executed by the respondent at the applicant’s home on 15 May 2015 at a time when the applicant was not present. The respondent is a New South Wales police officer. The applicant’s affidavit establishes that, at the time of the execution of the warrant, his mother and possibly his sister were present in the home.

10    The applicant was subsequently arrested and charged with certain Commonwealth offences, the precise nature of which is not at all clear. He was granted bail and has pleaded not guilty to all of the charges laid against him. The criminal proceeding has been commenced in the Local Court of NSW and is returnable again before that Court on 14 September 2015, at which time the applicant is expecting to receive further documents as part of the police brief. The point which the applicant sought to raise in this proceeding was quite simple: He contends that, pursuant to s 3H(1) of the Crimes Act 1914 (Cth), when a warrant is executed, the executing officer or a constable assisting must make available to persons in occupation at the premises where the warrant is to be executed a copy of the warrant. The words used in the subsection are “make available”.

11    In contradistinction to those words, in the same section, when a person is searched under a warrant in relation to premises, the executing officer or a constable assisting must “show” the person a copy of the warrant (s 3H(3)).

12    The applicant says that the respondent, who was the officer who executed the warrant in the present case, did not comply with s 3H(1) of the Crimes Act and that the consequences for which he contends flow from that noncompliance. The applicant argues that the expression “make available” in s 3H(1) requires the executing officer to leave a copy of the warrant at the premises at the time that the warrant is executed.

13    When the proceeding came before me last Friday, I had looked at the matter and had formed the view that this Court had no jurisdiction under s 39B to deal with the matter at all. This was because the respondent was not an “officer of the Commonwealth” within the meaning of s 39B. Last Friday, the applicant was represented by Senior Counsel although, when he filed his Originating Application, he was self-represented. The applicant has argued his case on his own behalf today.

14    Senior Counsel who appeared for the applicant last Friday sought an adjournment of the proceeding “… in order to consider jurisdictional issues amongst other things”.

15    On that occasion, I said to Senior Counsel:

“Well, there isn’t any jurisdiction, is there?”

16    I then repeated that remark but Senior Counsel persisted with his application that the matter be adjourned. Feeling that my remarks were falling on deaf ears, I said:

“What is the jurisdiction of this Court over a State police officer under s 39B?”

17    Senior Counsel responded by saying that this particular police officer was an officer of the Commonwealth, although he was not in a position to explain how that could be. I then said:

“Well, if it is on the basis that he’s executing a warrant in aid of a Commonwealth offence, that wouldn’t be sufficient, would it?”

18    Senior Counsel responded:

I’m not able to say, your Honour. In seven days I will be, and indeed, if it assists your Honour, I’m happy to give a document of the basis—a short written submission to your Honour as to the basis for jurisdiction prior to the next directions hearing, if your Honour were minded to take that course.

19    I indicated I was not minded to take that course but that I would grant the adjournment given that it was being seriously pressed. However, I was concerned that the adjournment was a waste of time because the Court lacked jurisdiction to hear the case.

20    On Monday of this week, the applicant contacted the Registry and indicated that he wished to discontinue the proceeding.

21    On Tuesday, he attended at the Registry and attempted to file a Notice of Discontinuance which was really a submission as to why, if he did so, the Court should not order that he pay the respondent’s costs. I will mark the Notice of Discontinuance which was attempted to be filed on Tuesday as Exhibit A in the present application.

22    Subsequently, the applicant filed two further affidavits and a Written Submission in which he argued that the Court should not make an order for costs against him. Much of the material in those affidavits is of a private nature and does not bear upon the present issue. In those circumstances, although I am not persuaded that I should suppress the contents of those affidavits, I will make an order that inspection of all of the affidavits filed by the applicant in this proceeding not be allowed by any person without the prior order of a judge.

23    The respondent has also provided a Written Submission to me, which will be filed electronically as soon as practicable. That Submission was received by me today and a copy has been served on the applicant. It is not necessary to go into that Written Submission in any detail. The respondent makes two points: First, the applicant has given up his case and the usual costs order should flow as a result. That is, the applicant should be required to pay the respondent’s costs. Second, that, given the short time that the case was on foot and the relatively straightforward jurisdictional problem which is fatal to the applicant’s case, the Court should make a lump sum order in the amount of $1,000.

24    The applicant appeared before me today and made a number of submissions as to why the Court should not make an order for costs against him. He also opposed the making of a lump sum costs order in the event that the Court decided to make a costs order against him. I will record the applicant’s submissions and briefly address them as appropriate.

