SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
Construction, Forestry, Mining and Energy
v Commissioner, Australian Federal Police (No 2)
Union
Citation:
[2017] ACTSC 10
Submission Dates:
9 and 17 December 2015
Decision Date:
2 February 2017
Before:
Refshauge J
Decision:
1. The order for costs made on 12 October 2015 be confirmed.
2. Otherwise, the first defendant pay 85 per cent of the
plaintiff’s costs, including reserved costs.
Catchwords:
PROCEDURE – COSTS – Award of costs – general principles –
costs of issues – justiciability – exercise of the Court’s discretion
in relation to costs – different oral submissions than the stated
grounds in the Originating Application – no adjournment or other
such order sought to amend Originating Application –
apportionment of costs – apportionment against lack of success
by plaintiff on a number of issues – modified order as to costs –
r 1705 of the Court Procedure Rules 2006 (ACT) – r 1721(1) of
the Court Procedure Rules 2006 (ACT)
ADMINISTRATIVE LAW – JUDICIAL REVIEW – Search and
seizure – warrant – whether execution of warrant unlawful –
requirement for copy of warrant to be made available to
occupiers as soon as reasonably practicable – copy to be
handed over prior to recording of production of warrant –
requirement for copies of documents seized to be provided to
occupiers “as soon as practicable” – copying of documents
seized – requirement for police to provide receipt for everything
seized – receipt to be provided as soon as reasonably
practicable – seizure of computer material – probative value of
information used to gain warrant issued to be executed at night
– Crimes Act 1900 (ACT)
Legislation Cited:
Crimes Act 1900 (ACT), ss 195(1)(c), 197, 199, 200
Evidence Act 2011 (ACT), s 138
Court Procedure Rules 2006 (ACT), rr 60, 60(3), 60(4), 64,
1705, 1721(1), Pt 2.10
Dictionary to the Court Procedures Rules
Cases Cited:
Amaca Pty Ltd (formerly known as James Hardie & Co Pty Ltd)
v Hannell [2007] WASCA 158 (S)
Australian Prudential Regulation Authority v Holloway [2000]
FCA 1245; 35 ACSR 276
Baulderstone Hornibrook Pty Ltd v Qantas Airways Ltd [2003]
FCA 325
Beagle Holdings Pty Ltd v Equus Financial Services Ltd [2000]
WASC 128
BHP Billiton Iron Ore Pty Ltd v National Competition Council
(No 2) [2007] FCA 557
Calderbank v Calderbank [1976] Fam 93; 3 WLR 586
Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty
Ltd [2010] ACTSC 20; 4 ACTLR 114
Clarke and Chapman v Hart (1858) 6 HL Cas 532 at 667; 10 ER
1443
Colburt v Beard [1992] 2 Qd R 67
Commissioner of Australian Federal Police v Razzi (No 2)
(1991) 30 FCR 64
Commonwealth v Davis Samuel Pty Ltd (No 8) [2014]
ACTSC 312
Commonwealth v Davis Samuel Pty Ltd (No 11) [2017]
ACTSC 2
Construction,
Forestry,
Mining
and
Energy
Union
v Commissioner, Australian Federal Police [2015] ACTSC 362;
305 FLR 143
Cretazzo v Lombardi (1975) 13 SASR 4
Dare v Pulham (1982) 148 CLR 658
Electro Optic Systems v New South Wales [2013] ACTSC 155
Foster v Farquhar [1893] 1 QB 564
Holt v TCN Channel Nine Pty Ltd (No 2) [2012] NSWSC 968;
82 NSWLR 293
HP Mercantile Pty Ltd v Diericex (No 2) [2012] NSWSC 1430
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital
Markets Ltd [2008] NSWCA 206; 73 NSWLR 653
J-Corp Pty Ltd v Australian Builders Labourer’s Federated Union
of Workers (WA Branch) (No 2) [1993] FCA 70; 46 IR 301
Jeremiah v Lawrie [2016] NTCA 6
Latoudis v Casey (1990) 170 CLR 534
Lewis v Chief Executive of the Department of Justice
and Community Safety (No 2) [2014] ACTSC 196
Mann v Carnell [2001] ACTSC 18, 159 FLR 466
Mickelberg v Western Australia [2007] WASC 140 (S)
NAMU of 2002 v Secretary, Department of Immigration
& Multicultural & Indigenous Affairs [2002] FCA 961
New South Wales Crime Commission v Police Integrity
Commission (No 3) [2011] NSWSC 978
Oshlack v Richmond River Council (1998) 193 CLR 72
Re Birkman; Ex parte Pickering (1860) 1 QSCR 14
Renowden v McMullin (1970) 123 CLR 584
Rosselli v Rosselli (No 2) [2007] VSC 438
Trimboli v Onley (No 3) (1981) 56 FLR 321
Victoria v Master Builders’ Association of Victoria (Unreported,
Supreme Court of Victoria, Appeal Division, Tudgell, Ormiston
and Eames JJ, 15 December 1994)
VTS IT Pty Ltd v Russell [2015] ACTSC 230
Wojic v Incorporated Nominal Defendant (No 2) [1968] VR 533
Parties:
Construction, Forestry, Mining and Energy Union (Plaintiff)
Commissioner, Australian Federal Police (First Defendant)
Magistrate Lisbeth Campbell (Second Defendant)
2
Representation:
Counsel
Mr P Morrissey SC, Mr M Hosking & Mr S Whybrow (Plaintiff)
Mr A Berger (Defendant)
Solicitors
Slater & Gordon Lawyers (Plaintiff)
Australian Government Solicitor (Defendants)
File Number:
SC 344 of 2015
REFSHAUGE J:
1.
