Ferguson v ACT Integrity Commission (No 3)

1. On 12 June 2025, the ACT Integrity Commission (the Commission) served on Mr Ferguson (the plaintiff) an examination summons requiring him to produce his mobile telephone. That occurred as part of a very drawn-out investigation conducted by the Commission referred to as Operation Kingfisher. The phone was obtained and data on the phone was downloaded by the Commission.

2. On 23 July 2025, the plaintiff commenced proceedings by originating application seeking prerogative relief, relief under the Administrative Decisions (Judicial Review) Act 1989 (ACT), relief under the Human Rights Act 2004 (ACT) and damages including aggravated and exemplary damages.

3. Following a hearing on 22 August 2025 and an adjournment on 25 August 2025 (Ferguson v ACT Integrity Commission [2025] ACTSC 375), I dismissed the plaintiff’s application for an interlocutory injunction: Ferguson v ACT Integrity Commission (No 2) [2025] ACTSC 380. Following that, after a number of adjournments, on 6 November 2025 the plaintiff filed an application for leave to discontinue the proceedings on the basis that there be no order as to costs.

4. The Commission did not agree that there should be no order as to costs. On the contrary, it said that the plaintiff should pay the Commission’s costs of the proceedings.

5. Rule 1163(2) of the Court Procedures Rules 2006 (ACT) provides that if a party seeks and is granted leave to discontinue, the court granting leave may also “make the order for costs it considers appropriate.”

6. The discretion in relation to costs must be exercised judicially. There is no default rule that a plaintiff should pay a defendant’s costs. However, the discretion is exercised in the context of the compensatory purpose of orders for costs. Consideration must be given to the conduct of the parties up until the point of discontinuance and the reasons for the discontinuance. That is reflected in the decision of McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6;186 CLR 622. As Lai Qin illustrates, a supervening event which renders the proceedings unnecessary or futile may mean that it is appropriate for each party to bear its own costs. On the other hand, if the discontinuance reflects a capitulation or surrender by the plaintiff, then it will often be appropriate that a costs order be made that reflects the desirability of compensating the defendant for costs incurred as a result of the plaintiff’s commencement of the proceedings. Submissions

7. The plaintiff submitted in relation to his conduct of the proceedings up until the time when leave to discontinue was sought: (a) there was no decision on the merits; (b) the plaintiff had sought to avoid the need for a hearing for interim relief by seeking an undertaking from the Commission pending a final hearing; (c) the misconception identified in the reasons for the refusal of an interlocutory injunction could not have been discerned until the day before the hearing for interim relief; and (d) there was no unreasonable behaviour following the refusal of the injunction up until the filing of the application for leave to discontinue.

8. So far as the decision to discontinue is concerned, the plaintiff said that this does not reflect a capitulation or surrender but instead reflects the fact that the plaintiff’s privacy was lost as a result of the refusal of the application for an interlocutory injunction.

9. The Commission submitted that the plaintiff’s application should be dismissed and that he should be ordered to pay the Commission’s costs of the proceedings. That was for four reasons. (a) The plaintiff was unsuccessful in obtaining interlocutory relief, and should pay the Commission’s costs if he now chooses to discontinue. (b) It is not a case in which the action became futile as a result of the decision on the interlocutory injunction. The decision on that application did not concern the application for certiorari, prohibition, final injunctions, mandamus, orders under the Human Rights Act or the claim for damages, including special, aggravated and exemplary damages. The case should rather be treated as a surrender. (c) The plaintiff gained nothing from the proceedings, and subsequent to the refusal of the injunction made specific privilege claims which he had previously asserted was practically impossible. (d) The Commission did not act unreasonably by not providing the plaintiff with its internal document relating to the issue of an examination summons which set out the matters taken into account by the Commissioner in signing the examination summons. Claims for relief

10. In order to understand the submissions it is necessary to understand the full scope of the claims made by the plaintiff in the originating application.

