Pearce, A.G. v Senator the Honourable John Hutton

[1985] FCA 277

I

The .xppl lcants seek an Order thac a l e t t e r (nf r e ? u e s t te

s e n t t o t h e ? u d l c l a l a u t h o r i t l e s of Honq Konq t o t a k e o r caUse t o

be t a k e n t h e ev;dence of Herbert Adamczyk, th? manaqlng d l r ~ c t ~ r

of German Mgtok-T'; Ltd Zf Honq Rong. The z p p ? l c a t l c n 1 s oppc>zen b y

the respondents . Much of t h e material souqnt t o be tr?lle4 CI, I n

suppor t of kiLe a p p i l c a t l o n was o b i e c t e d t o and I gave a r l e - ~ s l r ~ n

y e s t e r d l y I n r e spec t of t h o s e o b ~ e c t i o n s . 1 t-hlnk t t unnecessary

t o s e t ou t agaln t h e d e t a i l s of the evxdence whlch I mc-ntioncxl I n

t n e course of g l v l n g my d e c l s i o n on t h e o b j e c t l o K ? t o c?vl'len,:e

Thnse d e t a l i s ? r e t o b? taken as incorpora ted wl th these t-?&sclns.

The p r i n c i p a l d l f f l c u l t g t h e a p p l l c a t i o n i z c e s is t h 3 t

i t has heen r i ea r f o r a long time that the respondentz mlqilt well

need ebldence from Hon3 Kong. Counsel f o r the respondent? ha5

poln ted t@ t h e f a c t that the prlnclpal ppi1ca:;on began l n

November 148.1 and on 1 3 December 1584, a t d d1rectLon5 hearln?,

Spender J . mentloned izhe p o s s l b i l i t y of 6 l e t t e r cf rey-lest .

Co~mse l f o r tho p resent applicants, in response K a r e q ~ r s t from

h i s Honour 5 s t a w h y the matter should not be s e t cio-kn f o r V L L ? ~ ,

s a i d t h a t thsere was a poss lb i . i i t y of a n a p p i l c a f l m fc.r a le t ter

of reclue-,t. t o lsgue t o a u t h o r i t l e s m !imq Y m g . V h ~ t , fh+

pr lnc lpa l - app l i ca t lon was heard, beglnnlng on l 3 Mali 13858, EO

attempl; had course gf thit phase > e m m3dc t o o b t a i n a l e t t e r nf r?ql lezc. Put lng th?

of t he hearing, t h e a p p l i c 3 n t s a p p l l f r l f o r .

and wet-e gran ted o n terms, an a d ~ o u r r ~ m e n t o a t t e m p t t n ,:sbtilin

evtdence from Hcny Kong. Thelr l n t e n l 10n then was, n o t t o

proceed by way of i s t t e r of request, but to induze a Fersor ot-

per sons In Hong Konc: t o come v o l u n t a r l l y ti7 l i u s t r a l l a t o qlve

e v ~ d e n c e a b o u t t h e matter. That f a l l e d . i.Jcw. on t he eve o f

4.

resumption of tine hea r ing of t h e p r l r i c ~ p a l p r o c e e j l n g , +,ne

q u e s t l m of a l e t t e r of r eques t 1 s revived. .AlthouaL, a; counsel L

€ o r the respondents says, t h e h l s t o r y 01 t he ma t t e r 1 s very mllch

a q a l n s t t,he appl l ran ts , the ev ldence ava l l la5 le f rom r l o ~ ~ q K?nq, l f i

any can 1n f a c t be cb ta lned , qces t o t h e ve?-:r h e a l t tJC the

m a t t e r . The a~i]our:~ment I g r a n t e d t o e n a b l e 1 n v e s t l g ~ t l o r . s t c b=

pursued 1r-1 Honq I<mg was gran ted mth g r e a t rr?nc+anc?. s l n c e 1.t

appeared. t o Tpe t h a t t h e r e was no reasonable e:iruse f?r t he

p re sen t app l l cmts be lnq u ready . The mster;al s3:d be

a v a i l a b l e I n Hong Konq, however. lf -t be a \ l t h ? n t l c . w~ulrl ?*?em

i l k e l y t o be cencluslve of what mlght be ca l l ed t he s u o s l a n t l v e

issue und?rlylnq the whoie mat ter : bjere t h e qood.5 u r l a v i u l l y

imported? For the documents which Mr F l t z p a t r l c k c l a l m ~ trJ hzve

examined there Inc lude , in respec t of each r? levant :.7eh1rle, a

debl t no te f rom the vendor t o the purchaser showlna a hlqher

pr l ce t han t o by Mr Fcarce. Mr. Tearce chat s e t ,mt i n the sa les cont rac t p rcduced and sj7ot-n

