Louis, R.M. v Commonwealth of Australia

No judgment structure available for this case.

3 6 NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
)
AUSTRALIAN CAPITAL TERRITORY	)
) No. ACT G 54 of 1986
DISTRICT REGISTRY	)
I

DIVISION

GENERAL

)

BETWEEN

: ROSALINA

MELENA

LOUIS,

GRAHAM

JAMES LOUIS, FERDINAND GRAHAM

LOUIS I by his next friends

Rosallna

Melena

Louis

and

Graham

James

Louis, RACHAEL

ROSE LOUIS by her next frlends

Rosalina

Melena

Louls

and

Graham

James

Louls, MURRAY

DANIEL

LOUIS

by his next

friends Rosalina Melena Louis

and Graham James Louis

Applicants

AND :

THE COMMONWEALTH OF AUSTRALIA

First Respondent

PANTAS AIRWAYS LIMITED

Second Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER	:	Neaves J.
DATE OF ORDER	:	12 September 1986

WHERE MADE

: Canberra

THE COURT ORDERS THAT:

1. The appllcatlon for leave to appeal from the orders made on 1 August 1986 by the Supreme Court of the Australian Capltal Territory be dismissed.

2 .

The

applicants pay the respondents' costs

of

the

appllcatlon.

Note: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

IN THE TEDERAL--COURT OF AUSTRALIA

) )

-

AIJSTRALIAN CAPITAL TERRITORY

)

)	No. ACT G 54 of 1986

UISTRICT REGISTRY

)

CIVTSION

GENERAL

)

BETWEEN

: ROSALINA

MELENA LOUIS, GRAHAM

JAMES LOUIS, FERDINAND GRAHAIA

LOUIS I by hls next friends

Rosallna

Melena

Louls

and

Graham James Louis, RACHAEL

ROSE LOUIS by her next frlends

Rosalina Melena Louis and

Graham James Louis, --

MURRAY

DANIEL LOUIS by his

Rosalina Melena

Louis

and Graham James

Louis

Appllcants

AND :

THE COMMONWEALTH OF AUSTRALIA

F'irst Respondent

QANTAS AIRWAYS LIMITED

Second Respondent

W: Neaves J.

m:	12 September 1986

REASONS FOR JUDGMENT

This is an appllcation under s.24

of the Federal Court

of Australia Act

1976

(Cth) by Graham James

Louis, his wife

Rosallna Melena

Louis, and thelr infant children Ferdinand

Graham Louls

I, Rachael Rose Louls and Murray Daniel Louls

sulnrJ by thelr next

frlends Graham James Louis and Rosalina

Melena Louis (all collectlvaly referred to

as "the applicants")

for leave to appeal from lnterlocutory orders made by the

2

Supreme Court of the Australian Capltal Terrltory (Miles C.J.)

on 1 August 1986 upon two notices

of motlon flled In that Court

on behalf of thc appllcants and dated respectlvely 9 Aprll 1986

and 29 July 1986.

It appears that

on 27 June 1985 the appllcants as

plaintiffs commenced an action in the High Court of Australia

agalnst the Commonwealth of Australla ("the Commonwealth") and Qantas Airways Limlted ("Qantas") as defendants. The gist of the action is that the Commonwealth, by employees of Qantas their agents, falsely Imprisoned and wrongfully arrested the

applicants in Hong Konq, put them on board a Qantas aircraft and brought them to Australia against their will. Pursuant to s.44 of the Judlciarv Act 1903 (Cth), the action was, by order

of a Justice of the High Court, remltted

for hearing and

determination to the Supreme Court	of the Australian Capital
Territory.

After pleadings had closed, the Supreme Court ordered

the Commonwealth and Qantas to make discovery

of the documents

in their possession or power relevant

to

the issues in the

action. In accordance wlth that order, an affidavit was sworn

on behalf of the Commonwealth by Paul Edward Fergus on 25 July

1986. Mr

Fergus, who described himself as

the acting head of

the

Legal

Activities

Branch

of the Department of Forelgn

Affairs, deposed that the Commonwealth

had In its possession or

power the documents relatlnq to the matters in Issue in the

action whlch were

described

in the First Schedule to

his

affldavlt. The schedule was dlvlded Into four parts. There

3 .

was no objectlon to produclng the documents described In part l. Production of the documents described in part 2 was

ob~ected to on the ground of legal

professional privilege.

Publlc

Interest

privilege

was

claimed

in

respect

of

unidentlfled parts of each of the documents

described in part 3

and for the whole of

each of the documents described

in part 4 .

The grounds upon

which

public interest privilege was claimed

were not made apparent except

In

so

far as

they could be

deduced from the descrlption

of the particular documents.

