ETRI v DISTRICT COURT OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL HANDLEY JA, GILES AJA and Simos AJA 12 December, 20 December 1996 [1996] NSWCA 174 PROCEDURAL FAIRNESS — District Court — claim that party had been denied a proper hearing by reason of not being given a proper opportunity to be heard. Held, claim upheld - record removed to Supreme Court, orders quashed, matter remitted to District Court to be dealt with according to law. Giles AJA. I agree with Simos AJA. Simos AJA. In this matter the claimant, Abdul Hamid Etri, and his brother, Mohammed Etri, pleaded guilty to a charge that on 28 November 1995 at Sydney Airport, each attempted to take out of Australia a sum of money being not less than $5,000 in value, without giving a report in respect of the transfer in accordance with section 15 of the Financial Transactions Reports Act 1988 (Commonwealth). A search by customs officers revealed that AUD $120,000 was packed in the claimant's luggage, and onhis person was AUD $3,450 and US $3,600, none of which had been declared. The amount stated in the charge was the total, namely, AUD $123,450 and US $3,600. In addition to pursuing a prosecution for the transfer offence, the Commonwealth Director of Public Prosecutions applied to the Special Federal Court pursuant to section 19 of the Proceeds of Crime Act 1987 (Commonwealth) for the forfeiture of these sums to the Commonwealth, as 'tainted property' pursuant to sections 4 and 19 of that Act. A further sum of AUD $120,000 was also found to be packed in the luggage of the claimant's brother, who also had cash on his person, being AUD $2,560 and US $3,500, which amounts he had, however, declared. The sum stated in the charge in respect of the claimant's brother was, therefore, AUD $120,000, the forfeiture of which was also sought by the Commonwealth Director of Public Prosecutions. On 7 March 1996 the learned magistrate before whom the matter first came sentenced each brother to a period of imprisonment for four months, but released each upon his own recognisance in the amount of $5,000, to be of good behaviour for two years. Forfeiture orders were made against each brother in the sum of AUD $120,000. The amount forfeited in the claimant's case was less than that which was sought by the Commonwealth Director ofPublic Prosecutions upon the basis that a satisfactory explanation had been provided by the claimant in respect of the money which was found on his person. The claimant's brother gave evidence that the total sum of AUD $240,000 carried by himself and the claimant was his, being savings from his occupation as a farmer, and in particular, from a bumper crop of Lebanese cucumbers in 1995, at a time when prices were high. This explanation was rejected by the learned magistrate. 2 UNREPORTED JUDGMENTS On 7 March 1996 the claimant lodged an appeal under the Justices Act 1900 to the District Court of New South Wales (Criminal Jurisdiction), against the severity of the sentence imposed upon him by the magistrate in the Special Federal Court, and also appealed against the forfeiture order made with respect to the sum of $120,000. The claimant's brother, Mohammad Etri, also lodged similar appeals against the severity of the sentence imposed upon him, and against forfeiture of the equivalent amount of moneys ordered to be forfeited by him. On 15 May 1996 the two appeals came on for hearing before his Honour Judge P.J. Phelan in the District Court of New South Wales. The claimant and his brother were separately represented, and evidence was adduced beforehis Honour by counsel on behalf of the claimant's brother. The prosecution tendered evidence which included the transcript before the learned magistrate and, in addition, handed to his Honour written submissions. After his Honour had read that material the claimant's brother called three witnesses and relied upon that evidence to show that the $240,000 had been earned by him from his farm. At the close of the case for the claimant's brother, counsel for the claimant indicated that the appeal by his client was in respect both of the sentence imposed as well as the forfeiture of the money, but that that there would be no further evidence tendered on behalf of the claimant, only submissions made. The transcript records the following: 'His Honour: Mr Abdul-Karim, any evidence from your point of view? Mr Abdul-Karim: No, your Honour, mainly submissions.' The prosecution did not call any evidence in reply. Counsel for the claimant's brother then addressed his. Honour. The prosecution did not address orally. It appears that, without calling upon counsel for the claimant, his Honour then stated that he would put the matter in for judgment on the following Friday, 17 May 1996. His Honour then commenced to pick up his notes and leave the Bench whereupon counsel for the claimant stated 'Your Honour you haven't heard submissions from me.' His Honour then heard submissions from counsel for