Reid, C.K. v Nairn, W.I

l04

A T C H W O R D S

ADMINISTRATIVE LAW - Application for ~udlcial review - Decislon made on behalf of Director of Public Prosecutions - Discovery - Entitlement to discovery "unless the Court otherwlse orders" -

Whether order for discovery

can or should be made

when no

entitlement to reasons for declsion

"fishing expeditlon"

Sufficiency of evldence - Limited order for discovery.

Administrative Decisions (Judicial Renew) Act ss.5 and

Customs Act

s.235(6)

Rules of Federal Court 0 15 r 1.

CHRISTOPHER KIDMAN

REID

WILLIAM IAN NAIRN

Fisher J.

Adelaide

25 March 1985

IN THE FEDERAL COURT OF AUSTRALIA 1

SOUTH AUSTRALIA DISTRICT REGISTRY	1	NO. G45 of 1984
1

DIVISION

GENERAL

)

B E T N E E N :

CHRISTOPHER KIDMAN

REID

Applicant

- and -

WILLIAM IAN NAIRN

Respondent

O R D E R

JUDGE MAKING ORDER	FISHER J.
WHERE MADE	ADELAIDE

-	D	25 MARCH 1985.
THE COURT ORDERS THAT:

1.	The respondent make discovery	on oath by	12 noon on 2 6
March 1985

(a) of all

documents

passing

between

him

and

the

Federal Police which

refer to the matter of the

wllllngness of the applicant to plead guilty

In the

Maglstrates’ Court to the charge against

him.

(b) of all

any

documents

passing

between

the

respondent

the one hand and members

the

L .

Federal Police or the applicant or his advisors on the other hand between 27 Auuust and 31 August

1984 which contain representations or references to

representations to the declslon maker by or on

behalf of the applicant.

2 .	There be liberty to	the parties to speak to the minutes
of these orders.

3 . The question of costs be reserved.

IN THE FEDERAL COURT OF AUSTRALIA 1

SOUTH AUSTRALIA DISTRICT REGISTRY

NO.G45 of 1984

DIVISION

GENERAL

)

B E T W E E N :

CHRISTOPHER KIDMAN

Applicant

- and -

WILLIAM IAN NAIRN

Respondent

25 March 1985

REASONS FOR JUDGMENT

FISHER J . :

Thls is an application for discovery made by counsel

for the applicant during a directions hearinu. The argument has

been

restricted

the

applicant's

entitlement, in

the

circumstances, to discovery of documents, although

from time to

time his counsel

has referred to the right to interrogate. It is

appropriate to comment that the application has been dealt with as a matter of urgency, and under pressure of time because the

hearing of the application for

a review is

due to commence

tomorrow. It

has to be determined at the latest by 1 May 1985

when committal proceedings are due

to commence in the Adelaide

2 .

Magistrates Court.

December 1984 the applicant commenced proceedings under the Administrative Decisions (Judicial Review) Act 1978

On 7

("the Act") seeklng review of a decision

of the respondent made

on 31 August 1984.

In the application it was asserted that the

respondent decided that

a prosecution of

the applicant for an

alleged breach

of the Customs Act 1901 should not be determined

in a Court of Summary Jurisdiction but

in the Supreme Court. The

decision was reviewable, it	was alleged, because the decision was
-

"(a) made in breach of the rules of natural justice,

(b) an improper exercise

of the power conferred by the

Customs Act,

no evidence or other material lustified

the making of the decision."

At the time

when the applicant first mentioned, during

directions hearing, that he sought the right to obtaln discovery,

the evidence supporting the contention that the decision was

reviewable could hardly

have been more sparse.

An affidavit by

his former

solicitor.

filed

support

the

application,

merely stated that the applicant had been charged

with having in

his possession, without reasonable cause, a prohibited import, namely cocaine, to which s.233B of the Customs Act applied, and which was reasonably suspected of having been imported into

Australia

contravention

that

Act.

The sollcitor

then

deposed to

the fact that he had

been advised by the solicltor

3 .

having the conduct

of the prosecution that the respondent had on

31 August

1984 decided not

to consent to the prosecution being

heard in a

summary way. The applicant, it

was then said, was a

person aggrieved by thls decislon in that

he was liable to more

severe penalties

if prosecuted

on indictment. It is apparent

that at that stage there was

no evidence at all which could

support the contention that the decision was reviewable

on any of

the grounds set out in

s.5 of the Act.