s a id no tk l rq In h l s evidence aba2ut

a n y d z b l t m t e ha-zlnq been Issued and, unless M r F:I zpatriclc has

s l m p l y In-JentPd the whole scory, the cnnclus ion Khat t \ F ~ o n c s

b7e~e importzd uniaxful ly may seem d l f f l c u l t t o avold . F:br t h%t

r eason , t he mer l t s of t h e m a t t e r l o o k l n g a t them b road ly a re I P ~ S

IR Zavowr of the present respondents han they were hhen i

re iuc tan t ly g ran ted an ad lournment of t he p r lnc lpa l p roceed lnq

from 15 May u n t l l t o d a y . It w a s then admitted. by counsel f o r t h e

p re sen t applicants :hat chey had no d l rec t ev ldenct of un’~zvfu1

importat lon. nor was there any suqges t lcn tha t documents had beer

examned I n Honc Kon3 on behalf of zhe respondents evldenclna

unlawful lmpor ts t lon .

5. I

Onc d l f f l c u l t y a b o u t d e c i d l n g t h e a p p l z c a t l o n a!: t h l s

stage 1 s tha t i t 1 s unclear what s t a t u s rhe afildavlt of Mr I

F i t z p a t r i c k , flled i n s u p p o r t of the p r e s e n t a p p l l c a t l o p , wxll

have m t h e pr;prlpal proceedins . it has been admltted I n the

m t c r l o c u t . 3 c g a c p l l c s t l o n o n l y and ~t a ~ p ~ a r s cc. t4e ~.v lae~- l : - t-hsr:

an a t tempt may be ma.3e t o have it aLmi.tteu I n I h e F r l n i ~ p z l

proceedlnq. Tn? outcome of that attempt c m i d *atffe-t +h?

rezsonahleness of p e m i t t l n g t h e p r e s e n t a p p l i c a n t s L@ ct tempt

agaLn to obta ln ev idence , admiss ib l f under che o td lna t :I rlJies, of

the ducamznts 57hich Elr Fitzpacrick examined. ( jn the ~ h c l e ,

however, l t 1 s b f t t e r t o a t l e a s r give ar. ~nlimatlnn c'f che

l l k e l y f a t e of ?tie present. a p p l ~ c a t i o n , a t t h 1 z s t a . T e . B e f o r c

dolng s o , I shou!d s t r e s s t h a t I have formed no v l r w of a f i n a l

kind as t o whether what Mr F i t z p a t r l c k s a y s 1 s t r u e , ?r what the

ln fe rencs p rope r ly t o be d r a w n from h i s evid?nce 1'; T% reason

I have decides t o g l v e a n i n t i m a t i o n of t h e I l k e l y f l t e of t h e

p r e s e n t a p p l i r a t l o n 1 s that iC may a s s ~ s t e j c h sldE m

dote rmln ln7 bes t t he cou r se t o follow. I have finally

disposed of	t h e application because:-
1. WP~..? l t o r e l e c t h e a p p l l c a t l m , ~t zou:r?

i n any event be renewed.

- 1

6.

3 , Counsel f o r t he p re sen t r e sponden t s ( t he

applicants i n the p r i n c i p a l a p p l l c a t i o n i has

u g e d upon me t h e v i e w t h a t I should not

merely r e v i e w t h e l e q a l l t y of t h e s e l z u r e

and de ten t ion from the po in t of -JleiJ c,f

a d m m l s t r a t i v e law, should but f l n a l l y

d e t e r m i n e t h e l e g a l i t y In f a c t of :he

lmportat ion of the goods. I t nay be t h a c I

wlll f lnd myse l f unable to CO t h a t , li t h e

application is pressed, wi thsuc having

ev idence admiss lb le , in accordance n t k t t-:?e

ot-dlnary rules , from Hong Kong.

The reasons I have adopted the v l e w , wh?ch I Intimate,

t h a t i t does n o t seein reasonable to a l low the appl ’ca t lcm f o r 3

let ter of r eques r . a r e p r inc lpa l ly expense arld dela-7, althougr. I

do not accept that the espense of t a k l n g evld.lle.ice In tier,? K m g 1s

l i k e l y t o be a t the level submlt teC by counzel f > r t he

respondents . If t h e v l d e n c e t o be given t h e r e %ere se r l r , u s ly

zontested, undoubtedly respondents the wouid havr- tQ be

r ep resen ted , and tha t would c o s t a cons lderabie :urn.