11. The examination summons was issued pursuant to s 147 of the Integrity Commission Act 2018 (ACT) (IC Act). Section 147(2) provides: However, the commission may issue an examination summons only if the commission— (a) suspects on reasonable grounds that the evidence, document or other thing may be necessary for the investigation; and (b) is satisfied that it is reasonable to do so.

12. Section 147(3) lists some mandatory considerations which must be taken into account. In the context of an investigation such as that being carried on by the Commission, a summons requiring the production of a mobile phone would be a relatively routine step for the Commission to take in relation to a person whose communications may be relevant to the investigation and that would be the case notwithstanding that a person’s mobile phone may have personal data irrelevant to the subject matter of the investigation on it.

13. Further, the potential for data on a mobile phone to be deleted or interfered with if a summons for production is served in advance of the requirement to produce the phone is an obvious one, and would undermine the investigative utility of requiring production of the phone.

14. The plaintiff’s claim included claims for judicial review and a claim in tort. The claim challenged four decisions: (a) a decision said to have been made on 12 June 2025 to issue an examination summons to produce the mobile phone (first decision); (b) a decision said to have been made on 12 June 2025 to require immediate production (second decision); (c) a decision said to have been made on 12 June 2025 to require the plaintiff to travel with an investigator to the plaintiff’s home, to enter the plaintiff’s home, and to seize his mobile phone at his home, said to have been made pursuant to a range of provisions of the IC Act (third decision); and (d) a decision said to have been made by the Commission to fail to return the contents of his mobile phone said to have been made under s 162 of the IC Act (fourth decision).

15. The claims for relief were extensive. They may be summarised as follows: (a) an order quashing the first decision; (b) declarations that each of the first through to the fourth decision was unlawful and invalid; (c) declarations that making the first decision and the third decision was incompatible with, or failed to give proper consideration to, the plaintiff’s rights to privacy under s 12(a) of the Human Rights Act and was therefore unlawful under s 40B(1) of that Act; (d) orders in the nature of prohibition and injunction restraining the Commission from accessing or converting into readable format or reviewing data extracted from the plaintiff’s mobile phone and an order requiring the Commission to destroy or deliver up that data; (e) an order compelling the Commission to comply with s 162 of the IC Act by returning to the plaintiff his data; (f) damages including aggravated and exemplary damages; and (g) costs.

16. Although the plaintiff commenced by originating application, the grounds for seeking that relief were set out in a manner consistent with what would appear in a statement of claim.

17. The claim for damages was a claim in tort which alleged that the third decision resulted in the plaintiff being falsely imprisoned during the journey to and from the plaintiff’s home and at the Commission’s premises. Further, it was alleged that the third decision involved a trespass to the plaintiff’s property, namely his home and mobile phone. It was alleged that as a result of that false imprisonment and trespass the plaintiff suffered: a. physical and psychiatric injury, including exacerbation of high blood pressure and post traumatic stress disorder; b. deprivation of liberty; c. deprivation of goods; and d. embarrassment, humiliation, mental anguish and injury to feelings.

18. The circumstances giving rise to a claim for aggravated damages were also pleaded. So too were the grounds for the claim of exemplary damages. Chronology

19. Significant reliance was placed by the plaintiff upon what was said to amount to inadequate or late disclosure by the Commission of its internal processes relating to the issue of the examination summons and of the reasons for the requirement for immediate production.

20. Understanding the background to the proceedings and the steps taken prior to the hearing of the application for an interlocutory injunction on 22 August 2025 involves some consideration of lengthy and argumentative correspondence generated on behalf of the plaintiff following the obtaining of the mobile phone pursuant to the examination summons on 12 July 2025. Notwithstanding the length and detail of the correspondence, it is important not to lose sight of the fact that this related to the exercise of power under s 147 of the IC Act. Section 147 provides an obviously intrusive power available to an investigative body to be exercised in accordance with the statutory requirements set out in ss 147(2) and (3) and having regard to the rights in the Human Rights Act. As I have already pointed out, the use of that power to obtain data on a mobile phone reflects a reasonably routine application of the power, notwithstanding the length of and detail in the correspondence sent on behalf of the plaintiff.

