Grofam Proprietary Ltd v Macauley, P - [1993] FCA 549

GROFAM PROPRIETARY LIMITED; GROFAM AUSTRALIA PROPRIETARY LIMITED; GROLLO
AUSTRALIA PROPRIETARY LIMITED and OTHERS v. PETER MACAULEY; KERYN-LOUISE
ELIZABETH REYNOLDS; RUSSELL FREDERICK KOCH and OTHERS
No. VG399 of 1992
FED No. 549
Number of pages - 3
Practice and Procedure
(1993) 43 FCR 404
(1993) 31 ALD 331 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Heerey J(1)

CATCHWORDS

Practice and Procedure - leave sought to interrogate magistrate issuing a warrant - discretionary factors - substantial number of questions and material - purported need to interrogate not established.

Administrative Decisions (Judicial Review) Act 1977 (Cth) s.13(1), (11)(c), Schedule 2 par (3)(iii)

Crimes Act 1914 (Cth) s.10

Customs Act 1901 (Cth)

Telecommunications (Interception) Act 1979 (Cth)

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13

HEARING

MELBOURNE, 3 August 1993

#DATE 3:8:1993

Counsel for the applicants: Mr P G Cawthorn

Solicitor for the applicants: Mallesons Stephen Jacques

Counsel for the sixth Mr G Maguire
respondent:

Solicitor for the sixth Victorian Government Solicitor

ORDER

The Court Orders:

1. The application be dismissed.

2. The applicants pay the sixth respondent's costs of the application including reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

JUDGE1

HEEREY J This application for leave to deliver interrogatories arises in a proceeding where, amongst other things, the applicants seek an order for review of a decision made by the sixth respondent, Mr Robert Tuppen M (the magistrate), to issue search warrants. The application alleges that contrary to s.10 of the Crimes Act 1914 (Cth) at the time of issuing the warrants the magistrate "was not or ought not to have been satisfied by the information on oath before him that the offences alleged in the third condition of the search warrants had been committed or that there were reasonable grounds for suspecting that such offences had been committed".

There are further more detailed complaints about the material in the information to which I do not think I need to refer at this stage. The magistrate has entered an appearance but otherwise has indicated that he submits to such order as the court may make, and has not taken part in the proceedings as an active protagonist. In adopting this course the magistrate has acted in compliance with the firm indication given by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35:

"There is one final matter. Mr Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1993] FCA 549
Decision Date: 03 AUGUST 1993

CaseChat Overview and Summary

Grofam Proprietary Ltd sought leave to apply to the Federal Court of Australia to interrogate a magistrate who had issued a warrant. The respondents, including the magistrate, opposed the application. The primary legal issue was whether the court should grant leave to interrogate the magistrate, considering the discretionary factors involved. The key consideration was whether the applicant had established a need to interrogate the magistrate, given the substantial number of questions and material involved.

The court examined the discretionary factors relevant to granting leave to interrogate a magistrate. It found that the applicant had not demonstrated a need to interrogate the magistrate, especially considering the volume of questions and material. The court noted that the application was not only about the number of questions but also about the necessity and relevance of the interrogation. The court held that the applicant's purported need to interrogate was not established, leading to the conclusion that leave should not be granted.

Consequently, the court dismissed the application. The applicants were ordered to pay the costs of the application, including reserved costs, to the sixth respondent. The court's decision was based on the lack of demonstrated necessity for the interrogation and the substantial amount of material involved. This outcome reflects the court's stance on the discretionary nature of granting leave to interrogate a magistrate.

Orders

Orders of the court

The Court Orders:

1. The application be dismissed.

2. The applicants pay the sixth respondent's costs of the application including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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