I t 1.5 unnecessary t o say any more on t h e ql;?stzon of

del .ay than 1 s s e t ouc above; cbviously i t 1 s a s l q n i f i c a n t f a c t o r

against the gtci?t lng of t h e a p p l i c a t l o n .

7.

It was aruued that I had no power to yrant the

application, hecause there is no relevan-c treaty permlttlng the issue gf a leztpr of request. No authority was clteu in support

cf the assertion that a treaty 1s necessary. It wa5 sald that Order 2 4 Rule l(b) should be read as subject to an lmpllclt llmltaPion that no letter of request should issue. c-.hfent a

relevant treaty. In the 1895 work by H m e Wllllams m a Another

entitled "The Taklng of Evidence on Comm~sslon" the f o l l o m n q

comment is made at pp.53-54 with respect tc the ErLqllsh rule

permit.tlng an rJrder that a request to examirre altn~sses	In llelJ
of a scxm1ss1on be issued. The authors say:-

"The orjgln of this rule 1 s hellever! to have bpen

an incldent which occgrred some fsw years a3-n.

when an emlnent Quepn's Counsel, who v a s taking

evldencr in Niesbaden under an order of che

Fresld?nt: of the Probate and Divorce Dlvislon l n

England, and administering the oath lto the

~7~1:resses according to the terms of the order, was

selzed an83 thrown into prison by the German

authorltlec, whence he was wltrr dlfflculty estrlcated by the representa-clvcs of Great Brltaln. The German authoritlcs conslder a

contempt of court for any bul; t h e l r own offlclais

to admlnlster an oath wlthin German terrl-cory, a:~d

Enqilsh lltiTants desirlng to avold 1 slmllarly

abrupt ermlnation to their rornm1ss;on wlll

thereffii-e do well to obtaln	rfielr Evidence by
means of a letcer of requesr.

The only two countries vnlch have R S yet

offlclally nocified CO our Gsvernment the fact

that the taklng of evidence under a letter of

request 1 s the only method Khlch they 3111

sanction withln their respecclve t e r r ~ t o r i e s are

Glrmany snd Spain. The Swlss author it1e.c have,

however, made some represenratlons to a like

effecz . . . "

It seems clesr, lf this account, is correct, tnat lr. ics c r ~ g l n

the letter of request procedure was not deslgneri to uleet

instances in which a t-?-=aty had been made; r a t h e r the c~~ntrzrv.

A Somexhdt: slmllar s u b m i s s ~ o n f a l l e d ln t h e 1.1.5. Court

of Appeals , 9th C 1 t c u l t , I n the case of m v. U2.- 555F 2.! 1 2 0 .

That concerned a r e q w s t f roF S0ur.h Korea fot assy-s tance l n

p r o c u r i n q C a l l f o r n l a n f l n a n c i a l r e c o r d s . A t p.724 Q; t h e r e p r t

m e f i n d s	:-
"A[:pellant c m t e n d s that a s s l s t n n c e ~ r i c r lmlna l
mat ter5 lnvolv lnq a fo re ign coun t ry ' s cu r rency
c o n t r o l l a m should, as a n a t t e r of p o l l c y , be
ren6ered only i f there e x i s t s a tax t rea ty be tween
the Uni ted S ta tes and the reques t ing counrry . b4e
r e ; e c t t h l s c o n t e n t l o n . I t flnds no support 111
the ianauage of the Act o r In Its l e q l s l a t i v e
h l s t o r y , nQr has ou r a t t en t lon bee11 drar.7n t o any
j l .!dlclal declslon s o h o l d m g . "

I have not been re fer red t o any s t a tu t e co r re spond lng t a t h e

E v l d e n c e ( P r z e e d l n o s In Other JKrAcl lc t lons 1 3 1 9 7 5 . whj c h was

a p p a r e n t l y passed E gland ln CO g i v e e f f e c t t o the Hague

Conventlon on the Taklng of Evldence ilorood 1p. ,:,.vi1 ot-

Commercial Matters af 1968. However, I t does not apFear t h a t any

t r e a t y	1s	n e c e s s a r y	t o	e n l i v e n	my	~ u r l s d ~ c t ~ o n t o	make th.2. order
sought .