21. Following the hearing on 12 June 2025, the solicitors for the plaintiff sent a letter on 13 June 2025 seeking disclosure of the basis on which the Commission was satisfied of the elements in s 147(2), submitting that the extraction of the data on the phone contravened the Human Rights Act, and the circumstances surrounding the taking of the phone involved trespass to person and property.

22. On 13 June 2025 at 5:26pm, an investigator at the Commission emailed the solicitor for the plaintiff saying that the Commissioner was of the view that there was no proper basis for the complaints but accepted that they were important and required careful consideration. The Commissioner agreed that no steps would be taken to interrogate the data extracted from the phone until the complaints were resolved and as a result there did not seem to be a need, and it was impracticable, to reach an immediate final conclusion on the matters advanced in the letter.

23. There was a telephone discussion between the solicitor for the plaintiff and the chief executive officer of the Commission on 23 June 2025.

24. The Commission responded to the 13 June 2025 letter on 26 June 2025, asserting that the mobile phone was lawfully taken, describing the way in which claims of legal professional privilege might be made and giving two weeks for that to occur.

25. The solicitors for the plaintiff wrote on 27 June 2025 identifying that a substantive response had not been provided in relation to the power to direct the plaintiff to attend his residential premises in the company of officers and for the investigator to enter his premises.

26. On 1 July 2025, the general counsel of the Commission wrote saying that possession was taken of the mobile phone under a summons issued under s 147 of the IC Act, and that at no time was the plaintiff under arrest or detained and that the plaintiff had consented to the Commission staff entering his residence for the purposes of taking possession of the mobile phone under the summons.

27. The solicitors for the plaintiff wrote again on 2 July 2025 saying that they had not had a response “as to the basis on which [the] Commission was satisfied of the elements under section 147(2) … in the issue of the examination summons”. They also noted that the plaintiff disputed that he granted consent to the Commission’s officers. They indicated that the plaintiff’s position was that the wrong legal test had been applied to the issue of the summons and that the action of the Commissioner was “unlawful and arbitrary” in breach of s 12(a) of the Human Rights Act.

28. The letter then went on at some length seeking an assurance that the data would not be converted into readable form. It then indicated that the solicitors were instructed to claim legal professional privilege and public interest immunity over significant content stored on the phone. It explained the basis for the claim of public interest immunity and for legal professional privilege arising from correspondence with the ACT Government Solicitors’ office. It also indicated that there would be claims of legal professional privilege arising from the plaintiff acting in his personal capacity. The letter indicated that “we consider there to be no prospects of a workable regime for the identification and exclusion of privilege material via search terms”. The letter invited the Commission to withdraw the examination summons.

29. The general counsel of the Commission responded on 9 July 2025. The letter provided an explanation of the basis for satisfaction of the matters in s 147(2) as follows: As to compliance with s 147(2) of the Integrity Commission Act 2018 in respect of the summons, the Commissioner suspected on reasonable grounds that there would be information on the phone that may be necessary for the investigation and was satisfied that it was reasonable to do so. Without going into the precise detail of the information available to the Commissioner and providing a reasonable basis for this conclusion (which he is not legally obliged to disclose), the mere scope of the investigation, Mr Ferguson’s connexions with officials of the CFMEU and with Mr Ceramidas, Chief of Staff of the then Minister with responsibility for the EDU and his then position as Chief of Staff of the Minister responsible for procurement make it manifest that there was a proper and adequate basis for the relevant suspicion. Given that Mr Ferguson could not be aware of the full range of information available to the Commission and the lines of investigation under consideration and the varying character of the potentially relevant material on his phone, the suggestion that the Commission should leave it to him to select the data that should be disclosed is plainly unreasonable. The Commissioner is under no obligation to defer responsibility for examining data for potentially relevant evidence to someone in Mr Ferguson’s position, particularly where he necessarily has his own conflicting interest. Indeed, it would be irresponsible – to state the matter simply – were the Commissioner to accede to such a proposal. Not only was the course taken by the Commissioner reasonable, but it was also the only reasonable course to take.