the claimant before leaving the Bench as recorded at pages 16-20 of the transcript of submissions. Counsel for the claimant sought to submit, in substance, that by virtue of the forfeiture of his brother's money, he, the claimant, had been denied the benefit of his brother's intention to pay for the claimant's family to travel to Lebanon and apply the money to the purchase of a house in Lebanon for the claimant and his family. The context of this submission was evidence on the point by the claimant before the learned magistrate, to the effect that two of his children were receiving treatment for dwarfism, and the move to Lebanon was enable the extended family to assist with their care, and also to see if 'changing the weather might do them good for a while'. If not, they would return after four or five months. Counsel for the claimant submitted that this loss of benefit was a 'hardship'. "Any hardship that may reasonably be expected to be caused to any person' by the operation of the forfeiture order under the Proceeds of Crime Act 1987 is a URJ ETRI v DISTRICT COURT OF NEW SOUTH WALES (Simos AJA) 3 relevant consideration in determining whether to make a forfeiture order (section 19(3)(a)). This submission may also have been directed in support of mitigation of the claimant's sentence, as well as being one of the submissions made in respect of the forfeiture order. It would appear that the claimant also relied upon the evidence adduced by his brother as to the source of the money. His Honour delivered judgment in both matters on 17 May 1996 confirming both sentences, and in the case of the claimant, confirming the forfeiture. In respect of the claimant's brother, the forfeiture order made by the learned magistrate was quashed, and forfeiture of a smaller sum substituted, with orders, in effect, that the difference between the amount originally forfeited and the lesser amount ordered to be forfeited by his Honour should be forwarded to the Taxation Department on behalf of the claimant's brother. By amended summons filed pursuant to leave granted on 8 July 1996, the claimant claimed an order in the nature of certiorari to remove into this Court the recordrelating to the judgment given and order made by the learned District Court judge on 17 May 1996, and a declaration that his Honour erred in law in making the said judgment and order 'by not giving counsel for the claimant the opportunity on 15 May 1996 to argue and make submissions to his Honour as to why he should not confirm the forfeiture order made by the learned magistrate at first instance'. Pursuant to the amended summons the claimant sought an order pursuant to section 69 of the Supreme Court Act 1970 based upon alleged breach of the requirement of procedural fairness having regard to the manner in which the learned District Court judge dealt with the appeal by the claimant. The material relied upon on behalf of the claimant to support his application is as set out in paragraphs 15, 16 and 17 of the claimant's written submissions which are as follows: 15. Pages 16-20 of the transcript show that: (a) his Honour did not allow counsel for the claimant to develop his submissions; (b) his Honour failed to consider the claimant's case with manifest neutrality and dispassion; and(c) his Honour failed to ensure that the claimant secured the proper hearing to which he was entitled. 16. The totality of the following statements by his Honour shows that his Honour failed to consider the claimant's case with manifest neutrality and dispassion and failed to ensure that the claimant secured the proper hearing to which he was entitled: (a) T16 line 19: There's no hardship relating to your client's loss of $120,000, it's not his. He's never had it, we have provided his living since he has come to Australia, we still will, we give him unemployment social security benefits, we give him a Housing Commission home. None of the $120,000 is his. (b) T16 line 56: Well his brother helps him with an occasional McDonald's hamburger. (c) T17 line 11: I don't care if his brother on tainted money is going to buy him a palace in Monte Carlo. (d) T17 line 16: Your bloke is really lucky. He is still in Australia, we are still providing him with a home, a subsidised home, we're still giving him his money to live on, he hasn't lost a penny of his own money on this. (e) T17 line 31: Look you are going to tell me that Lebanese people or anybody can cart tainted money out of Australia to buy houses for their relatives and it's going to be a hardship for them because crooked JOBNAME: No Job Name PAGE: 4 SESS: 1 OUTPUT: Mon Feb 25 18:17:19 2008 /reports/caseml]/case/urj/9607771 UNREPORTED JUDGMENTS (f) (g) (h) @ @ (k) ce) money can't buy a house for people in Lebanon? I've never heard anything so blasted ridiculous in all my life. T17 line 57 —T18 line 4: A self-serving document which [isn't] worth a pinch of the proverbial as far as proof, but I've got it before me. T18 