25    First, the applicant argued that the present matter is a quasi-criminal matter and that there is the liberty interest at stake. For this reason, so he submitted, it would be unfair or inappropriate to order costs at all. There are two answers to this submission. The first is that this matter is not such a matter but rather is a civil matter both in form and content. In form, because the relief sought is a civil remedy and in content because, although there is some connection with the criminal law, that connection is not germane to the present application. The essence of the present application is a claim by the applicant that a requirement of the relevant statute has not been complied with. In any event, in some cases where the criminal law is involved, either directly or indirectly, costs orders are made depending on all of the circumstances of the case.

26    Second, the applicant contended that the respondent did not challenge the truth of his affidavit material. That is so. However, there has, as yet, been no occasion requiring the respondent to do so. There is nothing in this submission.

27    Third, the applicant submitted that, once he realised that the Court had no jurisdiction in the matter, he immediately discontinued. That is not what happened at all. As must be apparent from what I have already said at [13]–[19] above, when the jurisdictional problem was pointed out to Senior Counsel for the applicant, the only response was to seek an adjournment. Subsequently, during the course of this week, the applicant sought to discontinue but only on terms that there be no order as to costs made against him. That is why it was necessary to have a costs argument today. An immediate discontinuance would have involved an acceptance last Friday of the proposition that the case was fatally flawed, in which event perhaps different considerations as to costs might have arisen.

28    Fourth, the applicant submitted that the respondent never raised the jurisdictional problem with him and that the respondent should have done so in order to prevent what has turned out to be a waste of time and money for a lot of people. Again, it seems to me that the respondent never had any real opportunity to communicate his position on the point until last Friday. He did so on that occasion after I had raised the jurisdictional question with Senior Counsel appearing for the applicant. The respondent indicated to the Court that he would take that point as well as another point available under the general criminal law which is that the superior courts do not generally countenance collateral interference with criminal prosecutions in the lower courts because it has the tendency to fragment the prosecution with a concomitant potential for working serious injustice on one or other or both of the parties.

29    Fifth, the applicant initially submitted that r 26.12 FCR would have enabled him to escape any costs consequences if the respondent had pointed out before last Friday that the case was fatally flawed. However, he withdrew that submission when he realised that it was based on a false premise. Had he unilaterally discontinued the proceeding even before last Friday under r 26.12(2), r 26.12(7) would have been engaged so as to make him automatically liable to pay the respondent’s costs.

30    Sixth, the applicant said that an order for costs against him will work serious hardship upon him. In support of that submission he relied upon the contents of his affidavits. However, that material is largely irrelevant to the question of costs and, in any event, is not sufficient to make out hardship in any relevant sense. I do not propose to take account of the submission that there would be hardship. There is no doubt that an order for costs against a young person such as the applicant will cause difficulty but that circumstance is not sufficient to constitute the sort of hardship that might, and I stress, might, be taken into account in an argument about costs.

31    Seventh, the applicant argued that the respondent is making a mountain out of a molehill. I do not accept that submission. If anything, that criticism might fairly be made of the applicant rather than the respondent.

32    Eighth, the applicant complained that the costs are too high and that a junior solicitor in the Crown Solicitor’s Office should have dealt with the matter. I will say something more about the quantum a little later but, at the level at which that submission is put, I do not accept it. The allegations made by the applicant against the respondent are serious. It was appropriate for the NSW Crown Solicitor’s Office to allocate the matter to a lawyer of Mr Thomson’s seniority.

33    Finally, the applicant makes the point that, had Detective Bell been a Commonwealth policeman, the Court would have had jurisdiction under s 39B. That is true but irrelevant. The fundamental difficulty in the applicant’s case is that the respondent is not an officer of the Commonwealth and the mere fact that the applicant’s complaint concerns actions undertaken by the respondent in executing a warrant in aid of the possibility of a prosecution for a Commonwealth offence is not a sufficient basis for a finding that the respondent was an officer of the Commonwealth within the meaning of that section.

34    In Trimbole v Dugan (1984) 3 FCR 324 at 327–328, Woodward J had to consider whether a State magistrate hearing an application in relation to the extradition of Mr Trimbole was an officer of the Commonwealth for the purposes of s 39B. In that case, his Honour said:

There is, however, a further reason for dismissing the notice of motion under the Judiciary Act 1903 and that is that I am satisfied that the magistrate in this case is not an “officer of the Commonwealth” within the meaning of that Act. In my view an officer of the Commonwealth has to be a person occupying an identifiable office. As was said by Isaacs J in R v Murray (1916) 22 CLR 437 at 452, that phrase “connotes an ‘office’ of some conceivable tenure, and connotes an appointment, and usually a salary”.

35    There is no possible basis, on the evidence, for concluding that the respondent was an officer of the Commonwealth at the time he executed the relevant warrant in the present case. For this reason, this case was doomed from the start and the Court has no jurisdiction to do anything let alone make the declarations and orders sought by the applicant.

