AB v National Crime Authority

[1996] FCA 821

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

No VG 765 of 1995

B E T W E E N :

AB

Applicant

AND

NATIONAL CRIME AUTHORITY

Respondent

JUDGE:  North J
PLACE:  Melbourne
DATE:    22 August 1996

EX TEMPORE REASONS FOR JUDGMENT

I am asked by the applicant, AB, to make orders under order 29, rule 2 of the Federal Court Rules that there be a hearing before any trial of the question whether:

“(a)the reference from the Victorian Minister dated 5 September 1990 pursuant to section 5(1) of the National Crime Authority (State Provisions) Act 1984 (Vic) (the ‘State Act”) and section 14(1) of the National Crime Authority Act 1984 (Cth) (the ‘NCA Act’) complies with paragraph 5(3)(a) of the State Act and paragraph 14(2) of the NCA Act; and

(b)the reference from the Commonwealth Minister dated 10 September 1990 pursuant to section 13(1) of the NCA Act complies with paragraph 13(2)(a) of the NCA Act.”

Doubtless the power to order a preliminary question to be tried before the trial of the other questions in the action is a power to be exercised with care.  In my view, the applicant has not made out that this an appropriate case for the exercise of the power.  I say that principally for these reasons.

There is a high likelihood that the issues which will arise on the question that I have been asked to segregate are inter-related or likely to be inter-related with some of the other matters that will be raised on the hearing of this review. The issue raised by the preliminary question goes to the validity of the references which gave rise to the NCA investigations.  A determination of the issues relating to that matter will have a bearing on the validity of the question put to the applicant and to which he has taken objection. Quite apart from the likelihood that the issues on the preliminary question and the remaining questions will be inter-related, I am not satisfied that the hearing of a separate question is likely to be more convenient than a single hearing of all issues.

Central to the determination of the issue of convenience is the likely length of the hearing of the review as a whole compared with the length of the hearing of the preliminary question.  It is common ground that the hearing of the preliminary question will take one day. There is some contention between the parties as to the length of the trial of the remaining issues. The applicant’s estimate was five to ten days, the respondent’s estimate was three days. I am not satisfied, from the submission of the applicant, that the length of time to be taken in the consideration of the remaining issues is such that sufficient inconvenience would be caused by having the whole matter heard at one
time. It is also relevant to the question of convenience that the matter has been given an order for an expedited hearing by Ryan J, that interlocutory orders have been made and, presumably, complied with, and that the preparation for the trial is largely completed.  The case is apparently ready, or almost ready, for trial.  The segregation of the preliminary question would, therefore, do nothing to save any expense or inconvenience in preparation.  Further, in the circumstances of this matter, there is a strong case that there should be as little delay as is possible, consonant with the requirements of justice.  That end is best served by the matter proceeding to trial on all issues at one time.

The applicant submitted that, in the event that I held against the applicant on the matter of the hearing of a separate question, the applicant be granted leave to administer interrogatories to the respondent. I am not satisfied that leave should be granted to the applicant to administer interrogatories.  There have been previous directions hearings at which the taking of interlocutory steps has been ventilated. The issue of discovery was ultimately determined on appeal to the Full Court.  It is inappropriate to make an order of this nature at such a late stage in the preparation of the case.  Furthermore, I am not satisfied that the merits of the application warrant such an order.  Evidence which the applicant needs to adduce and seeks to interrogate about can, at this stage of the proceeding, be most conveniently adduced by evidence-in-chief on the hearing of the review.

For these reasons, I will order that the motion, notice of which was filed on 15 August by the applicant, be dismissed, with costs.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of his Honour Justice North.

Associate:
Dated:           13 September 1996

Counsel for the applicant:             P. Collinson
Solicitors for the applicant:           Clayton Utz

Counsel for the respondent:          M. Weinberg QC, with B. Walters
Solicitors for the respondent:        Australian Government Solicitor

Date of hearing:  22 August 1996
Date of judgment:  22 August 1996  

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

No VG 765 of 1995

B E T W E E N :

AB

Applicant

AND

NATIONAL CRIME AUTHORITY

Respondent

MINUTES OF ORDER

JUDGE:  North J
PLACE:  Melbourne
DATE:    22 August 1996

THE COURT ORDERS THAT:

The motion, notice of which was filed on 15 August by the applicant, be dismissed with costs.         

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.