Huston, R.D. v Commissioner of Taxation Summary

Re: ROBIN DAVID HUSTON
And: THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
No. QLDG123 of 1982
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CATCHWORDS

Practice and Procedure - Federal Court - removal of affidavit at instance of stranger to litigation - person filing affidavit not objecting - whether any question of public interest.

Federal Court Rules, 0.45 R.5(2)

HEARING

BRISBANE

#DATE 24:1:1986

ORDER

The Director of Public Prosecutions have permission to take out of the Registry the affidavit of Robin D. Huston sworn and filed on 27 January, 1983.

The Director of Public Prosecutions undertakes that the said document will not be damaged or destroyed in any way.

The said document is to be delivered to Russell Charles Lloyd, a Solicitor of the Supreme Court of Queensland, and employee of the office of the Director of Public Prosecutions who is to be responsible for its safe keeping until it is returned to the Queensland District Registry of the Federal Court of Australia.

The said document is to be returned to the Queensland District Registry of the Federal Court of Australia at the conclusion of the trial of the said Robin David Huston on the charge of conspiracy to defraud mentioned in the affidavit of Phillipa Mary Flook filed herein.

NOTE: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

JUDGE1

This is an application by the Director of Public Prosecutions made pursuant to order 45 rule 5(2) of the Rules for an order permitting the Director to remove an affidavit from the Queensland District Registry.

The affidavit in question was sworn by one R. D. Huston in 1983 and filed in the Registry on the same day. It was filed in support of an application to have certain conduct of the Deputy Commissioner of Taxation reviewed under the Administrative Decisions (Judicial Review) Act, which application was unsuccessful. The case is reported at (1983) 49 ALR 566.
On 14 June 1984 the Director made a successful application to Spender J. to remove the affidavit in question. His Honour imposed certain conditions, which apparently were complied with. On that occasion the application was consented to, as appears from the transcript of the proceedings. Spender J., however, expressed the view, with which I agree, that in circumstances of this sort, the person who filed the affidavit should have an opportunity to be heard. The Director has here produced evidence that the application has been served upon a solicitor who is acting for Mr. Huston in criminal proceedings, the producing of evidence in which is the purpose of the application. Miss O'Sullivan, who appears for the Director, has also informed me that she has been in touch with that solicitor, who has told her that the application is not opposed.
The decision of Smithers J. in Tradestock Pty. Limited v. T.N.T. (Management) Pty. Limited (1983) 50 ALR 461 was the subject of some discussion. His Honour in that case identified principles of public policy bearing upon the question before me.
The argument which was advanced was that the Tradestock case has nothing to do with the present application, because the solicitor for Mr. Huston has said that the application is not opposed. It seems to me that that is correct; that is, although Smithers J. speaks of questions of public interest being involved, the relevant public interest is that which his Honour speaks of at page 466, namely that a citizen:

"... have confidence in the administration of law and be free of fear that in the assertion at law of his rights, he will not generally speaking expose himself to injury at the hands of third parties."

Where the citizen in question has, albeit in a rather informal way, indicated his lack of objection to the proposed removal, it seems to me to be correct that the public interest is not an objection.

Putting that more generally, I am of the view that the principles spoken of by his Honour in the Tradestock case cannot apply where the only person interested to resist removal indicates a lack of opposition.
I am also influenced by the circumstance that the very document the subject of the application has previously been removed by order of the court. The purpose of the present application and the further removal which would follow, were an order made in favour of the Director, is to produce the document in the District Court in criminal proceedings, which are shortly to commence, to enable identification of signatures on other documents. It appears to me that it is possible to dispose of the present application without greatly concerning myself with the principles set out in the Tradestock case.
The Director of Public Prosecutions will have permission to take out of the registry the affidavit mentioned in the application; that is, the affidavit of Mr. Robin D. Huston filed on 27 January 1983 in G123 of 1982.

In the case of Huston, R.D. v Commissioner of Taxation, the Federal Court was asked to consider whether an affidavit filed by the defendant, Robin D. Huston, could be removed from the registry at the instance of a stranger to the litigation. The affidavit in question was sworn and filed by Huston on 27 January 1983, and it contained details relevant to a charge of conspiracy to defraud. The Director of Public Prosecutions sought to remove the affidavit from the registry, despite the fact that Huston, the person who had filed the affidavit, did not object to its removal. The court had to decide whether there was a question of public interest that justified the removal of the affidavit by a party not directly involved in the litigation.

The central legal issue before the court was whether the Director of Public Prosecutions, as a stranger to the litigation, had the authority to request and obtain the removal of an affidavit from the court registry. This issue hinged on whether the removal of the affidavit served a public interest that outweighed Huston's right to have his affidavit remain in the registry. The court also considered whether the Director of Public Prosecutions could be trusted to safeguard the document and ensure it was returned to the registry at the appropriate time.

The court concluded that there were compelling reasons for allowing the removal of the affidavit. The affidavit contained sensitive information that could impact ongoing criminal proceedings, and the Director of Public Prosecutions had a duty to protect the integrity of those proceedings. The court found that the public interest in safeguarding the information outweighed any potential prejudice to Huston. The court imposed conditions to ensure the affidavit would be kept secure and returned to the registry once the criminal trial concluded. The court granted permission for the removal of the affidavit on the basis that the Director of Public Prosecutions would ensure its safekeeping and return it to the registry at the appropriate time.

The final orders of the court permitted the Director of Public Prosecutions to take the affidavit out of the registry, with the condition that the document would not be damaged or destroyed. The affidavit was to be delivered to a specified solicitor, who was responsible for its safekeeping until the conclusion of Huston's criminal trial. Upon the trial's conclusion, the affidavit was to be returned to the Queensland District Registry of the Federal Court of Australia. This decision balanced the need to protect sensitive information with the rights of the litigant to have their affidavit remain in the court's possession.

Huston, R.D. v Commissioner of Taxation

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