Citation: R v Rogerson; R v McNamara (No 9) [2015] NSWSC 1056
Court: Supreme Court of New South Wales
Date: 31 July 2015
Judge(s): Bellew J
Background
The accused McNamara, facing serious criminal charges, caused a subpoena to be issued to the Australian Crime Commission seeking the production of documents. The Commission objected, relying on the statutory immunity conferred by s 51(3) of the Australian Crime Commission Act 2002 (Cth), which protects certain documents from compelled production.
In earlier proceedings (R v Rogerson; R v McNamara (No 2) [2015] NSWSC 619), Bellew J set aside the subpoena, accepting the Commission's position that the immunity applied and that McNamara's interpretation of s 51 was not open on the facts.
Following the earlier ruling, the Commission pressed its application for costs. Both parties filed written submissions, and the question before the court in this judgment was whether costs should be ordered in the Commission's favour.
Legal Issues
- Whether costs should be awarded in favour of the Australian Crime Commission following the setting aside of a subpoena issued on behalf of the accused
- What weight, if any, should be given to an accused person's right to a fair trial when determining a costs application
- Whether costs should be awarded as a lump sum or as agreed or assessed
Decision
Bellew J applied the general rule that costs follow the event, drawing on Latoudis v Casey (1990) 170 CLR 534, which establishes that the unsuccessful party should ordinarily pay the costs reasonably incurred by the successful party. The Commission had succeeded in having the subpoena set aside, and the question became whether any countervailing consideration displaced the ordinary rule.
The court placed significant weight on the evidence from the Commission's solicitor. From as early as 29 April 2015, McNamara's solicitor was informed in writing of the statutory immunity, the lack of a demonstrated legitimate forensic purpose, and the Commission's intention to seek costs if the matter proceeded. Multiple letters were sent. An opportunity was expressly offered to withdraw the subpoena with no costs order. None of these letters received a reply.
McNamara's counsel argued that the fair trial right, including rights referenced in Article 14 of the International Covenant on Civil and Political Rights, should diminish the relevance of those conduct factors and weigh against a costs order. Bellew J rejected this submission. The court noted that a statutory immunity plainly applied and had been drawn to the solicitor's attention repeatedly. The mere fact that a subpoena was issued in the context of criminal proceedings defending serious charges did not insulate the issuing party from the ordinary costs consequences when the subpoena was set aside.
On the quantum of the order, the Commission sought a lump sum of $8,500, representing roughly half of its solicitor-client costs. The court observed that there appeared to be some duplication in the work, with two solicitors having charged for preparation and attendance at a hearing that occupied less than two hours. Rather than order the specified lump sum, Bellew J ordered costs as agreed or assessed, leaving the quantum to be resolved through the standard assessment process.
Orders Made
- The accused Glen Patrick McNamara is to pay the costs of the Australian Crime Commission of, and incidental to, the Notice of Motion dated 5 May 2015, as agreed or assessed.
Key Takeaways
- The general rule that costs follow the event applies in criminal proceedings when a third party successfully moves to set aside a subpoena, and no automatic exception arises simply because the issuing party is an accused facing serious charges.
- Where a party is repeatedly warned in writing of a statutory immunity, referred to relevant authority, offered an opportunity to avoid costs, and still proceeds to a hearing, that conduct strongly supports a costs order against them.
- An accused person's right to a fair trial does not, of itself, displace the ordinary costs discretion when a subpoena is set aside on the basis of a clear statutory immunity rather than oppression or vexatious conduct.
- Under s 51(3) of the Australian Crime Commission Act 2002 (Cth), the Commission holds a statutory immunity from production that the court confirmed was operative on these facts.
- Where there is evidence suggesting duplication in a costs applicant's own work, the court may decline to make a lump sum order and instead refer quantum to the standard agreed-or-assessed process.
Legislation and Cases Referenced
Legislation
- Australian Crime Commission Act 2002 (Cth), s 51(3)
- International Covenant on Civil and Political Rights, Article 14
Cases
- Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
- R v Rogerson; R v McNamara (No 2) [2015] NSWSC 619
- R v Micalizzi (NSWSC, 13 November 1987, unreported)
- Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159
- R v Barbaro (1992) 108 ACTR 1
- R v Bartlett [2014] WASC 492