On 25 August 2015, officers of the Australian Federal Police executed two search
warrants on the premises of the ACT Branch of the plaintiff, the Construction, Forestry,
Mining and Energy Union, at Dickson, ACT.
2.
The plaintiff sought judicial review of certain decisions of the police and the learned
Magistrate, and ancillary orders relating to the conduct and items seized during the
execution of the search warrant. On 2 December 2015, I upheld some of the
challenges made by the plaintiff: Construction, Forestry, Mining and Energy Union
v Commissioner, Australian Federal Police [2015] ACTSC 362; 305 FLR 143 (CFMEU
v AFP).
3.
In making my decision, I ordered as to costs:
The first defendant pay the plaintiff’s costs of these proceedings, unless any party seeks
another order by submissions in writing setting out the other order sought and the reasons
why such other order should be made.
4.
The first defendant did make submissions in writing and the plaintiff responded. It is
regrettable that a period of sick leave and the pressure of business of the Court has
delayed the making of this decision.
5.
In my view, the first defendant should pay 85 per cent of the plaintiff’s costs, including
reserved costs.
The application
6.
In order to understand the matters for decision, it is necessary to give a short summary
of the proceedings.
7.
Following the hearings of the Royal Commission to inquire into Trade Union
Governance and Corruption, a joint Federal-State Police Task Force was established
and, as a result, the officers of the Task Force obtained a warrant to search the
premises of the ACT Branch of the plaintiff.
8.
Police commenced the search on 25 August 2015. When entering premises for such a
purpose, police are required to make available a copy of such a warrant to the
occupiers of the premises. The plaintiff complained that it was not produced until after
the police officers had entered the premises and had begun moving people out of their
offices. I held that, while there was no reason why a copy of the warrant could not be
produced as soon as officers entered the premises, and probably should ordinarily be
3
done, the procedure did not actually comply with the requirements of the law but not in
such a way as to render the search invalid: CFMEU v AFP at [187]-[188].
9.
When police arrived, officers directed the staff on and visitors to the premises to leave
and to remain out of the area where the search was being conducted. Although the
evidence was unclear about the details of that and, while I found that the police did, in
breach of the law, impede the exercise by officers of the plaintiff of their right to
observe the search, I did not find that police actually denied them the right they had to
do so. I was critical of the way police acted but concluded that it did not justify a finding
that the seizure of documents was thereby invalid, but it did breach the procedures
required by law: CFMEU v AFP at [207]-[209].
10.
There was a complaint about the way documents were seized and that the police failed
to take copies with facilities available to them on the premises, so as to leave copies
with the occupiers as they had requested. I held that this was a reasonable request but
that the failure to accede to it did not breach the procedures required to be followed by
law: CFMEU v AFP at [213].
11.
The later provision of the police providing copies did not, in my view, occur as soon as
practicable after the seizure, as required by law, but without complaint by the external
lawyers for the plaintiff and in apparent acquiescence of the reasons given for the
delay, exacerbated by some directions as to delivery given by those lawyers and so did
not render the search invalid: CFMEU v AFP at [222]-[226].
12.
The plaintiff complained that receipts for the items seized were not completed until after
police had vacated the premises taking with them the seized items, following execution
of the first warrant. I held that this did not breach the requirement to provide a receipt
for the documents, though, in the circumstances, it provided a significant issue as to
continuity and identity of the documents which may be relevant in subsequent
proceedings: CFMEU v AFP at [229]-[231].
13.
Police then sought to “re-seize” the items that had been seized in the search conducted
under the second warrant. I held that this was invalid as the items had already been
seized, but this did not invalidate the original seizure: CFMEU v AFP [239]-[242].
14.
The way in which police seized electronically stored material was also subject to
challenge as the police took material that included both evidential material and
non-evidential material. While the authorities were not clear, I held the method adopted
by police in this case did not breach the duties imposed by law on police executing the
search warrant: CFMEU v AFP at [263].
15.
Police were unable to complete the search by 9:00pm, after which time the authority to
search had ended. Police sought a second warrant, which was granted, but I held that
it was invalidly granted and that the item seized under it had to be returned: CFMEU
v AFP at [161]-[162].
16.
As a result of my findings, I discharged an interlocutory injunction that had earlier been
made, save as to the item seized under the second warrant, in respect of which I
continued the injunction permanently. I also made declarations that the procedures
required by law to be observed in relation to making a copy of the warrant available as
soon as practicable and not impeding the occupiers from observing the execution of
the search had not been observed, though I held that the breaches were not such as to
render invalid the search under the first warrant.
4
Relief Sought
17.
The plaintiff’s Originating Application was issued on 15 September 2015, some 21 days
after the search. While speedily and relatively promptly done, it cannot be said to have
been issued with particular urgency.
18.
The relief sought was extensive: six declarations, an order for delivery of the items
seized and removed, an order for destruction of other items, and an order for costs.
19.
I set out below in numerical sequence the orders sought in the Amended Originating
Application and, after each, comment on them since the first defendant relied on the
results of the consideration of each for his submissions. The first two were as follows:
1. A declaration that the search warrant purportedly issued by the second defendant on
25 August 2015 in relation to the plaintiff’s premises at 3 Rosevear Place, Dickson was
invalid because s 194 of the Crimes Act 1900 did not authorise the second defendant
to issue a search warrant in relation to premises when there was already a search
warrant issued under s 194 in force in relation to those premises.
2. A declaration that the search warrant purportedly issued by the second defendant on
25 August 2015 in relation to the plaintiff’s premises at 3 Rosevear Place, Dickson was
invalid because there was no evidence or other material to justify the second
defendant’s finding that it was necessary to authorise the warrant to be executed at
any time, on the basis that it was ‘necessary to do so to prevent the concealment, loss
or destruction of evidence’.
