J. Wattie Canneries Ltd (application for writs against Hayes, T.)
[1986] FCA 420
•24 SEPTEMBER 1986
Re: APPLICATION FOR WRITS OF CERTIORARI, PROHIBITION AND FOR AN INJUNCTION
AGAINST THOMAS PLUNKETT HAYES, COMPTROLLER-GENERAL OF CUSTOMS
Ex parte: J. WATTIE CANNERIES LIMITED
No. G399 of 1986
Practice
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.
CATCHWORDS
Practice - application for prerogative writ - application under 0.54A r.7 Federal Court Rules by strangers to proceedings for access to affidavits proposed to be used by prosecutor - no collateral purpose or abuse of process indicated.
HEARING
SYDNEY
#DATE 24:9:1986
Counsel and Solicitors for Applicant: G. Flick instructed by Freehill Hollingdale & Page.
of a hotel in Phoenix, Arizona U.S.A.. In accordance with the Australian Government Solicitor.
Counsel and Solicitors for Petersville Industries and McCain Foods (Australia) Pty. Ltd.: M. Walton instructed by McDonell Moffitt Dowling Tayler.
ORDER
Direct that the prosecutor supply to Petersville Industries Limited and McCain Foods (Australia) Pty. Ltd. copies of any affidavits ("the said affidavits") proposed to be used by the prosecutor in the principal proceedings in claiming interlocutory or final relief.
Reserve liberty to the prosecutor to apply, on such notice as a Judge shall allow, to vary order 1 for the purpose of pursuing an application for orders forbidding or restricting the publication of any part of the said affidavits.
Costs reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Before the Court is an interlocutory application by Petersville Industries Limited and McCain Foods (Australia) Pty. Limited ("the applicants") seeking, pursuant to 0.54A r.7, that the prosecutor in the principal proceedings, J. Wattie Canneries Limited, supply the applicants with copies of an affidavit proposed to be used in the principal proceedings.
The background to the application is as follows. On 16 September 1986, the prosecutor applied, pursuant to s.39B of the Judiciary Act 1903, for an order nisi for writs of certiorari, prohibition and for an injunction against the respondent Thomas Plunkett Hayes, Controller-General of Customs ("the principal proceedings"). In its application for an order nisi, the prosecutor challenged a preliminary finding ("the finding") made by the respondent on 21 August 1986 pursuant to s.42 of the Customs Act 1901 whereby the respondent sought to impose certain cash securities upon the prosecutor (see Tasman Timber Ltd. v. Minister for Industry and Commerce (1983) 46 ALR 149). The prosecutor claimed that the finding was made in breach of the rules of natural justice and was made in disregard of procedures required by Customs Tariff (Anti-Dumping) Act 1975 to be observed in that connection. The prosecutor further contended that the finding was in excess of the jurisdiction conferred upon the respondent by the Customs Act, was not authorised by the Customs Act, was an improper exercise of the powers conferred by the Customs Act, and ultra vires, involved an error of law and was made on the basis of material providing no evidence for the decision in fact reached.
The prosecutor claimed by way of interlocutory relief: (a) an order restraining the respondent from imposing any cash security in accordance with the finding until further order; (b) alternatively, an order prohibiting the respondent from taking any step incidental to the said decision taken on 21 August 1986 until further order. By way of final relief, the prosecutor claimed an order quashing the decision of the respondent.
According to points of claim filed by it, the prosecutor is the largest processor of frozen, canned and dehydrated vegetables in New Zealand, as well as the major processor and exporter of frozen peas. New Zealand and the United States of America are the two main sources of Australia's imported frozen peas. The points of claim then allege:-
"ORIGIN OF THE DISPUTE
3. Two Australian companies involved in the processing of frozen foods are the Edgell-Birds Eye Division of Petersville Industries Ltd. and McCain Foods
(Australia) Pty. Ltd.
4. In or about September 1985 the Edgell-Birds Eye Division of Petersville Industries Ltd. and McCain Foods (Australia) Pty. Ltd. lodged a complaint with the Australian Customs Service alleging that the Prosecutor was exporting frozen peas from New Zealand at dumped prices and had thereby caused and threatened material injury to the Australian industry.
