R v Guiseppe Barbaro Scc [1992] ACTSC 24; (1992) 108 ACTR 1; (1992) 106 FLR 387 (19 March 1992)

SUPREME COURT OF THE ACT

THE QUEEN v. GUISEPPE BARBARO
S.C.C. No. 93 of 1990
Costs - Legal Practitioners
[1992] ACTSC 24; (1992) 108 ACTR 1
(1992) 106 FLR 387

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Costs - inherent jurisdiction to award costs - departure from general rule where process vexatious or oppressive.

Costs - subpoena to produce documents - costs of complying - motion to set aside subpoena - costs of issue - whether costs recoverable from person requesting issue of subpoena.

Costs - right to - applicability of general principle that Crown neither pays nor receives costs in criminal proceedings.

Costs - right to - legal representation of officer of Commonwealth by salaried officer of Australian Government Solicitor.

Legal practitioners - representation by salaried officer of Australian Government Solicitor.

Supreme Court Rules, O.80

Judiciary Act 1903, s.55E(3)(f)(i)

Judiciary Act Amendment Act (No. 2) 1984

Australian Federal Police Act 1979, ss.6 and 17

The Commissioner for Railways v. Small (1938) 38 SR (NSW) 564

National Employers' Mutual General Association Ltd. v. Waind and Hill (1978) 1 NSWLR 372

R v. Barton and Others (1981) 2 NSWLR 414

Darcey v. Pre-term Foundation Clinic and Another (1983) 2 NSWLR 497

Bank of New South Wales v. Withers and Anor (1981) 35 ALR 21

R v. Goia (1988) 81 ALR 656

Re Bannister and Legal Practitioners Ordinance 1970-1975: Ex parte Hartstein (1975) 5 ACTR 100

Inglis v. Moore and Others (No. 2) (1979) 25 ALR 453

HEARING

CANBERRA
19:3:1992

Counsel for the applicant: T. Howe

Solicitors for the applicant: Australian Government Solicitor

Counsel for the respondent: G.D. Wendler

Solicitors for the respondent: Maliganis Edwards Johnson

ORDER

1. Guiseppe Barbaro pay the costs of and incidental to the application by the Commissioner Australian Federal Police to set aside the subpoena issued on 15 November 1991 on behalf of the said Guiseppe Barbaro directed to the said Commissioner Australian Federal Police.

DECISION

This is an application for costs made on behalf of the Commissioner, Australian Federal Police ("the Commissioner") in respect of a subpoena to produce documents and to answer questions directed to the Commissioner issued at the instance of Guiseppe Barbaro, a person who is standing trial on indictment in this Court, and further in respect of a notice of motion to set aside that subpoena as an abuse of process.

2. The matter has a somewhat complex history. An outline will suffice. The trial of Guiseppe Barbaro was fixed for 28 October 1991 but the trial date was vacated on 25 October 1991 because Mr Barbaro was unable to obtain legal representation. Subsequently, 21 November 1991 was fixed as the date of trial. In the meantime, on 15 November, the solicitors acting for Mr Barbaro caused a subpoena to be issued directed to the Commissioner ordering the Commissioner, by his proper officer, to attend the Supreme Court at 10.00 a.m. on 21 November 1991 and there produce the documents set out in a schedule to the subpoena and to make enquiries for the purpose of the proper officer answering questions concerning the documents. On 20 November 1991 the Commissioner, by his solicitor, caused the notice of motion to be issued returnable the following day seeking the setting aside of the subpoena as an abuse of process.

3. On 21 November 1991 the accused was arraigned on one count of possession of a traffickable quantity of a prohibited substance, namely heroin, for the purpose of sale or supply to another person. The date of the alleged offence was 18 August 1989. He pleaded not guilty. A jury was empanelled to try the case. However, the trial never got under way in any real sense. Immediately after the jury was empanelled Mr Barbaro's counsel made submissions challenging the validity of the legislation under which the count on the indictment was laid. The challenge went to the High Court where it was unsuccessful. By the time the trial was listed to resume on 29 November 1991, other matters had emerged which led to the discharge of the jury and the ordering of a new trial.

