MF1, MF2, & MES v National Crime Authority

[1992] FCA 220

201 92

JUDGMENT NO. 3.. ..... ........ ......-.

IN THE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	) No. VG 130 of 1991
)
GENERAL DIVISION	1
)
B E T W E E N :

"Mp1"

Applicant

- and -

NATIONAL CRIME AUTHORITY

Respondent

No. VG 131 of 1991

B E T W E E N :

"MF2"

Applicant

- and -

NATIONAL CRIME AUTHORITY

Respondent

No. VG 132 of 1991

B E T W E E N :

"MES"

Applicant

- and -

NATIONAL CRIME AUTHORITY

JUDGE	:	Heerey J.
PLACE	:	Melbourne
m:	18 March 1992

costs and that the documents lodged with the Court under s.32(3) of the National Crime Authority Act 1984 be retained

EX TEMPORE REASONS FOR JLTDWNT

The applicant applied for an order of review under S .32 (4) of the National Crime Authoritv Act 1984 seeking an order setting aside the decision of the Authority to require persons summoned to produce certain documents of a company. On 9 August 1991 I ordered that that application be dismissed with

for a perlod of 21 days and then, l£ an appeal be instituted, until the hearing and determination of the appeal, but otherwise they be then returned to the solicitors for the applicants.

An appeal to the Full Court was dismissed and last Thursday,
12 March 1992, the High Court refused the applicant special

leave to appeal. The question now arises as to what is to be done with the documents which have been placed in the custody of the Registrar of the Court under S. 32 (3). It was conceded by Mr Cust, who appeared for the respondent, that the order I made on 9 August 1991 would in its terms require that the documents be returned to the solicitors for the applicants. However, he sought a variation of that order which would have the effect that the documents would go directly to the Authority.

I note that although the Act by s.32(5) makes provision for the disposal of documents where the Federal Court upholds a clam to refuse to produce the documents, there is no express provision dealing with the situation in the present case, namely that the claim for entitlement to withhold the documents has been refused by the Court.

I am of the opinion that I should not vary the order of 9

August 1991. I think Mr Murphy, who appeared for the	applicants, was substantially correct in contending that the
Court does not hold documents produced under s.32(3) in some capacity analogous to that of a bailee or stakeholder for the parties. The documents remain the property of the applicants, or at least the applicant is entitled to immediate possession of them, and the applicants remain under a duty to discharge their obligation to produce the documents to the Authority. No doubt that will be done, since the Courts have now determined that the claim for entitlement to withhold production on which the applicants relied is not justified.
I do not thlnk I need to decide whether the Court retains any discretionary power to deal witih the documents. Suffice it to say in the present case from my own knowledge of the circumstances and the nature of the documents, there could be no reasonable apprehension that the documents would not be produced and indeed Mr Cust dld not suggest otherwise. So I decline to make the variation sought.

I certify that this and the

preceding two (2) pages are

a true copy of the Reasons for Judgment o f the Honourable Mr Justice Heerey

Appearances

Counsel for the Applicant:	Mr T Murphy
Solicitors for the Applicant:	Messrs Corrs Chambers Westgarth
Solicitor acting as Counsel
for the Respondent	Mr N Cust
Solicitor for the Respondent	Australian Government

Solicitor