O'Sullivan v Parkin

[2007] FCAFC 98

FEDERAL COURT OF AUSTRALIA

O’Sullivan v Parkin [2007] FCAFC 98

PRACTICE AND PROCEDURE – appeal against order for discovery – documents relating to adverse security assessments – where orders for discovery not made – whether leave to appeal granted should be revoked.

Australian Security Intelligence Organisation Act 1979 (Cth)

PAUL O'SULLIVAN (SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY) v THOMAS PARKIN, MOHAMMED YUSSEF SAGAR AND MUHAMMAD FAISAL

VID1258 OF 2006

EMMETT, DOWSETT & SIOPIS JJ
22 MAY 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID1258 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

PAUL O'SULLIVAN (SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY)
Appellant

AND:

THOMAS PARKIN
First Respondent

MOHAMMED YUSSEF SAGAR
Second Respondent

MUHAMMAD FAISAL
Third Respondent

JUDGES:	EMMETT, DOWSETT & SIOPIS JJ
DATE OF ORDER:	22 MAY 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Leave to appeal granted on 27 November 2006 be revoked.

2.The matters be remitted to the primary judge.

3.The costs of the appeal be reserved for the docket judge in the respective matters.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID1258 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

PAUL O'SULLIVAN (SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY)
Appellant

AND:

THOMAS PARKIN
First Respondent

MOHAMMED YUSSEF SAGAR
Second Respondent

MUHAMMAD FAISAL
Third Respondent

JUDGES:	EMMETT, DOWSETT & SIOPIS JJ
DATE:	22 MAY 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1. There are two appeals before the Court, although on one view they have been consolidated since only one proceeding number has been allocated to them.  The appeals arise out of proceedings brought in the Court on the one hand by Thomas Scott Parkin and on the other hand Mohammed Yussef Sagar and Muhammad Faisal (the Assessees).  Both are against the Director-General of Security.

2. The proceedings arise out of security assessments concerning the Assessees made by or on behalf of the Director-General.  In the proceedings, the Assessees allege that the Director-General acted beyond jurisdiction on a number of bases, including the following:

   (a)no facts existed that would justify an adverse assessment of a relevant applicant;

   (b)the Director-General took into account irrelevant matters, namely supposed facts that were not facts; and

   (c)the Director-General failed to take account of relevant matters, namely, the true facts of and concerning the relevant assessees’ activities.

3. The Assessees sought discovery and after hearing argument on behalf of the parties, a judge of the Court concluded that there should be discovery.  His Honour’s conclusion was that there was no sufficient reason advanced why discovery should not be ordered.  His Honour directed that the parties confer as to the appropriate orders for discovery and directed that, if by 17 November 2006 the parties were unable to agree on appropriate orders for discovery, they should, by 1 December 2006, file written submissions as to the orders that should be made.  His Honour ordered that the Director-General pay the Assessees’ costs.

4. The Director-General then sought leave to appeal from the judgment and orders of the primary judge.  The application for leave to appeal came before another judge of the Court who, on 27 November 2006, ordered that leave to appeal be granted and that the costs of the application for leave be costs in the appeal.  His Honour was mindful of the terms of the orders made on 3 November 2006.  Thus, his Honour observed that, in substance, there was an order directing discovery and that it was from that order that the Director-General sought leave to appeal.

5. When the matters were called on for hearing the question of the status of the appeals was raised.  It appears that, for reasons that are not presently before the Full Court, the parties did not confer as to the appropriate orders for discovery.  Accordingly, no written submissions have been made as to the orders that should be made and no orders for discovery have in fact been made.  The only orders from which appeal could be brought are the directions for conferring and filing written submissions or the order for costs.  However, the substance of the matters that the Director-General wishes to ventilate on appeal go well beyond that. 

6. The Director-General says that the primary judge erred in principle in ordering discovery where the applicants have made no more than a bare allegation without adequately particularising the allegation.  Secondly, the Director-General says that, even if that principle is not available in the present circumstances, this case involves national security, it is only in an exceptional case involving national security that discovery should be ordered and this is not an exceptional case.  Thirdly, the Director-General says that, on the proper construction of the Australian Security Intelligence Organisation Act 1979 (Cth), while discovery can be ordered against the Director-General, this is not one of the circumstances in which discovery would be ordered. The second and third matters are clearly connected.

7. In their written submissions, the Assessees have described the categories of documents in respect of which they say the discovery contemplated by the primary judge should be ordered.  However, the Director-General does not accept that they are the terms in which discovery would necessarily be ordered if submissions were made to, and argument were heard by, the primary judge.

8. We have raised, in the course of preliminary dialogue with counsel, the question of the appropriateness of the argument as to discovery both before the primary judge and particularly before the Full Court in the light of the directions and orders that have been made to date.  The Director-General has pleaded to allegations made in the statements of claim filed on behalf of the Assessees.  However, the Director-General contends that, in the absence of some particulars of the allegations made, particularly the allegations to which I have already referred, the statements of claim really disclose no cause of action.

9. On one view, an appropriate course might have been for the Director-General to move for summary dismissal in the absence of particulars of the allegations.  On the other hand, of course, similar if not identical issues may be raised as to the first matter that the Director-General wishes to rely upon, namely, that discovery ought not to be ordered in support of a bare, unparticularised allegation.

10. In all of the circumstances it appears to be inappropriate for the Full Court to be embarking on the hearing of an appeal against orders for discovery that have not yet been made.  Certainly the primary judge has indicated his view that discovery ought to be made but has not yet been given the opportunity of formulating the orders that he considers appropriate.

11. While there are directions and orders from which appeal could be brought, appeal from those orders does not really raise the issues that the Director-General seeks to ventilate.  In all the circumstances, the Court considers that it is appropriate that the leave granted be revoked and that the matters be remitted to the primary judge for further consideration in the light of the direction that his Honour gave on 3 November 2006.

12. The Director-General submits that there should be no order as to the costs of these appeals to date.  It is not entirely clear what the circumstances were that led to the granting of leave to appeal and the stance taken by both sides.  In the circumstances, the Court considers that the appropriate course is to reserve the costs of the appeal, which would include the question of costs of the leave to appeal, to be resolved by the docket judge in the respective matters.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Emmett, Dowsett & Siopis.

Associate:

Dated:        29 June 2007

Counsel for the Appellant:	C Gunst QC with S Donaghue
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	J W K Burnside QC with L W Maher
Solicitor for the Respondent:	Maurice Blackburn Cashman
Date of Hearing:	22 May 2007
Date of Judgment:	22 May 2007