Criminal Justice Commission & le Grand v Connolly, Ryan & Attorney-General [1997] QSC 48

SC 7Y1P- r Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) , . ~:,.- SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION THOMAS J No 10261 of 1996 THE CRIMINAL JUSTICE COMMISSION and PIERRE MARK LE GRAND and PETER DAVID CONNOLLY QC AND KEVIN WILLIAM RYAN QC and ATTORNEY-GENERAL BRISBANE .. DATE 10/03/97 ORDER 1 REVISED COPIES ISSUED State Repcriiilg Bureau Dated::>/3 / __--L.-/-_---l First Plaintiff Second Plaintiff Defendants Intervener 4th Floor, The Law Courts, George Street, Brisbane. Q. 4000 Telephone: (07) 32274360. Facsimile: (07) 32275532 -- 1 of 5 -- 100397 ajb (Thomas J) HIS HONOUR: I propose to direct that all the documents described in the affidavit of Mr Pearce filed on 18 February 1997, except the telephone charge records, are the subject of legal professional privilege. I publish my reasons. The question of costs remains to be determined. Are there any applications? MR FRASER: For the plaintiffs, Your Honour. Sorry, I missed your comment about the question of costs as the Associate 10 handed the reasons to me. . W HIS HONOUR: I said it remains to be determined. MR FRASER: I have no instructions in that regard. HIS HONOUR: That is extraordinary, I must say. MR FRASER: We would be asking, I expect, for our costs. HIS HONOUR: You expect to? Now is the time if you are going to do it at all. MR FRASER: Yes, Your Honour. I do have instructions to make application for our costs in having the matter heard. HIS HONOUR: What is the position in relation to representation, firstly the Attorney-General and secondly the Connolly Ryan Commission? MS LYNCH: I appear on behalf of the Attorney-General. I would submit that the Attorney in these proceedings intervened in a matter to assist the Court. Given the attitude of the defendants in this matter, which was quite properly to abide the order of the Court, and given that the judgment is, if you like, the majority of the documents have been found to be subject to legal professional privilege, but there are some documents to which legal professional privilege does not apply, I would not be seeking any costs and I would ask that a costs order not be made against the Attorney-General in these proceedings. HIS HONOUR: I shouldn't think that an intervener would get costs anyway. I don't understand whether the application is made against the Attorney or against the respondent at this stage. What is your application? MR FRASER: Your Honour, our application would be for our costs in bringing the application to claim legal professional privilege as against the respondents. ORDER 2 30 40 50 60 -- 2 of 5 -- 100397 ajb (Thomas J) HIS HONOUR: What do the respondents say? Mr Couper appeared on the first day to say that probably they should follow the event. MR WILSON: That is certainly so, Your Honour. The only submission I could make in opposition to an order for costs would be that the respondents played no active part in the proceedings, but ordinarily the costs would follow the event. I can make no substantive submissions against that. 10 HIS HONOUR: The problem is it is a little difficult to define the event in that when the action started privilege was sought in respect of many more documents than were actually sought when the matter came on before me. So, some degree of concession was going on while the action was alive. MR WILSON: That is certainly the case. HIS HONOUR: And it is impossible for me to tell the extent or 20 value of those concessions in relation to the original claim which the defendants were entitled to defend at least to that extent. MR WILSON: It is a~so difficult for the Commission of Inquiry to say what proportion, as it were, have been conceded because the totality of the documents have never been inspected by the Commission of Inquiry. As Your Honour has pointed out, as the matter has progressed one by one a number of documents have been conceded not to be subject to a claim of privilege. In 30 those circumstances, if any order for costs is to be made at all, perhaps the appropriate order in the circumstances is no order as to costs. HIS HONOUR: It is all coming out of public moneys anyway, isn't it? MR WILSON: Exactly. HIS HONOUR: That is not to say that when two public bodies decide to have a squabble that they aren't entitled to have the costs decided also, but the last thing I want to do is to create more public expense by having expensive bills of costs taxed upon various issues which would require endless research to do precisely. MR WILSON: I was going to suggest perhaps a fixed percentage of costs, if an order is to be made. HIS HONOUR: That sounds to me to be very sensible, if costs are pursued, and the applicant belatedly seems to have some instructions to do so. MR WILSON: The difficulty I have is that .1 can't advance a percentage because I am not in a position to say what percentage of the total documents have now been released. HIS HONOUR: I have some perception of the matter. I would be inclined, subject to any further submissions, to order that 3 40 50 60 -- 3 of 5 -- 100397 ajb (Thomas J) the plaintiff recover one third of its costs, and I have notionally done some setting off in coming to that conclusion. MR WILSON: I certainly won't advance a submission contrary to that. HIS HONOUR: Do you have any quantitative submissions in relation to that? MR FRASER: Your Honur, the one third figure, is that based, in your - in your mind, are you basing that on the total costs of the plaintiffs in bringing the application? Is that my understanding? HIS HONOUR: The proposed order is that the respondents pay one third of the plaintiffs' costs of the action to be taxed. MR FRASER: Your Honour, I am not sure on what basis that figure has been calculated, but----- HIS HONOUR: I am not asking you to speculate about my reason, I am asking you for any positive submissions that you are able to make. MR FRASER: I understand that, Your Honour. I'm sorry. It was my understanding, Your Honour, that the respondents were going to abide by the order of the Court and it was my recollection, as was yours, that Mr Couper made a submission that the costs would follow the event. I appreciate the 10 20 difficulties you have in that regard, and unfortunately 30 counsel was unavailable to be here this morning and make submissions and we had not anticipated argument----- HIS HONOUR: You haven't said anything useful yet. MR FRASER: I appreciate that, Your Honour. The second point I would like to make is that with regard to budget, certainly - sorry, with regard to all being government funds, certainly the costs of this, if they are not awarded against the respondents or the defendants, would come out of the CJC's 40 budget which has been the subject of some press recently and would be preferred not to be the case, and I have those instructions that we would certainly prefer not to have a costs order against the defendant. I can make no detailed submissions because I have no detailed instructions about percentages other than to say if it is to be a full argument about the matter perhaps we could adjourn the matter and have it heard when counsel is available and both parties are able to obtain full instructions. HIS HONOUR: This is a case where the defendants had some measure of success and a number of documents have been voluntarily surrendered to it as the action proceeded. However, the plaintiff has been substantially successful in the end. ORDER 4 50 60 -- 4 of 5 -- 100397 ajb (Thomas J) In all the circumstances, I propose to order that the respondents pay one third of the plaintiffs' costs of the action to be taxed. ORDER 5 10 30 40 50 60 -- 5 of 5 --