line 24: So don't come the victim migrant stuff. T18 line 54: Of course, so does [Louis] the fly. T20 line 39: Stands to benefit from crooked money. Look it's a ridiculous submission. Ridiculous. T3 line 57: I told you that's why I'd indicated to you what Father Christmas [his Honour was here referring to his statement at page 13 of the transcript of evidence line 45: "That's as believable as Santa Claus having seven testicles.' ] T4 line 31: That I find as credible as Phar Lap running backwards in the 1932 Melbourne Cup. T14 line 35: But you can rest assured that I will find that he's not worth tuppence as far as belief is concerned and I don't give a tinker's curse to any submission that this money is from cucumbers. Where it comes from God only knows. 17. When his Honour used the expressions "crooked money" and "tainted money' " in the passages referred to above, his Honour was not referring to the fact that the money was tainted property within the meaning of sections 19 and 4 of the Proceeds of Crime Act. He was not stating that the money was tainted property because it was used in or in connection with the offence with which the claimant was charged. He was making a statement that the source of the money came from some form of illegal activity. There was no evidence to support such a conclusion.' On the hearing of the appeal it was submitted by counsel on behalf of the claimant, that the claimant did not obtain the substance of a fair hearing from the learned trial judge, particularly in relation to the issueof hardship occasioned by the forfeiture order made in his case. He was entitled to a hearing at which his case was considered with neutrality and dispassion (Holt v Protective Commissioner (1993) 31 NSWLR 227 at 236) and at which his counsel could properly put that case (Jones v National Coal Board (1957) 2 QB 55 at 67; Escobar v Spindaleri (1986) 7 NSWLR 51 at 57). On behalf of the second opponent it was conceded in written submissions that the context of the great majority of his Honour's remarks and indeed, the terms of his Honour's judgment in relation to his Honour's references to 'tainted' or 'crooked' money, confirmed the interpretation which was contended for by the claimant, namely, that his Honour was not using the term 'tainted' within the meaning of section 4 of the Proceeds of Crime Act (as being property 'used in, or in connection with, the commission of the offence, or proceeds of the offence') but was rather using those terms in the sense of indicating that the money had its source in some form of illegal activity, thereby implying a finding by his Honour to that effect, although there was no evidence that the money was from such a source. Counsel for the second opponent conceded that whilst the modest financial circumstances of the claimant's brother and the 'paucity' of the brother's explanation of the source of the money cast considerable suspicion on the legality of the money'ssource, there was no evidence that the source was in fact illegal. Counsel submitted, however, that although those passages implied an URJ ETRI v DISTRICT COURT OF NEW SOUTH WALES (Simos AJA) 5 unsubstantiated finding of fact, they did not reveal bias against the claimant, because his Honour accepted that the money belonged to the claimant's brother, and a finding that the brother's money was sourced in illegal activities did not imply a finding that the claimant was aware of the nature of that source. Nor it was submitted did his Honour suggest or imply that the claimant was aware that the source was illegal. Counsel on behalf of the second opponent also accepted that some of the passages relied upon on behalf of the claimant 'reflected in candid and forceful terms his Honour's disdain for the explanation which the claimant's brother had offered as to the money's source, and the low estimation in which his Honour held the evidence which had been offered by the brother in support of it.' It was submitted, however, that his Honour was merely ventilating his thoughts and preliminary conclusions to counsel for the claimant, and that his comments were 'not directed to the complainant personally, or as a migrant, or as a member of a particular ethnic group in the community." It was further submitted on behalf of the second opponent that the reference by his Honour to theclaimant's receipt of social security benefits and Housing Commission accommodation was germane to his Honour's consideration of the claimant's submission that he had suffered materially, in particular, that he had lost an opportunity for accommodation. It was also submitted that the other passages relied upon on behalf of the claimant were said by his Honour in response to submissions made by the brother's counsel on the brother's appeal, and in relation to evidence called by the brother in support of his contention as to the source of the money, and that they did not reflect a lack of neutrality or dispassion towards