20.
I did not make a formal declaration of invalidity of the second warrant, which is the one
described in these orders sought, but did find it invalid: CFMEU v AFP at [161]. That
finding justified the continuation of the injunction. I rejected the argument suggested as
a ground for the first order sought, namely that there cannot be concurrent warrants:
CFMEU v AFP at [133], [137].
21.
The ground asserted for the second order sought was, in formal terms, not accepted
either. That is, I held that there was evidence logically probative of the satisfaction
required for the issuing officer, the second defendant: CFMEU v AFP at [155]. I held,
however, that the vice was that there was other important information relevant to that
decision which was not disclosed and which the obligation of full disclosure required,
and which may have led to the second defendant not having the necessary satisfaction
required for the warrant to be issued: CFMEU v AFP at [157]-[158], [161].
22.
While strictly correct, as the first defendant submitted, that this second ground was not
made out, the basis of my finding was logically related to the asserted ground. I do not
consider that the grounds pleaded, in an application such as this, need to be construed
with inflexible rigidity as long as unfairness is not caused. It is, after all, not in the
nature of a pleading. The facts and argument that formed the basis for my finding were
clearly set out in the written submissions of the plaintiff and the affidavits filed in
support of the application, and the first defendant cannot have been taken by surprise
at the hearing of the application by any of the submissions made, even though the
characterisation of them was legally somewhat different.
23.
Thus, while the original form of the claim was a “no evidence” ground, the form in which
I accepted it as a “non-disclosure” ground was so closely related to it in fact that the
submissions of the plaintiff can be fairly seen to have been accepted, but in a
somewhat different characterisation.
5
3.
A declaration that the seizure of items from the plaintiff’s premises by officers of the
first defendant prior to 9.00pm on 25 August 2015 was unlawful, in that:
(a) It was not authorised by
(i) the search warrant issued by a Deputy Registrar of the Supreme Court of the
Australian Capital Territory on 24 August 2015 in relation to the plaintiff’s
premises; or
(ii) any of ss 195, 199 or 200 of the Crimes Act 1900;
(b) the occupier of the plaintiff’s premises was not permitted sufficiently to observe
the search, as required by s 203 of the Crimes Act 1900;
(c) copies of seized things were not provided to the occupier of the plaintiff’s
premises as soon as practicable after the seizure, as required by s 202 of the
Crimes Act 1900; and
(d) a receipt was not provided for seized things, as required by s 204 of the Crimes
Act 1900.
24.
This order, sought so far as ground (a) was concerned, was not pressed at the hearing
and the declaration was not granted.
25.
As noted above (at [9]), I found the police
their right to observe the search and so
ground (b), but in somewhat more limited
point was made out, though the precise
different.
26.
I did not uphold grounds (c) and (d): CFMEU v AFP at [222]-[226], [229]-[231].
“impeded” the occupiers in the exercise of
I did make the declaration in relation to
terms: CFMEU v AFP at [207]-[209]. The
terms of the order made was somewhat
4. A declaration that any seizure of items from the plaintiff’s premises by officers of the
first defendant after 9.00pm on 25 August 2015 was unlawful, in that it was not
authorised by:
(a)
the search warrant issued by the second defendant on 25 August 2015 in
relation to the plaintiff’s premises; or
(b)
any of ss 195, 199 or 200 of the Crimes Act 1900,
because the items purportedly seized were brought onto the plaintiff’s premises by
officers of the first defendant immediately before or at the time the warrant was
executed.
27.
I did not accept this claim because I considered that the actions of the police in this
regard were a nullity. That is to say, the items the subject of this ground had been
seized under the first warrant and that was a valid seizure. The purported seizure
under the second warrant was ineffectual for the items were already in the custody of
the police and so were not relevantly seizable under the second warrant: CFMEU
v AFP at [239]-[240]. Thus, while the argument propounded by the plaintiff was correct,
the application of it to these circumstances meant that the declaration should not be
made as there was no utility to it: the documents had been earlier validly seized.
Strictly, the declaration could have properly been made as the factual and legal basis
was correct, but the seizure of the same items under the first warrant would give no
ultimate utility to the declaration. In that sense, I do not regard the plaintiff as not
having made out its case, though not justified in the order for reasons of utility.
6
5.
A declaration that the copying of data from the plaintiff’s premises onto storage
devices by officers of the first defendant, and the removal of those storage devices
from the plaintiff’s premises, was unlawful, in that it was not authorised by:
(a)
the search warrant issued by a Deputy Registrar of the Supreme Court of the
Australian Capital Territory on 24 August 2015 in relation to the plaintiff’s
premises; or
(b)
the search warrant issued by the second defendant on 25 August 2015 in
relation to the plaintiff’s premises; or
(c)
any of ss 195, 199 or 200 of the Crimes Act 1900,
because the officers of the first defendant did not form a belief on reasonable grounds
that all of the data that was copied was evidential material.
28.
I did not uphold this claim: CFMEU v AFP at [263].
6.
A declaration that the first defendant and his officers, servants and agents are not
entitled to examine the materials removed from the plaintiff’s premises on 25 August
2015 and any copies of those materials made since 25 August 2015.
29.
This claim was partially upheld, but only in respect of the second warrant. This order is,
of course, a “machinery” or consequential order, dependent upon the other “primary”
declarations sought. While there may be a discretion as to whether this order should be
made, notwithstanding that the earlier declarations are made, it seems to me that this
order still has a degree of subsidiarity when considered in relation to costs.
30.