36    There is also another problem. Under the general law, this Court would not, in the circumstances of this case, exercise any supervisory jurisdiction over the criminal prosecution which has already commenced. This is the principle that the Court will not fragment the conduct of criminal prosecutions. The principle was discussed and explained by the Full Court in Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149 at 186–188.

37    The applicant mentioned, during the course of argument today, the case of Commissioner of the Australian Federal Police v Oke (2007) 159 FCR 441 (Oke). In that case, the Full Court upheld the primary judge’s decision that noncompliance with s 3H(1) of the Crimes Act renders unlawful the execution of the warrant. At 442 [5] of the judgment, Branson and Lindgren JJ recorded that the only issue to be determined on the appeal was whether the execution of the warrant was rendered unlawful by the failure on the part of the Federal Agent who executed the warrant in that case or on the part of any of the officers assisting in that case to make available a copy of the warrant to Mr Oke as required by s 3H(1). As I have already mentioned, the Court held that the failure to comply with s 3H(1) did render execution unlawful. As far as I can tell, however, in Oke, no criminal prosecution had been commenced at the time that the proceeding before the primary judge was heard and determined. Also, it seems that no reliance was placed upon s 39B of the Judiciary Act in Oke. I mention the case of Oke because it seems that the applicant, and perhaps those advising him, had focused too much on the perceived merits of his case without thinking too carefully about where the case should be brought and whether the cause of action to be relied upon is within the jurisdiction of this Court.

38    The question of costs lies within the discretion of the Court (s 43(2) of the Federal Court of Australia Act 1976 (Cth)) but the discretion has to be exercised judicially (Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2010) 265 ALR 112 at 136 [116]). When a party commences a case which has a fatal flaw such as the present case and then discontinues that case, that party would generally be required to pay the costs of the other party. As I hope I have demonstrated, there is nothing in the submissions put to the Court by the applicant that would induce the Court to depart from that general position in the present case.

39    For all of the above reasons, I propose to order that the applicant pay the respondent’s costs of the proceeding.

40    The next question is whether there should be a lump sum costs order. From time to time in the past, this Court has said that lump sum costs orders are appropriate in cases of great complexity in order to avoid the burdensome task and serious expense of having the costs taxed. However, in my judgment, the discretion to order a lump sum is not confined to such cases. There is good reason for the Court to make a lump sum costs order when the costs are small and the litigation relatively simple (see Byrnes v Brisconnections Management Company Ltd (No 2) [2009] FCA 1432 at [51]).

41    Indeed, in the modern context, there is much to be said for the Court doing its best to save the parties the burden of taxation when it comes to the question of costs, if at all possible.

42    In the present case, I have a very good idea as to what was reasonably necessary to have been done by the respondent during the life of this litigation and a fair idea of what a reasonable amount might be for that work. The uppermost limit of any costs order would be $1,491.50 which is the amount of the actual costs incurred by the respondent.

43    However, I do not propose to make an order in that amount for two reasons, namely:

(1)    The respondent seeks only the amount of $1,000; and

(2)    It is a well-recognised fact that costs as taxed generally run at something less than the actual costs reasonably incurred and can be anywhere between 60% to 75% of those costs depending upon the reasonableness of the arrangements between the successful party and that party’s lawyers and the reasonableness of those lawyers’ conduct in incurring the costs. As I understand the respondent’s position, his proposal to seek only $1,000 reflects that well-known state of affairs. The respondent did not seek costs on an indemnity basis.

44    While I have considerable sympathy for the respondent, in terms of work that was required to be done to deal with this matter, particularly during the course of this week when the applicant declined to discontinue at the earliest opportunity, I think that the $1,000 sought on a lump sum basis is still too high. I do not mean to be critical of the respondent or of his lawyers. My remarks are merely a reflection of a fairly rigorous appreciation of what time should have been spent in dealing with this matter. When I think about the matter in that way, I think something less than two hours in total is a reasonable amount of time that should have been spent in dealing with the matter. As I said, this is not a criticism of the respondent or his solicitors but I have to balance all relevant interests in coming to a position on the lump sum costs order now sought and I do so bearing in mind that I have to fix a reasonable sum in respect of work reasonably carried out.

45    In all the circumstances, I propose to make a lump sum costs order pursuant to r 40.02(b) FCR that the applicant pay the respondent’s costs in the amount of $800 exclusive of GST.

46    The applicant also requested that I make an order that this judgment not be published for fear that, in some way, a jury’s consideration of his criminal matter might be inappropriately influenced or affected if the contents of this judgment became known to members of the jury. I do not think that there is any real possibility that this judgment could have such an effect and I decline to make such a non-publication order.

47    There will be orders accordingly.

Associate:

Dated:    29 July 2015