Chonka v Palmer [2004] FCA 1560

FEDERAL COURT OF AUSTRALIA

Chonka v Palmer [2004] FCA 1560 MICHAEL CHONKA V MICHAEL JOHN PALMER AND ORS N 546 OF 1998

STONE J 30 NOVEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 546 OF 1998

BETWEEN: MICHAEL CHONKA

APPLICANT

AND: MICHAEL JOHN PALMER (COMMISSIONER OF AUSTRALIAN FEDERAL POLICE)

FIRST RESPONDENT

PETER RYAN (COMMISSIONER OF POLICE SERVICE NSW)

SECOND RESPONDENT

THE HONOURABLE JUSTICE COLLEEN ANN MOORE

THIRD RESPONDENT

GLEN MARTIN RATJENS, DETECTIVE SENIOR CONSTABLE, NSW POLICE

FOURTH RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

FIFTH RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 30 NOVEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The motion of the second and fourth respondents contained in the amended notice of motion filed on 15 September 2004 be allowed. 2. The application be dismissed. 3. The applicant pay the respondents' costs. 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 546 OF 1998

BETWEEN: MICHAEL CHONKA

APPLICANT

AND: MICHAEL JOHN PALMER (COMMISSIONER OF AUSTRALIAN FEDERAL POLICE)

FIRST RESPONDENT

PETER RYAN (COMMISSIONER OF POLICE SERVICE NSW)

SECOND RESPONDENT

THE HONOURABLE JUSTICE COLLEEN ANN MOORE

THIRD RESPONDENT

GLEN MARTIN RATJENS, DETECTIVE SENIOR CONSTABLE, NSW POLICE

FOURTH RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

FIFTH RESPONDENT

JUDGE: STONE J

DATE: 30 NOVEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

introduction 1 This applicant commenced this proceeding by filing an application and supporting affidavit on 5 June 1998. It concerns the circumstances in which two warrants were issued under the Telecommunications (Interception) Act 1979 (Cth) ('Interception Act'). Pursuant to those warrants, telephone interception evidence was obtained against the applicant for use in criminal proceedings. The applicant seeks declarations that the warrants, and any tracing, interception, recording and transcribing of telephone conversations arising from the warrants, are illegal and invalid. He also seeks orders that the warrants be set aside, that the first, second, fourth and fifth respondents be restrained from using any of the information obtained pursuant to the warrants and that the second and fourth respondents pay the applicant damages of $250,000 for the invasion of his privacy constituted by the tracing and interception. 2 By an amended notice of motion filed on 15 September 2004 the second and fourth respondents now move the Court for orders that this proceeding be summarily dismissed. That notice of motion refers to Orders 10, 11 and 20 of the Federal Court Rules. The powers of the Court previously exercised in the case of default under O 10 r 7 and O 11 r 23 are now authorised by O 35A and, insofar as the respondents rely on the applicant's default, I will consider their claims for relief under O 35A. The respondents also rely on O 20 r 2 pursuant to which the Court may dismiss a claim where no reasonable cause of action is disclosed, or the proceeding is frivolous, vexatious or an abuse of process. 3 The matter has a long and complex factual and procedural background, some understanding of which is necessary to understand the basis of the orders I make today. I will therefore briefly summarise that history.