30. The letter then went on to address questions of how to identify matters subject to the claim of legal professional privilege. It also addressed claims for public interest immunity and legal professional privilege that might be made on behalf of the ACT Government.

31. The letter also indicated that the Commission did not accept the correctness of the plaintiff’s version of events surrounding the entry of the Commission’s employee into his premises. The Commission rejected the contention that it had acted in breach of the Human Rights Act. As a result, the letter indicated that the data would not be destroyed or returned.

32. There was further correspondence on 14 July 2025 in which the Commission indicated that it had adhered to the view that the procedure under s 162 for the making of an application to the Supreme Court to decide a claim for privilege was not triggered until there had been a refusal by the Commissioner to decline to examine a document in respect of which a claim for legal professional privilege had been made. The letter contended that this required a claim to identify the document to which it applied. The letter indicated that the Commissioner would proceed on the basis that there was no claim of legal professional privilege unless that was done by 28 July 2025, either specifying a particular document or providing search terms that enable it to be identified.

33. On 16 July 2025, there was a further letter from the Commission indicating how the Commission proposed to search the data extracted from the mobile phone and provide documents responding to those searches to the plaintiff’s solicitors so that a claim of legal professional privilege could be made over them.

34. On 22 July 2025, there was a detailed four-page letter sent by the plaintiff solicitors responding to the letters on 9, 14 and 16 July. It is not necessary to summarise that letter in detail. It is sufficient to note the following points: (a) The letter asserted that it was “impossible for Mr Ferguson to provide search terms” for the purposes of a claim for privilege. (b) It submitted that “the now asserted basis for the reasonable suspicion appears without foundation in circumstances where the Commissioner articulated his reasons for issuing the examination summons during the hearing on 12 June 2025” and set out the relevant extract from the transcript. It then made various submissions about the adequacy of those reasons to justify the issue of the examination summons. The letter indicated that the claim of trespass was pressed. (c) The letter referred back to what was said on 13 June 2025 to the effect that no further steps would be taken until the plaintiff’s complaints were resolved. (d) The letter invited the Commission to issue a new examination summons which was narrower in scope and identify the categories or classes of documents it wished to inspect. (e) It indicated that unless there was an undertaking to withdraw the summons and delete the data extracted by midday the next day, proceedings would be commenced.

35. Proceedings were then commenced on 23 July 2025.

36. On 25 July 2025, the Commission undertook not to read the data pending the making of any relevant orders by the court.

37. On 13 August 2025, the Commission wrote to the solicitors for the plaintiff pointing out alleged deficiencies in the originating application, in particular in relation to compliance with the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act). The letter also identified that notwithstanding what was said in the letter of 25 July 2025, because a claim for personal injury had been included and the requirements of the CLW Act were not complied with (which would result in significant delay to the Commission’s investigation), the undertaking would be withdrawn on 20 August 2025 unless an application for interlocutory relief was brought.

38. On 15 August 2025, the Chief Justice listed the application for interlocutory relief for hearing on 22 August 2025 and ordered the Commission to file and serve any evidence on which it proposed to rely by 20 August 2025. The plaintiff filed additional affidavit evidence and a summary of argument on 19 August 2025. Unfiled copies of affidavits were served by the Commission by email shortly before the close of business on 20 August 2025 and filed versions on 21 August 2025. The service of the filed affidavits on 21 August 2025 was regularised by an amendment to the directions on that day.

