AB v National Crime Authority

[1997] FCA 240

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION VG No. 765 of 1995

B E T W E E N :

AB Applicant

and

NATIONAL CRIME AUTHORITY Respondent

COURT: NORTHROP J

PLACE: MELBOURNE

DATE: 8 APRIL 1997

REASONS FOR JUDGMENT

This application for review under the National Crime Authority Act has been set down for hearing on 5 May: ten days have been allocated for the hearing. The length of time has been based on the fact that the applicant desires to call a number of witnesses to give evidence on issues which may go to the question of an improper purpose for the reference, and for the investigation by the authority. There has already been a long delay in this matter. It was commenced in 1995. The Court, on 7 March 1996, refused particular discovery. There was an appeal from the orders made on that day, and a Full Court on 3 July 1996 dismissed that appeal.

The matter then proceeded, but it has taken some time to come on for hearing, and eventually a date has been fixed. The matter before the Court for directions today relates to the conduct of the hearing itself and arises from facts which show that the applicant at present is considering the possibility of calling a large number of identified persons who were connected in some way with the National Crime Authority at some time before the particular reference in this case was given, and before the special investigation commenced.

There is also an issue whether other witnesses may be called. It is part of the direction system of this Court to ensure the efficient hearing of matters. It was proposed by the respondent, and not really opposed by the applicant, that, subject to fixing an appropriate date, the applicant file and serve a list of the witnesses it is proposed to call, together with a brief summary of the evidence which it is proposed to elicit from each such witness, and also to prepare a court book of documents containing documents which it is proposed to adduce in evidence or otherwise rely upon at the trial. In my view, it is very appropriate for such a course to be taken. It is not an unusual procedure in cases of this kind in this Court. The only comment is that the summary of evidence need not be too long. A broad outline is desired rather than great detail of what the evidence is to be.

It is the next two orders which are sought by the respondent which have given rise to the dispute to be decided today. The respondent seeks an order that before a certain date, each party file and serve a written submission which addresses the question whether, in order to determine whether the proposed line of investigation falls within the scope of the references granted to the authority, it is permissible to construe those references by having regard to any of the events which led to their being given, or any other matter extrinsic to the references themselves.

Included in the last part of that order are other matters which go to the question of improper purpose, apart altogether from the construction of the reference itself. It is then proposed that the question set out in paragraph 3 which I just read, should be dealt with as a preliminary question of law at the commencement of the trial. It is contended that this evidence may well be inadmissible for various reasons which I need not consider at the moment, but that if at the trial, without such a direction having been made, oral evidence is sought to be led on matters which the respondent considers are irrelevant to any issue before the Court, there would need to be an argument as to the admissibility of that evidence. What is contemplated by these orders and directions is to have that preliminary question, having regard to the nature of the evidence to be led, to be heard and determined at an early stage so that the way will be cleared for the proper hearing and conduct of the case. If the finding is made that the evidence is relevant, the case could take 10 days or more. If the evidence is not relevant, the case would take a far less time to hear and determine.

The question of determining admissibility of evidence as a preliminary question is not a novel one. I adopted that practice in Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 at 24-32 where questions of admissibility of similar fact evidence were decided separately and before the hearing of the case itself. In my view, it is a very useful procedure to adopt in cases of this kind where the parties will know the nature of the evidence to be given. Essentially the issue to which it is directed is to enable submissions to be made as to whether that evidence is admissible or not for the purposes of the application for review.

In all the circumstances, it seems to me that this is a case where I should make orders of the type sought. The only question is whether order 3, as I read out before, should be expanded to make clear that this goes not only to the construction of the terms of reference, but to the other issues raised in relation to the purpose of calling evidence.

Following further submissions the following orders are made, not being orders by consent:

1.On or before 12 noon on 21 April 1997 the applicant file and serve a list of the witnesses it is proposed to call, together with a brief summary of the evidence which it is proposed to elicit from each such witness;

2.On or before 12 noon on 21 April 1997 the applicant file and serve a court book of documents containing any documents which it is proposed to adduce in evidence or otherwise rely upon at trial;

3.On or before 4 pm on 30 April 1997 the respondent file and serve a list of the witnesses it is proposed to call, together with a brief summary of the evidence which it is proposed to elicit from each such witness;

4.On or before 4 pm on 30 April 1997 the respondent file and serve a court book of documents containing any documents which it is proposed to adduce in evidence or otherwise rely upon at trial;

5.On or before 4 pm on 30 April 1997 each party file and serve a written submission which addresses the question whether in order to determine whether the proposed line of investigation falls within the scope of the references granted to the Authority, or even other issue raised by the pleadings, it is permissible to have regard to any of the events which led to their being given, or any other matter extrinsic to the references themselves or any other issue raised by the pleadings;

6.The question set out in paragraph 5 above be dealt with as a preliminary question of law at the commencement of the trial;

7.Costs of today be costs in the cause.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of the Honourable Justice R M Northrop.

Associate:

Date:

ATTACHMENT

Counsel for the Applicant: Dr P Buchanan QC and P Collinson

Solicitors for the Applicant: Clayton Utz

Counsel for the Respondent: M Weinberg QC and B Walters

Solicitors for the Respondent: Australian Government Solicitor