Arbabun v Comptroller-General of Customs

FEDERAL COURT OF AUSTRALIA

Arbabun v Comptroller-General of Customs [2018] FCA 2105

File number(s):

VID 86 of 2017

Judge(s):

WHEELAHAN J

Date of judgment:

21 December 2018

Catchwords:

PRACTICE AND PROCEDURE – Application to file an amended defence to a further amended statement of claim – application to withdraw an admission – application to file an amended notice of cross claim – directions made.

Legislation:

Customs Act 1901 (Cth) s 30(1)(a)(ii), 68(3), 68(3A), 205C

Federal Court Rules 2011 (Cth) r 16.55, 26.11

General Rules of Procedure in Civil Proceedings (Vic) r 25.02

Cases cited:

Collie v Merlaw Nominees Pty Ltd (2001) 37 ACSR 361

Cooper’s Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738

Divcon (Australia) Pty Ltd v Devine Shipping Pty Ltd [1996] 2 VR 79

Kitano v The Commonwealth (1974) 129 CLR 151

Yarrabee Chicken Company Pty Ltd v Steggles Limited [2010] FCA 394

Zien v R (1986) 26 DLR (4^th) 121

Date of hearing:

17 December 2018

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

18

Counsel for the Applicants:

Ms L Papaelia

Solicitor for the Applicants:

Judicate Lawyers

Counsel for the First and Third Respondents:

Ms Z Maud

Solicitor for the First and Third Respondents:

Australian Government Solicitor

Counsel for the Second Respondent:

The Second Respondent filed a submitting appearance

ORDERS

VID 86 of 2017

BETWEEN:

MAHMOOD ARBABUN

First Applicant

MASOUD ABBASNEJAD HAQIQI

Second Applicant

AND:

COMPTROLLER-GENERAL OF CUSTOMS

First Respondent

MAGISTRATE PATRICK SOUTHEY

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

AND BETWEEN:

COMPTROLLER-GENERAL OF CUSTOMS

Cross-Claimant

AND:

MAHMOOD ARBABUN (and another named in the Schedule)

First Cross-Respondent

JUDGE:	WHEELAHAN J
DATE OF ORDER:	20 DECEMBER 2018

THE COURT ORDERS THAT:

1.On or before 31 January 2019, counsel for the parties confer and submit a minute of order for the Court’s consideration that addresses the resolution of the contested issues and provides for other directions that the parties desire to prepare the case for hearing.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. These reasons relate to a number of issues that were raised for determination at a case management hearing on 17 December 2018. The matters that remained in issue at the conclusion of the hearing were –

   (a)an application by the respondents to file an amended defence to the further amended statement of claim;

   (b)an application by the respondents to withdraw an admission in their defence to the further amended statement of claim, if such an application was necessary;

   (c)an application by the cross-claimant for leave to file an amended notice of cross-claim; and

   (d)an application by the applicants for discovery of documents.

   Pleadings

2. The applicants commenced this proceeding on 9 February 2017 against the first respondent (the Comptroller-General), who at that time was the sole respondent. The second and third respondents were later added to the proceeding.

3. The subject matter of…