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[2019] FCA 474
Federal Court of Australia
2019-04-05
O'Callaghan J
Original judgment source is linked above.
O'CALLAGHAN J: 1 The applicant (Directed) seeks an order that the first and sixth respondents (the Meneses Parties) pay its costs of meeting objections raised in respect of an application made by Directed for access to subpoenaed documents. The objections were withdrawn by Directed the day before they were to be heard. 2 The parties have filed written submissions, and I will deal with the matter on the papers.
Background 3 Directed made an application on 10 October 2018 for orders seeking leave to uplift, inspect and copy documents produced by the following parties, pursuant to subpoenas issued to them: (a) Albert Biviano & Co, on 11 September 2018; (b) Kenmarco Industries Pty Ltd, on 11 September 2018; (c) Westpac Banking Corporation, on 11 September 2018; and (d) American Express Australia Limited, on 12 September 2018. 4 At the return of the subpoenas on 10 October 2018, before a Registrar of this court, the Meneses Parties advised that they wished to object to Directed's application in respect of the subpoenas on the grounds of privilege against self-incrimination and self-exposure to civil penalty (privilege grounds) and requested that their objection be heard and determined on 26 October 2018, together with other privilege applications to be heard that day. 5 On 15 October 2018, the solicitors for the Meneses Parties sent a letter to the applicant's solicitors setting out their clients' objections to the uplift of the documents produced pursuant to the subpoenas (the objection letter). 6 The second, third, fourth, fifth, eighth and twelfth respondents also objected to Directed's application at the return of the subpoenas on 10 October 2018, and referred to and relied upon the oral submissions of counsel for the Meneses Parties, but withdrew their objection on 15 October 2018. The applicant does not seek its costs against them. 7 On the afternoon of 25 October 2018, the day before the hearing of the objections, the Meneses Parties gave notice that they had abandoned their objections to the uplift of the documents produced pursuant to the subpoenas.
Costs principles 8 The awarding of costs is, of course, at the discretion of the court: s 43 of the Federal Court of Australia Act 1976 (Cth). Usually, in the exercise of this discretion, it is ordered that the costs should follow the event: see Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at [241] and Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd (No 2) [2018] FCAFC 7 at [3]. The court must use its discretion "in the way that best promotes the overarching purpose of the civil procedure provisions of the FCA Act and Rules": see Specsavers Pty Ltd v Optical Superstore Pty Ltd (No 4) [2012] FCA 652 at [25].
The Meneses Parties 9 The Meneses Parties' principal submission was that Directed only issued the subpoenas a short time before the hearing on 26 October 2018, and that the Meneses Parties, at the return of the subpoenas before the Registrar, considered that the production of the documents under the subpoenas was related to those matters and therefore any objections should be heard by me on that date. 10 They also submitted that the uplift of documents under the subpoenas and the documents the subject of the privilege dispute were interrelated, and that this was illustrated by the "no increased jeopardy" submission advanced by Directed. They submitted that this "no increased jeopardy" issue could have been dealt with as part of the parties' earlier submissions, had the subpoenas been issued earlier. 11 They submitted that the costs of the uplift of documents should, therefore, follow the outcome of the application then before the court with respect to inspection of documents and claims to privilege.
Directed 12 Directed submitted, in summary, that it: (1) incurred substantial costs and disbursements in reviewing and meeting the Meneses Parties' objections; (2) had to treat the objections seriously and prepare its written and oral submissions to meet them, given the importance of the documents to its claims; and (3) was entitled to and did expect that the objections would be hard fought, and potentially argued by the Meneses Parties' senior counsel on the grounds of privilege. 13 In response to the Meneses Parties' submissions, Directed further submitted that: (1) there was no connection between the issues in the privilege applications that were to be decided and the objections to the subpoenaed documents, as was illustrated by the grounds of objection contained in the Meneses Parties' objection letter; and (2) the issue of timing was not raised in the Meneses Parties' objection letter, and that it was appropriate that Directed awaited discovery from the respondents before seeking documents under subpoena.
Consideration 14 Directed should have the costs that it seeks. The Meneses Parties had sufficient time to consider any objection to the uplift and inspection of documents produced pursuant to the subpoenas before and after the hearing before the Registrar. Whether their objections were "interrelated" with the issues the subject of the privilege dispute, it seems to me, is beside the point, in circumstances where they abandoned the objections the day before they were to be heard. 15 Accordingly, the first and sixth respondents should pay the costs of the applicant in meeting the objections raised in respect of the applicant seeking to access the documents produced pursuant to the subpoenas. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.
SCHEDULE OF PARTIES VID 1157 of 2017 Respondents Fourth Respondent: LEEMEN AUS PTY LTD Fifth Respondent: HANHWA HIGHTECH CO., LTD Sixth Respondent: JOHNNY MENESES Seventh Respondent: CRAIG MILLS Eighth Respondent: KICHANG (RYAN) LEE Tenth Respondent: GRIDTRAQ AUSTRALIA PTY LTD Eleventh Respondent: WEBHOUSE SOFTWARE SOLUTIONS PTY LTD Twelfth Respondent: LEEMEN CO. LTD Thirteenth Respondent: QUANTUM TELEMATICS PTY LTD Cross-Defendants Second Cross-Defendant STAVROS SIOLIS Third Cross-Defendant ANTHONY TSELEPIS
Directed Electronics OE Pty Ltd
OE Solutions Pty Ltd