Wilhelm v McKay - [2005] FCA 792

FEDERAL COURT OF AUSTRALIA
Wilhelm v McKay [2005] FCA 792
ADMINISTRATIVE LAW – judicial review – amendment – discovery – objection to competency
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Crimes Act 1914 (Cth), s 3E
Judiciary Act 1903 (Cth), s 39B
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited
Hart v Deputy Commissioner of Taxation (2002) 49 ATR 656 applied
Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 cited
Melbourne Home of Ford Pty Ltd v Trade Practices Commission & Bannerman (1979) 36 FLR 450 applied
Nestle Australia Ltd v Federal Commissioner of Taxation (1986) 10 FCR 78 applied
Preston, In Re [1985] AC 835 cited
Salerno v National Crime Authority (1997) 75 FCR 133 cited
WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 applied
OTTO HEINRICH WILHELM, MICHAEL PERRY DEMPSEY, MARKIT PTY LTD and URINDA PTY LTD v WILLIAM JOSEPH MCKAY and KELLIE NADINE JILANI
QUD 154 of 2004
FINKELSTEIN J
15 JUNE 2005
MELBOURNE (via video link to Brisbane)

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 154 of 2004

BETWEEN:

OTTO HEINRICH WILHELM,
MICHAEL PERRY DEMPSEY,
MARKIT PTY LTD and
URINDA PTY LTD
Applicants

AND:

WILLIAM JOSEPH MCKAY and
KELLIE NADINE JILANI

Respondents

JUDGE:

FINKELSTEIN J

DATE:

15 JUNE 2005

PLACE:

MELBOURNE (via video link to Brisbane)

REASONS FOR JUDGMENT

These applications for interlocutory relief were heard by Cooper J. Following his untimely passing, the parties agreed that the case be disposed of “on the papers” and by another judge. To understand the skirmishing that gives rise to the applications (leave to amend the application for review, request for discovery and an objection to competency) it is best to begin with the facts, to the extent that they are known. Two companies, the third applicant (Markit Pty Ltd) and the fourth applicant (Urinda Pty Ltd), were indebted to the Commissioner of Taxation for tax instalments and superannuation. A Deputy Commissioner instituted two actions in the District Court of Brisbane, one against the first applicant (Wilhelm) and the other against the second applicant (Dempsey), at the relevant times directors of the two companies, claiming from them (so it seems) the unpaid tax instalments and superannuation. The basis for each claim has not been identified and the pleadings were not tendered. Before the actions came on for trial, each company went into administration and in due course its creditors approved a deed of company arrangement. It is likely (I say “likely” as the deeds have not been produced) that the effect of each deed is to compound the claims of all creditors, including those of the Commissioner. A Deputy Commissioner of Taxation then took proceedings in the Supreme Court of Queensland (one proceeding for each company) to set aside the deeds.
On 7 July 2004 the three proceedings were compromised on terms contained in a deed styled “Deed of Settlement”. By this deed the directors agreed to pay $600,000 to the solicitors on behalf of the Commissioner (Blake Dawson…

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.

Continue reading Wilhelm v McKay

Details

AGLC: Wilhelm v McKay [2005] FCA 792
Case: [2005] FCA 792
Decision Date: 15 JUNE 2005

CaseChat Overview and Summary

In Wilhelm v McKay, the applicants sought judicial review of several decisions made by the second respondent, an officer of the Australian Federal Police (AFP). The applicants claimed that the second respondent improperly obtained a search warrant and executed it, leading to the seizure of documents that were to be returned to the applicants as part of a settlement agreement. The applicants also sought amendments to their application for review, arguing that they needed to review additional conduct by the second respondent. Additionally, they requested an order for discovery of documents related to the issuance and execution of the search warrant. The legal issues centered around the jurisdiction of the Federal Court to review the second respondent's decisions, the propriety of the search warrant issuance, and the availability of discovery in judicial review applications.

The court held that the objections to competency and jurisdiction should be dismissed. The court found that the amendments sought by the applicants were not speculative and were necessary to address the alleged improper conduct by the second respondent. The court also ruled that discovery should be granted to the applicants as it was necessary for the fair disposition of the case and to uncover the truth behind the issuance of the search warrant. The court noted that the ATO had agreed to return the documents, suggesting that they were no longer needed for any investigation, and thus the warrant should not have been issued. The court further observed that the applicants had raised legitimate questions about the power of the ATO and AFP to act as they did, which required further investigation. The applicants were granted leave to amend their application for review and an order for discovery was made to facilitate the preparation for trial. The court also ordered that the second respondent pay the applicants' costs.

Orders