NEW SOUTH WALES CRIME COMMISSION v MACRIS [2002] NSWSC 307

New South Wales Supreme Court

CITATION : NEW SOUTH WALES CRIME COMMISSION v MACRIS [2002] NSWSC 307 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 11317/00 HEARING DATE(S) : 25 March 2002, 27 March 2002 JUDGMENT DATE : 27 March 2002

New South Wales Crime Commission (Plaintiff) PARTIES : v John Macris (Defendant) JUDGMENT OF : Adams J at 1

COUNSEL : Ms E Fullerton SC with Mr J Bromwich (Plaintiff) Mr C Steirn SC with Mr G Jones (Defendant) SOLICITORS : Mr J M Giorgiutti (Plaintiff) Galloways (Defendant) DECISION : Application for a stay is withdrawn. Costs to be paid on an indemnity basis for 25 and 27 March 2002 for senior and junior counsel.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

WEDNESDAY, 27 MARCH 2002 11317/00

NEW SOUTH WALES CRIME COMMISSION v JOHN MACRIS JUDGMENT 1 HIS HONOUR: This is a matter in which a judgment of this Court was made in favour of the respondent on 9 December 2001. His Honour Hulme J allowed a stay until 4 February 2002 upon the application by the New South Wales Crime Commission, the present applicant, the Commission having appealed on that day from his Honour's judgment. The stay was extended by consent on 4 February 2002, 18 February 2002 and 25 February 2002 - on this last date until 25 March 2002. 2 On 25 March 2002 the substantive application for a stay came before me but counsel for the Crime Commission being ill, the matter was adjourned to today and the question of costs reserved. 3 The Crime Commission was informed that the respondent would consent to the stay providing just terms were imposed. Although the full course of negotiations has not been opened up before me, I think they may be fairly summarised as being a demand by the respondent that substantial funds be paid one way or another by way of legal fees whilst the Crime Commission did not agree either that funds should be paid at all, or with the amount sought. 4 I apprehended during argument with Ms Fullerton SC for the Commission, that there was a possibility that the Commission might agree to the payment of some funds in respect of legal expenses and she informed me that the amount of $40,000 was one way or another available for this purpose. 5 During discussion I indicated that the global sums sought by reference to an affidavit of Brett William Galloway sworn 27 March 2002, read by the respondent, lacked sufficient particularity to properly base any determination by this Court as to a particular sum. I further indicated that the crucial question was whether the stay should be granted subject to the condition of payment of an amount of funds, in the context, however, that the State had seized property which might be exhausted if the amount sought by the respondent was ordered to be paid. Ms Fullerton SC then withdrew the Commission's application. 6 Ms Fullerton SC for the Commission, not surprisingly, does not oppose the order for party and party costs against the Commission. Mr Steirn SC, however, seeks indemnity costs. I consider that indemnity costs should be paid in those cases where it is evident that the other party should not have been brought to court at all. In light of the fact that the application was withdrawn in the circumstances I have described, I consider that this case is precisely such a case. Accordingly, I order that costs be paid on an indemnity basis. (Ms Fullerton submitted that pursuant to the Rules, effectively his Honour had to specify a precise amount.) 7 HIS HONOUR: I want to make it clear that the only costs which I have ordered to be paid on an indemnity basis are those for 25 March 2002 and today. (Ms Fullerton SC requested his Honour to make an order that this was a proper case for senior and junior counsel.) 8 HIS HONOUR: I indicate that this is a proper case for senior and junior counsel. (Mr Steirn SC made application for the Newtown property to be reinvested in the name of the defendant.