Malubel Pty Ltd v Elder, Wendy

[1998] FCA 1417

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - application for stay of proceedings pending application for special leave to appeal to High Court of Australia - principles for granting a stay - no exceptional circumstances to warrant granting of relief sought

Rahme v Commonwealth Bank of Australia (1993) 117 ALR 618, referred to

MALUBEL PTY LTD & ANOR v WENDY ELDER & ORS

NG 15  of   1998

MADGWICK J
29 OCTOBER 1998
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 15  of   1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MALUBEL PTY LTD
FIRST APPLICANT

JIN KYU CHUNG
SECOND APPLICANT

AND:

WENDY ELDER
FIRST RESPONDENT

DONALD WHINFIELD
SECOND RESPONDENT

ALBERT GARDNER
THIRD RESPONDENT

JUDGE(S):

MADGWICK

DATE OF ORDER:

29 OCTOBER 1998

WHERE MADE:

PERTH

SHORT MINUTES OF ORDER

1. The application is dismissed with costs.

2. The respondents are not to have access to the documents obtained by the warrant before 4pm on 3 November 1998.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 15 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MALUBEL PTY LTD
FIRST APPLICANT

JIN KYU CHUNG
SECOND APPLICANT

AND:

WENDY ELDER
FIRST RESPONDENT

DONALD WHINFIELD
SECOND RESPONDENT

ALBERT GARDNER
THIRD RESPONDENT

JUDGE(S):	MADGWICK
DATE:	29 OCTOBER 1998
PLACE:	PERTH

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR: In this matter the applicants seek a stay of proceedings upon a judgment of a Full Court of this Court which rejected their appeal against the dismissal by a single judge of the Court of its claim that a certain search warrant which was executed about a year ago was invalid.  The judgment of the Full Court was in all material respects a unanimous one.

It is not doubted that the Court has jurisdiction to grant this relief, notwithstanding that an application for special leave has now, as I understand it, been filed in the High Court of Australia.  I think it is correct, as Mr Wigney for the respondent has submitted, that the principles that are applicable are those which would be applied by the High Court itself if it were hearing a similar application. 

It has been made quite clear that such applications stand in a very different position from ordinary interlocutory applications intended to preserve the status quo and/or the subject of the litigation pending a final determination by the Court, and also they stand in a different category from applications to any other appellate court to stay a judgment at first instance pending appeal.  The reason for that is that the High Court is the final court of appeal and a matter can only be entertained by that Court if it gives special leave to appeal; in the nature of things the rate of success of such applications is a low one. 

It is correct to say that it is a mere precondition for the exercise of the extraordinary jurisdiction to grant a stay such as is sought that the Court be satisfied that the orders sought are required to preserve the subject matter of the litigation.  That is not a sufficient condition.  The additional condition that needs to be satisfied is that there be some exceptional circumstances shown that take the case out of those in which it might be thought desirable simply to preserve the subject matter of the litigation.  In Rahme v Commonwealth Bank of Australia (1993) 117 ALR 618 at 620, Deane J said that:

“…[i]t is only in demonstrably exceptional circumstances, such as the immediate threat of the destruction of the subject matter of the litigation or of grave and irreparable damage being sustained, that an application to this court for interlocutory relief can be justified.”

That approach is entirely in accord with what was said in the better known case of Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681.

The matter of concern to the applicants is that if the Federal police have access to the documents which have been seized in execution of the challenged warrant, then they will acquire such information as those documents disclose or as may be inferred from those documents, and it would not be known to the applicants what information that was and/or how that information might be used to the disadvantage of the applicants in the further investigation of the matters suspected by the police.

The matter touches civil liberties and the Court should have regard to that in determining whether there is anything exceptional in the nature of the proceedings.  I explained this in more detail in Arumainathan v Minister of Immigration and Multicultural Affairs (unreported, Federal Court of Australia, 4 September 1998). Even allowing that, in some respects, the case and the interests which the applicants are concerned to protect, might be thought to be of a more sensitive kind than, for example, mere property rights, it seems to me that there really is nothing exceptional in the case at all.

As Mr Wigney as pointed out, it is not correct to say that the appeal would be rendered nugatory.  There would be various forms of relief still available to the applicants if this application be refused but it obtained special leave to appeal and that appeal were ultimately upheld by the High Court of Australia.  These would include the discretion of any examining magistrate on any committal or of any judge on any trial to exclude the material obtained by the search warrant from reception into evidence.  There are other legal rights spelt out by Mr Wigney in his submissions, such as an action for trespass, that might also be available.  It is not a case where the entire subject matter of the appeal would be destroyed and it is not even the case that the most fundamental interests sought to be protected by the law's sparing attitude to the use of search warrants would have been infringed. 

I think Mr Roberts of senior counsel, who appeared for the applicant, was correct in his characterisation of the prospects of success of a special leave application when he said that it cannot now be said that there is no prospect at all of special leave being granted.  That said, and although it is invidious for me to pass upon it, it does not seem to me that there is a strong probability that special leave would be granted.  That is another matter that I think tells against the application. 

For these reasons, the application is dismissed with costs.  However, I will order that the respondents not have access to the documents obtained by the warrant before 4pm on 3 November 1998, to give the applicants an opportunity to seek a stay in the High Court, if they so wish.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             29/10/98

Counsel for the Applicants:	P Roberts SC and A O'Brien
Solicitor for the Applicants:	Giles Payne and Co
Counsel for the Second and Third Respondent:	M Wigney
Solicitor for the Second and Third Respondent:	Australian Government Solicitor
Date of Hearing:	29 October 1998
Date of Judgment:	29 October 1998