the claimant's case. It was further submitted that his Honour indicated two concerns during the course of the claimant's submission, namely, that he was not prepared to accept the brother's explanation of how he came to have the tainted money, and that 'hardship' was a loss of a proposed benefit for money other than his own, both of which concerns were reflected in his Honour's judgment, although the hardship submission was ultimately rejected because his Honour did not accept the claimant's submission that the money was intended for him, because of the discrepancies in the accounts that he had provided at different times. It was said that, therefore, his Honour's observations that the money was 'tainted' orcrooked' or derived from 'nefarious activities' were inconsequential to the result. Finally, and in the alternative, counsel on behalf of the second opponent submitted that the claimant was disentitled to relief in this Court upon the basis that he failed to make application to the learned District Court judge to disqualify himself at the time the remarks were made, and that, by reason thereof, the claimant had waived his right to subsequently object, within the meaning of the principles laid down in the High Court in Vakauta v Kelly (1989) 167 CLR 568 where Brennan, Deane and Gaudron JJ observed as follows: Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the JOBNAME: No Job Name PAGE: 6 SESS: 1 OUTPUT: Mon Feb 25 18:17:19 2008 /reports/caseml]/case/urj/9607771 UNREPORTED JUDGMENTS final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. Counsel for the claimant referred to the fact that pages 16 to 20 of the transcript of the submissions on behalf of the claimant reveal that his Honour interruptedcounsel for the claimant in the course of his submissions no less than 25 times. Moreover, in my opinion, the nature, context and substance of what his Honour said in the course of those interruptions, conveyed the clear impression that his Honour had already formed views about the facts which he regarded as relevant to the issue of alleged hardship occasioned by the making of the forfeiture order, and that his Honour was unlikely to be influenced in relation to those views by any further submissions. When counsel for the claimant sought to commence his address before his Honour on the question of hardship counsel was only able to say the words "Your Honour, there is a question of hardship that relates to ... , before his Honour interrupted counsel and said, as stated above: There's no hardship relating to your client's loss of $120,000, it's not his. He's never had it, we have provided his living since he has come to Australia, we still will, we give him unemployment social security benefits, we give him a Housing Commission home. None of the $120,000 is his. In my opinion, this comment by his Honour, made before hearing any submission whatever on the question of hardship from counsel for the claimant, was such as to convey that there was no point in addressing on hardship because the forfeiture of the $120,000 did not involve anyhardship to the claimant, by reason of the facts that it was his brother's money in any event ('he's never had it'), that the forfeiture would not affect the claimant's living standard because since his first arrival in Australia he had been in receipt of, and would continue to be in receipt of, unemployment benefits and had lived, and would continue to live in a Housing Commission home. Such comments were, in my opinion, likely to convey to counsel for the claimant that there would be no point in addressing his Honour on those matters, and in that way contributed to the result that the claimant was denied the substance of a fair hearing. Each of these matters adverted to by his Honour were, no doubt, considered by him to be relevant to the issue of hardship, and no complaint has been made to the effect that those matters were not proper for his Honour to take into account. However, the fact remains, as stated above, that those matters were referred to by his Honour prior to counsel for the claimant having had an opportunity to make any submissions whatever on the hardship issue. There can, of course, be no objection to a judge making known to counsel, in the course of submissions, the matters which are of concern to him, so that counsel may properly address those matters, and endeavour to persuade the judge to the point of view for which he contends, butthis does not appear to have been the context in which his Honour's comments were made. URJ ETRI v DISTRICT COURT OF NEW SOUTH WALES (Simos AJA) 7 Subsequent comments by his Honour as recorded on page 16 of the transcript, again made after interrupting counsel, serve, in my opinion, to confirm this analysis. For example, his Honour stated 'Yes, well, there is no hardship in his brother (the claimant) losing it. It's not his money' again, in my opinion, conveying the impression that there would be no point