ee Sp I ate CATCHHORDS Practice and procedure - limited order for discovery - application for special leave to appeal to Full Court refused bv Judge making order - whether further application to Full Court for special leave competent - whether appeal to Pull Court from refusal to grant special leave competent. Federal Court of Australia Act 1976 ss.24, 25 --- ' CHRISTOPHER KIDMAN REID v. WILLIAM TAN NAIRN NO. SA G21 OF 1985 FOX, PORSTER & McGREGOR JJ. 7 JUNE 1985 ADELAIDE IN_THE FEDEPAL Compr OF SMSTPALIA 1 wee SOUTH AUSTRALIAN DISTPICT PEGISTPRY' Wo. TA Gal of 1985 PAN ee pe oe me ee GENERAL DIVISTON APELICATTION FOP LEAVE To PPE, from the Seder of The 3 Honourable Mr. Justice Fisher 1 made the 256th day of March 1325 in the Federal Court of Australia abt Adelaide ; tpplacant | WELLIAM Til NAIEN ; Paspondsnt . : MINUTE AF_OPDEP '| JUDGES MAKING ORDEP: For, Forster & McGreaqer IT. - DATE _OF_ORDER: _ 2 April 1995 i WHERE MADE: Adelaide | THE COUPT OPDEPS THAT: I 1. The application for special leave to appeal be dismiszed "is & as incompetent. Le ~- s . 2. The appeal from the refusal of Pisher J. &s rant = special leave fo appeal Ee dismissed as incompetent. 3. The applicant 'appellant par the casts of the respondent af the application and appeal. 4 Noke: Settlement and antry of orders is dealt with in ; Neder 26 of the Paderal Court Pules, ™ a mere, beter SM oe ow FE ae 6 wo " . . SRA IN THE FEDERAL COURT OF AUSTRALIA } b) SOUTH AUSTRALIAN DISTRICT REGISTRY } No. SA G21 of 1985 } GENERAL DIVISTON ,) APPLICATION FOR LEAVE TO APPEAL from the Order of The Honourable Mr.dustice Fisher made Ehe 25th dav of March 1985 in the Federal Court of Australia at Adelaide BETWEEN: CHRISTOPHER KIDMAN RETD Applicant AND: WILLIAN TAN NAIRN Respondent CORAM: FOX. FORSTER AND McGREGOR JJ DATE: 7 JUNE 1985 REASONS FOR JUDGMENT EOX and FORSTER JJ. after hearing submissions in this matter we made orders dismissing with costs the application for 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 would be delivered later. We now give our reasons. Ce ae = ae wooo ee : - Ate Ss . ws 7s oo te er ee te Te ee The application before the Court was in form one for leave to appeal against an interlocutory decision of Fisher J. respecting discovery of documents in a proceeding commenced by the appellant under the Administrative Decisions (Judicial Review) Act, 1977. His Honour had made a limited order for discovery at the instance of the appellant, but a wider order was sought. The appellant applied to Fisher J. for leave to appeal fo the Full Caurt, but,for reasons he then gave, his Honour refused that application. The renewed application for Leave was described as an application "de novo" to this Court and this accords with the terms of the document Filed. We were asked, in the alternative, to treat the application as an_ appeal aaainst the refusal to grant leave. This last-mentioned course was not opposed and we have treated. this second application as being before us. The respondent has obiected to competency in respect of both applications. The application to the Full Court for leave to appeal was made in reliance on sub-secn. 24 (1A) of the Federal Ceurt of Australia Act 1976: "(LA) An appeal shall not be brought from a judgment referred to in sub-section (1) that is an interlocutory judament unless the Court or a Judge qives leave to appeal". This sub-section was inserted by Act No. 72 of 1984. At at aan a vere EE ae ah, Se aa Te oa a the same time the previous sub-secn. 25/2) was omitted and the following sub-section suhstituted for it: "(2) Applications for leave or special leave to appeal to the Court oer for an extension of time within which to institute an appeal may be heard and determined bv a single Judge or by a Full Court and the Rules of Court may provide for enabling such applications to be dealt ! with, subiect.to conditions prescribed by the Rules, without an oral hearing". The two provisions have to 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 category are Niemann v. Electrenic Industries Ltd. (1978) V.R. 431 and O'Tnole vw. Mitcham (No.2)(1978) 3 A.C.L.R. 646, The Victorian courts accept that if an application for leave is refused. a Further 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 one of practice, in the following terms: "The defendants now seek leave from the Full Court to appeal against that order. having first sou¢ght his Honour's leave, and having been refused such leave. This course appears to be sanctioned by practice. See Godman v. Moses (1900) L.J. 0.B. 823." We observe in passing that Godman _v. Mosas, and the case it . followed (Holland ov. Girling (1899) noted 43 Sol.Jo.600) turned very much on the terms of the English legislation. In the second category mentioned above are cases such as Kav ov, Briggs (1889) 22 Q.B.D. 343: Lane ov. Esdaile (1891) te Ws ee Benefit Officer (1937) W.L.P. 262. The policy against allowing appeals from decisions on applications for leave to appeal is there clearly stated. and is put on wide grounds (see. for @xample, per Lord Halsbury L.C. in Lane +. Esdaile at p. 212 and Ally. re) per Lord Esher M.R. in ex We do not find it necessary to examine these cases in detail, because geens. 24 and 25 cf tha Federal fort of Australia act seem Fo us Fo make tha position reasonably clear. Section 24 deals with the appellate furisdiction of the Court and sub-secn. '1A) qualifies the right of appeal in interlocutory matters which the section would otherwise ce understood to cive. The primary argument has been that the Phrase "the Court ora Tudee" in s3ub-secn. 24/13) and the carresponding phrase in sub-seen. 25(2), kaken together. mean that the two courses are available, cumulativelr. Section 25 concerns exer ba yn ise of the appellate jurisdiction of the Court and the manner of invoking, or seekine a. The substituted sub-secn. (2) sf bhab bub Fo invoke, its ex Rection deaal D eeu ifi a Fr) | ed i a y with, inter alia. applications for uw spe 3 leave to appeal to the Court and provides Ehat ther "may be heard and dabtarmined by a single Judqe or br a Pull Courr...". In gur wiew this lanquagde. and particularly the vse of "determined" tty aoe Daal me 1a 38, aa na 8 HLS oe ce, _ Lee - oon Saray t inTiuae.. Ape ie Mose ar gs of C SS ¢ makes it reasonably plain that the issue is to be decided br a matter. There are the alkernatirves,. but ther are true alternatives. andare not to be understood in the progressive sense that the appellant relies 'pan. This is a different question from whether an appeal lies. an arder granting or refusing Leave to appeal from an interlocutory order is itself.an interlocutory order: it is the @& permission: the determination of a rh a acanting (or refusing) o eracedural step. The granting of-leave is in its nature not final, because Leave can be withdrawn, but 'in any event the order qranting of refusing leave is interlocutory beacause the subiect ts interlocutorr. It is possible that the grant or refusal of "Leave should not be regarded as a "judement" within the meaning of s.24, but, as already indicated, fhe English courts, proceeding as they do on wider practical considerations. have eschewed such verbal refinements. With the quidance orovided br English <ases to which we have referred. (see, for ezample. fers iscussion by Sir John Donaldson M.P. in Bland. supra. at pp. -7\ we are of the view that there is no appeal from a decision oo ok ot rh aA PF n m2 pay ef ai single fudge refusing 'or granting) Leave to appeal. Tf Ehere were to be an appeal, leave would first be required. thus Producing a nonsensical situation. | There 1s) the added consideration that, in general, it is desirable that matters "concerning procedure (including in that term interLacutor- injunctions) should be settled promptly and conclusively. While an appeal lies. with Leave. an appeal from the grant or refusal of leave, before the substantive matter is dealt with,is a thoroughly undesirable addition ta leqal remedies A party wishing to appeal from an interlocutory order has Eo make an election whether' the judge, or a Full Court should be approached for leave. In the Latter instance. 2 auestion may arise on oceasion whether the Full Court should be asked fo consider the merits of the appeal, at the same time as leave is sought. Gillard J. discussed this aspect in Niemann 'at pp. Pa 444,95). Nur view is that both applications should be dismissed as incompetent. Seme of the time hefore us was accupied in debate as to whether his Honour was in error in limiting discovery in the wav he did. We will make same brief comments on this a et. The LA iD p n with oD Pr rey ease is one in which the appellant is charged in connec his possession of drugs. Some discussion and correspondence took place on the question whether. as the appellant desired. the casa sould and would he dealt with summarily by A magistrate... Whether Tr D the matter should be so dealt with was of course one for th Tv C) Magistrate, at the appropriate time. but the consent of h prosecutar was also necessary. On 271 Auaust 1984, before th b hearing commenced. the present respondent. acting for the Director of Public Prosecutions. said that the prosecution would owt, aly a Ph Ss peta Wee Pee Te ee SOULE AX: SS ea, Se Aten renee Ore rie db a Fort teats es "an net give its consent. This is the "decision" under challance, and his Honour treated it as a decision to which s.5 of the Duidictal Rewiew Act could have application. The application stated that the decision had been made in breach of the rules of natural yistice, that it was "an improper exercise of the power conferred by the Customs Act". and that there was no evidence which "justified the making of the decision". QO a directions hearint. application ~-as made for discovery. His Horiour found virtually no material to support the u nD case sought to be made. but he did find that there was bit evidence that representations respecting the summary Erial shich had been made by the appellant and his solicitor to the police had not been passed on to the decision maker. There then arose possible cases of denial of natural justice (s.5(13(a\ of the Judicial Review Act). and of failure to take into account relevant considerations (s5.5(2\(b)). The judge confined discovery to documents respecting the aspects disclosed bv the evidence and declined to make a wider order for discovery. He vegarded the: appellant as being 4mbarked en ai "fishina" expedition. The argument that because there was material suggesting 'the possibility of a denial of natural Justice or of failure to take into account a relevant consideration in a particular respect, the whole of the documentary material surroundina the making of the decision should be the subiect of production is not in our view sustainable. Without passing comment on any other aspect of the case we simply say that we entirely agree with his Honour's decision to Limit discoverv. . Te was our view that the application for leave ko appeal, and the appeal, should be dismissed, as incompetent. and that the applicant-appellant should pay the costs of the respondent of the application and appeal. and we have so ordered. ree I certify that this and the seven (1) preceding » es aze a txue copy of the Reasons for Juugment herein or kes Eoncurs BE Soeste Mr. Justice Fox and Me Jush poRsTi Pak Sb kane Agsociata a Dated: 7 Ju / 985° * Kite pee? erry ane geneds ben IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY) Wo. SA G21 of 1985 ) GENERAL DIVISION BETWEEN CHRISTOPHER KIDMAN REID Appellant AND WILLIAM IAN NAIRN Respondent Coram: Fox, Forster and McGregor JJ. Date: 7 June 1985 REASONS FOR JUDGMENT McGregor J. CHRISTOPHER KIDMAN REID (appellant) on 29 March 1985 appealed against an order refusing leave to appeal made in Adelaide on 25 March 1985 by a Judaqe of this Court in an application for discovery against WILLIAM TAN NAIRN (respondent) named as respondent in the application and this appeal. It is contended by the appellant that the order for discovery was not a full order but confined ina way that was unjustifiable; and that leave to appeal against it should have been granted. Judgment in this matter was given in Adelaide on 2 April 1985 when it was said that Reasons would be qiven later. What follows are my Reasons for that judgment. The circumstances in which the order appealed was made should be noticed. On or abéut 16 April 1984 the appellant was charged pursuant to the Customs Act 1901 s.233B(1)(ca) that on 15 April 1984 at West 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 qrams) 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.235(3)(b). According to Retalic, after taking instructions from the appellant, in July or August 1984, he made contact by telephone with the Australian Federal Police; he intimated that if thev 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 qive the police information which might be of assistance to them; in return Retalic wanted their aqreement that the charges would be dealt with summarily. Subsequently, according to Retalic, he had further contact with Det. Barratt of the Australian Federal 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 0'Connell and Barratt; he told them that his client was prepared to speak to them on the understanding that they must reciprocate and "provide him with a benefit". What 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 5s.235(6) 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 23 October 1984 Retalic wrote to the Deputy Crown Solicitor seeking, pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) particulars of the decision not to 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 ADJIR 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 August 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. Certain matters of principle included in the Reasons of the learned primary Judge 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 "fishing". See e.g. W.A. Pines Pty. Ltd. v. Bannerman (1980) 30 ALR 559 at e.g. pp.567, 574. 2. Discovery will not readily be available in respect of administrative decisions relating to the administration of criminal justice. 3. The interlocutory decision made by the learned Judge at first instance was 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. Vv. Philip 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. 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 24.(1) Subject to this section and to any other Act, whether passed before or after 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 of the Court constituted by a single Judge: (b) (c) ...." (1A) An appeal shall not be brought froma judgment referred to in sub-section (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal. 25. (1) The appellate jurisdiction of the Court shall, subject to this section 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 Pull Court and the Rules of Court mav provide for enabling such applications to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing." fhe appellant claimed that there was an entitlement to be found in s.25(2) that an application such as this may be made toa 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) 3 A.C.L.R. 646. The argument for the appellant continued. Upon the assumption that the application would be considered on the merits 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 the 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 Judge erred at law by only making a limited order for discovery against the respondent. 4, That the applicant is entitled to discovery generally save and except if it be shown that 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 Discoverv 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 width of the discovery order called for here. Further, in his consideration of the application for leave to appeal against his decision he was concerned with an argument related to an appeal 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 toa single Judge ory a Full Court. This is, with respect, correct; but he contended there was an entitlement to 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 aqree with the order proposed by the majority. ! certify that this and the eight (e) preceding pagcs are a true copy of the Reasons for Judgment herein of his ¢tonour Mr. Justice McGregor. shane Coctta Associate Dated: 7 dune (785