4. During all this, the hearing of the motion to set aside the subpoena was adjourned from time to time and other orders were made pending the final determination of the motion. On 29 November 1991, counsel asked the Court to note that certain of the documents called for on the subpoena had been produced and that such production would be regarded by those acting for Mr Barbaro as sufficient compliance with the subpoena, except with regard to the note book of a certain police constable, production of which remained outstanding.

5. On 12 December 1991, counsel for Mr Barbaro did not press for production of the outstanding note book. Notwithstanding the description of the documents in the schedule to the subpoena, the Commissioner had produced to the Court all those documents which Mr Barbaro wanted produced. Although it was not up to Mr Barbaro or his lawyers to decide the extent to which the Commissioner was required to obey what was in effect an order already made by the Court, I ruled that there had been sufficient compliance by the Commissioner with the requirements of the subpoena and that the Commissioner was excused from further compliance with its requirements. The motion to set aside the subpoena was accordingly withdrawn but counsel for the Commissioner pressed for the costs of complying with the subpoena insofar as there had been compliance and also for the costs of the motion to set aside the subpoena.

6. The application for costs was strenuously opposed by counsel for Mr Barbaro on several grounds. They were, as I understand it, along the following lines:
1. The subject of subpoenas in criminal proceedings is

covered by O.80 of the Supreme Court Rules which provides,
in effect, a code in relation to such matters;
2. There is no provision in O.80 for an order for costs to be
made in an application to set aside a subpoena;
3. There was never "issue joined" on the motion and no
adjudication of the matters raised by the motion;
4. There is a general principle that costs in criminal
matters should not attach to the person accused;
5. As a matter of public policy, an accused person should not
be constrained in any way in issuing a subpoena for a
legitimate forensic purpose by fear of an order for costs;
6. The Commissioner was represented not by a private
practitioner but by a practitioner who is a salaried
officer of the Australian Government Solicitor.

7. I deal with the submissions. It is true that O.80 r.13, which provides that the Court may set aside a subpoena wholly or in part, makes no provision for the award of costs of an application to set aside a subpoena. But even without the assistance of O.80 r.13, the Court has the power to set aside its own process if that process is abused. The power of the Court to set aside a subpoena that is vexatious or oppressive is clear and the principles to be applied are so well known as not to bear repetition. Reference may be made, if necessary, to such leading cases as The Commissioner for Railways v. Small (1938) 38 SR (NSW) 564, National Employers' Mutual General Association Ltd. v. Waind and Hill (1978) 1 NSWLR 372, R v. Barton and Others (1981) 2 NSWLR 414. In particular, the principles do not need to be based upon or set out in the Rules. To that extent O.80 of the Rules does not provide a code of the principles and practice relating to the issue from this Court of subpoenas in criminal proceedings.

8. The power of the Court to control abuse of its own process is part of its inherent jurisdiction and the power to award costs is ancillary to the power to control abuse of process. As Hunt J. said in Darcey v Pre-term Foundation Clinic and Another (1983) 2 NSWLR 497 at 504,

"To deny the court the jurisdiction to make such an
order would be to encourage outrageous subpoenas such
as the one in question here,and to bring the
administration of justice into disrepute among
right-thinking people."

9. I annex to these reasons the list of documents which the subpoena required the Commissioner to produce and in relation to which an officer of the Commissioner was ordered to be ready to answer questions. The breadth, complexity and sheer volume of the documents sought, on the face of it, renders compliance oppressive. As Moffitt P. said in Waind and Hill at 384, the only legitimate purpose of requiring the production and permitting the inspection, of documents can be to add, in the end, to the relevant evidence in the case. The relevance of many, if not most, of the documents in the schedule to the subpoena in the present case is impossible to see. The bulk of the documents cannot be seen to relate in any realistic way to any issue that has been suggested as a realistic possibility in the trial and in that regard the subpoena is vexatious: R v. Barton at 420. Mr Barbaro's counsel did not seek to argue otherwise.