in making submissions seeking to accommodate that consideration in relation to the issue of hardship. Moreover, when counsel was seeking to develop a submission in that context to the effect that the claimant, whose children were dwarves, needed help from 'an extended family in a Lebanese sense', his Honour, again interrupting counsel, remarked 'Well, his brother helps him with an occasional McDonald's hamburger.' This comment apparently related to some evidence to the effect that from time to time when the claimant's children wished to go to McDonald's, the claimant's brother would sometimes give the claimant $10 or $20 for that purpose. Once again, however, in my opinion, such a remark, in the context in which it was made, could only serve to discourage further submissions relevant to the significance in a family context of a family member helping his brother financially. Conveying a similar impression, in my opinion, was the comment of his Honour following a submission by counsel for the claimant that the 'hardship is that he (the claimant's brother) was supposed to be taking him (the claimant) to Lebanon and he (the claimant's brother) was supposed to be buying him (the claimant) a house in Lebanon and he (the claimant) was supposed to be — have the opportunity for these children to have — to see their grandparents, to see their extended family in Lebanon.' His Honour's immediate comment was as follows: I don't care if his brother on tainted money is going to buy him a palace in Monte Carlo. Again, in my opinion, this comment, both in its tenor and in its substance, conveyed the impression that his Honour had already prejudged the issue of hardship, having decided that the money was illegally obtained, by use of the word 'tainted', obviously not in the sense used in the Act, and that his Honour simply 'didn't care' how it was proposed to use the forfeited money, so that submissions on that matter would not be useful. Following this, his Honour again interrupted counsel, and made the following comment:""Your bloke is really lucky. He is still in Australia, we are still providing him with a home, a subsidised home, we're still giving him his money to live on, he hasn't lost a penny of his own money on this.' Counsel then stated: "Your Honour that may well be the case but that's ... ', after which his Honour stated: 'Well, that's the case and therefore there is no hardship', again, in my opinion, conveying the impression that any further submissions would be pointless. Following the comment by his Honour last mentioned, counsel for the claimant stated 'Your Honour, with respect there is a hardship if you hear me on this question. Your Honour this particular matter is an individual matter ... ' Again counsel was interrupted, and his Honour made the following comment: — JOBNAME: No Job Name PAGE: 8 SESS: 1 OUTPUT: Mon Feb 25 18:17:19 2008 /reports/caseml]/case/urj/9607771 UNREPORTED JUDGMENTS Look are you going to tell me that Lebanese people or anybody can cart tainted money out of Australia to buy houses for their relatives and it's going to be a hardship for them because crooked money can't buy a house for people in Lebanon? I've never heard anything so blasted ridiculous in all my life. In my opinion, these comments, and particularly the last sentence, having regard to its terms, are yet a further indication that his Honour was not approaching the matter with an open mind, more particularly, having regard to the fact that it was his Honour who put to counsel,rather than vice versa, his supposition as to what counsel was "going to tell me.' In my opinion the other matters relied upon by the claimant confirm the same impression including, in particular, the following comments: So don't come the victim migrant stuff. Stands to benefit from crooked money. Look it's a ridiculous submission. Ridiculous. There was also evidence in the form of an affidavit from counsel for the claimant in the proceedings in the District Court to the effect that his Honour's interruptions and comments had the result that counsel was unable to make the submissions on behalf of his client that he wished to make. In that affidavit, in respect of which there was no cross-examination, the following paragraphs appear: — 10. It was my intention to make oral submissions to his Honour both on the question of penalty and on the issue of hardship to my client in relation to the forfeiture of the sum of $120,000. 14. I intended to refer to additional matters which were not contained in the Local Court transcript particularly relating to the children and wife of my client who lived in Housing Commission accommodation but whenever I attempted to speak his Honour cut me off abruptly by referring to material referred to in the Local Court transcript. 