The affidavit of the applicant sworn on 21 January 1985

and filed on 13 February

1985 took hls case very little further.

He deposed to the fact of his charge and that on 24 August 1984

had been

interviewed by two detectives of the Australian

Federal Police in relation

the alleged offence. He said that

he had instructed

his solicitor to seek the consent

of the

prosecution to

a summary hearing of the

charge pursuant to

s .235(6 )

the

Customs

Act.

Again

the

affidavit

did

not

disclose a tittle

of evidence to support hls claim that the

decision was reviewable, and made only

an obllque reference to

the enactment pursuant o which the decision had been

made.

This was the sum total of the evidence at the time when

the applicant sought discovery

of documents on 5 March 1985. The

applicant's difficulties were compounded by the fact that the

respondent contended that the applicant was not entitled to make

a request for reasons under s . 1 3 ( 1 )

of the Act, which contention

was not disputed by

hls counsel.

4 .

When questioned concerning the provisions

of the Customs

whlch empowered the maklng

the

challenged declsion,

counsel for the appllcant referred to

s.235

4) and s.235(6) of

that Act. Sectlon

235(4) is in the following

terms

"An offence referred to in sub-secti	0:
~~

prosecuted summarily or upon indictment

or, where the

law of the

State or Territory in

which the proceedings

are brought makes provlslon for

an offender who pleads

gullty to a charge to

be dealt

with

by the Court

otherwise than on indictment, the Court may deal

with

an offender in accordance

with that law."

Section 235(6) provides as follows:

"Where

proceedings

for

an offence

referred

sub-section (1) or ( 2 ) are brought in

a court of

summary

~urisdlction, the

court

may

commit

the

defendant for trial	or to be otherwise dealt wlth in
accordance with law	or, If the court is satisfied that

it is proper

to do so and the defendant

and the

prosecutor consent to it doing	so, may determine the
proceedings summarily."

Pressed concerning any consent which the respondent

could possibly

have made or been able to make under

s.235(4),

counsel for the applicant abandoned reliance

upon that provision

his application for dlscovery. It

1s unnecessary for the

purpose of these reasons and

my decision upon the application for

discovery to refer further to the debate

which took place on the

ramificatlons

th1s provision. Hereafter the issue can be

conflned to the declsion

of the respondent that

he would not give

his consent under s.235(6).

The hearing

of the application for discovery commenced

5 .

on 12 March 1585 at which date a further affidavlt of the

applicant's former solicitor was tendered. For the first time

evldence was

placed before the Court of the circumstances upon

which the applicant relled

as relevant to the refusal to consent.

Between that date and the concluslon of the hearing on 21 March

1585 the parties filed a number of additional affidavits, 13 m

all.	There 1s llttle profit In attemptlng to record the order in

which they were

flled, the circumstances which appeared to prompt

such filing or the ebb and flow of debate.

This is particularly

so	as at the outset the applicant had virtually nothing upon

which to found his case for discovery or in fact for revlew.

appeared to me at that stage that

h16 inability to obtain reasons

would probably be

fatal to his application, and his only hope was

to engage in a flshing expedition.

In this regard reference was

made to dicta

of a number of members of this Court on the

entitlement to discovery in clrcumstances

akin to the present.

In W.A.Pines

v Bannerman (1580) 30 A.L.R. 559 at p.567

per Brennan J. the following passage is on point-

"To make

the

challenge

good,

the

appellant

sought

discovery but it was refused. On appeal, it was argued

that the respondent,	as a party to the proceedings, may
be requlred under 0	15, r 1, to give discovery 'unless

the Court otherwise orders', and that there was

reason for denying to the appellant the benefit

of the

dlscovery to whlch it is thus prima facie entitled.

proceedings for ~udlcial review of administrative action, 0 15 appears to go further than 0 53, r 8 of

the English

rules

recently introduced in order to

overcome the long practice of generally denymg discovery In applications for prerogative writs, a practice to which the Law Commission ('Report on Remedies in Administrative Law' 1576, Cmnd 6407, para 15) had drawn attention.

Though the power

to require discovery be acknowledged,

how should it be exercised?