39. The affidavit of the investigator Elizabeth Ashton disclosed her version of events relating to the collection of the mobile phone from the plaintiff’s house and was consistent with the Commission’s assertion that she entered with his consent and in accordance with his directions. It also included the internal documents relating to the application to the Commissioner for the issue of an examination summons. The application was made on 10 June 2025 and determined on 11 June 2025. The examination summons itself was dated 11 June 2025.

40. The proceedings were heard by me on 22 August 2025. I gave my decision on 26 August 2025. On that day, the solicitors for the plaintiff provided search terms to allow searches to be made for the purposes of claims of legal professional privilege by him as well as search terms to assist such claims to be made by others.

41. By letter dated 27 August 2025, the Commissioner accepted that the search terms involved a claim by the plaintiff of legal professional privilege and outlined how those claims would be dealt with.

42. There was further correspondence on 25 October 2025 relating to claims of legal professional privilege. In that correspondence, the plaintiff indicated that he advanced no claims for public interest immunity or legal professional privilege of the ACT Government.

Decision

No supervening event or futility

43. I do not consider that this case falls into the same category as Lai Qin. In that case the proceedings had become futile or unnecessary to pursue because they challenged the refusal of a visa and, after those proceedings were commenced, the relevant Minister exercised a power to grant a visa on humanitarian grounds. In those circumstances, because the proceedings had become futile as a result of the supervening event and both parties, in their conduct of the litigation, had acted reasonably, it was appropriate to make no order as to the costs of the proceedings notwithstanding the court’s assessment that, if it was required to make a prediction about the outcome of the application, “I would think that it would probably have failed”: Lai Qin at 626.

44. The present case is similar to Lai Qin in that if required to make a prediction about the outcome of the proceedings I would think that the plaintiff would probably have failed. That is made clear by my assessment for the purposes of the injunction application of the various grounds advanced: see Ferguson (No 2) at [15], [18], [22], [30], [56], [58] and [63].

45. However, the present case is different in that there was no supervening event of the kind that occurred in Lai Qin that rendered the proceedings futile. I do not accept the contention that the proceedings were rendered futile because immediately upon the data being accessed the privacy of the plaintiff sought to be protected was lost. That contention was not supported by any evidence of the plaintiff himself. The plaintiff’s written submissions said he was concerned “for his own privacy and that of colleagues and personal connections with whom he had confidential communications” and this privacy was said to be lost once interlocutory relief was refused. To explain the proceedings as having been rendered futile by the mere interrogation of the data and hence the abstract loss of privacy does not properly reflect the substance of the proceedings. Rather, it appears to me to be a convenient characterisation in order to attempt to bring the case within the scope of the Lai Qin approach to the costs discretion.

46. Notwithstanding the failure of the application for an interlocutory injunction, the proceedings were not rendered futile. While it is true that access to the data would have been obtained by some officers of the Commission, having regard to the scope of relief that was claimed, which included declarations of unlawfulness, permanent injunctions and mandatory orders, if the proceedings were ultimately successful, relief would nevertheless have been available if the claim was prosecuted with an appropriate degree of expedition. If the plaintiff was ultimately successful, it would be difficult for the Commission to contend that it was still entitled to use the data or information derived from the data for the purposes of any ultimate report arising from Operation Kingfisher.

47. However, in addition to all of the varieties of relief sought in the nature of judicial review, there was a tort claim which was advanced. As summarised earlier, this extended to a claim of personal injury and an entitlement to aggravated and exemplary damages. Nothing in the interlocutory decision precluded this from being pursued. Indeed, if there was substance in the factual and legal contentions advanced on behalf of the plaintiff, the damages arising would likely have been increased by the persistence of the Commission with its assertion that it was entitled to access the data.

