H K Systems Australia Pty Ltd v Debus - [2008] FCA 849

FEDERAL COURT OF AUSTRALIA
H K Systems Australia Pty Ltd v Debus [2008] FCA 849
PRACTICE AND PROCEDURE – interrogatories in proceedings for judicial review – proposed questioning of respondents in relation to decision by Minister to order detention of firearms – challenge to grounds of review – obligations of Minister under s 77EA of Customs Act – whether departure of Minister from practice of predecessors creates potentially reviewable error – whether applicant experienced discrimination based on non-detention of similar firearms – whether s 31A of Federal Court of Australia Act capable of being invoked in relation to untenable grounds of review – whether interrogatories objectionable on the basis of “fishing”
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(e), 5(1)(h), 5(2)(g) and 5(3)(a)
Judiciary Act 1903 (Cth), s 39B(1A)(c)
Customs Act 1901 (Cth), s 77EA
Federal Court of Australia Act 1976 (Cth), s 31A
Federal Court Rules 1979 (Cth), O 11 r 16, O 16 r 1
WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 cited
Canwest Global Communications Corp v Australian Broadcasting Authority (Hill J, 16 June 1997, unreported) cited
Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 cited
TNT Australia Pty Ltd v Fels (1992) ATPR 41-190 cited
Australian Securities Commission v Somerville (1994) 51 FCR 38 cited
Re Federal Commissioner of Taxation, Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247 cited
Minister for Immigration and Multicultural Affairs v Wong [2002] FCAFC 327 considered
Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation (1990) 96 ALR 153 cited
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 cited
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited
Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438 cited
Whim Creek Consolidated NL v Colgan (1989) 25 FCR 50 cited
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 cited
Walton v Gardiner (1993) 177 CLR 378 cited
Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 cited
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1271 cited
Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 cited
McCormack v Deputy Commissioner of Taxation Large Business & International [2001] FCA 1700 cited
Grofam Pty Ltd v Macauley (1993) 43 FCR 404 cited
Heydon J D, Cross on Evidence (6^th Australian ed, 2000)
Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004)
H K SYSTEMS AUSTRALIA PTY LTD (ACN 094 079 544) v ROBERT JOHN DEBUS (IN HIS CAPACITY AS MINISTER FOR HOME AFFAIRS) and THE COMMONWEALTH OF AUSTRALIA
VID 1184 OF 2007
WEINBERG J
6 JUNE 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1184 OF 2007

BETWEEN:

H K SYSTEMS AUSTRALIA PTY LTD (ACN 094 079 544)
Applicant

AND:

ROBERT JOHN DEBUS (IN HIS CAPACITY…

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: [2008] FCA 849
Decision Date: 6 June 2008

CaseChat Overview and Summary

In the case of H K Systems Australia Pty Ltd v Debus, the applicant, H K Systems Australia Pty Ltd, sought leave to deliver interrogatories to the respondents, Debus and others, to obtain evidence for their claim that the Minister's decision regarding the importation of weapons was unreasonable. The legal issues revolved around whether the grounds of review presented by the applicant were tenable and if the Minister's decision was indeed unreasonable. The court had to determine whether the applicant's case against the respondents was based on valid reasoning and if the Minister's decision could be subject to judicial review.

The court found that the applicant's claim that the Minister was approaching the question of "public interest" differently than his predecessor was untenable. The court held that the Minister's decision was based on a broad and multi-faceted discretion, and reasonable minds were likely to differ on what the term "public interest" entails. The court emphasised that if the Minister's decision was ultimately found to be unreasonable, it would be because it was wholly irrational and not due to the predecessor's differing views. The court also noted that the structure of s 77EA provided little scope for applying the discrimination argument. The court was of the view that there might be a case for showing that the Minister had discriminated against the applicant, but it was difficult to infer such conduct based on later developments.

The court dismissed the applicant's notice of motion seeking leave to deliver interrogatories with costs. The costs referred to in the order excluded any costs previously ordered to be paid by the respondents. The matter was adjourned to a date to be fixed.

Orders

Orders of the court

1. The applicant’s notice of motion filed on 9 April 2008 seeking leave to deliver interrogatories be dismissed with costs.

2. The costs referred to in order 1 exclude any costs previously ordered to be paid by the respondents.

3. The matter otherwise be adjourned to a date to be fixed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WEINBERG J

The respondents did not at any stage seek to invoke s 31A. For that reason, I propose to hold them to the higher, General Steel standard insofar as they seek to strike out the grounds of review that they have identified. I do so without expressing any final opinion as to whether s 31A would, in fact, have been available to them had they sought to rely upon it.CONCLUSION To the extent that the applicant’s case against the respondents depends upon nothing more than its claim that the current Minister is approaching the question of “public interest” in a different manner to his predecessor, it is untenable. The Minister’s predecessor may have taken a more benign view of the importation of weapons of this type. If he did, that still cannot form the basis of a conclusion that the Minister’s decision in this case was unreasonable. The requirement in s 77EA that the Minister base his decision upon “the public interest” confers upon him a broad and multi-faceted discretion. Reasonable minds are likely to differ as to what that term entails. If the Minister’s decision is, ultimately, held to be unreasonable in the Wednesbury sense, it will be because it was wholly irrational and not because his predecessor did not share this Minister’s views. It follows that I would be minded to strike out the grounds of review, and the particulars in support thereof, that depend entirely upon reasoning of the type just discussed. I say that in the context of an interlocutory application brought for the sole purpose of obtaining leave to deliver interrogatories aimed at assembling evidence to support a factual finding that leads nowhere in a legal sense. As I will not be hearing this matter when it comes before the Court for final determination, it is sufficient for me to do no more than refuse the application for leave to deliver those interrogatories that relate to the period prior to 6 December 2007 without, at this stage, proceeding to strike out the grounds of review that I regard as untenable. The position regarding the period after 6 December 2007 is more difficult. At a theoretical level, there might be a case in which it could be shown that the Minister has discriminated against the applicant, singling it out for adverse treatment and ignoring the acts of its competitors. Such conduct on the part of the Minister might be amenable to judicial review, if not under the ADJR Act, then certainly pursuant to s 39B. However, the difficulty with that approach in the present case is that the structure of s 77EA provides little scope for its application. There would have to be some basis for believing that the Minister has deliberately set out, in his decision of 6 December 2007, to treat the applicant differently from its competitors. It is possible, in some circumstances, to use later developments as the basis for an inference as to what motivated an earlier decision. In J D Heydon, Cross on Evidence (7th Australian ed, 2004), the learned author observes (at [1170]) in relation to what he characterises as “retrospectant evidence”: “The argument for the reception of this kind of evidence is the converse of that which demonstrates the relevance of prospectant evidence: the subsequent occurrence of an act, state of mind or state of affairs justifies an inference that the act was done, or that the state of mind or affairs previously existed.”

Ratio Decidendi

Legal Principle Established

Established by: WEINBERG J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1184 OF 2007