It depends upon the nature

of the case and the stage of the proceedings

at which

the

discovery

ought.

the

present

case,

discovery is sought

before

there

a tittle

evidence to suggest that the Chairman did not

have the

requisite

cause

believe

which para 6 of the

statement of claim would put in issue. Some assistance

was sought to be derived from cases where discovery had

been given to a party before

he was required to give

particulars

his claim: cases such as v Blake's

Motors C19513 2 All E.R. 689, but in cases of that kind

there is either

anterior relationship between the

parties which

entitles one to

obtain information from

the other, or sufficient is shown to ground a suspicion

that the party applying for discovery has a good case

proof of which is likely to be aided by discovery.

This is not such

a case. This is a case where a bare

allegation is made by para 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in

the hope of

making a case. That is mere fishing. As

Smithers J. said in Melbourne Home of Ford Ptv. Ltd. v Trade Practices Commission, supra (5 TPC at 35; ATPR at 18,087: 'In the absence of such evidence the proceedlng

is essentially

speculative

ature.

In such

circumstances for the Court to assist the applicants by

making

available

to them

the

processes

interrogatories and discovery would be

to assist them

in an

essentially fishing

exercike and from this the

Court on established principles should refrain.'	His
Honour's refusal of discovery was right and it ought

not to be disturbed.

' I

On page 574 Lockhart J. said:

"However,

among the well established limitations upon

the power to interrogate and to discovery of documents

is the rule that this power cannot be used for the

purpose of 'fishing'

. "

After referring to two English decisions	his Honour said on page
575:

"In	Associated Dominion Assurance Society Ptv. Ltd. v

John Fairfax & Sons Ltd (1952) 72 WN (NSW) 250, Owen J.

said (at p

254): 'A "fishing expedition", in the sense

in which the phrase

has been-used

in the iaw, means, as

I understand it, that

a person who has no evidence that

fish of

a particular kind are in a pool desires to be

at liberty

to drag it

for the purpose of

flnding out

whether there are any there or not':	see also Brav on
Discoverv (1885) pp 13, 16, 98 and 461.

In the present case the appellant seeks discovery and

leave to Interrogate before there

1s any evidence that

the respondent did not have the belief requlred by

s.155(1).

There are the barest allegatlons in paras 5

and 6

of the statement of claim.

They

are denied by

the respondent in hls defence who,

in addition, swore

an affidavit that he held the relevant belief required

the

section.

Brochures

which were

publlshed

obviously by, or with the

c@ncurrence

of, the

appellant, contain statements which at

the very least

are not inconslstent

with the respondent's statement

bellef. Together with the form

of the notlce under the

sectlon that 1 s all the material

on whlch thls court is

asked to act and to permit dlscovery and admlnistration

of interrogatories.

'this is not merely clutchmg at a non-existent straw, but expectlng to be carried by it': per Menzies J. In Mulley v Manlfold (1959) 103 CLR 341 at 345.

I have

no doubt that the appellant

1 s

seeklng to use

the weapons of discovery and interrogatorles to

find

out If It has

a case of

which

it presently knows

nothing. It

1s a

fishing expedition to which this

court will not lend its aid."

The applicability in judicial revi.ew proceedings of the

provlsions of the

Rules of Court concerning interrogatories and

discovery has been referred to in

a number of declslons of this

Court since thls decision

of the Full Court. Applicants

for

judicial review

decisions seek to take advantage

of these

provislons especially In circumstances when they

are not entitled

to a statement

of reasons.

The Full Court of this Court in Lloyd

v Costiaan, an unreported decision delivered on	9 May 1983, had
thls to say:

"There 1s

much to be said for the view that

it 1s not

open to a party slmply to allege that a declsion was made without basls and then to seek

to use the process

of the Court to attempt to make

out

a case and indeed

to find out

if his allegation

has any foundation: cf

W.A. Pines Pty. Ltd.

v Bannerman (1980) ATPR 40-163.

Such a use of leual Droceedinas would tend to delay and

Commissioner.

A person aggrieved by a decision of

a Commissloner has

the rights glven by the

Act,

s.5.

He may request

reasons under

s.13.

We are satisfied that,

the

request 1s refused

or not complied with, the Court has

power to order reasons to be

given, certainly

once

there are proceedings commenced to review a decision. Such a construction plalnly accords with the intent of the legislation. A person aggrieved may apply for an

order of review on

any of the grounds specified in the

Act. If he does so, the onus of proving his case rests upon the applicant. He may have his statement under

s.13, but

the

procedures

discovery

and

interrogatories

will

often be

inapproprlate.

