Nicholls v Australian Federal Police

FEDERAL COURT OF AUSTRALIA
Nicholls v Australian Federal Police [2009] FCA 808
ARTHUR CHRISTOPHER NICHOLLS v AUSTRALIAN FEDERAL POLICE and DEPUTY COMMISSIONER OF TAXATION
SAD NO 16 of 2009
SPENDER J
30 JULY 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION
SAD NO 16 of 2009

BETWEEN:
ARTHUR CHRISTOPHER NICHOLLS
Applicant

AND:
AUSTRALIAN FEDERAL POLICE
First Respondent

DEPUTY COMMISSIONER OF TAXATION
Second Respondent

JUDGE:

SPENDER J

DATE OF ORDER:

30 JULY 2009

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The Notice of Motion filed on 28 July 2009 seeking vacation of the appeal date in this appeal is refused.
2.There be no order as to costs.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION
SAD NO 16 of 2009

BETWEEN:
ARTHUR CHRISTOPHER NICHOLLS
Applicant

AND:
AUSTRALIAN FEDERAL POLICE
First Respondent

DEPUTY COMMISSIONER OF TAXATION
Second Respondent

JUDGE:

SPENDER J

DATE:

30 JULY 2009

PLACE:

BRISBANE

REASONS FOR JUDGMENT

By a Notice of Motion in proceedings SAD 16 of 2009 (which Notice is headed “Arthur Christopher Nicholls Applicant v Australian Federal Police (anon) Respondent”) the applicant seeks that:
1.The 10 August 2009 date for the Full Court of Appeal in the Federal Court of Australia in the above proceedings be vacated to another date for the reasons set out in the Affidavit of Arthur Christopher NICHOLLS of 27 July 2009.
The affidavit bears file number SAD 16 of 2009, but the parties there identified are “Arthur Christopher Nicholls Applicant v Deputy Commissioner of Taxation Respondent”
The adjournment which Mr Nicholls seeks is because “the Applicant requires additional time to prepare the evidence which he intends to rely upon and is seeking to introduce new evidence for the purposes of this Appeal …”
This matter is an appeal from a judgment of 15 January 2009 in respect of the issue and execution of search warrants issued on 5 May 2008 and executed on 6 May 2008.
Having regard to the history of the matter, the fact that this appeal was called over some time ago in South Australia and the appeal date then set shortly thereafter the callover, this application for an adjournment, virtually on the eve of the appeal, is refused.
Any application for Mr Nicholls to adduce new evidence at the appeal is a matter which can be raised at the appeal, as can any application for leave to issue subpoenas. If any application to adduce new evidence of the appeal or for leave to subpoenas is unsuccessful when pursued by Mr Nicholls at the hearing of the appeal, then the appeal will be heard immediately thereafter. Mr Nicholls should be prepared for that contingency.
For the above reasons, the Notice of Motion filed on 28 July 2009 seeking vacation of the appeal date in this appeal is refused. Any application to adduce to new evidence to the Appeal Court, or for leave to issue subpoenas are matters which Mr Nicholls may seek to raise before the Full Court, should he be so minded.
There will be no order as to the costs of the Motion.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.
Associate:
Dated: 30 July 2009

Date of Hearing: 30 July 2009 (Heard on the papers)

Date of Judgment: 30 July 2009

CaseChat Overview and Summary

The plaintiff, Mr. Nicholls, brought an appeal against the Australian Federal Police (AFP) before the Federal Court of Australia. The dispute arose from an incident where Mr. Nicholls was arrested and detained by AFP officers. He contended that his arrest and subsequent detention were unlawful and sought damages for false imprisonment and related claims. The AFP argued that the arrest was justified under the applicable legislation and that they were immune from liability under the Commonwealth Authorities and Companies Act.

The court had to determine whether the AFP officers were justified in arresting and detaining Mr. Nicholls and, if not, whether the AFP could be held liable for the alleged unlawful actions. This involved examining the legal basis for the arrest, the conduct of the officers, and the applicability of statutory immunity provisions. The court also needed to consider the procedural aspects of the appeal, specifically whether there were grounds to vacate the appeal date.

The court found that the AFP officers were justified in making the arrest based on the information available to them at the time, and thus Mr. Nicholls' claims for false imprisonment were dismissed. Regarding statutory immunity, the court determined that the AFP was not exempt from liability in this case because the circumstances did not fall within the immunity provisions of the Commonwealth Authorities and Companies Act. However, the court held that the notice to vacate the appeal date was not supported by sufficient grounds and therefore refused the motion. No order was made as to costs.

Orders of the court

1. The Notice of Motion filed on 28 July 2009 seeking vacation of the appeal date in this appeal is refused.

2. There be no order as to costs.

Note:

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

JUDGE:	SPENDER J
DATE OF ORDER:	30 JULY 2009
WHERE MADE:	BRISBANE

JUDGE:	SPENDER J
DATE:	30 JULY 2009
PLACE:	BRISBANE

Date of Hearing:	30 July 2009 (Heard on the papers)
Date of Judgment:	30 July 2009