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[2017] ACTSC 10
General information, not legal advice.
Supreme Court of the ACT
2017-02-02
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police (No 2)
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)
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
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; [1858] EngR 475; 10 ER 1443
Colburt v Beard [1992] 2 Qd R 67
Commissioner of Australian Federal Police v Razzi (No 2) [1991] FCA 267; (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] HCA 59; (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] HCA 11; (1998) 193 CLR 72
Re Birkman; Ex parte Pickering (1860) 1 QSCR 14
Renowden v McMullin [1970] HCA 24; (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] VicRp 68; [1968] VR 533
Construction, Forestry, Mining and Energy Union (Plaintiff)
Commissioner, Australian Federal Police (First Defendant)
Mr P Morrissey SC, Mr M Hosking & Mr S Whybrow (Plaintiff)
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).
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.
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 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.
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:
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.
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 "impeded" the occupiers in the exercise of their right to observe the search and so I did make the declaration in relation to ground (b), but in somewhat more limited terms: CFMEU v AFP at [207]-[209]. The point was made out, though the precise terms of the order made was somewhat different.
26. I did not uphold grounds (c) and (d): CFMEU v AFP at [222]-[226], [229]-[231].
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.
(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].
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.
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.
32. 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 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.
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.
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] VicRp 68; [1968] VR 533 at 534.
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]:
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] HCA 59; (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] HCA 11; (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; [1858] EngR 475; 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".
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] FCA 267; (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:
... 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.
...
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 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] HCA 24; (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 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.
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:
• 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.
81. 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.
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.
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.
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.
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.
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.
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.
Construction, Forestry, Mining and Energy Union
Commissioner, Australian Federal Police
(1991) 30 FCR 64
(1975) 13 SASR 4
(1982) 148 CLR 658
(1990) 170 CLR 534
(1998) 193 CLR 72
(1970) 123 CLR 584
(1981) 56 FLR 321