48. It might be thought that there is a tension between these two categories of reasons because the capacity to obtain meaningful relief in relation to the judicial review aspects of the proceedings would be undermined by the delay potentially caused by the inclusion of the personal injury component of the proceedings. There are two answers to this. First, had there been an intention to pursue relief, there would have been reasonable prospects of having the judicial review aspects of the proceedings determined promptly and in advance of the personal injury aspects of the proceedings. Indeed, the determination of the judicial review aspects of the proceedings would have required little more court time than was expended upon the application for interlocutory relief. While courts are often reluctant to split proceedings in this way, a case like this may have been a suitable one for such an approach, particularly if both parties were motivated to deal with the matter promptly. Second, even if, because of the existence of a desire on the part of the plaintiff to pursue the claims in tort, it was not possible to determine the judicial review aspects of the claim at an early stage, that would only emphasise the fact that the plaintiff had other substantial claims which were not rendered futile by the refusal of interlocutory relief.

49. While I accept that in Haire v ACT Integrity Commission [2025] ACTSC 87 no order as to costs was made in circumstances where there was a claim that was not finally determined due to a supervening event, I do not consider that decision establishes any issue of principle or is determinative of the present application.

Characterisation of the discontinuance

50. In light of these matters, the approach of the plaintiff is better characterised as a surrender. Characterising it as a “strategic withdrawal” would be possible but that would suggest, by the use of the word “withdrawal”, that it remained open to the plaintiff to pursue some part of the claim or to pursue the claim elsewhere or on another occasion when that was not in fact the case. I infer that the plaintiff has, following the concerted attempt to obtain interlocutory relief, obtained more considered and sober advice as to his prospects of success and has chosen not to pursue his claim. While a plaintiff is entitled to withdraw a claim, the compensatory principle in relation to costs would generally indicate that the other party should be compensated in relation to the costs incurred in responding to it up to the date of discontinuance.

No unreasonable conduct by the Commission

51. One of the points made on behalf of the plaintiff was that the Commission had, in some way, failed to properly disclose the basis for its decision to issue the examination summons and hence had acted unreasonably or otherwise led the plaintiff to commence the proceedings or forced the plaintiff to seek interlocutory relief. For the following five reasons I do not accept that submission.

52. First, as I have pointed out earlier, the use of s 147 to obtain data on a mobile phone is a relatively routine and obvious use of such a provision. That s 147 is an intrusive compulsive power is clear. However, the requirements of ss 147(2) and (3) as well as the Human Rights Act, while significant, would not be difficult to satisfy in an investigation such as Operation Kingfisher.

53. Second, while the submissions put in the correspondence on behalf of the plaintiff were quite elaborate and the responses made by the Commission to those contentions were relatively brief, they were fair and adequate. The two most significant points for the purposes of the subsequent interlocutory application related to the basis for issuing the summons under s 147(2) and the factual contentions as to the circumstances in which the investigator entered the plaintiff’s house.

54. So far as the former is concerned, the letter from the Commission dated 9 July 2025 adequately set out the Commission’s position. It was not necessary or appropriate for the Commissioner to set out the full range of information available to the Commission. The Commission was responding to the contention that, rather than seize the phone, a narrower summons should have been issued for only categories of information on it. The reasons given were adequate in light of the obvious point that they made, that it would not be appropriate in the context of this kind of an investigation to allow the recipient of the summons to select the material to be disclosed.

55. So far as the factual circumstances surrounding the entry into the premises were concerned, the letter of 1 July 2025 had made it clear that the Commission’s contention was that the investigator had entered with the plaintiff’s consent.

56. Third, to the extent that the plaintiff relied upon the reasons given by the Commissioner at the hearing on 12 June 2025, there was no obligation upon the Commission to fully disclose its internal processes relating to the issue of the summons. Having regard to the nature of the Commission and the subject matter of its investigations, it cannot be said to have been unreasonable conduct on its part to fail to voluntarily disclose its internal documents relating to the issue of a summons to a person in the position of the plaintiff. While the plaintiff fixed upon what was said by the Commissioner on 12 June 2025 as reflecting his reasons, even prior to receiving the affidavits on 20 August 2025, the plaintiff must have known that the summons bore the date of 11 June 2025 and hence had been issued at an earlier time than the statements made by the Commissioner on 12 June 2025. Further, he had available to him the statement made by the general counsel of the Commission on 9 July 2025 of the basis for satisfaction under s 147(2) which was coherent, and there was no reason to think that the Commission would not have an orderly internal process for the issuing of an examination summons. The misconception pointed out in Ferguson (No 2) at [13] did not arise from any inappropriate conduct by the Commission but rather from the ambitious assumption that the only grounds for the issue of the examination summons the day before were the obviously off-the-cuff remarks of the Commissioner at the hearing on 12 June 2025.

