Edelsten v Wilcox

[1988] FCA 204

(NOT FOR DISTRIBUTION)

IN THE FEDERAL COURT OF AUSTRALIA

)

VICTORIA DISTRICT REGISTRY	)	NO. VG	358 0	f 1986
)
GENERAL DIVISION	)
BETWEEN:

WILLIAM CHARLES GARFIELD SINCLAIR Applicant

and

COMMONWEALTH OF AUSTRALIA

THE COMPTROLLER-GENERAL OF CUSTOMS

THE COLLECTOR OF CUSTOMS (QLD)

MINUTES OF ORDER

COURT: Woodward J.

- DATE: 8 April 1988

PLACE: Melbourne

THE COURT ORDERS THAT:

1.    The applicant's application for discovery be dismissed.

2 .    The respondents have leave to serve and file, within 21 days, amended contentions of fact

3.    The respondents give notice to the applicant, at the earliest practicable time, of any

documents in their possession on which they

intend to rely at the hearing.

Note: Settlement and entry of orders is dealt with in Order.

36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

)

VICTORIA DISTRICT REGISTRY	)	..No. VG 358 of 1986
1
GENERAL DIVISION	1
BETWEEN:

- WILL IAM CH ,LES GAAF 'IELD SINCLAIR Applicant

and

COMMONWEALTH OF AUSTRALIA

THE COMPTROLLER-GENERAL OF CUSTOMS

THE COLLECTOR OF CUSTOMS (QLD)

MAXWELL and ROGERS Respondents

COURT: Woodward J.

. ..

- DATE: 8 April 1988

I_ PLACE: Melbourne

EX TEMPORE JUDGMENT

I believe that, in the light of the authorities,

and particularly Federal Commissioner of Taxation v Nestle

Australia Ltd (1986) 69 ALR 445 at 452-3, I have an

unfettered discretion in this application	f o r judicial review
of an administrative decision, whether to order	limited
discovery or not;	I do not believe there is any real issue

as to general discovery. Having listened to the arguments of

counsel with care I am not persuaded that any useful purpose would be served by ordering discovery in this matter.

It seems to me that the issues to be litigated are

very largely issues of law. In so far as it will be
necessary for the applicant to establish at the outset any

questions of fac.t about the origins of the moneys which are

in dispute, the facts relating to those	moneys are peculiarly
within the knowledge of the applicant.

So far as the decision of 1978 to seize the moneys

is concerned, it seems to be clear and common ground that

that decision is not directly justiciable in these

proceedings and that, therefore, any documents which might
arguably have been discoverable by the respondents relating

to that decision would serve no useful purpose.

The only possible qualification to what I have just

said is that it might have been argued by the respondents

that, when he reviewed the issue generally as to whether the

forfeited money should be returned in 1982, the decision maker at that time had regard to the merits of the case as they had appeared to the relevant decision makers in 1978, in

reaching a conclusion that in 1982 that the moneys ought not

to be returned.

However, counsel for the respondents has assured me

that it will be no part of the respondents case to argue that

the 1978 decision was correct on its merits and that those merits were reviewed in 1982; and he is prepared, on behalf of the respondents, to undertake to make the necessary

amendments to the respondents	contentions of fact and law to
make that situation quite clear.	I shall give leave to do
s o .

In those circumstances it seems to me quite

definite that there could be no documents in the possession

of the respondents concerning the 1978 decision which could

become relevant in these proceedings.

So far as the 1982 decision is concerned, as I have

indicated, it is not contended and will not be contended on

the part of the respondents that a consideration of the

merits of the applicant's case - that is to say the

appropriateness of the original seizure of	the moneys on the
basis that'they were derived in	some way from dealings with

narcotics - is to become part of the respondents' defence to

the allegations made in relation to the	1982 decision.
That decision is to be defended essentially on legal grounds, the points being taken that it is not	within
the power of the respondents, in the	circumstances that have
transpired, for them to return to moneys sought; that it is

not within the power of the court to review that decision; and even if it were within the power of the court, as a matter of discretion, in all the circumstances of this case

including the passage of time and the way in which the

application was made in 1982, the court would not wish to
review the decision made then.

In these circumstances it seems to me to be clear

that there are no documents in the possession of the

respondents which are going to be of anp'assistance to the

applicant if discovered and, in order to reinforce this

impression which I have gained from listening to the

argument, counsel	for the respondents	has informed me that he
is not aware	of any documents in the possession	o f the

respondents intended to be produced at the trial and adduced.

in evidence, other than documents which have passed formally
between the parties. However, to reinforce the applicant's
position I shall order that the respondents give early notice
to the applicant of any documents in their possession on

which they intend to rely at the hearing.

For these reasons, and in the exercise o f the

discretion which have indicated,	I reject the application and
dismiss the relevant part	of the notice of motion in so far
as it sought orders	for discovery.
1 certify that this and the

three ( 3 ) preceding pages are
a true and accurate copy of the
Ex Tempore Judgment herein of

The Hon Mr Justice Woodward

Associate

Dated:	8 April 1988
Counsel for the Applicants/Appellants:	Mr P. Wilson

Solicitors for the Applicants/Appellants: Juliano, Ford & CO

Counsel for the Respondents:  Mr. G. Nettle

Solicitors f o r the Respondents: Australian Government

Solicitor