Generally, at least, the information to which a person is entitled under that Act is intended to be obtained in the manner which the Act prescribes."

Reference has

also been made both

to the difflculty of

making good

any of the grounds In s . 5 ( 1 ) of the Act

in the

absence of reasons

and

the

availability

discovery

applications for judicial review by Toohey

J. in Murchison v

Keatinq (1984) 54 A.L.R.	380 and in Llovd v Costiqan (1983) 50
A.L.R. 681.

Section 13A

( 4 ) of the Act should

also be mentioned. It

provldes

" ( 4 )

Nothing in this section affects the power

of the

Court to make an order for the discovery of documents or to require the giving of evldence or the production

of documents to the Court.

seems

to me that the right to discovery is not

necessarily denied to

an applicant for review of a declsion under

the Act.

However

certainly

not

always

available,

particularly when the applicant is entitled

obtain reasons

under s.13 for the decislon.

If reasons are not obtalnable, the

power

to order dlscovery under the Rules of Court should

exercised

sparlngly,

particularly

relation

decisions

relating to the administration of crlminal justice.

It should

never be avallable to an

applicant who 1 s engaged

In a fishing

expedltlon, 1.e. attempting to flnd out

if he has a case I n

support of whlch he has no evidence and knows nothing.

As I have

already

said,

that

was, on the

then evidence, exactly

the

situation of

the applicant In

this matter at the time he first

asked the Court to order discovery.

He sought dlscovery

In an

attempt

merely

substantiate

his

suspicions

(R.M.H.

Foods

Limited v Bovril Ltd.

C19821

1 All E.R. 673) and obtain evldence

to support his allegations.

However at the end of the day the appllcant’s case for some limited discovery had greatly improved

to the extent that

there were before me some facts which supplied

a substratum

support for his case.

It wlll therefore be necessary to relate

the matters which were in evldence.

There has

however been no

cross-examination of deponents to affidavits but there is not much dlspute on the relevant facts, other than on the questlon whether certain detectives agreed to make a recommendatlon to the

declsion maker. Moreover prior to the

hearmg the applicant had

provided partlculars of the grounds upon

which relief was sought,

which particulars were wide-ranglng and very general.

10.

The relevant facts, as they appear at thls stage to

me,

can be

stated

follows.

At the

time of hls

arrest

the

applicant’s then solicitor conferred with the Federal Police and later wlth a solicltor in the office of the respondent enquirinu

whether the charge could be disposed

of summarlly by a guilty

plea

the

Magistrates’

Court.

Subsequently

the

sollcltor

approached two detectlves with an offer from his client to give them informatlon concerning the cocalne in his possesslon. There

is no doubt that this offer

was made in

an attempt to obtain

agreement for the charges to be dealt

wlth summarily.

On 24

August 1984

the appllcant conferred with the detectlves in the

absence of his solicitor for an hour and a half.

It appears he

gave useful lnformatlon concernlng

the relevant circumstances.

There is no doubt that the applicant antlclpated that the glving

of this lnformation would assist him to have the charges dlsposed

of summarily.

He hoped to obtain an agreement to this effect or

least

arecommendation.

However

the

suggestion

agreement was detectives, or elther of them, agreed

rejected

and

there

dispute

whether

the

to make a recommendation.

There is evidence from them that they accepted the

applicant’s

story

his

involvement and that they proposed sending

memorandum thereon to the Australian Government Solicitor. One

of them

has deposed in

his

affidavit to the fact that

In his

opinlon the matter could be dealt

with in the lower court.

Subsequently

the

respondent

wrote

response

enquiries from the then sollcitor to the applicant advising that

a decislon had been made that the matter would not be heard and

determined In a Court of Summary Jurlsdlctlon. The declsion was made bp the respondent on behalf of the Director of Publlc

Prosecutions on 31 August 1984. The actual decision was taken

an officer in the department of the respondent In Adelaide but

point was taken concerning this aspect

of the matter.

On 13 March, the second day

of the

hearing of the

application for discovery, the decision maker filed

an affidavit

setting out the circumstances in

which the decision was made and

exhlblted thereto

a memorandum from the Australian Federal Police

dated 27 August 1984.

It is my opinion that this further evidence produced by

the partles during the hearlng requires me not to reject out

hand the applicant’s

application for dlscovery. There is before

me some evidence which could support

an arguable case for review

of the decislon of 31 August 1984.