Thus, for example, while I held that certain procedures breached the law, such as in
relation to order 3(b) as sought, I did not consider that they thereby should result in a
prohibition from the police examining the material because, while there were breaches,
I did not consider them sufficiently serious as to render the search invalid.
7.
31.
This was also a “machinery” or consequential order, dependent upon earlier orders.
Again, it was made only but in relation to the item seized under the second warrant.
8.
32.
An order that the first defendant and his officers, servants and agents return to the
plaintiff all hard copy materials removed from the plaintiff’s premises on 25 August
2015, and any copies of those materials made since 25 August 2015.
An order that the first defendant and his officers, servants and agents delete and/or
destroy all copies of electronic data downloaded, copied or imaged at the plaintiff’s
premises on 25 August 2015, and any electronic copies or images of the hard copy
materials removed from the plaintiff’s premises on 25 August 2015.
This again was a “machinery” or consequential order but in relation to the fifth order
sought which, as noted above (at [28]), was not made.
9.
An order that the first respondent pay the plaintiff’s costs.
33.
This is, of course, the order the subject of this decision.
34.
In addition to those orders sought in the Amended Originating Application, a
declaration was also made as to the breach of the procedure required by law to be
observed as to the production of a search warrant as soon as practicable upon the
police entering the premises.
35.
Although this was not a ground of any declaration set out in the Amended Originating
Application and, indeed, s 197 of the Crimes Act 1900 (ACT) was not referred to in any
7
of them, it was, again, referred to in the written submissions of the plaintiff and the
affidavits filed in support of the application such that the first defendant cannot have
been taken by surprise and did not seek an adjournment to deal with it.
36.
Perhaps I should have required the plaintiff to have amended its Originating Application
but, in the circumstances, this did not seem to be necessary. In any event, not only was
no adjournment sought by the first defendant when these issues arose but no request
was made for such an amendment.
The first defendant’s submissions
37.
The first defendant submitted that the plaintiff had very limited success in its claims and
that, further, the case conducted did not conform with the case “pleaded” such that the
success of the plaintiff in the proceedings should be measured against the grounds set
out in the Originating Application rather than as ordered.
38.
Thus, it was noted that the grounds on which the second warrant was held to be invalid
were not those originally claimed by the first defendant whose two arguments were
both rejected.
39.
Despite declarations being made as to the failure to follow procedures required by law,
the plaintiff’s claim that the failures invalidated the search under the first warrant was
not upheld.
40.
Further, the costs were reserved of the interlocutory application which resulted in an
interlocutory injunction being made and that injunction was only continued with respect
to one item, rather than the other 28 items seized. Thus, the plaintiff should only
receive 90 per cent of the costs of that application.
41.
The first defendant further noted that I ordered, on 12 October 2015, that the plaintiff
was to pay the costs thrown away by the adjournment occasioned on that day by the
late service on the first defendant of certain CCTV footage which was admitted into
evidence during the proceedings.
42.
Finally, the first defendant submitted that he had succeeded on the majority of issues.
Further, on the issues that the plaintiff has not succeeded, in particular the question of
whether the requisite state of mind was formed by police in relation to each and every
item seized which, it was asserted, was the matter addressed in order 3(a) sought in
the Amended Originating Application, the first defendant had to spend significant effort
in the preparation of affidavits he filed to address that issue.
Consideration
General Principles
43.
The power to make an award of costs in proceedings is set out in rr 1705 and 1721(1)
of the Court Procedures Rules 2006 (ACT). This is important for, absent a statutory
power, a court has no authority to make an order for costs in common law or statutory
proceedings: Re Birkman; ex parte Pickering (1860) 1 QSCR 14 at 15.
44.
These provisions of the Court Procedures Rules provide a wide discretion to make an
order for costs but that discretion is not an open discretion unhindered by principles
that the courts have expressed: Mann v Carnell [2001] ACTSC 18, 159 FLR 466 at
467. To act in this way would be arbitrary if not capricious: Wojic v Incorporated
Nominal Defendant (No 2) [1968] VR 533 at 534.
8
45.
Given that the costs in litigation have become so significant, it is unsurprising that there
is not an increasing number of published decision of courts on that issue, establishing
and refining principles and approaches.
46.
One of the first principles is that a successful litigant is generally entitled to the costs
he, she or it has expended in achieving the successful outcome.
47.
As I explained in Lewis v Chief Executive of the Department of Justice and Community
Safety (No 2) [2014] ACTSC 196 at [17]:
17. Ordinarily, costs will follow the event, as McHugh J pointed out in Oshlack
v Richmond River Council (1998) 193 CLR 72 at 97; [67]. That order is, as his Honour
said, “the usual order as to costs”. There are valid and appropriate reasons for that:
the successful party has been required to seek the Court’s assistance in order to
achieve the outcome it has secured and so should be indemnified for the costs
required to do so.
48.
This must be construed, however, in the context of the purpose of an award of costs, it
is not to punish an unsuccessful litigant: Latoudis v Casey (1990) 170 CLR 534 at 543.
Similarly, it is not a reward to the successful party: New South Wales Crime
Commission v Police Integrity Commission (No 3) [2011] NSWSC 978 at [10]; Electro
Optic Systems v New South Wales [2013] ACTSC 155 at [40].
49.
It is intended to compensate the person in whose favour it is made: Oshlack
v Richmond River Council (1998) 193 CLR 72 at 97; [67]. That is, it arises from the
necessity to indemnify a party from the expenses incurred either in enforcing a right or
defending against an allegation of a right: Clarke and Chapman v Hart (1858) 6 HL Cas
532 at 667; 10 ER 1443 at 1457. As McHugh J explained in Latoudis v Casey at 567,
“it is just and reasonable that the party who has caused the other party to incur costs of
litigation should reimburse that party for the liability incurred”.
