Reid v Nairn

[1985] FCA 245

. application for special leave to appeal to F u l l Court refused by

h d u e makinu order - whether further application tn Ful l Court

€or special leave competent - whether app-a1 to F u l l Court from

refusal to qrant special leave competent.

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Federal Court of Australia Act 1956 ss.24. 25	-.	.
CHRISTOPHER KIDMAN REID v. WILLIAM IAN NAIRN
NO. SA G21 OF 1985
FOX, 73RSTER & McGREGOR &T.

7 JUNE 1985

ADELAIDE

i

APPCICgTTCnN FOR LmJE Tn ?&'PEAL

€rom the Order of The

Honourable Mr.Justice Fisher

made the 25th day of March 1985

In the Federal Court of australia at Adelaide

Respondent

CORAM: FOX. FORSTER MD McGREGOR JJ

DATE : 7 JlJNE 1985

After hearinq submisslons in this matter we made orders

dismissinu with costs the application €or leave to appeal, and the appeal from the refusal by Fisher J. of the application made

to him for leave to appeal. stating that reasons	muld be
delivered later. We now qive our reasons.

2.

The application before the Court was in form one €or

leave to appeal aaainst an interlocutory decision of Fisher J. respecting discovery of documents in a proceedina commenced by

the appellant under the Administrative Decisions (Judicial

Review) kct, 1977. His Honour had made a limited order f o r

discovery at the instance OP the appellant, but a wider nrde'r vas

souqht. The appellant applied to Fisher J. for leave to appeal

to the F u l l Cnurt. but,for reasons he then qave. his Honour

refused that apelication. The renewed application €or learie was

described as an application "de novo" to this Court and this

accords with the terms of the document €iled. We %ere asked, in .

the alternative. to treat the application as an appeal aaainst

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the refusal	to qrant leave. This last-mentioned course was not
opposed and	we have treated. this second application as beinu
before us.

The respondent has objected to competency in respect of

both applications.

:	1	1	The application to %he Full	Court for leave to Ippeal
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was made in reliance on sub-secn. 24 (1-1) of the F;.rlcral P l t r t o€

Australia Act L976:

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" ( 1 A ) An appeal shall not be brouuht from a fudgnnnt

referred to in sub-section (1) that is an interlocutorp

judument unless the	Court, or a Judqe uives leave	to
appeal".

This sub-section was inserted by Act No. 72 of 1984. At

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3.

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...

the same time the previous sub-secn. 25(2 ) was omitted and the

followinu sub-section suhstitutcd €or it:

" ( 2 ) Applications for leave or special leave to appeal

to the Court or for an extension of time within whish to

institute an appeal may be heard and determined by a

single Judge or by a Full Court and the Rules of Court

may provide for enablinu such applications to be dealt

with, subject.to conditions prescribed	b? the	Rules,
without an oral hearing".

The two provisions have t o be read together.

. There are cases dealing both with the availability of

renewed applications for leave to appeal and of appeals from

decisions granting or refusing leave. In the former cateqory are

Niemann v. Electrcnic Tndustries Ltd. (1978) V.R. 431 and O'Tnolo

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I v. Mitcham (No.Zl(1979) 3 A.C.L.R. 646. The Victorian courts

I j	accept hat if an application for leave is refused. a Further
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application seeking the same result can be made to the Full
Court. In the first of the cases mentioned. Murphy J. referred
to this course as nne of practice, in the followinu terms:

"The defendants now seek leave from the F u l l Court to

appeal aqainst that order. havinu first souuht his

Honour's leave. and havinu been refused such leave,

This course appears t o be sanctioned bo practlce. See

Godman v. Moses (1900) L.J. O.B. 323."

. I We observe in passing that Godman v. Moses, and the case it

-1 . folluGed (Holland v. Girlinq (1899) noted 43 Sol.Jo.600\ turned

' .l i very much on the terms of the English legislation.

In the second category mentioned above are cases such as . -

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Kav v. Brims (1889) 22 Q.B.D. 343: Lane v. Esdaile c 1 . a q l )

B party wlshing tcr 3ppeal from sn interlocutor? order

has to make an election vhether' the i1ldge. or a Full Court should

be approached for leave. In the latter instance. 3 question map

arise on occasion whether the F1111 Court should be asked to

consider the merits of the appeal, at the same time as l?ave is

souuht. Gillard J. discussed this aspect in Niemann :3t pp.

