CBS Inc. v Usope, K.

[1989] FCA 610

LIMITED DISTRIBUTION

PRACTICE AND PROCEDURE - Property held by third party - power

of Court to make orders for the custody, preservation or

inspection of property - Federal Court Rules Order 25 rule 2

- order for delivery up to Registrar of Court subject to

consent of third party.

Federal Court Rules: Order 25 rule 2.

CBS INC. and OTHERS V KASSIM USOPE

NG 734 of 1987

LOCKHART J.
SYDNEY
27 JULY 1989

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
1

PEW SOUT H WALES DISTRICT REGISTRY ) No. NG 734 of 1987

)

GENERAL DIVISION )

BETWEEN:	GBS INC and OTHERS Applicants
m	KASSIM USOPE

Respondent

JUDGE MAKING ORDER:	LOCKHART J.
DATE ORDER MADE:	27 JULY 1989
WHERE ORDER MADE:	SYDNEY

MINUTE OF ORDER

THE COURT ORDERS THAT:

1.     That within seven days of the service of this order the New South Wales Police Department deliver to the Registrar of this Court at Queens Square, Sydney, for safe-keeping and custody until further order of this Court all audio cassettes in its possession bearing the

following titles: Europe/The Final Countdown, Billy

Idol/Whiplash Smile, Huey Louis and the News/Forel,
U2/The Joshua Tree, Supertramp /The Autiobiography of
Supertramp, Paul Simon/Graceland, and the
Eurythmics/Revenge, being audio cassettes held at the
police station Parramatta Road, Flemington, New South

Wales, and comprising part of entry A032201 - A032201 -

in exhibit book number 5;

2.     That order 1 is made subject to the consent of the New South Wales Police Department;

3.     That leave be granted to the solicitors for the applicants and the solicitors for the respondent to uplift in each case one copy of the said audio cassettes from the Registry for the purpose of inspection by expert witnesses;

1. That leave be granted to the solicitors for the applicants and the solicitors for the respondent to retain until the determination of the proceedings or further order the copy of each cassette mentioned in order 3 for the purpose of evidence and the hearing of the proceeding;

(5)	That, in the event of the consent of the New South Wales Police Department not being forthcoming as envisaged in order 2, leave be given to the applicants
to join the appropriate statutory body or police officers or other persons as parties to this action solely for the purpose of obtaining custody and inspection of the said audio cassettes;
6.	That the costs of the motion for orders under Order 25 rule 2 shall be costs in the proceeding.
NOTE:	Settlement and entry of orders is dealt with under

Order 36 of the Federal Court Rules.

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. NG 734 of 1987
)
GENERAL DIVISION	1

BETWEEN:	CBS INC and OTHERS Applicants
m	KASSIM USOPE

Respondent

27 July 1989

REASONS FOR JUDGMENT

LOCKHART J.

An interesting question has arisen this morning

concerning the interpretation and scope of Order 25 rule 2 of
this Court's rules which provides that:

or in a proceeding in which any question may "(1) In a proceeding concerning any property arise as to any property, the Court or a Judge may make orders for the detention, custody,

preservation or inspection of property;

(2) An order under sub-rule 1 may authorize

any person to enter any land or to do any other thing for the purpose of giving effect to the order. ..."

The applicants seek an order that the New South Wales Police Department deliver to the Registrar of this Court for safe-keeping until further order certain audio cassettes in the possession of the Police Department which are held at the police station, Parramatta Road, Flemington, New South Wales. Consequential orders are also sought. The relevant part of Order 25 rule 2 is the power of the Court or a Judge to make orders for the custody or preservation of the property and the consequential orders relate to the inspection of the property once in the custody of the

Registrar.

The researches of counsel have not revealed any case
which bears relevantly on the interpretation of Order 25 rule

2. There is a similar English rule (Order 50 rule 3) which I need not set out. That rule has received certain judicial attention, including the decision of Roxburgh J., as his Lordship then was, in Penfold v Pearlberq [l9551 3 All ER

120.

The personal property in question here is not in the
possession of a party to the proceeding. It would, I think,

be open to the applicants to join the relevant police

authority or police officers as parties to this proceeding	solely for the purpose of obtaining the orders sought, but I
think the course taken by Roxburgh J., in the case to which I have referred, is the course which should be taken here,
namely, that the Police Department should be ordered, if it consents to do so, to deliver up to the Registrar for safe-keeping the relevant audio cassettes, and, in the event of that consent not being forthcoming, then the relevant government authority or officers may be joined as parties.
Order 25 rule 2 is, in my view, sufficiently wide to encompass and permit an order of the kind that is sought here, although it may be true, as has been submitted on behalf of the respondent, that a subpoena could be issued to the Police Department to achieve the same object. Whether that will achieve the same object is perhaps a matter of some debate, but the existence of two remedies does not operate
to abrogate either of them.
Orders were made by another Judge of this Court on 1 June last predicated on the assumption that the relevant cassettes would be delivered up by the Police Department to the respondent the relevant cassettes. There is no inconsistency between the retention of that order, which was
orders which I propose to make. So I think it is better that expressed to be an interim order, and the making of the
those orders remain on foot.

The Court makes the following orders:

(1) That within seven days of the service of this order the
New South Wales Police Department deliver to the
Registrar of this Court at Queens Square, Sydney, for

safe-keeping and custody until further order of this Court all audio cassettes in its possession bearing the following titles: Europe/The Final Countdown, Billy Idol/Whiplash Smile, Huey Louis and the News/Forel, U2/The Joshua Tree, Supertramp /The Autiobiography of Supertramp, ~ a u l Simon/Graceland, and the Eurythmics/Revenge, being audio cassettes held at the police station Parramatta Road, Flemington, New South Wales, and comprising part of entry A032201 - A032201 - in exhibit book number 5;

(2) That order 1 is made subject to the consent of the New South Wales Police Department;

(3) That leave be granted to the solicitors for the applicants and the solicitors for the respondent to uplift in each case one copy of the said audio cassettes from the Registry for the purpose of inspection by expert witnesses;

(4) That leave be granted to the solicitors for the applicants and the solicitors for the respondent to retain until the determination of the proceedings or further order the copy of each cassette mentioned in order 3 for the purpose of evidence and the hearing of the proceeding;

(5) That, in the event of the consent of the New South Wales Police Department not being forthcoming as envisaged in order 2 , leave be given to the applicants to join the appropriate statutory body or police officers or other persons as parties to this action solely for the purpose of obtaining custody and inspection of the said audio cassettes;

(6) That the costs of the motion for orders under Order 25

rule 2 shall be costs in the proceeding.

I certify that this and the

preceding four (4) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate

Dated:  27 July 1989

Counsel for Applicants:	Miss A. Bowne
Solicitors for Applicants:	Allen Allen & Hemsley
Solicitors for Respondent:	Abelitis and Co.
Date of Hearing:	27 July 1989
Date of Judgment:	27 July 1989