50.
There are, however, exceptions to the general rule, but generally some special feature
is necessary to justify a departure from the general rule: NAMU of 2002 v Secretary,
Department of Immigration & Multicultural & Indigenous Affairs [2002] FCA 961 at [8].
Thus, good reasons must be identified, as the discretion must be exercised judicially,
and those good reasons must be connected with or leading up to the litigation:
Latoudis v Casey at 557. Thus, the party who seeks an order different from the usual
order bears the onus of convincing the court that the usual order should not be made:
Latoudis v Casey at 569.
51.
One of the bases on which a court may decide to derogate from the usual order is
where there are issues in the proceedings which are decided against the successful
party and which the court considers justify making separate orders as to each issue or
a modified general order as to costs.
52.
The meaning of “issue” has not satisfactorily been resolved, as Thomas J commented
in Colburt v Beard [1992] 2 Qd R 67 at 69-70. It may, however, mean any disputed
question of fact or law (Cretazzo v Lombardi (1975) 13 SASR 4 at 12) or, as Bowen LJ
remarked in Foster v Farquhar [1893] 1 QB 564 at 570, “separate heads of
controversy” which were “different issues, though not different issues, not even issues
at all, in the sense in which pleaders use the term”.
9
53.
The purpose of costs orders as to issues was explained by Wilcox J in Commissioner
of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 at 69 as follows:
In these days of extensive court delays and high legal costs the courts should use all
proper means to encourage parties to consider carefully what matters they will pout in
issue in their litigation. If parties come to realise that they will not necessarily recover the
whole of their costs, even though they have unsuccessfully raised a discrete issue, they
are likely better to consider whether the raising of that issue is a justifiable course to take.
54.
I commented on this question in VTS IT Pty Ltd v Russell [2015] ACTSC 230 at [73],
[75]-[76], as follows:
73. On the other hand, there is a need to recognise the chilling effect that too ready an
application of the power to make separate orders as to the costs of issues may have.
As Jacobs J pointed out in Cretazzo v Lombardi at 16:
... trials occur daily in which the party, who in the end is wholly or substantially
successful, nevertheless fails along the way on particular issues of fact or law. The
ultimate ends of justice may not be served if a party is dissuaded by the risk of costs
from canvassing all issues, however doubtful, which might be material to the decision of
the case. There are, of course, many factors affecting the exercise of the discretion as to
costs in each case, including in particular, the severability of the issues, and no two
cases are alike. I wish merely to lend no encouragement to any suggestion that a party
against whom the judgment goes ought nevertheless to anticipate a favourable exercise
of the judicial discretion as to costs in respect of issues upon which he may have
succeeded, based merely on his success in those particular issues.
...
75. Further, the added complexity of considering such questions is a matter to be taken
into account. As the Western Australian Court of Appeal explained in Bowen v Alsanto
Nominees (Pty Ltd) [2011] WASCA 39 (S) at [6]-[7]:
6
The court may, in the exercise of its discretion, order that a successful party
recover only a portion of its costs where that party has been unsuccessful in
respect of certain discrete issues. But that should not be done as a matter of
course. To embark as a general practice upon an analysis of which party was
successful on each issue, or necessarily to deprive a successful party of some
portion of its costs if it has lost on a particular issue, would be likely to add further
uncertainty and complexity to the outcome of litigation, derogate from the prospect
of settlement, and oblige the court to hear lengthy and frequent arguments in
relation to costs as an additional burden on its resources and the costs of the
parties: see MacKinnon v Petersen (Unreported, NSWSC, 19 April 1989)
(Cole J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
[67]–[68] (McHugh J). Litigation is time-consuming, expensive and burdensome
enough already.
7
In addition, while parties should be encouraged to consider carefully what matters
they put in issue, justice may not be served if by too ready a resort to deciding
questions of costs according to success on particular issues, parties are dissuaded
by the risks of costs from canvassing all issues which might be material to the
decision in the case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd
[2002] FCA 282; NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 [24].
76. The general approach to the decision on whether a costs order should be made as to
specific issues has been carefully articulated by the Western Australian Court of
Appeal in Amaca Pty Ltd (formerly known as James Hardie & Co Pty Ltd) v Hannell
[2007] WASCA 158 (S) at [7], namely that the discretion to apportion costs or make
separate orders as to costs of issues will generally or be exercised
10
where there are discrete and severable issues upon which the generally successful party
has failed, and which have added to the cost of the proceedings in a significant and
readily discernible way.
55.
The plaintiff raised a further matter, namely that the identity of the first defendant, as an
officer of government, an arm of the State, may be relevant as a factor to be
considered.
56.
Thus, in the context of the comment by Jacobs J in Cretazzo v Lombardi (at 16) of the
undesirability of a successful litigant being deprived of portion of its costs merely
because it did not succeed on all of the grounds or issues it advanced in the case,
Eames J said in Victoria v Master Builders’ Association of Victoria (Unreported,
Supreme Court of Victoria, Appeal Division, Tudgell, Ormiston and Eames JJ,
15 December 1994) at 7-8, that this approach has:
... particular force where it is the State which is the unsuccessful party and which has been
held to have acted unfairly towards a citizen, whether individual or corporate.
57.
While appreciating the rationale for such a comment, I consider that the courts should
be careful about creating classes of litigants to whom different rules apply. After all,
large corporations, such as insurance companies, can impinge on the rights of
individuals often with as great an effect as can government. Indeed, so can employers
affect the rights and liberties of employees.
58.
