IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SG 65 of 1997 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: THE ADELAIDE STEAMSHIP CO LIMITED AND AUSTRALIAN SECURITIES COMMISSION AppELLANTS AND: JANIS GUNARS SPALVINS First Respondent MICHAEL JAMES KENT Second Respondent neil leslie branford Third Respondent KENNETH WILLIAM RUSSELL Fourth Respondent MICHAEL STEVENSON GREGG Fifth Respondent DELOITTE HASKINS & SELLS Sixth Respondent DELOITTE ROSS TOHMATSU Seventh Respondent JUDGES: OLNEY, KIEFEL AND FINN JJ DATE OF ORDER: 21 AUGUST 1998 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appellant pay the costs of the fourth, fifth, sixth and seventh respondents to the appeal. 2. Each of the respondents to the appeal pay the appellants' costs of the hearing on the subpoenae below. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SG 65 of 1997 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: THE ADELAIDE STEAMSHIP CO LIMITED AND AUSTRALIAN SECURITIES COMMISSION AppELLANTS AND: JANIS GUNARS SPALVINS First Respondent MICHAEL JAMES KENT Second Respondent neil leslie branford Third Respondent KENNETH WILLIAM RUSSELL Fourth Respondent MICHAEL STEVENSON GREGG Fifth Respondent DELOITTE HASKINS & SELLS Sixth Respondent DELOITTE ROSS TOHMATSU Seventh Respondent JUDGES: OLNEY, KIEFEL AND FINN JJ DATE: 21 august 1998 PLACE: BRISBANE REASONS FOR JUDGMENT – COSTS THE COURT: This Court has considered the written submissions, on the question of costs, filed subsequent to judgment being delivered. The Court remains of the view that the costs of the appeal as between the appellants and the first to third respondents ought not to be the subject of any order. If one were to measure entitlement to costs by reason of success, each of the appellants and those respondents have had a measure of it. The order however reflects in large part the way in which the matter was argued on the appeal which in our view does not make it appropriate to apportion costs with respect to arguments which did or did not find favour. So far as concern the costs of the fourth and fifth respondents, it seems to us that the appeal was, in every practical sense, unnecessary. The order below required the Commission to produce documents which had already been delivered. The sixth and seventh respondents were made parties to the appeal although no orders were sought against them. The appellants ought to pay the costs of each of these respondents. The costs of the hearing at first instance with respect to the subpoenas were reserved. Given the way in which the matters were argued before his Honour, which differed from the way in which this appeal was conducted, we consider that each of the respondents ought to pay the appellants' costs of and incidental to the hearing on the subpoenae. I certify that this and the preceding page is a true copy of the Reasons for Judgment herein of the Honourable Justices Olney, Kiefel, Finn JJ Associate: Dated: 21 August 1998 Counsel for the Appellants: Mr T Gray QC with him Mr Whitington QC and Mr Blue Solicitor for the Appellants: Australian Securities Commission Counsel for the First Respondent: Mr D Bennett QC and Mr White Solicitor for the First Respondent: Thomson Playford Counsel for the Second and Third Respondents Mr A Besanko QC Solicitor for the Second and Third Respondents: Finlaysons Counsel for the Fourth and Fifth Respondents: Mr J Allsop SC Solicitor for the Fourth and Fifth Respondents: Phillips Fox Counsel for the Sixth and Seventh Respondents: Mr D Robertson Solicitor for the Sixth and Seventh Respondents: Mallesons Stephen Jaques Date of Hearing: 10 November 1998 Date of Judgment: 21 August 1998