,

444.5).

Some of the time before -ass Qccupied in debate 3s to

=hether his Honour was m errnr in limiting discmery in the say

he did. Ne will make some brief camments m this aspect. lk~

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rase is one in which the appellant is charged in cacnection with

his possession of drugs. Some discussion and cnrrespondence took

place on the question qhether. as the appellant desLred* the cas?

could and would be dealt with summaril.; by a maFistrate.. Whether

the matter should be so dealt Fzith Gas D€ course one €or the

magistrate. at the appropriate time. but the consent of the

prosecutor was also necessar';. On 21 P.ucn.lst, 19W. before the

hearing commenced. the present: respondent. 3rtin~ for th?

Director of Pl&lic Frosevl t ions , said that the prosepl t i9n xo,uld

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hot give its conssnt. This is the "deciaion" under cha1l;nme.

and his Honour treated it as a derision to which s . 5 ct the I

Jlldictal Reviev %c% could have application. The application

stated that the decislon had been made in breacczf the rules of natural ymtice. that it -as "an improper exercise gf bhe power conferred by the Customs Act". and khat there =as nr, evid!pnce

On a directions hearinm. lpplicstion discover?. His Honour found virtuallg no material case souaht to be made, but he did find that there &z.s snme

evidence that representations respe'ctinu the s1ummar.r trial rzhich

had been made bp the appeIlant and his SoliCitrJr to the police

had not been passed on to the decision maker.. There then arose

eossible cases of denial of natural justice f s . 5 ( 1) (a) of the

aTIIdicial Review M t l , and of failure to take into account

relevant considerations fs.5rZ)cbl). The p-IdTe cnnfined

discoTerp to dOcUmentB respectinu the aspects disclose!i by the

evxdence and declined to make a wider order f o r discov5ry. He

reTarded the appellant as beinq embarked m 3 "€ishinu"

expedition.

respect, the whole .zrf the documentarv material surroundina the

makinq of the decision should be the subiect of productlon is not

It was our view that the application €or leave to

appeal.and the appeal. should be dismissed. as incompetent. and

that he applicant-appellan% should @a? the costs Q€ the respondent of the application and appeal, and ?;e have 50 ordered.

IN THE FEDERAL COURT OF AUSTRALIA )

SOTJTH AUSTRALIA DISTRICT REGISTRY) No. SA G21 of 1985

1

GENERAL DIVISION )

BETWEEN

CHRISTOPHER KIDMMT REID

Appellant

AND

WILLIllM IAN NAIRW

Respondent

Coram: Fox, F or ster and McGregor JJ.

D a t e : 7 June 1985

REASONS FOR JUDGMENT

McGresor J. CHRISTOPHER KIDPIAN REID (appellant) on 29 March

1985 appealed against an Order refusing leave to appeal made in

Adelaide on 25 March 1985 by a Judge of this Court in an

application for discovery against WILLIAM IAN NAIRN (respondent)

named as respondent in the application and this appeal. It is

contended bp the appellant that the QKdeK for discovery was not

full order but confined in a way that was unjustifiable: and

that leave to appeal against it should have been granted.

Judqment in this matter was given in Adelaide on 2 April

1985 when it 67as said that Reasons would be uiven later. What

follows are my Reasons for that judgment.

The circumstances in which the order appealed was made

should be noticed.

On or abdut 16 April 1984 the appellant was charged

pursuant to the Customs Act 1901 s,233B(l)(ca) that on 15 April 1984 at Hest Beach in the State of South Australia he without

reasonable excuse had in his possession a prohibited import, viz.

cocaine, to which that section applied which was reasonably

suspected of having been imported into Australia in contravention

of the said Act. According to the affidavit of William Robert

Retalic, Barrister and Solicitor, who acted for the appellant

until January 1985, it had been ascertained that the quantity of

cocaine in the appellant's possession was probably 3.2 grams;

this exceeded the trafficable quantity (2 grams) under the

Customs Act, placing the onus upon the appellant to disprove that

he possessed the drug for purposes related to sale or commercial

dealing. See s.Z35(3)(b). According to Retalic, after taking

instructions from the appellant, in Juiy or August 1984, he made

contact by telephone with the Australian Federal Pollce; he

intimated that if they were still interested in obtaining further

information from the appellant about the circumstances

surrounding his possession of the cocaine, an interview could be

arranged; the purpose of the interview would be to give the

police information which might be of assistance to them: in

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return Retalic wanted their agreement that the charges would be