In the absence of some greater acceptance generally of this kind of approach, I prefer
to proceed on more conventional lines which consider matters such as any behaviour
of a litigant whether during the litigation or otherwise associated with it, such as a
contumacious disregard for the rights of the other party, actions taken in bad faith and
the like. I found no evidence of this behaviour here.
59.
Bearing these principles in mind, I turn then to the submissions made by the first
defendant.
1. The case pleaded and the success of the plaintiff
60.
The first defendant submitted that the grounds of the orders sought by the plaintiff set
out in the Amended Originating Application were the pleadings on which the plaintiff’s
case was based and that, judged by an analysis of the terms of those grounds, the
plaintiff had been substantially, if not virtually wholly, unsuccessful. He pointed out that,
even where the orders were favourable to the plaintiff, they were made for reasons
other than those stated in the Amended Originating Application.
61.
In this, the first defendant relied on the description I had given of the function of
pleadings and the need for the conformity of the case conducted at trial with the
pleaded case in Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd
[2010] ACTSC 20; 4 ACTLR 114. I do not resile from anything I there said, but it seems
to me that this is not an applicable standard to apply in this case.
62.
In the first place, an Originating Application is not a pleading. That is made expressly
clear by the definition of “pleading” in the Dictionary to the Court Procedures Rules.
This is not a mere matter of semantics. It is more significant.
63.
There is no doubt that proper notice of the case a party seeks to make out is an
important way in which the fundamental value in litigation is respected. See
11
Commonwealth v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2 at [116]; Canberra
Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd at 123; [33]-[34].
64.
In proceedings commenced by an Originating Claim (the ACT equivalent of a writ of
summons), the initial discharge of this obligation is within the indorsement of the claim
(or writ). In the High Court, however, Barwick CJ and McTiernan J, though in dissent on
the outcome, described such an indorsement in Renowden v McMullin (1970) 123 CLR
584 at 595, as follows:
The indorsement on the writ not being a statement of claim is not in the nature of a
pleading. In our opinion, it should not be construed as such but read for what it is, namely,
a notice of the nature of the plaintiff's claim, of the cause thereof and of the relief sought in
the action. It suffices if it conveys that information generally and without particularity save
where and to the extent to which particularity is indispensable to notify the required
elements of the indorsement, e.g. on some occasions identification of the instrument upon
which a claim is founded
65.
As Owen J, with whom Kitto and Menzies JJ agreed, said in that case at 613, the
Statement of Claim “identifies the case that the defendant is called upon to answer”.
66.
There is, of course, no Statement of Claim required or possible when the proceedings
are commenced by Originating Application: r 60 of the Court Procedures Rules. The
proceedings are then conducted by affidavit: rr 60(4), 64. The Originating Application is
required to set out the relief claimed: r 60(3). While there is provision in the approved
form, Form 2.7 [AF 2006-252], for the grounds to be specified, this is not required by
r 60 and, indeed, is expressly indicated on the approved form to be able to be omitted
“if not applicable”.
67.
It is, nevertheless, most desirable to include the grounds. It is, however, important to
point out that the grounds should not necessarily be regarded as equivalent to the
pleading of a Statement of Claim. Again, that is not to say that a defendant who
receives an Originating Application where the supporting affidavits seem to travel
outside any stated grounds may not be entitled to particulars of the case to be made by
the plaintiff or, indeed, if the case turns out at trial to be relevantly different from that set
out in the Originating Application, may not be entitled to an adjournment (possibly at
the plaintiff’s costs) or an order that limits the case to that set out in the Originating
Application. In an appropriate case, any of those responses may well be warranted.
68.
In this case, the affidavits and the written submissions of the plaintiff clearly made out a
somewhat more nuanced and, in some respects, different case than that limited by the
grounds stated in the Originating Application. Nevertheless, the first defendant neither
sought an adjournment or other order such as to require further amendment of the
Amended Originating Application or that inconsistent evidence which addressed other
grounds be ruled inadmissible.
69.
In some respects that is too generous to the plaintiff, for some of the relief granted was
granted on a basis it did not directly argue – the basis for holding the second warrant
invalid is a good example.
70.
The first defendant complains that in this respect:
[T]hat it is relevant to the exercise of the Court’s discretion in relation to costs that the
plaintiff’s conduct of its case meant that the first defendant did not have a proper
opportunity to marshal evidence, authorities and submissions to meet the allegation of
failure to disclose. Further, other than the few minutes of Mr Morrissey SC’s
cross-examination of Constable McGruddy it is hard to see what preparation or hearing
12
time was devoted to the contention there had been a failure to comply with duty of
disclosure in seeking the 2nd warrant.
71.
While not rejecting the overall validity that this complaint may have, the remedy, in my
view, is not in the discretion as to the costs to be ordered but in the other, and earlier,
possibilities of addressing that at the hearing – adjournment, ruling as to admissibility,
amendment of the Amended Originating Application or the like.
72.
As Tadgell J, with whom Ormiston and Eames JJ agreed, pointed out in Victoria
v Master Builders’ Association of Victoria at 3-4:
Another feature of the appeal was that the appellant raised by consent, or at least without
objection, the question of justiciability, a point which it had not taken below. This was an
important aspect of the appellant’s case on the appeal and occupied a very substantial part
of the time in oral argument taken by both sides. It was a point which, of course, was
decided against the appellant.
The respondent having obtained declaratory relief against the appellant, although not in the
terms initially granted or ever sought, succeeded in the litigation. That was so, in my
opinion, even though the order of the Full Court was that the appeal be allowed.
73.
This was, in substance, though clearly not in form, a not dissimilar situation to that
here.
74.
