Vizl, Anthony Francis & Anor v Fehon, Paul & Ors [1998] FCA 557

Vizl, Anthony Francis & Anor v Fehon, Paul & Ors [1998] FCA 557

The applicants should pay the respondents' costs of the amended statement of claim and costs thrown away by its discontinuance because the circumstances relied on did not justify an inference of fraud on the section 3F power. For the costs of the proceedings generally, both sides' positions on the validity of the warrant execution were arguable and it was reasonable for the applicants to commence and for the respondents to resist the claim. The Court was not confident that the applicants were almost certain to have succeeded if the matter had been fully tried, so the appropriate course was no order as to the costs of the proceedings generally.

Jurisdiction
Australia
Judgment Date
15 May 1998
Procedural Posture
Application for Review Pursuant to Section 39 B of the Judiciary Act 1903(cth) Concerning Seizure, Retention, Inspection and Copying of Documents Under a Search Warrant / Costs Determination After Discontinuance of Proceedings
Outcome
Applicants to pay the respondents' costs of the amended statement of claim and any costs thrown away by discontinuance of those claims; otherwise no order as to the costs of the proceedings.
Legal Topics
['judicial Review' 'search Warrant Execution' 'seizure of Documents' 'legal Professional Privilege' 'costs Following Discontinuance' 'crimes Act 1914 (cth) Section 3 F']
['administrative Law' 'criminal Procedure' 'costs'] ['judicial Review' 'search Warrant Execution' 'seizure of Documents' 'legal Professional Privilege' 'costs Following Discontinuance' 'crimes Act 1914 (cth) Section 3 F']

Case Brief

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Procedural Posture

Application for Review Pursuant to Section 39 B of the Judiciary Act 1903(cth) Concerning Seizure, Retention, Inspection and Copying of Documents Under a Search Warrant / Costs Determination After Discontinuance of Proceedings

Legal Issues

  1. 1 ['Whether the applicants or respondents acted unreasonably in commencing or defending the discontinued proceedings so as to justify a costs order.' 'Whether, for costs purposes, the applicants were almost certain to have succeeded on their claim that the seizure was unlawful because the first and second respondents did not consider whether the seized files satisfied the third condition in the warrant.' 'Whether the allegation of fraud on the power conferred by section 3F of the Crimes Act 1914 (Cth) was justified by the circumstances relied on by the applicants.']

Ratio Decidendi

The applicants should pay the respondents' costs of the amended statement of claim and costs thrown away by its discontinuance because the circumstances relied on did not justify an inference of fraud on the section 3F power. For the costs of the proceedings generally, both sides' positions on the validity of the warrant execution were arguable and it was reasonable for the applicants to commence and for the respondents to resist the claim. The Court was not confident that the applicants were almost certain to have succeeded if the matter had been fully tried, so the appropriate course was no order as to the costs of the proceedings generally.

Court Disposition

Applicants to pay the respondents' costs of the amended statement of claim and any costs thrown away by discontinuance of those claims; otherwise no order as to the costs of the proceedings.

Orders

  • ["The applicants pay the respondents' costs of the amended statement of claim and any costs thrown away as a consequence of the discontinuance of the amended statement of claim." 'There be no order as to the costs of the proceedings generally.']