The Queensland District Court has exercised a rarely-used power to order a defendant in a high-profile Commonwealth criminal prosecution to pay the costs of the Department of Foreign Affairs & Trade (DFAT) in setting aside a subpoena.

Getax Australia Pty Ltd has been charged with one count of conspiring to bribe a foreign public official. The allegations against Getax include that it sought to bribe Nauruan Government officials in order to obtain access to favourable deals in relation to Nauru’s phosphate reserves.

In the course of bringing an application for a permanent stay of the prosecution, Getax subpoenaed DFAT seeking production of various documents relating to the Australian Federal’s Police’s investigation into allegations, including communications and briefings within DFAT and with other Commonwealth departments.

DFAT was successful in having the subpoena set aside. It then sought costs, relying on r 34 of the Criminal Practice Rules 1999 (Qld), which provides that where a subpoena has been set aside or narrowed, the person who was served with the subpoena may apply to the court for an order that all or part of the person’s costs incurred in applying to have the subpoena set aside or narrowed be paid by the party who served the subpoena. This rule is unusual in that in the ordinary course costs are not available against a defendant in criminal proceedings.

In this case, the Court nevertheless ordered Getax to pay DFAT’s costs, observing that while “there are public policy reasons for not deterring a defendant from making the necessary discovery to effectively mount a defence, however, that does not mean that subpoena can be issued with impunity” (at [14]).

Trent Glover SC acted for DFAT in relation to the subpoena and costs decisions. He also represents the Australian Federal Police and the Attorney-General’s Department in the proceedings.