The King v Wright [2026] NTSC 16

The King v Wright [2026] NTSC 16

[1] The Commissioner of Police ("the Commissioner") has applied for an order for costs in relation to three subpoenas that were served on him in the course of criminal proceedings. For the reasons that appear below, I make the order sought by the Commissioner.

[2] The respondent to this application, Matthew Nicholas Wright, stood trial before me last year on three charges of attempting to pervert the course of justice. On 29 August 2025 the jury found the respondent guilty of two of those charges. On 12 December 2025 I sentenced the respondent to a term of imprisonment. In the months leading up to the respondent's trial, his solicitors had the three subpoenas served on the Commissioner. Those subpoenas were issued on 29 September 2024, 24 February 2025, and 3 March 2025.

[3] The Commissioner is seeking an order that the respondent pay the amount of all reasonable loss and expense incurred by the Commissioner in complying with the three subpoenas. The respondent contends that I should refuse the Commissioner's application, or that, if I grant the application, I should make an order only in respect of the expenses incurred in collating and producing documents, as distinct from other expenditure such as solicitors' costs and counsel's fees.

[4] In relation to civil proceedings, the power to make an order of the type sought is conferred by rule 42.11 of the Supreme Court Rules 1987 (NT) ("the Rules"). That rule reads as follows:

(1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.

(2) If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court's usual procedure in relation to costs.

(3) An amount fixed under this rule is in addition to:

(a) an amount payable for costs as mentioned in section 194(1)(c) of the Evidence (National Uniform Legislation) Act 2011; and

[5] That rule also applies in criminal proceedings by virtue of rule 81A.25 of the Rules_._

[6] The scope of a similarly worded rule was considered by Riordan J in Hera Project Pty Ltd v Bisognin (No 4)[1] where at [45] his Honour said the following in relation to the equivalent Victorian rule:

For an expense to be recoverable under r 42.11 it is necessary that it be incurred in complying with the subpoena and is reasonable. Expenses incurred in complying with a subpoena have been held to include expenses incurred in the following:

(a) Advice as to the validity of the subpoena and whether the addressee should comply with it at all or in part.

(b) Correspondence and attendances on the issuing party regarding its terms particularly with a view to narrowing or clarifying the scope of documents to be produced.

(c) Advice as to whether documents are subject to claims for privilege.

(d) Advice as to whether inspection of documents may be restricted on the basis of confidentiality including correspondence, attendances and negotiations with the issuing party as to the terms for inspection.

(e) Attendances in court on the return of the subpoena including attendances to assert that the subpoenaed documents should be protected from unrestricted access due to their confidential character and ensuring confidentiality undertakings have been properly given.

[7] That summary is consistent with decisions in the Federal Court, including Charlick Trading Pty Ltd v Australian National Railways Commission_[2]_ and Hadid v Lenfest Communications Inc.[3]

[8] The first subpoena, issued on 29 September 2024, was a lengthy document. It required the production of 21 documents or classes of documents. Some of the 21 items contained lists of numerous documents or sub-classes of documents. Some of the documents covered by the first subpoena had already been produced by the Director of Public Prosecutions ("the DPP"). More documents were provided to the respondent's solicitors over the following months as a result of communications with the solicitors for the Commissioner. The solicitors for the respondent decided not to press for the production of some documents or classes of documents, and to reduce the scope of some classes of documents. To some extent this was a result of the DPP abandoning some allegations and deciding not to call certain witnesses. For the purpose of the application now before me, counsel made detailed submissions in relation to various classes of documents. For the purpose of this decision I need not go into any further detail in relation to the scope of the first subpoena and the documents that were and were not produced.

[9] The Commissioner did not ever apply for the first subpoena to be set aside, wholly or in part. However, a dispute as to the scope of the first subpoena persisted and needed to be resolved by a judge. I conducted a hearing on 18 June 2025 for the purpose of determining which further documents, if any, the Commissioner should be compelled to produce. At that hearing counsel for the respondent did not press for orders in respect of any documents other than certain telephone records of a witness named Noelene Chellingworth. I reserved my decision. On 9 July 2025 I held that there was no legitimate forensic purpose established in relation to the relevant records and refused to make the order sought. The Commissioner subsequently applied for costs in accordance with rule 42.11 of the Rules.

