Lanwren Pty Ltd v Collector of Customs

[1988] FCA 444

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY	)
GENERAL DIVISION
NSW G.1039 Of 1988	BETWEEN:

LANWREN PTY LIMITED

Applicant

AND :

-

THE COLLECTOR OF CUSTOMS	; .
!

Respondent

NSW G.1040 Of 1988 BETWEEN: !

VAMANI PTY LIIilITED

Applicant

AND :

-

THE COLLECTOR OF CUSTOMS

First Respondent

- AND :

DIRECTOR OF

INVESTIGATION

Second Respondent

G.1041 of 1988 BETWEEN:

Second Respondent

PAUL and LEE VILAYSACK
trading as THONGSON

IHPORTS AND EXPORTS

Appllcant

AND :

THE COLLECTOR OF CUSTONS

First Respondent

AND :

-

G. S. GRAUSAM

- AND :

DIRECTOR OF INVESTIGATION

Third Respondent

EX-TEMPORE REASONS FOR JUDGMENT ..

BURCHETT J.	I i
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In these matters leave is sought to discontinue, now at

approximately 2.55 o'clock this afternoon, the hearing having commenced yesterday and proceeded through until now. Leave to

discontinue is not opposed, except on the issue of	costs. The
respondent seeks an order	for costs.

The applicants argue that I should make an order that

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each party bear its own costs, and that I should do so on the

footing that it was only on Friday last that the full extent of

the respondent's case was disclosed by a very lengthy affidavit,

with a large number of annexures, and that even then the

affidavit was made available only to counsel for the applicant on the express basis that its contents were not to be communicated I

to anyone, even his instructing solicitor. The basis of this was

a claim of public interest immunity. I . .

There had been some delays on the applicant's own part,

but nevertheless it seems to me that there was a degree of
unnecessary difficulty imposed upon the applicant's counsel, and
through him upon them, by the procedure which was adopted. The

affidavit, the whole of which was claimed to be immune from any

form of disclosure, was not in fact wholly of that character.

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Indeed, it was conceded that a number of the annexures had been in fact produced without claim of immunity, and it was conceded that paragraphs in the affidavit, and parts of paragraphs, were

not properly immune. I do not wish these reasons to appear

critical of the respondent; they are not intended to be critical.

I	The circumstances of these claims did raise, quite properly,
issues as to whether public interest immunity was required in
respect of a considerable number of matters in quite complex
investigations. Nevertheless, I think it should be said that it
is an inappropriate procedure to put all of the material in one affidavit, and then make a blanket claim of privilege. What

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should be done, in any such case, is to disclose all that can be

properly disclosed, and then supplement it by the privileged

material in	a separate affidavit in such a way as to avoid
unnecessary embarrassment to other parties and to the Court.	!

In all the circumstances I think that, though very

understandably, the position that was produced was a position of

very considerable difficulty for Mr. Cashion, who appeared for

the applicants. Had the procedure I have mentioned been adopted, and particularly had it been adopted at a somewhat earlier stage

than last Friday, the instructions to seek leave to discontinue

the proceedings which Mr. Cashion obtained this afternoon might

very probably have been obtained, at any rate, by yesterday. In the circumstances, I think the fair and just order for costs is that the applicants pay the respondent's costs, but not including

the costs of today. I therefore grant leave, in each matter, to

the applicants to discontinue, and I make those orders in

respect of the respondent's costs of each application. Exhibits

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may be returned. I direct that both the copy filed in Court and

the copy delivered to Mr. Cashion of the affidavit containing the

immune material be returned to Mr. Steven's instructing solicitor

upon his undertaking to the Court that, should any question arise

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by reason of which the Court directs that it be returned, the

affidavit with its annexures will be returned to the Court.

I certify that this and the

preceding three ( 3 ) pages are
a true copy of the Reasons for

Judgment herein of his Honour

I Mr. Justice Burchett.

Associate

Dated:	26 July, 1988.	, .
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