In any event, the requirement of conformity between the pleadings (and, here, one may
substitute for the purposes of this argument, the stated grounds in the Originating
Application), the conduct of the proceedings and the judgment is not an inflexible one.
75.
As the High Court said in Dare v Pulham (1982) 148 CLR 658 at 664, there are
occasions where “parties choose to disregard the pleadings and to fight the issues
chosen at the trial”. See my comments on this question in Commonwealth v Davis
Samuel Pty Ltd (No 8) [2014] ACTSC 312 at [129]-[136].
76.
As Ipp JA, with whom Giles and Hodgson JJA relevantly agreed, said in Ingot Capital
Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206;
73 NSWLR 653 at 710; [424] in identifying principles to be applied:
(c) It may be that, in a clear case, mere acquiescence by one party in a course adopted by
the other will be sufficient to ground an inference that the parties have chosen a
different basis to the pleaded issues for the determination of their respective rights and
liabilities
(d) Acquiescence giving rise to a departure from the pleadings may arise from a failure to
object to evidence that raises fresh issues – it is in this sense that ‘cases are
determined on the evidence, not the pleadings’.
77.
This seems to me to be very much the position in these proceedings.
78.
The plaintiff, having succeeded in obtaining the continuation of at least part of the
interlocutory injunction (albeit for one of 29 seized items) earlier made on the basis,
inter alia, of the invalidity of the second warrant and two declarations which declared
the failure by the police executing the search warrant to comply with the law in two
respects, can be said to have succeeded in vindicating its rights to a not insignificant
degree. While the declarations did not ultimately render the search warrants invalid,
they may well lead in the rejection of evidence being items seized because of the
application of s 138 of the Evidence Act 2011 (ACT) or its relevant equivalent.
13
2. Costs of Issues
79.
As indicated above (at [51]-[54]), the decision to apportion costs of issues for separate
orders is a difficult question. Due regard has to be given to the fact that any success of
a plaintiff justifies a recognition that, absent special circumstances (such as a letter of
the Calderbank v Calderbank [1976] Fam 93; 3 WLR 586 kind, or offers of compromise
under Pt 2.10 of the Court Procedures Rules or similar), a primary consideration is that
it was necessary for the plaintiff to resort to the courts for the remedies or relief
ultimately secured.
80.
Thus, the apportionment of costs as to issues usually has regard to matters such as:
81.

whether the issues on which the relevant party failed were “discrete and
severable issues”: Amaca Pty Ltd (formerly known as James Hardie & Co Pty
Ltd) v Hannell [2007] WASCA 158 (S) at [7];

whether the length of the proceedings have been greatly increased by the lost
issue or inquiry on which the successful party failed: BHP Billiton Iron Ore Pty Ltd
v National Competition Council (No 2) [2007] FCA 557 at [23];

where the argument on which the otherwise successful party has failed in one
which had little prospect of success: Baulderstone Hornibrook Pty Ltd v Qantas
Airways Ltd [2003] FCA 325 at [4];

even then, the fact that a matter is unreasonably raised is not, of itself, sufficient
to justify a different order than the usual order: Mickelberg v Western Australia
[2007] WASC 140 (S) at [43]; and

parties should, however, be careful not to dissuade by the risk of costs a party
from canvassing all issues, however, doubtful, that may reasonably be material to
the case: Cretazzo v Lombardi at 16.
After a careful and detailed analysis of the authorities, Newnes J summed up some of
the considerations in Mickelberg v Western Australia at [44], as follows:
Where it is appropriate to consider the outcome of particular issues in the case, it will be
relevant to consider whether there has been any unreasonable or inappropriate conduct on
behalf of the successful litigant in relation to that issue, the relative merits or strengths of
that party on the issue, whether the length of the hearing was greatly increased by the
issue, and whether the issue otherwise was of sufficient significance in proportion to the
whole case to warrant an order depriving that party of the costs of that issue.
82.
The first defendant submitted that a large part of the preparation, in the 15 affidavits he
had prepared, went to the issue of whether the police officers had formed the view that
items seized were actually items which fell within the remit of the warrant. This, it was
said was in relation to order 3(a) sought by the plaintiff.
83.
The holder of a search warrant must, it was held by Holland J in Trimboli
v Onley (No 3) (1981) 56 FLR 321 at 334-5, turn his or her mind to the items that the
warrants authorise to be seized and have an actual belief on reasonable grounds that
the item to be seized falls within the ambit of the warrant. I note that Trimboli v Onley
(No 3) was recently cited with approval in Jeremiah v Lawrie [2016] NTCA 6 at [22].
84.
While this principle is an important one, it did not seem to me to be unambiguously the
subject of the ground of review on which the first defendant sought to rely in this
argument.
14
85.
It was, it is accepted, raised by, for example, s 195(1)(c) of the Crimes Act, a section
that was mentioned in that ground, but there were a whole range of other things also
mentioned in the section apart from that. The other sections mentioned in the same
ground, namely ss 199 and 200, do not address that issue.
86.
The first defendant’s affidavit material did address this issue; many of the deponents to
such affidavits made it clear that they were aware of the conditions in the warrant and
that they had regard to them when deciding what could be seized. This was perfectly
proper. Those affidavits, however, also addressed other issues, including the course of
the search, the interaction with occupiers and the like, matters that were relevant to
other grounds on which the plaintiff had some success.
87.
On the other hand, the only affidavit filed by the plaintiff which raised this issue was
that of Michael Pettersson, whose phone was seized and who was questioned about
what appeared to be personal messages; thus it was difficult to see how they could
have met any of the conditions in the warrant. I could not find any affidavit filed by the
first defendant that addressed this specific matter.
88.