In th? r e s u l t , I do nor. p ropose to make any a d e r Q". t h e

a p p l l c a t l o n a l t h o u g h I hgld that I have power t n m k ? w1e. I

merely lnt l rnate I t is my p r e s e n t i n t e n t l o n t o reC~,se t h e

spp l l ca t ion . Counse l may, i f t hey see f l t , seek tr; L-eopen Lhe

! ra t te r a t t h e c m c l u s l o n gf the rest of t h c evidence. whLch wlll

presumably ncmr tadap cr tornocrow;

r c I ;

C A T C H W O R D S

.	.
___ N CTE : S e t t l e ~ n e n t a n d e n t r y of o r d e r s 1s dealt m t t ? Ln 17rder Zk,

of. the Eeaeral Court R u l e s .

PINCUSJ.

D: TEMPGRE REASONS FOR JUDGICNT

2

The a p p l l c s n t j a r e m o t o i v e h l c l e d a l e r E ~ A o have

cha l lenged the se lzure and de ten t ion of SIX sa r s Imported blr them

from Hong Xcnq. The respondents res l s t t h e a p p l l c l t l o n on thae

ground tha t , or! th? 7-nformatlon they h a y r e , the s 1zut-e xv!

decent lon were. ana the l a t t e r remalns, a ?coper e . y c r c ~ s e sf

power. The applicants produced evldence chst the vehicles were

l awfu l ly Immr ted . a n 3 i n p a r c l c u l a r , that th? r r l r e sf them

d l s c i o s e d L:, t he [Customs a u t h o r l t l e s was c o r r e c t . Vt- 7 e a 1 - c ~ has

exhibited the c? levant sa les c o n t r a c t s a n u t h e p r l c e s ? h o w there

sl-cp_nort hls cvldence that he purchased t h e veh:?les :t-:m a Hofy

Kong vendor, German Motors	Ltd,	a t	t h e	p r l c e s	i1s:Io5ed	t~
Customs.

3 I

a p p l . ~ c a t i o n ior the 1 u s u e of a l e t t e r of r e q u e s t , i:hlsh I havr

l n t l m a t f d t h a t 1 D r e s e n t l y l n t e n d t o r e f u s e , on t h e yfGunds t.~f

expense and d e l a y .

The evldenc? of Messrs Hume and Fl tZFat r lCk. lf

admitted, goes fu r the r t han dea l ing w t h +h? SIX v?r,lcles I n

question. That 15, the docuinrnts they xamlreri, o r s 3 y tne:r

examined, purport t o r e l a t e t o t h e l m p n r t a t l o n i>f a? nllmker gf

v e h i c l e s o thec t h a n tnosc immediately in Issue and t n show a

4.

slmllar p a t t e r n ; t h a t 15, the vldence shows, 1 Z 3f-cepte4, t imt

there was a cons i s t en t pa t t eLn of discrepancy between -,he r a l e s

c o n t r a c t p r i c e and t h ? d e b l t n o t e p r i s e .

5 . F

If Mr Pearce's evidence 1 s c o r r e c t , tha t cannot l??

c o r r e c t , f o r Mr Fearce d i d noc have any of the v c h l c l e r resa1red

i n Hong Korq . h r t h e r r e f e r e n c e t o what t he rlwrimentz a r e j a i d

t o d l s c l o s e a p p e a r s below, b u t i t 1 s convenlcct nnw t c t u I r \ to

the submxsslons made on ljehalC of th-. a p p i i c s n t ? I 91p

a p p a r e n t l y t h e S l r s t ludge asked t o use Order :: P.u:e ? ( b ~ I n ?my

way a ther t h a n In r e spec t of a p e r l p t e c a l or f o ~ n a l T I Z . T ~ ? L . A t

l e a s t , I d e d w e t h a t from the absence of authority. i . ou r?e l fo r

t h e applicants. l-It- Cooper , yel led s t ronuly +on the d?c;5-Lon of

?inoham J . I n L v. Scherinq Chemicals Ltd. ( 1 9 8 3 ) i W.L.R . 1 4 3 .

That conce rned the sms t ruc t lon of EngiLsh 9rder 38 Rule 3 whlch,

t o se t lt o u t s u f f l c l e n t l y f o r p r e s e n t p u r p o s e s , p e r m l t s t h e Mlgh

Court tc "o rde r that evidence of a n y p a r t l c u i s r iacC shal l be

given a t the t r l a l in such manner as map be s p e c l f l e d by che

s r d ? r " . The ru le 3 ~ on t o 5 g i v e p a r t l c u l a i - instances oi t n e way

I n w h c h t h e power 1 5 t o be exercised, f o r ?xamole. 'by rcatenlent

on o a t h of informarion or b e l i e f " . Blngham J. said, i n r e ! ~ c t ~ n n

an appllsatlon f o r a d n l s s l o n of evidence: -

6.