10. The subpoena was issued by a firm of solicitors. The duties of solicitors in relation to the issue of subpoenas were discussed by Sheppard J. (sitting in the Federal Court of Australia) in Bank of New South Wales v. Withers and Anor (1981) 35 ALR 21. His Honour said at 40:

"My concern about the problems arises because of the
growing tendency on the part of the profession to
issue, in increasing numbers of cases, what can only
be regarded as a proliferation of subpoenas to
produce documents. To say that they are scattered
almost like ticket tape or confetti a few days -
often a few hours - before the commencement of
litigation is no under-statement. They are issued by
the Registry of the court as of course, without the
intervention of any judicial or court officer, judge,
master or registrar. Yet they are a court order
demanding peremptory obedience; disobedience may
result in imprisonment or sequestration in the case
of corporations.
It is true that a subpoena which is uncertain or too
wide may be set aside as oppressive. It is also true
that courts will not usually insist upon immediate
compliance with subpoenas served at too late an hour.
And banks, government departments, large companies
and some others have ready access to legal advice,
whether through legal departments or independent
solicitors. But whether a subpoena is too wide or
not can be a nice question. Its determination will
usually require legal representation, and failure to
have it set aside will result in a liability to pay a
not inconsiderable sum of money for costs."

His Honour concluded at 42:

"Solicitors, whilst not overlooking the duty which
they owe their clients and the fear that they
naturally have of malpractice actions, must become
more circumspect about the number of subpoenas that
issue, the terms of them and the time at which they
are served."

11. These words reflect the experience in this Court and legal practitioners would be well advised to take note of them.

12. Of course it is true that a person facing a criminal charge is entitled to use the processes of the Court to the full extent that is legitimately possible in order to make answer to the charges and to maintain the presumption of innocence, but even in the defending of criminal charges there is a limit to which legal practitioners can lend their professional support to the obtaining of a peremptory court order when the process is vexatious or oppressive. When a subpoena is both vexatious and oppressive, I can see no reason why, other things being equal, the party causing it to issue should not pay the costs of an application to set it aside, even when that party is defending a criminal charge or charges.

13. Apart from the costs of applying to set aside a vexatious or oppressive subpoena, there is also the question of the costs of complying with the subpoena. In this respect, O.80 r.7.01 provides that where the person named in a subpoena for production of any document or thing in relation to a criminal proceeding incurs substantial expense or loss over and above the cost of attending Court with the documents in complying with the subpoena, the court or judge dealing with the proceeding may order that the party requesting the issue of the subpoena pay to the person named an amount sufficient to compensate for the expense or loss reasonably incurred in complying with the subpoena. The court or judge hearing the matter may either determine the amount or direct that it be determined by the taxing officer.

14. In the present case, because I have ruled that the comparatively small number of documents produced to the Court should be regarded as sufficient compliance with the subpoena, the Commissioner has avoided the likely considerable cost of complying with the full terms of the subpoena, insofar as complete compliance might be possible. In that respect, although it is likely that the Commissioner has incurred expense over and above the cost of his officer attending the Court to produce the documents and to answer questions, that expense is not likely to be substantial. Insofar as the documents produced must, by definition, relate to the litigation, and members of the Australian Federal Police are expected to be closely concerned with the trial itself, I do not think it appropriate to make an order for the costs of complying with the subpoena pursuant to O.80 r.7.01.

15. Counsel for Mr Barbaro sought also to rely upon the general principle that in a criminal proceeding, the Crown neither pays nor receives costs. In R v. Goia (1988) 81 ALR 656 a Full Court of the Federal Court of Australia held that, in criminal proceedings brought by the Crown, the general rule that costs will not be awarded in favour of or against the Crown, covers proceedings other than those in which the guilt or innocence of the accused is in question and in particular extends to interlocutory applications. It was said that the only recognised exception to the general rule is with regard to certain appeals and attempted appeals brought by the Crown. That decision is binding on this Court. However, whether it applies to the present proceedings is a different matter. Whilst it may well be that the application by the Commissioner to set aside the subpoena is properly regarded as an interlocutory application in a criminal proceeding (a point which I find unnecessary to decide), the position of the Commissioner as a person named in a subpoena is not to be equated with that of the Crown in criminal proceedings brought by the Crown against an accused. Although I doubt whether it makes any difference the Crown prosecuting the case against Mr Barbaro is the Crown in right of the Australian Capital Territory (and not the Crown in right of the Commonwealth) represented by the Director of Public Prosecutions for the Australian Capital Territory.

