New South Wales Supreme Court CITATION : ASIC v Farley & Anor [2001] NSWSC 549 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10267/01 HEARING DATE(S) : 23 & 24 April 2001 JUDGMENT DATE : 29 June 2001 Australian Securities and Investments Commission PARTIES : Gerard Andrew Farley Lilian Horler LCM JUDGMENT OF : Sperling J at 1 LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Horler LCM JUDICIAL OFFICER : COUNSEL : Mr David Hammerschlag SC with Mr McGuire for the Plaintiff Mr Alexander Street SC for the Defendant SOLICITORS : Commonwealth Director of Public Prosecutions for the Plaintiff Garland Hawthorne Brahe Solicitors & Attorneys for the First Defendant CATCHWORDS : Costs - whether to award in favour of the Crown in a claim for prerogative relief. LEGISLATION CITED : Supreme Court Act 1970 (NSW), s76 Attorney General of Queensland v Holland (1912) 15 CLR 46 Bacon v Rose & Anor [1972] 2 NSWLR 793 Cassell v DPP & Ors [2000] NSWCA 226 Charara v The Director of Public Prosecutions & Ors [2001] NSWCA 140 Ex Parte Coffey, Re Evans & Anor [1971] 1 NSWLR 434 Ex Parte Cousens: Re Blackett & Anor (1946) 47 SR (NSW) 145 CASES CITED : Ex Parte Donald; Re McMurray & Anor (1969) 89 WN (Pt 1) 426 Ex Parte Lyndon: Re Cooper (1957) SR (NSW) 626 Green v Jones & Anor [1979] 2 NSWLR 812 Kruse v Commonwealth Director of Public Prosecutions & Ors [2001] NSWCA 59 Latoudis v Casey (1990) 170 CLR 534 Pavia (1993) 67 A Crim R 364 R v Mosley (1992) 28 NSWLR 735 Wright v Judge Keon-Cohen (Brooking J, unreported, 18 September 1992) DECISION : Mr Farley is ordered to pay ASIC's cost of the proceedings in this Court. - 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Friday, 29 June 2001 Sperling J 10267/01 ASIC v Farley & Anor JUDGMENT 1 On 1 May 2001, I gave judgment in these proceedings. 2 I take the opportunity of correcting some errors and an omissions in that judgment: Para 3: The date should read "8 January 2001"; First para 5: "ostensively" should read "ostensibly"; Second para 5: "Farley" should read "ASIC"; Para 23: Mr Street SC mentioned s120 as well as s104; Second para 5 becomes para 6, etc. I have arranged for these corrections to be made in the judgment of 1 May 2001 as it appears on file. 3 On 2 May 2001, I made orders in favour of the plaintiff quashing an order for costs made in the proceedings below in favour of the first defendant and remitting the matter to the second defendant to be determined according to law. I reserved the question of costs of the proceedings in this Court. 4 The plaintiff, having succeeded in the proceedings in this Court, claims an order that the first defendant pay the plaintiff's costs of these proceedings. 5 It is common ground that the plaintiff is the Crown for present purposes. At common law, the Crown neither paid nor received costs in relation to criminal proceedings: Attorney General of Queensland v Holland (1912) 15 CLR 46, 49; Latoudis v Casey (1990) 170 CLR 534, 557; R v Mosley (1992) 28 NSWLR 735. The situation in relation to the costs of a criminal trial - on indictment or summarily - is now governed by statutory provisions: see the discussion in Wright v Judge Keon-Cohen (Brooking J, unreported, 18 September 1992) and the cases there cited; Pavia (1993) 67 A Crim R 364. But, in relation to proceedings in this Court for prerogative relief, s76 of the Supreme Court Act 1970 applies. That section gives the Court a discretion under which costs ordinarily follow the event. 6 Reasons were advanced as to why that should not be so in the present case. The reasons related mostly to the circumstances in which proceedings below were brought and the way those proceedings were conducted. Potentially, those considerations went to the merits of the order as to costs made below. They did not go to whether an order for costs should be made in the proceedings in this Court. 7 The only other reason of substance advanced against costs in the proceedings in this Court following the event was the argument that costs are not ordinarily awarded in favour of the Crown in relation to criminal proceedings. For the reasons I have given, no such principle applies in relation to the exercise of the Court's discretion under s76 where the proceedings are for prerogative relief, albeit in relation to criminal proceedings. 8 There are many cases on the books where unsuccessful proceedings for prerogative relief have been brought by an accused person in relation to criminal proceedings. Costs have frequently been awarded in favour of the informant - police officers and other government office holders - and, on occasions, against the Crown itself: Ex Parte Cousens: Re Blackett & Anor (1946) 47 SR (NSW) 145; Ex Parte Lyndon: Re Cooper (1957) SR (NSW) 626; Ex Parte Donald; Re McMurray & Anor (1969) 89 WN (Pt 1) 426; Ex Parte Coffey, Re Evans & Anor [1971] 1 NSWLR 434; Bacon v Rose & Anor [1972] 2 NSWLR 793; Green v Jones & Anor [1979] 2 NSWLR 812; Cassell v DPP & Ors [2000] NSWCA 226; Charara v The Director of Public Prosecutions & Ors [2001] NSWCA 140; Kruse v Commonwealth Director of Public Prosecutions & Ors [2001] NSWCA 59. Such orders have been made without discussions in the judgments and as simply following the event in the ordinary way. The present case is not distinguishable. 9 In my judgment given on 1 May 2001, I said that if the choice of process to challenge the determination below had resulted in costs being unnecessarily incurred, that could be a relevant consideration. In the course of argument, it was disclosed that it was common ground between the parties - rightly or wrongly - that an appeal process, as distinct from a claim for prerogative relief, was not available. So that point does not arise. 10 Mr Farley is ordered to pay ASIC's costs of the proceedings in this Court. 11 Because the present proceedings are not an appeal, I have no power to grant a certificate under the Suitor's Fund Act 1951. - oOo - Last Modified: 07/04/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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