5. Australian Customs Notice No. 86/14 of 5 February 1986 advised the notification of enquiries to reach a preliminary finding on the complaint referred to in paragraph 4 above.
6. The Prosecutor has made a number of submissions to the respondent pursuant to the enquiry referred to in paragraph 5 above.
....
7. In addition to written submissions forwarded by the Prosecutor to the Respondent, officers of the Prosecutor and the Respondent attended meetings to discuss aspects of the complaint, including....
8. On 21 August 1986 the Respondent by way of Australian Customs Notice No. 86/21l made a preliminary finding adverse to the interests of the Prosecutor and thereby imposed cash securities upon the importation by the Prosecutor of goods under enquiry entered for home consumption after the date of the said Notice."
The points of claim then allege that the respondent failed to carry out the comparison which he was as a matter of law obliged to carry out between the normal value of the goods enquired into and the material injury caused by those goods as at the date of the values so determined. Alternatively, it is said, the respondent misconceived the nature of the enquiry that he was bound in law to conduct by reason of an incorrect identification of the goods to be enquired into. It is further claimed that the respondent, in conducting the said enquiries, owed a duty to the prosecutor to make certain enquiries and to accord the prosecutor an opportunity of being heard and to be treated fairly in accordance with the rules of natural justice and failed to accord to the prosecutor that opportunity. Finally, the prosecutor claims that, in imposing cash securities, the respondent exceeded the powers conferred upon him by s.42 of the Customs Act in that the securities were imposed for an improper purpose.
Order 54A r.7 provides:
"7. A party to the application shall supply on request by a party or person who desires to be heard, copies of any affidavits previously used in the proceeding or which he proposes to use at the hearing of the application."
The applicants put their case in two ways. First, they say that r.7, when read literally, is mandatory in operation and as persons asserting that they are desirous of being heard in the principal proceedings, they are entitled to be supplied with the affidavits. Alternatively, they say that if r.7 should not be read literally and if there is an element of discretion involved, they have established a proper basis for access to the material.
It is contended on behalf of the prosecutor that the literal meaning of r.7 should be read down and, in particular, there should be implied into the rule the requirements which govern the joinder of parties in a case such as the present. That is to say, access to the material contained in the affidavits should only be granted if the applicants can demonstrate a sufficient interest to justify their joinder as parties to the principal proceedings. It is then submitted on behalf of the prosecutor that the applicants are unable to show any substantial legal interest in the outcome of the proceedings, whatever be the commercial impact upon the applicants of the grant of interlocutory or final relief sought by the prosecutor.
In my opinion, prima facie, r.7 should be read literally. That is to say, it should be construed so as to confer upon a party who genuinely desires to be heard a right to be supplied with the affidavits in question. At the same time, in my view, there should be imported into the operation of the rule a qualification that, in the case of any abuse of process, the request for access should be denied. The Court should decline to direct that a request pursuant to r.7 be given effect to if the Court is satisfied that the request is made for a collateral purpose, for instance, to obtain evidence of the activities of a competitor (cf. National Employers' Mutual General Association Ltd. v. Waind (1978) 1 NSWLR 372 per Moffitt P. at p 382 and Botany Bay Instrumentation and Control Pty. Ltd. v. Stewart (1984) 3 NSWLR 98).
It has not been suggested that the present application involves any abuse of process. Prima facie, the applicants have an obvious interest in the outcome of the principal proceedings and there is nothing advanced to indicate any collateral or ulterior purpose in calling for the affidavits. There is every reason to suppose that the applicants genuinely desire to be heard.
I propose to give a direction pursuant to 0.54 r.7. However, in order that the prosecutor may have the opportunity, if so advised, to apply for orders under s.50 of the Federal Court Act 1976 in respect of any part of the affidavits which it may claim to be confidential, liberty to apply to vary this direction will be reserved to it.
I make the following orders:
1. Direct that the prosecutor supply to Petersville Industries Limited and McCain Foods (Australia) Pty. Ltd. copies of any affidavits ("the said affidavits") proposed to be used by the prosecutor in the principal proceedings in claiming interlocutory or final relief.
2. Reserve liberty to the prosecutor to apply, on such notice as a Judge shall allow, to vary order 1 for the purpose of pursuing an application for orders forbidding or restricting the publication of any part of the said affidavits.
3. Costs reserved.
0