Abo Abdo v Commissioner of the Australian Federal Police

1. By a written submission, the Commissioner submitted:

(a) first, that the application is premature and that the Court ought not, at present, exercise its discretion to make a ruling as to the applicability of r63A.35.2 to the proceeding. These matters are properly to be dealt with at the conclusion of the trial of the proceeding, as would occur in the usual course of any civil proceeding in this Court;

(b) as to the premature nature of the application, the following matters should be considered in particular:

(i) the circumstances of this matter militate against the making of a ruling as sought because:

(A) the parties are yet to file any evidence or outlines of evidence in the proceeding;

(B) there has been no trial of the proceeding and thus, no determination of the issues in dispute;

(C) in any event, by reason of his plea of guilty to the serious offence referred to above, the applicant is unlikely to be able to satisfy the Court of the pre-conditions in ss323(1)(a)-(c) of the POCA;

(D) in those circumstances, there is a real issue as to whether the Court ought exercise its discretion to award costs in favour of the applicant, even if he is ultimately successful. This will be a discretionary decision for the trial judge having heard the evidence and determined the issues in this proceeding; and

(ii) the application is akin to the pro bono legal representatives of a defendant in a general civil proceeding seeking a preliminary ruling as to whether costs are payable if a claim is successfully defended. The Court ought not countenance such a premature application;

(c) second, that r63A.35.2, which governs the making of a pro bono costs order in civil proceedings, sits within Chapter 1 of the Rules;

(d) rule1.05(2) in Chapter 1 of the Rules, provides that rules which appear within Chapter 1 of the Rules, do not apply to a civil proceeding to which Chapter II of the Rules apply;

(e) Part 3 of Chapter II of the Rules, applies to a proceeding in this Court under the POCA;[1]

(f) Chapter II of the Rules is silent on the issue of costs. Thus, the prima facie position is that r63A.35.2 in Chapter 1 of the Rules, does not apply to proceedings conducted in this Court under the POCA;

(g) third, it is accepted that by the operation of s78A of the County Court Act 1958 ("the CCA") and/or s323 of the POCA, this Court has the statutory power to make orders as to costs in POCA proceedings;

(h) however, there has presently been no consideration by an appellate court as to the costs implications where:

(i) an applicant is successful in their proceeding under the POCA; but

(ii) they are unable to satisfy the pre-conditions set out in s323(1) of the POCA;

(iii) thus, even if he is successful, the making of a costs order in the applicants favour is not "preordained";

(i) in circumstances where the power to award costs arises only under s78A of the CCA and/or under s323 of the POCA, the "indemnity principle" must be considered when deciding what costs ought be awarded to a successful applicant. As to the operation of the indemnity principle, the Court should consider the judgments in _Wentworth v Roger_s,[2] _Manieri v Cirill_o[3] and Wellington v Metcalf (No 2).[4] Pursuant to the matters outlined in these cases, in order to avoid breaching the indemnity principle, it would be necessary for the applicant to demonstrate some liability to pay his legal costs before a costs order in his favour could be made;[5]

(j) the Commissioner is not presently in a position to make any submissions as to whether any costs order made in the applicant's favour would breach the indemnity principle.

1. In written submissions filed on his behalf by pro bono counsel, the applicant made the following submissions:

(a) when he accepted the request for pro bono legal assistance, pro bono counsel assumed that r63A.35.2 in Chapter I of the Rules, applied to the making of any costs order in the proceeding;

(b) correspondence between the parties has demonstrated that the Commissioner does not share this view;

(c) the Court ought to make a ruling as to the applicability of r63A.35.2 in Chapter I of the Rules to these proceedings, prior to the Judicial mediation scheduled for 2 June 2025. That is because the conduct of that mediation may be affected by the outcome of the ruling;

(d) the Commissioner submits that Chapter II of the Rules is silent on the issue of costs. If this is the case, then costs are in the general discretion of the Court under s78A of the CCA. In those circumstances, the indemnity principle arises for consideration;

(e) this creates a position where counsel who has accepted an appointment to act in the proceeding on a pro bono basis, will ultimately be unable to claim any costs, even if the applicant is successful in the proceeding, because the applicant has no present costs liability to pro bono counsel;

