Pearce, A.G. v Senator the Honourable John Hutton - [1985] FCA 277

The

.xppl lcants

seek an Order

thac

l e t t e r (nf

r e ? u e s t

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

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

German Mgtok-T'; Ltd

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

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

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

the evxdence whlch I mc-ntioncxl I n

t n e course

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

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

t h 3 t

i t

has heen

r i ea r

f o r

long

time that the

respondentz

mlqilt

well

need ebldence

from Hon3 Kong.

Counsel f o r

the

respondent?

ha5

poln ted

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

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1985] FCA 277
Decision Date: 20 Jun 1985

CaseChat Overview and Summary

The applicants in this case sought an order for a letter of request to be sent to the judicial authorities of Hong Kong to obtain evidence of the importation of goods. The respondents opposed the application. The court had to decide whether the application should be granted or refused. The court reasoned that the application should be refused due to expense and delay. Although the applicants produced evidence that the vehicles were lawfully imported, the court found that the evidence of Messrs Hume and Fitzpatrick, if admitted, went further than dealing with the vehicles in question. The court also found that the documents they examined related to the importation of a number of vehicles other than those immediately in issue and showed a similar pattern of discrepancy between the sales contract price and the debit note price. The court concluded that the merits of the matter were in favour of the respondents and that it was better to at least give an indication of the likely fate of the present application. The court also found that it had the power to make the order sought, but decided to refuse the application on the grounds of expense and delay. The final orders were not stated in the text.

Orders