Lanwren Pty Ltd v Collector of Customs [1988] FCA 444

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSW G.1039 of 1988

NSW G.1040 of 1988

G.1041 of 1988

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BETWEEN:

LANWREN PTY LIMITED

Applicant AND: THE COLLECTOR OF CUSTOMS Respondent BETWEEN:

VAMANI PTY LIMITED

Applicant

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THE COLLECTOR OF CUSTOMS

First Respondent

DIRECTOR OF INVESTIGATION

Second Respondent

BETWEEN:

PAUL and LEE VILAYSACK

trading as THONGSON IMPORTS AND EXPORTS

Applicant

THE COLLECTOR OF CUSTOMS

First Respondent

ig

G.S. GRAUSAM

Second Respondent

owe cee ae oe

pop ee

AND:

DIRECTOR OF INVESTIGATION

Third Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

In these matters leave is sought to discontinue, now at approximately 2.55 o'clock this afternoon, the hearing having commenced yesterday and proceeded through until now. Leave to discontinue is not opposed, except on the issue of costs. The

respondent seeks an order for costs.

The applicants argue that I should make an order that each party bear its own costs, and that I. should do so on the footing that it was only on Friday last that the full extent of the respondent's case was disclosed by a very lengthy affidavit, with a large number of annexures, and that even then the affidavit was made available only to counsel for the applicant on the express basis that its contents were not to be communicated to anyone, even his instructing solicitor. The basis of this was

a claim of public interest immunity.

There had been some delays on the applicant's own part, but nevertheless it seems to me that there was a degree of unnecessary difficulty imposed upon the applicant's counsel, and through him upon them, by the procedure which was adopted. The affidavit, the whole of which was claimed to be immune from any

form of disclosure, was not in fact wholly of that character.

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3.

Indeed, it was conceded that a number of the annexures had been in fact produced without claim of immunity, and it was conceded that paragraphs in the affidavit, and parts of paragraphs, were not properly immune. I do not wish these reasons to appear critical of the respondent; they are not intended to be critical. The circumstances of these claims did raise, quite properly, issues as to whether public interest immunity was required in respect of a considerable number of matters in quite complex investigations. Nevertheless, I think it should be said that it is an inappropriate procedure to put all of the material in one affidavit, and then make a blanket claim of privilege. What should be done, in any such case, is to disclose all that can be properly disclosed, and then supplement it by the privileged material in a separate affidavit in such a way as to avoid