57. Fourth, prior to the hearing of the interlocutory application, the plaintiff did have access to both the internal documentation relating to the issue of the examination summons on 11 June 2025 and the affidavit of Elizabeth Ashton which gave a detailed version of what occurred upon her attending the plaintiff’s premises which was consistent with the Commission’s position that she had entered with the consent of the plaintiff. Notwithstanding access to the documentation relating to the issue of the examination summons which substantially undermined many of the plaintiff’s contentions, he pursued the interlocutory application to its full extent during a one-day contested hearing. Had there been any unreasonable failure to disclose (which I have found there was not), the fact that the interlocutory application was pursued even after full disclosure of the internal processes was made would undermine any causal significance of that fact.

58. Fifth, insofar as the plaintiff submitted that he had sought to avoid the need for an application for interlocutory relief, while I accept that he did do so, that did not arise from any unreasonable conduct on the part of the Commission. The significant feature of the plaintiff’s claim was that it was not just a claim for judicial review which could obviously have been addressed promptly, but also included a personal injury claim which had the potential, at the very least, to take much longer to determine. While the Commission had earlier indicated a willingness to defer interrogation of the data from the plaintiff’s phone until the issues as to lawfulness were resolved, once the Commission recognised that there was a personal injury claim, that the provisions of the CLW Act in relation to that claim had not been complied with, and that the inclusion of the claim had the potential to substantially delay the final resolution of the proceedings, it declined to continue its undertaking not to interrogate the data. Such an approach was reasonable. The plaintiff must have been aware of the consequences of including the personal injury claim in his pleadings. Having done so, he is not entitled to claim that it was unreasonable for the Commission to seek to make progress with the interrogation of the data and hence withdraw the earlier undertaking that had been given.

Other discretionary matters

59. In determining that it is appropriate to order that the plaintiff pay the Commission’s costs, I have taken into account that the bulk of the costs of the proceedings will be those associated with the application for the interlocutory injunction which was heard on 22 August 2025. On that application, the plaintiff was unsuccessful. A common order upon such an application would be that the plaintiff would pay the defendant’s costs. That application was pursued in circumstances where, by the time the hearing commenced, the plaintiff had available to him documents which significantly undermined his contention that the reasons for the issuing of the examination summons were limited to those recorded after the summons was issued in the transcript on 12 June 2025.

60. Finally, the plaintiff placed significant reliance upon the fact that in my earlier decision I found that there was a serious question to be tried in relation to a number of aspects of the plaintiff’s claim. It is necessary to note that the threshold is a relatively low one and is readily satisfied in circumstances where there are contested questions of fact and law. The fact that the threshold was satisfied is not a matter of significance in deciding whether or not the plaintiff should be entitled to discontinue without an order for costs although obviously, had the threshold not been reached, that would have been a significant and probably determinative matter.

61. Having regard to my conclusion that there was no supervening event or futility which would provide a proper basis for declining to make an order for costs, and determining that an order for costs in favour of the Commission is appropriate, it is not necessary to determine various other claims made by the Commission that the conduct of the proceedings by the plaintiff was not reasonable.

Orders

62. For the reasons given, it is appropriate to grant leave to discontinue the proceedings on the basis that the plaintiff pay the Commission’s costs of the proceedings.

63. The orders of the Court are: (1) The plaintiff is granted leave to discontinue these proceedings. (2) The plaintiff is to pay the defendant’s costs of the proceedings.

I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: