Se preereCLLAL (NOT FOR DISTRIBUTION) IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 358 of 1986 GENERAL DIVISION BETWEEN: WILLIAM CHARLES GARFIELD SINCLAIR Applicant and COMMONWEALTH OF AUSTRALIA THE COMPTROLLER-GENERAL OF CUSTOMS THE COLLECTOR OF CUSTOMS (QLD) and MAXWELL ROGERS Respondents MINUTES OF ORDER COURT: Woodward J. DATE: 8 April 1988 PLACE: Melbourne THE COURT ORDERS THAT: 1. The applicant's application for discovery be dismissed. 2. The respondents have leave to serve and file, within 21 days, amended contentions of fact and law. 3. Note: The respondents give notice to the applicant, at the earliest practicable time, of any documents in their possession on which they intend to rely at the hearing. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA) VICTORIA DISTRICT REGISTRY -No. VG 358 of 1986 eens GENERAL DIVISION BETWEEN: WILLIAM CHARLES GARFIELD SINCLAIR Applicant and COMMONWEALTH OF AUSTRALIA THE COMPTROLLER-GENERAL OF CUSTOMS THE COLLECTOR OF CUSTOMS (QLD) and MAXWELL ROGERS Respondents COURT: Woodward J. DATE: 8 April 1988 ~ 5 é PLACE: Melbourne EX TEMPORE JUDGMENT I believe that, in the light of the authorities, and particularly Federal Commissioner of Taxation v Nestle Australia Ltd (1986) 69 ALR 445 at 452~3, I have an unfettered discretion in this application for judicial review of an administrative decision, whether to order Limited discovery or not; I do not believe there is any real issue as to general discovery. Having listened to the arguments of counsel with care I am not persuaded that any useful purpose would be served by ordering discovery in this matter. It seems to me that the issues to be litigated are very largely issues of law. In so far as it will be necessary for the applicant to establish at the outset any guestions of fact about the origins of the moneys which are in dispute, the facts relating to those moneys are peculiarly within the knowledge of the applicant. So far as the decision of 1978 to seize the moneys is concerned, it seems to be clear and common ground that that decision is not directly justiciable in these proceedings and that, therefore, any documents which might arguably have been discoverable by the respondents relating to that decision would serve no useful purpose. The only possible qualification to what I have just said is that it might have been argued by the respondents that, when he reviewed the issue generally as to whether the forfeited money should be returned in 1982, the decision maker at that time had regard to the merits of the case as they had appeared to the relevant decision makers in 1978, in reaching a conclusion that in 1982 that the moneys ought not to be returned. However, counsel for the respondents has assured me that it will be no part of the respondents case to argue that the 1978 decision was correct on its merits and that those merits were reviewed in 1982; and he is prepared, on behalf of the respondents, to undertake to make the necessary amendments to the respondents contentions of fact and law to make that situation quite clear. I shall give leave to do so, In those circumstances it seems to me quite definite that there could be no documents in the possession of the respondents concerning the 1978 decision which could become relevant in these proceedings. So far as the 1982 decision is concerned, as I have indicated, it is not contended and will not be contended on the part of the respondents that a consideration of the merits of the applicant's case - that is to say the appropriateness of the original seizure of the moneys on the basis that they were derived in some way from dealings with narcotics - is to become part of the respondents' defence to the allegations made in relation to the 1982 decision. That decision is to be defended essentially on legal grounds, the points being taken that it is not within the power of the respondents, in the circumstances that have transpired, for them to return to moneys sought; that it is not within the power of the court to review that. decision; and even if it were within the power of the court, as a matter of discretion, in all the circumstances of this case including the passage of time and the way in which the application was made in 1982, the court would not wish to review the decision made then, In these circumstances it seems to me to be clear that there are no documents in the possession of the respondents which are going to be of any assistance to the applicant if discovered and, in order to reinforce this impression which I have gained from listening to the argument, counsel for the respondents has informed me that he is not aware of any documents in the possession of the respondents intended to be produced at the trial and adduced in evidence, other than documents which have passed formally between the parties. However, to reinforce the applicant's position I shall order that the respondents give early notice to the applicant of any documents in their possession on which they intend to rely at the hearing. For these reasons, and in the exercise of the discretion which have indicated, I reject the application and dismiss the relevant part of the notice of motion in so far as it sought orders for discovery. I certify that this and the three (3) preceding pages are a true and accurate copy of the Ex Tempore Judgment herein of The Hon Mr Justice Woodward LQ bho Associate Dated: 8 April 1988 Counsel for the Applicants/Appellants: Mr P, Wilson Solicitors for the Applicants/Appellants: Juliano, Counsel for the Respondents: Mr. G. Nettle Solicitors for the Respondents: Australian Governme Solicitor Ford & Coa nt