In all, I accept that a good part of the evidentiary material filed by the first defendant
addressed the issue of the state of mind of the police officers seizing the material. On
the other hand, it did not seem to me that this was the only matter addressed and it
seemed to me that the other matters were relevant to the proceedings more generally.
I cannot see that the time spent on this issue was likely to have been very extensive,
though I accept that it is difficult for me, in the absence of actual evidence, to make a
definite finding on this matter. Nevertheless, if the first defendant wishes to obtain a
special order, the onus is on him to satisfy me of, for example, the amount of work
done. The material presented does not do so.
89.
I also did not consider that the plaintiff had raised an issue which it then abandoned in
the way it stated the grounds for order 3 sought in the Amended Originating
Application. If there was any doubt, the first defendant could have sought particulars
even though the proceedings were dealt with relatively expeditiously. He apparently did
not do so.
90.
It must have been clear at the very least by the time that the written submissions of the
plaintiff were filed that the question of the state of mind of police actually seizing items
in the search was not an issue in the proceedings.
91.
The majority of the evidence at the hearing involved the issue of whether the occupiers
were prevented from observing the search. On that issue, the plaintiff had a reasonable
level of success.
92.
While the plaintiff was unsuccessful on a number of other issues, it did not seem to me
that these were either unreasonably raised in the sense that they were unarguable or
had little prospects of success. The plaintiff submitted that they could not easily have
been severed from the issues on which the plaintiff did succeed.
93.
To take a specific example, the issue of seizure of material stored on computers was
not free from authority, but the authorities pointed in different directions. Though I
ultimately decided against the plaintiff on this issue in CFMEU v AFP at [263]-[265], the
disagreement of the authorities made it entirely reasonable for the plaintiff to raise the
issue.
15
94.
On the other hand, the plaintiff essentially sought orders invalidating the two warrants
and the searches conducted under them. It succeeded in respect to the second
warrant, but failed in respect of the first warrant. It did achieve a measure of success in
relation to the procedures that were not in accordance with law, but this did not lead to
the invalidity of the first warrant nor of the search under it. Further, it was wholly
unsuccessful on two significant arguments, about copies and receipts and about
electronic seizures.
95.
While these did not occupy a significant portion of the time of the hearing, they did
involve a reasonable amount of evidence and argument. Further, in relation to the
availability of copies, the actions of the plaintiff, particularly through its lawyers, did
seem to me to add to the delay and, while they made some complaint, seemed largely
to acquiesce in it.
96.
In all the circumstances, I am not satisfied that this is a case where an order should be
made as to the costs of discrete issues but I am satisfied that it is appropriate to
recognise in the order for costs the relative lack of success of the plaintiff on a number
of issues, but the recognition should be modest.
3. Interlocutory injunction
97.
There was a numerical disconformity between the number of items that the first
defendant was restrained from accessing or inspecting by the interlocutory injunction
made on 17 September 2015, and the permanent injunction made on 2 December
2015. Indeed, on a mathematical basis, three per cent of the items originally seized
and subject to interim restraint were ultimately the subject of permanent restraint.
98.
Again, however, I emphasise that the grant of costs is not purely a matter of
mathematics, unless the numbers show some other reason for it affecting the costs.
For example, it has been held that the amount of damages awarded in defamation
proceedings may, amongst other matters, affect the amount of costs awarded. See
Holt v TCN Channel Nine Pty Ltd (No 2) [2012] NSWSC 968; 82 NSWLR 293.
99.
If the one item that was the subject of the second warrant was not important, then the
first defendant could have agreed to return it, and the proceedings on that issue would
have been moot. He maintained an objection to the challenges to that warrant and the
injunction restraining access or inspection to it.
100. On the other hand, it is not unreasonable to note that the plaintiff did actually fail to
have the injunction continued in respect of the terms seized under the first warrant and
that this was the bulk of the material seized.
101. It seems to me that some moderation of the order for costs is appropriate to recognise
this.
Disposition
102. In my view, the usual rule should be applied but with some moderation to recognise the
matters I have mentioned.
103. I accept, as pointed out by French J in J-Corp Pty Ltd v Australian Builders Labourer’s
Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70; 46 IR 301 at 302, that
“[m]athematical precision is illusory” and the Court should not pretend that it can be
achieved.
16
104. Further, there is much to be said for taking a holistic approach as was done in that
case rather than identifying issues and making separate orders in respect of each of
them.
105. As a result, I am of the view that I should set a percentage of the costs to be paid by
the first defendant. This should encompass the costs of the interlocutory proceedings,
other than those for which an order has already been made. It is, as Mansfield J
pointed out in Australian Prudential Regulation Authority v Holloway [2000] FCA 1245;
35 ACSR 276 at 290-1; [52], not reaching a conclusion “simply as a matter of
arithmetic”; it involves judgement, approximation and evaluation relying on impression,
intuition, and the weighing of incommensurables: Beagle Holdings Pty Ltd v Equus
Financial Services Ltd [2000] WASC 128 at [32], Rosselli v Rosselli (No 2) [2007]
VSC 438 at [10], and HP Mercantile Pty Ltd v Diericex (No 2) [2012] NSWSC 1430 at
[32].
106. In my view, the first defendant should pay 85 per cent of the plaintiff’s costs. I see no
reason in the circumstances for any order that the plaintiff pay any of the first
defendant’s costs other than those already ordered to be paid, being those thrown
away by the adjournment on 12 October 2015.
107. I shall so order.
I certify that the preceding one hundred and seven
[107] numbered paragraphs are a true copy of the
Reasons for Judgment of his Honour Justice
Refshauge.
Associate:
Date: 2 February 2017
17