(f) it was to address this situation that r63A.35.2 in Chapter I of the Rules was inserted into the Rules;

(g) the Commissioner's position runs contrary to the objectives of the Scheme. The Commissioner contends for a "_two tiered sys_tem" for the provision of pro bono legal services. The first tier encompasses all other criminal and civil proceedings, including, arguably, proceedings brought under the Confiscation Act 1997. The second tier encompasses only proceedings under the POCA;

(h) the Court should be slow to accept such a submission in light of the fact that proceedings under the POCA often raise important public policy issues. It is also relevant that under the POCA, the Court cannot order that Victoria Legal Aid provide the applicant with assistance. This works an especial unfairness in this proceeding. Not only does the applicant not have the benefit of a pro bono instructing solicitor (despite having made strenuous attempts to secure one), if the Commissioner's submissions are accepted, the applicant's only legal resource, namely pro bono counsel, cannot recover any costs, even if costs follow the event and s323 of the POCA is satisfied. Thus, the taking of any step in this proceeding would need to be undertaken on the basis that no pro bono fees are recoverable;

(i) the unfairness which attaches to this situation is stark, especially given the "hard deadline" for automatic forfeiture of his property imposed upon the applicant by the operation of the POCA. He has until 25 January 2026 to prosecute the proceedings, but no resources with which to do so. Most of the important work that is required to investigate, locate and assemble the necessary proofs, including missing business records, cannot be done by Counsel under the Legal Profession Uniform Conduct (Barristers) Rules 2015 ("the Barristers' Rules"); and

(j) if the Court rules that r63A.35.2 in Chapter I of the Rules does not apply to these proceedings, then the Court should grant leave to pro bono counsel to cease acting, and order, of its own motion, that the proceeding be stayed pending the provision of proper legal representation to the applicant.

1. I have carefully considered each of the written submissions filed with the Court, the relevant case law and the applicable legislation.
2. On the basis of the materials before me, I have reached the preliminary conclusion that by reason of the operation of r1.05 in Chapter 1 of the Rules, r63A.35.2 in Chapter I of the Rules does not have application to this proceeding. In light of this, my preliminary view is that the power to award costs in this matter arises under s78A of the CCA and s323 of the POCA, given that Part 3 of Chapter II of the Rules is silent as to costs. My preliminary ruling in response to the application is to that effect.
3. However, I accept the Commissioner's submission that the issues raised by this application are complex. Having made this preliminary ruling on the basis only of the matters raised in the written submissions which were filed with the Court (which, by reason of the urgent nature of the application, did not comprise an exhaustive analysis of the issues), I am also of the view that parties ought not be precluded from revisiting with the Court the applicability of r63A.35.2 in Chapter 1 of the Rules and raising further argument in relation to this matter, if at the conclusion of the proceeding, the question of the applicant's costs arises for consideration.
4. In the meantime and in light of the preliminary ruling that I have made, I observe that it remains open to pro bono counsel to enter into any costs arrangement with the applicant that is permitted by the Barristers Rules, which he considers to be necessary in light of the matters set out in the judgments in Manieri v Cirillo[6] and Wellington v Metcalf (No 2).[7] In those circumstances, I refuse the application by pro bono counsel for leave to cease acting in the proceeding. The issue of the Court granting a stay of proceeding on its own motion, therefore does not arise.
5. For the avoidance of doubt, nothing in this ruling should be taken as indicating that I have formed any view about the merits of the applicant's arguments in this proceeding nor as to the merits of any costs application that might ultimately be made on behalf of the applicant, at the conclusion of the proceeding or any part of it.

[1] See r10.02(2) in Chapter II of the Rules

[2] [2006] NSWCA 145; (2006) 66 NSWLR 474 at paragraph [126], per Basten JA

[3] [2014] VSCA 227; [2014] 47 VR 127 at paragraph [43], per Nettle AP, Hansen JA and Santamaria JA; the Commissioner helpfully pointed out in his written submissions that r63A.35.2 in Chapter I of the Rules, was inserted following the decision of the Victorian Court of Appeal in Manieri v Cirillo (ibid)

[4] [2025] VSC 243

[5] Ibid at paragraphs [61]-[65], per Ierodiaconou AsJ