Lai-Ha v McCusker [2000] FCA 1055

FEDERAL COURT OF AUSTRALIA

Lai-Ha v McCusker [2000] FCA 1055 KAM LAI-HA v LEANNE MCCUSKER & ANOR N 606 OF 2000 EMMETT J 25 JULY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 606 OF 2000 BETWEEN: KAM LAI-HA

APPLICANT

AND: LEANNE McCUSKER

FIRST RESPONDENT

MARK RANDALL J.P.

SECOND RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 25 JULY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The applicant be granted leave to file an amended application in the form filed in court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 606 OF 2000 BETWEEN: KAM LAI-HA

APPLICANT

AND: LEANNE McCUSKER

FIRST RESPONDENT

MARK RANDALL J.P.

SECOND RESPONDENT

JUDGE: EMMETT J

DATE: 25 JULY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have before me two applications. The first application is in proceedings N 203 of 2000. The applicant seeks relief by way of appeal from convictions and sentences imposed by the Local Court in respect of alleged offences under section 132 of the Copyright Act 1968 (Cth) ('the Act'). The applicant foreshadowed at an early stage an intention to apply for leave to adduce additional evidence on the hearing of the appeal. 2 That evidence consists in part of a warrant, the purported execution of which led to the seizure of items which were the subject of the prosecution. Some time after the commencement of proceedings N 203 of 2000, the applicant commenced further proceedings, namely N 606 of 2000 in which the applicant sought orders as follows: "1. A declaration that the Search Warrant issued by the Second Respondent on 14 July 1998 for premises at 54 Belmore Road, Randwick, be declared invalid and of no effect. 2. An Order that the articles and documents seized under the said Warrant that are or will not be the subject of any legal proceedings be returned to the Applicant." 3 I have heard argument in relation to the first question but have not yet decided that question. The applicant today seeks leave to amend the application in proceedings 606 of 2000 by substituting for the second order, an order in the following terms: "A declaration that the seizure of all the things including those the subject of charges 1 to 17 inclusive in the appeal book was not authorised by law." 4 One of the matters relied on by the applicant in the appeal is that she was not in possession of the items in question. If that is so, it seems unlikely that she has any standing to seek the declaration proposed in the amendment. 5 There does not appear to be any real utility in making a declaration in the terms in question since the respondent in proceedings N 203 of 2000 has conceded that the seizure of the items which were the subject of the charges referred to in the summonses at pages 1 to 17 of the appeal book was not authorised by the warrant. While the admission in evidence of such a concession is opposed, the concession is nevertheless made. 6 In those circumstances there is no real utility in making a declaration that the seizure was not authorised, assuming the applicant has any standing to obtain such a declaration. Nevertheless, the respondent in proceeding N 606 of 2000 has not contended that any prejudice will be suffered as a consequence of the amendment. Further, all of the evidence in relation to the proceedings has closed. 7 Accordingly, it is only a matter of legal argument and I therefore propose to give leave to the applicant to file an amended application for an order for review in the terms that I have indicated. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.