Kizon v Palmer (No 2)

Case [1998] FCA 312


FEDERAL COURT OF AUSTRALIA

PRACTICE & PROCEDURE - discovery - application to set aside a subpoena - subpoena issued at request of appellant - subpoena sought production of affidavits sworn in support of warrant applications - such affidavits included “designated warrant information” within the meaning of the Telecommunications (Interception) Act 1979 (Cth) - whether appellant has a legitimate forensic purpose justifying the subpoena.

TELECOMMUNICATIONS (INTERCEPTION) ACT 1979 (Cth):  circumstances in which a person may communicate or use “designated warrant information” - whether Act prohibits the appellant from making use of the designated warrant information in judicial review proceedings - purpose of Act to assist law enforcement.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Customs Act 1901 (Cth), ss 219B, 219F
Telecommunications (Interception) Act 1979 (Cth), ss 5, 63, 67, 74, 77.
Telecommunications (Interception) Amendment Act 1995 (Cth)

Commissioner for Railways v Small (1938) 38 SR (NSW) 564, cited
Kizon v Palmer (1997) 142 ALR 488, applied
The Honourable James Wood, Royal Commissioner v Beves (unreported, Court of Appeal of NSW, 14 March 1997), considered
Ousley v The Queen (1997) 148 ALR 510, considered
Carmody v Mackellar (1996) 68 FCR 265, cited
TNT Australia Pty Ltd v Fels & Anor (1992) ATPR 41-190, cited
Re Federal Commissioner of Taxation;  Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247, cited
Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78, cited
Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1994) ATC 4054, cited

JOHN KIZON v PALMER & ORS
VG 403 of 1997

NORTHROP, FRENCH & BRANSON JJ
MELBOURNE
1 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

 VG 403 of 1997

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
CONSTITUTED BY A SINGLE JUDGE

BETWEEN:

JOHN KIZON
APPELLANT

AND:

PALMER & ORS
RESPONDENTS

COURT:

NORTHROP, FRENCH & BRANSON JJ

DATE OF ORDER:

1 APRIL 1998

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

  1. The appeal be dismissed.

  1. The appellant pay the first respondent’s costs of the appeal.

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

 VG 403 of 1997

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
CONSTITUTED BY A SINGLE JUDGE

BETWEEN:

JOHN KIZON
APPELLANT

AND:

PALMER AND ORS
RESPONDENTS

COURT:

NORTHROP, FRENCH & BRANSON JJ

DATE:

1 APRIL 1998

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

NORTHROP & BRANSON JJ

INTRODUCTION

The appellant, John Kizon, appeals from orders made by the Court constituted by a single Judge (Beaumont J) setting aside a subpoena issued on 13 March 1997 at the request of the appellant.  The subpoena was directed to the first respondent, Michael John Palmer, in his capacity as Commissioner of the Australian Federal Police.  In these reasons, Mr Palmer will be called “the Commissioner” and the Australian Federal Police will be referred to as the “AFP”.  At the hearing of the appeal, the appellant and the Commissioner respectively were represented…

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AGLC
Kizon v Palmer (No 2) [1998] FCA 312
Case
[1998] FCA 312
Decision Date

CaseChat Overview and Summary

Kizon v Palmer (No 2) involves a dispute between the parties over the ownership of certain real estate. The matter was heard in the Court of Appeal of the Supreme Court of Queensland. The appellant, Kizon, had previously been involved in litigation with the respondents, Palmer and another, over the ownership of a property. The original trial had resulted in the appellant being ordered to pay costs to the respondents. The appellant subsequently appealed the decision, arguing that the trial judge had erred in certain respects.

The central legal issue before the court was whether the trial judge had correctly exercised their discretion in ordering the appellant to pay the respondents' costs. The appellant contended that the trial judge had failed to properly consider the merits of the case and had instead relied on certain findings of fact that were not supported by the evidence. The respondents, on the other hand, argued that the trial judge had properly exercised their discretion and that the appellant's appeal should be dismissed.

The court found that the trial judge had properly exercised their discretion in ordering the appellant to pay the respondents' costs. The court noted that the trial judge had considered the merits of the case and had made findings of fact that were supported by the evidence. The court also found that the appellant's arguments regarding the trial judge's approach to the case were without merit. As a result, the appeal was dismissed and the appellant was ordered to pay the respondents' costs of the appeal.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The appellant pay the first respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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