The affidavit of discovery filed on behalf of Qantas

was that of

Leslie James Fisk sworn on 10

July 1986. Mr

Fisk

described himself as the Corporate Secretary

of Qantas and

deposed that the company had in Its possession or power the

documents described in parts 1 and 2 of Schedule 1 to his

affidavit. No objection was raised to the production of the

documents described In

part 1 but legal professional privilege

was claimed in respect of the documents described in part

2.

The notices of motlon dated 9 April 1986 and 29 July 1986 filed on behalf of the applicants are somewhat obscure but

the orders sought thereln may be summarised

as follows:

(a)

that the Commonwealth and Qantas give further and bett.er discovery;

(b)

that the Commonwealth and Qantas produce for Inspection the documents for which

legal professlonal privllegc

and, In the

case of the

Commonwealth,

public

Interest prlvllege was claimed;

(c)	that the Minister for Aviation produce

a11 information t-elatinq to the forced

entry of the appllcants Into Australla;

4 .

that

the

Commonwealth

and

Qantas

dlsclose the names and other details of their agents and servants Involved in the events which are sald to form the

basls of the applicants'

cause

of

actlon;

that Qantas produce information relating

to conferences with

the Commonwealth and

its servants and agents relating to the

events In question;

that the actlon be set	down	for trial
immediately;

that

he

Supreme

Court

ordpr

that

criminal charges be laid against the

Commonwealth,

Qantas

and a named

individual; and

that the Supreme Court order that the applicants' grievances be given media publicity.

Orders for costs were also sought.

When the matter came before the Supreme Court,

Graham James Louis appeared in person.

He sought to appear

for the other applicants none

of whom attended in person

or

appeared by solicitor or counsel. Miles

C.J. did not find

it necessary to determine whether

Mr Louis was authorised to

appear for the other applicants and treated the application

before him as one by Mr Louis alone.

After hearing argument, his Honour adjourned for

further consideratlon the question whether the documents,

or

part documents, in respect

of which the clalm for public

interest privlleqe had been made

by the Commonwealth should

be produced. Apart from the question of

costs, which was

reserved, his Honour declined to make

any

of the other

5 .

orders

sought In the

notices

of

motion.

The order

for

further arid better discovery was refused as, in his Honour's

n e w ,

there

had not been

placed

before

the

Court

any

materlal sufficient to raise a substantlal possibility that there were in existence documents whlch were relevant to an issue in the action and which had not been discovered.

Slmilarly, his Honour took

the view that it

had not been

shown that the Minister for Aviation had any documents in

his possession or power which were relevant to the case and

which had not been discovered.

No basis had been shown,

so his Honour

held, for

directing

the

Commonwealth

or Qantas to produce

for

inspection

the

documents

in

respect

of which legal

professional privilege was claimed, the description of the

documents

set

out

In

the

respective

affidavits

being

sufficient, in the absence of

any countervailing material,

to indicate that the privileqe was properly claimed.

His

Honour

further

held

that

it was quite

inapproprlate

to

order

disclosure

of

the names of

the

persons involved in the events which were said to form the

basis of the applicants' cause of actlon.

In relation to the applicatlon that the action be set down for trial immediately,

his Honour directed that

the

Ordindry course of procedure in the Court be followed and	a
certlflcate of readlness be filed in the usual way.

6 .

Thc orders whlch are summarised

m

sub-pars ( g ) and

(h) above were refused on the qround that

it was doubtful if

they were orders the Supreme Court had jurisdlctlon to make

and on the further ground that there was

no material before

the Court whlch would lustlfy their belng made.

Mr Louls

appeared In person before this Court and

put submissions in support of the application. He submitted that leave to appeal should be granted in respect of all of the matters which the Supreme Court had determined adversely

to the applicants.

It 1 s obvious, however, that a number of the lssues

raised before the Supreme Court are such that

no case for

leave to appeal could be made

out.

I refer, particularly,

to the submission that the Supreme Court should order the

laylng of criminal

charges,

the

submission

that

he

applicants' grievances be given media publicity and the

submission that the action should be set

down

for trial

immedlately. The only

substantial

issues

that

require

consideration are whether the Commonwealth and Qantas should

be

ordered

to

give

further

and

better

discovery

(the

applicants not belng able to point to any specific document

not discovered) and whether inspection should

be ordered of

the

documents

in

respect

of which legal

professional

privilege was claimed.

It 1s

well settled that an

affldavit of discovery

1 s

concluslve

unless its lnsufficlency appears from the

7.

pleadlngs, the affldavlt itself or the documents referred to therein, or from any othcr source that constltutes an

adrnlsslon of the

exlstence of a dlscoverable document. The

affidavlt wlll also not be concluslve If

it appears that a

party has excluded documents under a mlsconception of the

case.

The standard of proof required

to justify an order

for further and better discovery

1 s whether the Court

has

"reasonable ground for being fairly certain" that there are

[1986] FCA 396

9 Dec 1986