In this matter, proceedings were commenced by the Commissioner of the Australian Federal Police against Dr Stuart Fysh seeking a pecuniary penalty order pursuant to s 116 of the Proceeds of Crime Act 2002 (Cth). Dr Fysh was found guilty by a jury of those two offences in separate criminal proceedings.
The parties agreed that the Commissioner should pay Dr Fysh's costs in connection with the determination as to quantum. However, the Commissioner contended that Dr Fysh should otherwise pay the Commissioner's costs of the proceedings whereas Dr Fysh contended that the Commissioner should pay Dr Fysh's costs or else that there should be no order as to those costs.
McCallum J considered what was the relevant ‘event’ in the ordinary rule that costs follow the event and concluded that the relevant event was Dr Fysh's amenability to a pecuniary penalty order which arose upon his offending conduct.
It was ordered that the Plaintiff pay the costs of the Defendant in connection with the determination of quantum of the penalty and that the Defendant pay the Plaintiff's costs of proceedings but for the costs of the Plaintiff in connection with the determination of the quantum of the penalty.