16. The submission that there was never "issue joined" on the motion is beside the point. Until 12 December 1991 counsel for Mr Barbaro continued to insist that the Commissioner comply with the terms of the subpoena and the Commissioner continued to resist. The resistance took the form of issuing the notice of motion to set aside the subpoena and having the hearing adjourned from time to time until the motion was withdrawn. The Commissioner was entitled to resist in that way and to incur the costs of coming to court ready to argue, through counsel, why the subpoena should be set aside.

17. Finally, the point was taken that the Commissioner could not in fact have incurred any costs as he was represented by an officer of the Australian Government Solicitor.

18. The Australian Government Solicitor is established as a body corporate under s.55E of the Judiciary Act 1903. Sub-s. 55E(3) provides that the Australian Government Solicitor may act as solicitor for a number of specified parties including -

"(a) the Crown in right of the Commonwealth;
(b) the Commonwealth;
.....
(f) an officer of, or a person employed by -
(i) the Commonwealth;
.....
(j) any other person or body for whom the
Attorney-General requests the
Australian Government Solicitor to act;
and is, for the purpose of so acting, entitled to
practise as a solicitor in any court and entitled
to all the rights and privileges of a solicitor in
each State or Territory."

19. The office of the Commissioner, Australian Federal Police is established by ss.6 and 17 of the Australian Federal Police Act 1979. The Commissioner is appointed by the Governor-General by commission (sub-s.17(1)) and is a member of the Australian Federal Police (para. 6(2)(a)). It follows that the Commissioner is an officer, if not an employee, of the Commonwealth and the Australian Government Solicitor is authorised to act for the Commissioner by virtue of sub-paragraph 55E(3)(f)(i) of the Judiciary Act 1903.

20. Prior to 1 July 1984, the date upon which the Judiciary Act Amendment Act (No. 2) 1984 came into force, the powers accorded to the Australian Government Solicitor under the new s.55E were exercisable under s.55E by the Crown Solicitor. The position of the Crown Solicitor and the entitlement of persons represented by the Crown Solicitor to be awarded costs have been considered by this Court in Re Bannister and Legal Practitioners Ordinance 1970-1975: Ex parte Hartstein (1975) 5 ACTR 100 and by the Federal Court in Inglis v. Moore and Others (No. 2) (1979) 25 ALR 453.

21. In Re Bannister, it was held that the provisions of s.55E of the Judiciary Act demonstrated an intention on the part of the legislature that the Crown Solicitor be regarded as occupying the same position as a solicitor carrying on practice under the then Legal Practitioners Ordinance.

22. In Inglis v. Moore, the Full Court of the Federal Court (at 455) cited several Australian authorities in support of the following proposition:

"a successful party who is represented by the Crown
Solicitor in litigation in which the Crown has an
interest is not disentitled to costs from an
unsuccessful party merely because he is not under a
personal liability to the Crown Solicitor for costs."

23. A person acting in the name of the Australian Government Solicitor is in a similar position to the Crown Solicitor before the 1984 amendments to the Judiciary Act. Provision has been made in sub-s.(9) of the new s.55E, however, for the imposition upon each individual officer acting in the name of the Australian Government Solicitor, of the duties and obligations of a solicitor practising in the relevant State or Territory.

24. The effect of sub-s.55E(9) is that persons authorised to act in the name of the Australian Government Solicitor are to be considered for the purposes of performing their duty in that capacity as being in the same position as local legal practitioners. The reasoning in Re Bannister and Inglis v. Moore is applicable to employees of the Australian Government Solicitor. A successful party is not to be denied costs because he or she is represented by a practitioner who is a salaried officer of the Australian Government Solicitor.

25. For the above reasons, I am of the opinion that the Commissioner is entitled to his costs of and incidental to the application to set aside the subpoena issued on behalf of Mr Barbaro and I so rule.