Le Breton, A.J. v The Commissioner of the Australian Federal Police

[1989] FCA 238

Re: ADAM JOHN LE BRETON
And: THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
No. WA G39 of 1989
FED No. 238
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Administrative Law - Australian Federal Police - pending criminal charge re importation of cannabis - businessman defendant - fear of disclosure of charge to other governments - alleged practice of Australian Federal Police - fear of detrimental impact of disclosure on business dealings in South East Asia - claim for injunction to restrain disclosure - claim for interlocutory relief - no cause of action identified - evidence disclosing no intention or threat to disclose - claim for interlocutory relief dismissed.

Customs Act 1901 s.233(1)(b)

HEARING

PERTH

#DATE 18:4:1989

Counsel for the Applicant: Mr J. Courtis

Solicitors for the Applicant: Claudio Russo Shaw

Counsel for the Respondent: Mr P. Macliver

Solicitors for the Respondent: The Australian Government

Solicitor

ORDER

The claim for interim relief is dismissed.

The applicant is to pay the respondent's costs of the claim for interim relief.

The directions hearing will be adjourned to 12 December 1989 at 9 a.m.

4. There will be liberty to apply on 48 hours notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant, Mr Adam Le Breton, has been charged by an officer of the Australian Federal Police with an offence against s.233B(1)(b) of the Customs Act 1901, it being alleged that he imported into Australia a prohibited import being 4 grams of cannabis. He intends to plead not guilty to the charge and has elected to be tried by a judge and jury. Mr Le Breton is concerned that the Australian Federal Police have a practice of communicating to governments and relevant authorities in other countries, including Asia, the names of Australian citizens who have charges pending against them and details of those charges. Such a disclosure in his case would, according to Mr Le Breton, have a disastrous effect upon his ability to do business in South East Asia and Japan. Certain correspondence has been exchanged between his solicitors and the Australian Federal Police and the office of the Director of Public Prosecutions, but no undertaking has been given that such disclosure will not be made. He now applies to this Court for an order restraining such disclosure pending his trial and claims an injunction pending the hearing of his application in the same terms.

1. I am not satisfied that any basis is shown at this stage for the grant of any interlocutory relief and in coming to that conclusion I apply the usual tests: that there must be a serious question to be tried and that the balance of convenience must favour the applicant for interlocutory relief. It seems to me that the most that the applicant could hope to establish is that any threatened release of information by the Australian Federal Police would constitute an abuse by the officers concerned of statutory power for an improper purpose or for one of the other grounds upon which a review may be granted.

2. I am not satisfied, on the materials before me, that the Australian Federal Police intend or threaten to disclose to the governments of any other countries the fact that this applicant has been charged with an offence. There was in the material and particularly in correspondence between the applicant's solicitors and the Australian Federal Police, and lately, the Director of Public Prosecutions, an unfortunate unwillingness to state the position clearly which may have led to a belief that some transmission of information was about to take place. Mr Macliver, appearing today on behalf of the Commissioner for the Australian Federal Police, has informed the Court that the police do not volunteer information concerning pending charges to the governments of other countries, although they will make available on request information about convictions. And his instructions indicate that the relevant officer of the Australian Federal Police in Western Australia is unable to conceive of any situation in which another government would want to be informed about a pending charge against Mr Le Breton.

3. That is not to say, that some circumstances might not arise in which such information is sought. In that event Mr Le Breton's position would be no different from that of any other businessman charged with an offence which could be said to go to his credit or reputation and in respect of whom information concerning that charge is made public in the ordinary course of press reporting of such matters. If there is a difference, it may be one of degree in terms of the effect upon Mr Le Breton's business if information about the pending charge is released, particularly to the Japanese government.

4. At the moment I am unable to see any basis for the grant of interim relief. No cause of action has been identified and no real threat of adverse action has been established, even on a provisional basis. The assurances from the bar table given by counsel for the respondent (although not amounting to undertakings) indicate that there is no basis for fearing any immediate damage to him or any immediate or likely disclosure. The application for interim relief will be dismissed.

5. The orders I make are as follows:
   

1. That the claim for interim relief is dismissed.

2. The applicant is to pay the respondent's costs of the claim for interim relief.

3. The directions hearing will be adjourned to 12 December 1989 at 9 a.m.

4. There will be liberty to apply on 48 hours notice.