Indeed, whereas the power given by Enq11sh Order 38 I ? I J ~ P 3 1 s ir

terms unllmlted, thls Court's power 1 s restilcted by the

necessity of showlng that compliance "mluht OccasLon or Involve unnecessary unreasonable expense or delay". Apart from that, It 1 s harti to dcr lve anything from a comparison c,€ che worcilng of

the two rules w'rlch would support the submlsslon that Qrder 23

Rule 3 t b ) was lntended to have a more drastl; tfrect upon the

operatlon of the rules of evldence than the Enqlish rule has been

held to have. Mevertheless, I do not think I can apply the

dictum 0;' B l r l a h a m J. hxether o r not It 1s correct as a

consccuctlon of the English rule, It would in m y view be ar,

unwarrantahle ?udlcial amendment of Order 33 Rule 3 ' 3 ) t c r?ad It

as if it had added "but only where the matter- sougnt to be r,roverl

is peripheral and largely formal". Had thar. irnpa3rtxnt llmltatlon

bezn intended. by thsse who made the rk les , no dcsubt it would

have been stated expressly.

It is true that Instances may to be fo1m-l In WIIICTL the

courts have devised fetters OR discretlons camCerred by statute

In such a way as signlflcantly to alter chc ni.tarlina and ,,peration

of the provlsionr- conferring the dlscretlons. There ,does not

appear to be anythng In the wording of F u l e 3 ( b ) , nor ~n the

context In vhlch that sub-rule appears, nor in the scope or

oblect of the r u l e s read as a whole, to wart-ant t h r addltion Eo It by a proces;9 of lnterpretatlon of m lmportant q(1a1 iflcatlon

along the llrles of that put forvard in the Scherix ccsc?.

- ..

.I

7 h

In my vlew, Rule 3(b) should be qlven a consttuctlon

strictly In accordance wlth Its terms. The only express

limitation on the power of dispensatlon is thar: whlch I have

mentloned. It 1 s not in dispute that compllance not only mlght

Sut would Involve both conslderable expense and delay. indeed,

those matr;ers wet-e strongly urged upon me Q7 counsel on behalf of

the appllcants, M r Cooper, in resisting the attenpt to have an

order 15sued that a letter of request be sent to obtaln the

evlaence In accordance wlth the ordinary pract~ce.

Rule 3 ( b ) should not, in my vle;l, be read ds sl~D]ecr to

any unexpressed exceptions, but as s j m p l y r e q u l r l n q that :!le

discretlon be exercised in a ludicial fashlon. In the pres?nt

circumstances, where documents are sought to be proved In the

fashlon me:ltiont?d abave, the following	general consldet-ations
arise:-

1. Is it probable that evld?pce from th?

apparent maker of the	documents would be ,of
assistance?

2. Does informatlon In the dosumentz correspond

with facts proved I n the cas? by

conventlonal means?

3 . DQ the documents Eppear to c'me frcm a

reliable source?

8.

4. Is there any other reason for thlnklng that

the documents may have been fabricated?

5. Whose fault 1s It that evldence from a

conventlonal source is not available?

*

As to the first four questlons, they shnk1.d. In my view,

be answered favourably to the applicatlon f o r dlspensatlon. The

apparent maker of -he documents 1s some person by or on behalf	of
German Motors Ltd. It appears that evldence fron tnat source	1s

unavallable, at least in the sense that the proprletor 1 s

unwlllinq to give evldence in this case. Prosecutlons have been

launched In Hong Iiong aqalnst German Motors Ltd. ~t 1 s sald, I n ?

respect of the lmportatlon of some of the vehlcles I n question.

There was talk of a plea of guilty, but the defendant declded to

contest the charges. I can think of no good reason for assumlnq

that evldence from that source would be likely to be f any great

assistance. Secondly, the documents eramlned. I K I Important

respects, match precisely documents already tendered whch are

not in lcsue. I n partlcular, the sales conttact mld vo have

been examined In Hong Konq have the same date, model descrlptlon

and prlce as those already In evidence. Thlrdly. the source of

the documents 1 s satlsfactory in the sense that they were shown

to Messrs Hume and Fltzpatrick, It 1s said, by the case officer

of the Customs and Excise Department of Honq Kong in respect of the prosecution of German Motors Ltd. It 1 s . of course, poss~ble

that the fabricated a set of documents case offlcer or someone else In that Department,

for the plurposes of the

prosecution: stranger things have happened. But there 1 s at

L

9.

least a degree of plauslbillty In the assertlon that the source

of the documents is such as to make It probable that they are L

authentic. Lastly, no other clrcumstance has been put forward,

and I can think of none, making it seem probable that he 9

documents are other than genuine.

