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 ) ) ) ) ) BETWEEN: LANWREN PTY LIMITED Applicant AND: THE COLLECTOR OF CUSTOMS Respondent BETWEEN: VAMANI PTY LIMITED Applicant ig 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. oe 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 unnecessary embarrassment to other parties and to the Court. In all the circumstances I think that, though very understandably, the position that was produced was a position of very considerable difficulty for Mr. Cashion, who appeared for the applicants. Had the procedure I have mentioned been adopted, and particularly had it been adopted at a somewhat earlier stage than last Friday, the instructions to seek leave to discontinue the proceedings which Mr. Cashion obtained this afternoon might very probably have been obtained, at any rate, by yesterday. In the circumstances, I think the fair and just order for costs is that the applicants pay the respondent's costs, but not including the costs of today. I therefore grant leave, in each matter, to the applicants to discontinue, and I make those orders in respect of the respondent's costs of each application. Exhibits "e 4. may be returned. I direct that both the copy filed in Court and the copy delivered to Mr. Cashion of the affidavit containing the immune material be returned to Mr. Steven's instructing solicitor upon his undertaking to the Court that, should any question arise by reason of which the Court directs that it be returned, the affidavit with its annexures will be returned to the Court. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Ar 'inher Associate Dated: 26 July, 1988. spose = eee