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dealt with summarily. Subsequently, according to Retalic,	he had
further contact with Det. Barratt of the Australian Federal

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Police who indicated it would be worthwhile to have a further

interview. Therefore, on 24 August 1984 Retalic attended with

the appellant at the Australian Federal Police headquarters in

Adelaide. He claims that he spoke to Detectives O‘Connell and

Barratt: he told them that his client was prepared to speak to

them on the understanding that they must reciprocate and “provlde

him with a benefit“. FThat he had in mind was their agreement

that the matter be dealt with in the Adelaide Magistrate‘s Court.

He was no doubt referring to s.235(61 of the Customs Act. Their

response, said Retalic, was “they could make no promises about

that but they could make a powerful recommendation if the

information they obtained from the appellant met with their

satisfaction.“ Thereafter, and without Retalic being present, an

interview between these officers and the appellant took place. During the course of it one or other of the detectives earlier referred to came out of the interview room and reported that it

was “going along nicely“, that they were getting the details they

wanted. Retalic alleges that after the interview the police

verified they would make a recommendation that the charges be

dealt with summarily. Some two or three days before 24 October

1984 (being the date fixed for the hearing of committal

proceedings), Retalic claims he was told by Mr. Thomas of the

Australian Government Solicitor‘s office that there would not be

a consent to the matter being dealt with summarily. On 2 3

October 1984 Retalic wrote to the Deputy Crown Solicitor seeking,

pursuant to s . 1 3 of the Administrative Decisions (Judicial

Review) Act 1977 (ADJR Act) partichlars of the decision not to

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agree to having the matter determined in summary proceedings and

a statement in writing setting out findings on what were regarded

as material questions of fact and giving the evidence or other

material on which such findings were based. Correspondence

passed between the parties. By letter of 25 October 1984 he was

advised by the Australian Government Solicitor of the latter's

opinion that he was not entitled to make such a request and

declining to provide the information sought. That course seems

to have been open to the respondent. See Federal Court of

Australia Act 1976 (the Act) Schedule 2. On 3 December 1984

Retalic was advised by letter from the Australian Government

Solicitor that there would not be consent to the matter being

heard and determined in a Court'of Summary Jurisdiction. On 7

December 1984 the appellant commenced proceedings under the ADJR

Act seeking a review of a decision of the respondent not to

consent to the prosecution being heard in a summary way said to

have been made on 31 Auqust	1984.	It was in those proceedings
that discovery was sought.

Order 15 of the Federal Court Rules deals with discovery

of documents; 0 15 r 1 provides that any party "unless the Court

otherwise orders" may by notice in writing require any other

party to give discovery of documents. See also 0 15 r 5. On 25

March 1985 the learned Judge at first instance did make an order

for discovery though limited in its scope. Later he refused an

application for leave to appeal against that order.

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5.

Certain matters of principle included in the Reasons of

the learned primary Judqe which could not seriously be contested

may be mentioned -

1. Discovery of documents will not be ordered

where such an application is made for the

purpose of "fishinq". See e.g. W.A. Pines

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Pty. Ltd. v. Bannerman	(1980) 30 ALR	559 at
e.g. pp.567, 574.

2.

Discovery will not readily be available in to the administration of criminal justice.

3 . The interlocutory decision made by the learned

Judge at first instance wa5 one on a matter of

practice and procedure; an appeal court will

rarely interfere with a trial Judge's decision

on such matters. See e.g. Adam P. Brown Male

Fashions Pty. Ltd. Philip v. Morris

Incorporated 35 ALR 625 at p.629 where the

Court referred to the fact that -

"...courts exercise particular caution

in reviewing decisions pertaining	to
practice and procedure."

See also In re the Will of F.B. Gilbert (Deceased) (1946) 46 S.R. (N.S.W.) 318 per Jordan C.J. at p.323.

