Lego Australia P/L v Parragio, P

[1993] FCA 325

3a5- , 14~12

JUDGMENT MO. ......	,	........ ... ....,..... .	,	;
. .

I N THE FEDERAL COURT OF AUSTRALIA ) I '

1 N o . NO. N G 3 7 1 OF 1992

NEW SOUTFi WAtES DISTRICT REGISTRY )

1   t

GENERAL DIVISION i

I I

BETWEEN:  LEG0 AUSTWiLIA PTY LTD

I ,

Applicant 1

AND :	P H I L L I P	PARRAGIO	5
OTHERS
Respondent

c o w :	WILCOX J	RECEIVED
PLACE :	SYDNEY
DATE :	6 APRIL 1993	2 0 MAY 1993
FEDERAL COURT OF

AUSTRRUA

EXTEMPORE REASONS FOR JWDQENT

.

WILCOX	J:	During the course of reading	i
I_

has arisen as to the admissibility of paras 2 to 15 inclusive of the affidavit of Aldo Nicotra of 23 June 1992. It appears that this material was put on affidavit because the respondent had filed a notice of objection to competency; on the ground that the Application, insofar as it sought orders of review under the Administrative Decisions (Judicial Review) Act 1977, was out of time.

within 28 days; that is to say, in this case 12 December 1991 I-

The relevant dates seem to be these. The decision under challenge is the decision to issue a search warrant, or perhaps more than one search warrant, made on or about 14 November 1991. It seems to be the position, by force of s.l1(3)(b)(iii) of the Administrative Decisions (3udicial

" ,

Review) Act, that any application for review ought to be filed	l I
l.

or thereabouts. It is common ground that the present proceeding was not commenced until 9 June 1992. It was served that day. A notice of objection to competency was filed on 1 July 1992, that is to say 21 or 22 days after service. Order 54 rule 4 of the Federal Court rules provide that a respondent to an application under the Administrative Decisions (Judicial peviewl Act who objects to the competency of the application shall, within 14 days after service upon him of the application, file and serve upon the other parties a notice of objection to competency, stating briefly the grounds of his objection. It follows that the notice of objection to competency was itself out of time.

There has been discussion with counsel regarding the notice of objection to competency, Counsel submitted that, even though the notice was filed out of time, reference to a problem of competency was made during a directions hearing on 11 June. I think that this is correct and that the applicant

was put on notice of the problem.	But no action was taken to
resolve the question and the matter has been prepared for

hearing, no doubt at considerable expense.

As it seems to me, even if I upheld the objection to competency, the applicants could proceed under s.39B of the Judiciary Act 1903 and obtain a relief against the respondents other than the justice who issued the search warrant; these other persons are apparently all officers of the Commonwealth. In short, there would be no beneficial purpose, in terms of

resolving the litigation, in upholding the objection to competency. The only effect might be to impede the court in making the most appropriate orders. Under those circumstances, although I have power to waive a non-compliance with the rules, I do not think it is in the interests of justice that I take that course. I am fortified in that conclusion by my belief that the objection as to competency has an element of technicality. Throughout the period from November 1991 until June 1992 the parties were very much at arms length. Indeed, litigation was in prospect. I do not think that the respondents would have had any doubt about the fact that there was an ongoing dispute.

I take the view, therefore, that I should require strict adherence to the rules and, accordingly, reject the application to competency, at least on the ground of the application being filed out of time. To the extent that there may be other available matters regarding competency, they can be dealt with in due course when the evidence is complete. It

Nicotra's affidavit; I gather that they are not pressed on the	follows that I reject the tender of paras 2 to 15 of m
view that I have adopted.
RECORDED NOT TRANSCRIBED
The remaining objections to M r Nicotra's affidavits really raise two questions. Paras 16 to 18 inclusive contain material regarding certain telephone conversations. The conversations dealt with the question of a meeting designed to discuss settling the question of the appropriate basis of valuation. Paras 20 to 40 inclusive deal with the events which occurred when the warrants were issued. Objection has been taken to both these categories of material, I think correctly. It seems to me that one has to judge this matter by reference to the Statement of Claim which has been further amended as recently as this morning.
The complaint that is made in the Statement of Claim concerns the material put before the issuing justice by the information and the attached documents. The complaint has two elements. Firstly, it is said that some of the information was incorrect and misleading because of what was said; and secondly that it was misleading by reason of the omission of relevant material. It seems to me that, if this claim is made out, that has an effect in terms of the validity of the warrant regardless of the question whether or not there were settlement discussions on foot at the time. If it is not made
discussions being arranged, an application was made for a out, then the fact that, whilst there were settlement
warrant is irrelevant.
In relation to the method of execution of the warrant, I can see that this may be relevant on the question of damages, if the case gets to that stage. However, a direction was made - at the request of the applicants I think - for a deferment of issues of damage. I do not think that there is anything in paras 20 to 40 inclusive which goes to the matter of liability. If the application succeeds and the warrant is held invalid and the applicants pursue their claim for damages, it will no doubt be necessary to consider what were the consequences of the issue of the warrant and that must include what happened at the time of the warrant's execution. Consequently my rejection of these paragraphs at this stage says nothing about the position which might apply if a damages inquiry is undertaken. In respect, however, of the present hearing, I reject all of these paragraphs. I understand that paragraphs 41 to the end of the affidavit are not pressed. This means that the only paragraphs in Mr Nicotra's affidavit which survive are para 1 in which he introduces himself and para 19 in which he annexes the warrants.
I certify that this and the preceding four ( 4 ) pages are a true copy of the Reasons for Judgment
of the Honourable , J w , Wilcox.
Associate: q w - Dated: 6 ~pril 1993

APPEARANCES

Counsel for the Applicant:	R J Ellicott QC,
A J L Bannon and D Studdy
Solicitors for the Applicant:	Blake Dawson Waldron
Counsel for the Respondent:	M Weinberg QC and
G Johnson
Solicitors for the Respondent:	Australian Government Solicitor
Dates of hearing:	6 April 1993