It appears that the applicant

was offering to plead guilty

to the charge if the matter could be

disposed of summarlly.

It is arguable

that

this

fact

is a

consideration relevant to be taken into account by the decision

maker.

The detectives who lnterviewed the applicant were aware

of this fact,

yet It is not referred to

in the memorandum of 27

August 1984 from the Australian Federal Pollce.

12.

Furthermore

the

wrlter

that

memorandum

did

not

purport

convey

declsion

maker

any

the

representations made to the detectives by the appllcant

or his

sollcitor. By paragraph 6 thereof

lndlcated

that

these

representations would

be made direct to the declsion maker by the

appllcant's

olicitor

or counsel. The flrst

sentence

paragraph 6 is as follows:

"In view

of the information forthcoming from Reid, his

counsel intends contacting

your office to ascertain

your opinion whether Reld's matter can be determlned in

the Magistrates' Court

the basis that the cocaine

was for his personal use."

In my opinlon,

it is arguable that in the circumstances

the

appllcant

was

entltled

expect

that

either

his

representations would be passed by

the Federal Police to the

decision maker, or that

the latter would,

the light

paragraph	6 ,	seek out the representations before he made	a
decision.

I have therefore formed the

view that the applicant's

fishing expedition has

met with limited success.

He can now

contend that

he has

some evidence, however little, that the

decision

maker

was not alerted by the Federal Police

relevant consideration, namely the willingness

of the applicant

to plead gullty at a summary hearing.	He also has some evidence
to support a contention that he had	an expectation that hls

representations and clrcumstances would be placed before the

decision maker before the decision

was made. On this evidence it

13.

open

at this stage for the applicant to argue that the

decislon should be revlewed, under	s.5(l)(al and s.5(2)(b) of the
Act.

In the circumstances I propose exercislng my discretlon

in favour of ordering

the

applicant

make

dlscovery

documents limited to the two topics

upon which the applicant has

been able

to point to some supporting evidence.

I appreciate

that the respondent's contention, at least as put

me at the

culminatlon of the hearing, 1s that as a matter

of principle no

order for discovery should be made in

a matter such

the

present.

However,

maklng

the

orders I am

in no way

interfering with the conduct of the prosecutlon of the charge or

requiring the prosecutor to reveal

his

investlgatlons or

his

case. It

will always moreover be open to him to clalm prlvilege

in respect of specified documents.

I therefore order that the respondent make discovery

oath by 12 noon tomorrow

(a) of all

documents

passing

between

hlm and

the

Federal Police which

refer to the matter

of the

willingness of the appllcant to plead gullty in the

Maglstrates' Court to the charge agalnst

him.

(b) of all or any

documents

passing

between

the

respondent

the one hand and members

of the

Federal Pollce

the applicant or his advisors on

the other hand between

27 August and 31 August 1984

14.

which

contain

representatlons

references

representations

the decision maker by or

behalf of the applicant.

There will

be liberty to the partles to Speak to the

minutes of these orders.

It is

my opinlon that these orders are appropriate in

the

circumstances

and

no way pre~udice or hlnder

the

prosecutlon

the

applicant.

the

most

they

only

bear

indirectly on the task of the prosecutor.

It may very well be

that, apart from the memorandum

of 27 August earller referred

to,

there

are no such

documents. There was

evidence

and

also

intlmations durlng the hearing to this effect.

The applicant's

present solicltor has deposed to a

discussion with the decision

maker which

suggests that this is the case.

The declslon maker

one

his affidavlts

said

that

the

applicant's

former

solicltor had at no time prior to the declslon made any written

submisslons

to his office.

Counsel

for

the

respondent

has

already,

durlnq

the hearing,

Indicated

that

here

1 s

difficulty In informing

the

Court

that

the

decision

maker

received

other communication or representation from Sgt.

Burton or any other member of the Federal Police relating to	hls
decision. In the circumstances the applicant is entitled to be

told on oath by the decislon maker that such

be the case.

15.

The orders

of the Court are as earller set out. The

question of

costs is reserved and there is liberty to speak

the minutes of the orders.

I certify that thls and the l $

preceding pages are

a true

copy of the

Reasons

for

Judgment of Mr. Justice

Fisher.

/A-=

Associate

Dated: 26" $arch \385

[1985] FCA 104

25 Mar 1985