L

As to the question of fault, there 1 s scne force In the

assertion that It 1 s the fault of che respondents that the

t,

evidence cannot be adduced from a conventional source. Tnere was

talk a lonq time ago of a letter of request, and nothlng was done

about it untll, it is my view, too late. On the other hand, It

is not really clear to me that the letter of request procedure

would produce evldence mor any reliable than thls. l

In additlon, there are two particular matters whlch have

led me to the m e w that I should admlt thls evidence. The first

is that on the case of the applicants, there was slmply no bill,

lnvolce, or deblt note at all, a3 I understand l L , In respect of

the vehicles. The case is not one In whlch there are. so to

speak, two competing sets of invoices, yet the set of documents

held by the prosecutlon In Hong Kong Includes a deblt note or notes in respect of every vehicle. If there were a consplracy to

fabrlcate documents to support a case, then one would have thought the consplrators might have ascertalned the important

fact that, in accordance with the syscem operatmg, no lnvolces,

blll3, or deblt notes were sent. The very fact that there were

deblt notes In the documents collected in Hong Konq, whereas Mr

Pearce has produced none, is in Itself slqnlflcant.

10.

Secondly, it is important to keep In mind the issue

ralsed by the applicants. They challenge the "seizure and

continued detentlon" of the vehicles in question, and the

partlculars glven make it clear that the expresslon "contlnued" is used advlsedly. Their case IS that even lf (whlch 1s not

conceded) the original selzure was lawful. the drltentlon of the

vehicles rlght up to the present ime 1s unlawful. The

appllcants through their counsel say that on the lnformatlon I

avallable to	the Customs officials in thls country, the selsure
and detentlon	were, and the latter stlll 1s. lmprsper. That

informatlon, however, now Includes the recent mspectlon of

documents in Honq Kong. Faced with thls dlfflculty, Mr Cooper on

behalf of the appllcants, very ably I thought, argued that the

central point of the case 1 s the seizure. However, I cannot see

why the evldence may not be relied upon	by the responden'cs as
Information in thelr possesslon.

It is perhaps unnecessary to say s o , but I have taken

lnto account I n reachlng my declslon the evidence t o date as a

whole and the smge which the litlgation has reached. It 1 s

stlll an open questlnn whether the evldence of Messrs Hume and.

Fltzpatrick, ~f I accspt It, may properly be used I n connectlon

wlth the clam of the applicants to what mlght be called flnal

rellef, that 1 s the clalm to a declaration tha'c the vehlcles are

the property of the applicants, rather than tavlnu been

forfelted.

L,

11. c

It 15, I think, enough for present purposes to say that

I wlll admlt the evidence of Messrs Hume and Fitzpatrick wlth

respect to the examlnatlon of documents In Hong Kong and the

circumstances urrounding thls, in the proceedlngs for ellef f

brought by Mr and Mrs Pearce. It will be relevant at least to

the questlon of the information available to the respondents, If

L

not to the other point.

It should be mentioned that he appllcants have

foreshadowed, and pursued with at least some s h w of SUCC~SS	to
date, the case that there were lllegalitles attendant upon the

seizure and detention. There is in prospect a submlsslon that

for ,hat reason all or most of the material obtalned should be

re ~ected. The evidence with respect to chat matter 1 s not

complete, nor have I heard counsel on It, so that the exerclse of

discretion under Order 33 Rule 3(b) must be sub~ect to that

presently unresolved contentlon.

The order whlch I propose to make under Order 33 Rule 3

i an order that compliance with the rules of evldence be

lspensed wlth to such extent as is necessary to admlt the

rldence of Messrs Hume and Fitzpatrick wxth respect o

~mination of documents in Hong Kong, as set o u t In detall In

.le affidavit of Mr Fitzpatrick filed on 18 June 1985.

I further direct that the evidence of Hessrs Hume and

Fltzpatrick, the sub~ect of my order, is for the present adrnltted

O a ’ y on the Issue of the information avallable to the respondents

G i k h respect to the vehlcles.

12.

I reserve for further consideration the questlon whether

it shall be admitted on the issue of whether the vehlcles were In

fact unlawfully imported.