[10] On 8 September 2022 a judge of this Court issued a surveillance device warrant authorising the installation of listening devices at the home of the respondent in Queensland. By September 2024 it was clear that the DPP proposed to rely on recordings obtained pursuant to that warrant, at the trial. One of the items that the first subpoena required the Commissioner to produce was a copy of that warrant. A copy was provided to the solicitors for the respondent. An investigation was undertaken into the authenticity of the document. In February 2025 the solicitors for the respondent obtained a report from a suitably qualified expert. That report tended to suggest that the document relied on by the police as authority for the installation of listening devices might have been a forgery created by electronically altering an earlier document.

[11] The judge who issued the warrant had kept a copy of it. All questions of authenticity were resolved when arrangements were made to compare the retained copy with the document produced by the Commissioner. Apparently, both documents were identical. However, before the forgery question was resolved, the solicitors for the respondent issued two subpoenas for the production of warrants and related documents for the purpose of investigating their authenticity. I conducted directions hearings on the return dates of the two subpoenas, namely 3 March 2025 and 5 March 2025, closing the court to the public on both occasions. It was only after the second of those directions hearings that practical steps were taken to resolve the forgery question by making arrangements to inspect the issuing judge's copy of the surveillance device warrant. Following that inspection, the allegations of forgery were not pursued.

[12] Counsel for the Commissioner submitted that the issuing of the second and third subpoenas was unnecessary and inappropriate. I accept that the forgery question could have been resolved without the second and third subpoenas being issued.

The discretion conferred by rule 42.11 of the Rules

[13] Rule 42.11 of the Rules confers an unfettered discretion to make an order for the payment of "any reasonable loss or expense incurred in complying with a subpoena". Counsel referred me to civil cases in other jurisdictions in which such orders have been made. However, I am unaware of any cases in which such orders have been sought and opposed in criminal proceedings.

[14] The purpose of rule 42.11 of the Rules is clear. If a recipient of a subpoena who is not a party to litigation incurs expense or loss as a result of complying with that subpoena, it would usually be unjust for that recipient not to be compensated. However, a discretion is a discretion, and it follows that a recipient of a subpoena never has a right to an order under rule 42.11 of the Rules.

[15] The discretion has to be exercised judicially "by reference only to considerations relevant to its exercise and upon facts connected with and leading up to the litigation".[4] "Whether a party is rich or poor has, generally speaking, no relevant connection with the litigation".[5]

[16] Counsel for the respondent submitted that no order for costs should be made because costs are generally not awarded in criminal proceedings as a matter of public policy. However, the fact that rule 81A.25 of the Rules extends the discretion to make an order in favour of the recipient of a subpoena to criminal cases, indicates that the usual policy relating to costs in criminal proceedings can be no more than a factor to be taken into account when an application of this nature is made.

[17] Counsel for the respondent also made a submission to the effect that no order should be made because the Commissioner and the Northern Territory Police were very much involved in the investigation and prosecution of the criminal proceeding. I accept that ordinarily an accused person should not have to compensate investigative and prosecutorial authorities financially for loss or expense incurred in the process of pre-trial disclosure.

[18] However, the course taken by the legal representatives of the respondent in issuing the three subpoenas to the Commissioner resulted in substantial costs being incurred by him when those costs would not have been incurred if the disclosure of documents had been pursued only through the ordinary channel of requests to the DPP, and if the inspection of the judge's copy of the surveillance warrant had been arranged sooner rather than later. It became necessary for the Commissioner to engage solicitors and counsel, including solicitors and counsel from the private profession, to represent him at a series of directions hearings. The directions hearing on 18 June 2025 required substantial preparation and involved a significant legal argument which resulted in the respondent being wholly unsuccessful. The Commissioner's solicitors also had to take instructions and advise as to the scope of the first subpoena and liaise with the solicitors for the respondent in relation to the production of documents and the clarification and narrowing down of the first subpoena. Additional work was made necessary because the solicitors for the respondent were seeking the disclosure of documents on two fronts, rather than dealing only with the DPP.

[19] Having regard to those factors I have concluded that this is a proper case for the making of the costs order sought, even though costs are not usually awarded in relation to criminal cases in general, or the disclosure of documents by prosecuting authorities in particular. There is no reason to limit my order to exclude solicitors' costs, counsel's fees, or anything else.

[20] I order that the respondent pay the amount of all reasonable loss and expense incurred by the Commissioner of Police in complying with the subpoenas dated 29 September 2024, 24 February 2025, and 3 March 2025.

[1] [2017] VSC 270.

[2] [1997] FCA 674; (1997) 149 ALR 647.

[3] (1996) 65 FCR 350.

[4] Northern Territory v Sangare [2019] HCA 25, 265 CLR 164 at [24].