O'Sullivan v Parkin

[2006] FCA 1654

FEDERAL COURT OF AUSTRALIA

O’Sullivan v Parkin [2006] FCA 1654

PRACTICE AND PROCEDURE – application for leave to appeal interlocutory discovery decision – documents related to adverse security assessments – visas refused because of security assessment

Held – leave to appeal granted – matter of national security  

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Parkin v O'Sullivan [2006] FCA 1413 cited
Church of Scientology Inc v Woodward (1982) 154 CLR 25 considered
Lloyd and Costigan (1983) 82 FLR 104 at 113-114 considered
WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181 considered
Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327 at [30] considered
Jilani v Wilhelm (2005) 148 FCR 255 at 273-274 considered

PAUL O'SULLIVAN (SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY) v THOMAS PARKIN & ORS
VID 1258 OF 2006

HEEREY J
27 NOVEMBER 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1258 OF 2006

BETWEEN:	PAUL O'SULLIVAN (SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY) Applicant
AND:	THOMAS PARKIN First Respondent
MOHAMMED SAGAR Second Respondent
MUHAMMAD FAISAL Third Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	27 NOVEMBER 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Leave to appeal is granted;

2.The costs of the application to be costs in the appeal.

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	VID 1258 OF 2006

BETWEEN:	PAUL O'SULLIVAN (SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY) Applicant
AND:	THOMAS PARKIN First Respondent
MOHAMMED SAGAR Second Respondent
MUHAMMAD FAISAL Third Respondent

JUDGE:	HEEREY J
DATE:	27 NOVEMBER 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant Director-General of Security seeks leave to appeal from a decision of Sundberg J: Parkin v O'Sullivan [2006] FCA 1413. His Honour directed that the parties confer as to the appropriate orders for discovery and if they were unable to agree that they should file written submissions as to the orders that should be made. In substance, there was an order directing discovery and it is that order against which the Director-General of Security seeks leave to appeal.

2. Under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), I have to exercise a discretion as to the grant of leave.

3. There are two proceedings: Parkin v O'Sullivan (VID 1594 of 2005), and Sagar and Faisal v O'Sullivan (VID 188 of 2006), the discovery applications in which were heard together because they raised similar questions of law.  The respondent Mr Parkin is a citizen of the United States of America who entered Australia in June 2005 with a tourist visa valid for six months.  According to a public report by the Inspector-General of Intelligence and Security dated 29 November 2005, Mr Parkin describes himself as “a proponent of non-violent direct action and peaceful civil disobedience against the war in Iraq”.

4. His visa was cancelled in September 2005 because of an adverse security…