6 .

An affidavit dated 25 March 1984 of Walter Antonio

Reschi, Acting Director of Legal Services in and for the State of

South Australia, states that there are not, nor have there been,

any documents of the description in the order dated 25 March 1984

of the primary Judge other than a memorandum of 27 August 1984

from the Commander Australian Federal Police which document,

apparently, has already been disclosed to the appellant.

The application before us, however, was pressed, not

only by way of appeal against that refusal of leave to appeal but

as an original application for leave to appeal.

It is clear that this raises a question of construction

of S. 24 of the Act. This reads -

“Division 2 - Appellate and related Jurisdiction

2 4 . ( 1 ) Subject to this section and to any other

Act, whether passed before after or the

commencement of this Act (including an Act by

virtue of which any judgments referred to in this

section are made final and conclusive or not

subject to appeal), the Court has jurisdiction to

hear and determine -

(a) appeals from judgments the of Court

constituted by a single Judge:

(b) (c) . . . . ‘ I

(1A) An appeal shall not be brought from a

judgment referred to in sub-section (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

....

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25. (1) The appellate jurisdiction of the Court

shall, subject this o ection and to the

provisions of any other	Act, be exercised by	a Full
court.

( 2 ) Applications for leave or special leave to

appeal to the Court or for an extension of time

within which to institute an appeal may be heard

and determined by a single Judge or by a Full Court

and the Rules of Court may provide for enabling

such applications to be dealt with, subject to

conditions prescribed by the Rules, without an oral

hearing . ”

The appellant claimed that there was an entitlement to be found

in s.25(2) that an application such as this may be made to a

single Judge or to a Full Court; and that such a right was not

exhausted when, as here, a single Judge has heard and decided

such an application. He submitted such a hearing by a Full Court

is a hearing de novo, in which the reasons of the learned Judge

played no part. He referred to O’Toole v. Mitcham (No.2) (1978)

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3 A.C.L.R. 646.

The argument for the appellant continued. Upon the

assumption that the application would be considered on the merlts

he referred to alleged errors in the judgment of the learned

primary Judge. The Notice of Appeal filed reflects the arguments

he put forward, viz. -

“2. That he applicant having established an

arguable, or prima facie, case against the

respondent, is entitled to	a general unlimited
order for discovery.

3 . That the learned Judqe erred at law by only

making a limited order for discovery against

the respondent.

R.

4.

That the applicant is entitled to discovery he is doing no more than fishing, the onus of proof being cast upon the respondent;"

The Orders sought by the appellant were -

"the applicant seeks an order that the respondent

do make full and complete discovery on oath of all

documents which are or have been in his possession,

custody or power in relation to the issues between

the parties to this action."

The respondent's counsel submitted that the jurisdiction

of this Court in these circumstances was appellate only and not

original; that once an application has been heard and has become

the subject of an order there can then be no application to the

Court except by way of appeal.

With respect, I do not accept proposition 2 quoted

above. In my opinion no error has been demonstrated in the order

for discovery itself; the ambit of a Discovery Order is a matter

of some nicety, something akin to the exercise of a discretion.

I am not satisfied that the primary Judge failed to assess the

I	width of the discovery order called for here. Further, in his
consideration of the application for leave to appeal against hi
decision he was concerned with an argument related to an appeal
I	on interlocutory proceedings on a question of practice and
procedure. He made no error that I can discern.

The appellant was given leave to make submissions in

support of his argument that applications for leave to appeal

could be made to a single Judge or a Full Court. This is, with

respect, correct; but he contended there was an entitlement to

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do this consecutively or cumulatively. Such an unlikely state of affairs is met, if it were necessary to refer to it, succinctly

by s.25(2) quoted above. The application may be "heard and

determined by a single Judge or by a Full Court". Once it is

heard and then "determined" by the single Judge - as it was here

- there remains nothing to be "determined" by	a Full Court. Such
an application 1s incompetent.

I agree with the order proposed by the majority.

I certify thzt this and the e l j h t (B) preceding pngcs 21-c n t rue c o y cf t i e

Reasons for J c d p e n t herein oi hls ;!onour -

Mr. Justice McGregor.

Assoc~atc