18. At page 7.1 of the judgment ... his Honour dealt with the question of hardship in relation to my client. None of the additional matters which I intended to advance in support of my client's appeal are referred to therein. Counsel for the claimant also referred to his Honour's references to 'crooked' money and 'tainted' money, which he submitted were not used by his Honour with the meaning of 'tainted' as contained in the Proceeds of Crime Act 1987 (as being used in or in connection with the offence), but rather with the meaning that the source of the money was some form of illegal activity, although there was no evidence that the forfeited moneys had such a source. Counsel for the second opponent, as stated above, conceded that most such references had the meaning contended for by counsel for the claimant. This use of those terms by his Honour was also relied upon by counsel on behalf of the claimant to support his submission that his Honour was unreceptive to his submissions. For all the above reasons, I am of the opinion that the claimant was denied procedural fairness in that in substance he did not receive a fair hearing. URJ ETRI v DISTRICT COURT OF NEW SOUTH WALES (Simos AJA) 9 Counsel for the second opponent submitted, in effect, that counsel for the claimant before his Honour, had been given a proper opportunity to be heard and had, in any event, put to his Honour the substance of all thesubmissions he wished to make and that the only question was whether he had been given a proper opportunity to develop those submissions, which counsel for the second opponent submitted he had. Counsel for the second opponent also submitted that there was no evidence before this Court as to what further submissions counsel for the claimant before his Honour had wished to put forward but had been prevented from doing so. In my opinion, however, these submissions must be rejected, having regard, inter alia, to the three paragraphs in the affidavit of counsel for the claimant before his Honour which are set out above, and as to which there was no cross-examination. Nor, in my opinion, for the reasons stated above, was counsel for the claimant before his Honour given a proper opportunity to make and develop such submissions as he wished to make. Counsel for the second opponent also submitted that, even if the claimant was otherwise entitled to relief in this Court, such relief should be refused on the ground that even if a re-hearing was ordered, there was no possibility of a different result. In this connection counsel relied upon the decision of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141. In the present case, however, it is impossible to conclude that compliance with the rules of procedural fairness could have made no difference to the result. This is so more especially having regard to the consideration that questions of fact would be involved in any re-hearing, including questions as to facts which, according to the affidavit of counsel for the claimant before his Honour referred to above, were not put to his Honour, and were not identified in this Court and which might affect the significance of the facts which were before his Honour. It should also be remembered that in any re-hearing the Court would not be limited to either confirming or not confirming the forfeiture order made, but could order a lesser sum to be forfeited (see the provisions of section 19 of the Proceeds of Crime Act 1987 quoted above). This consideration alone would, in my opinion, make it impossible, for all practical purposes, to satisfy the Court that a re-hearing complying with the rules of procedural fairness could not possibly produce a different result. So far as concerns the submission on behalf of the second opponent to the effect that the claimant, by the conduct of his counsel in not raising the present objection before his Honour, had waived any right to object, I do not think that on the facts of the present case there was a waiver. The very complaint is thatcounsel for the claimant was denied a proper opportunity to make submissions, and while there was a short time between the conclusion of submissions and his Honour's judgment I do not think it could realistically be said that the claimant's counsel stood by until judgment and then, on finding it unpalatable, took up the complaint. For all the above reasons, the claimant is, in my opinion, entitled to the relief sought and the Court should order that the relevant record of proceedings in the District Court be removed into this Court, that the JOBNAME: No Job Name PAGE: 10 SESS: 1 OUTPUT: Mon Feb 25 18:17:19 2008 /reports/caseml]/case/urj/9607771 UNREPORTED JUDGMENTS orders of Judge P.J. Phelan made in the District Court of New South Wales (Criminal Jurisdiction) on 17 May 1996 confirming forfeiture of the sum of $120,000 under section 19 of the Proceeds of Crime Act 1987 be quashed, and the matter be remitted to the District Court of New South Wales (Criminal Jurisdiction) to be heard and determined according to law. The second opponent should pay the costs of the claimant of the application. Handley JA. The claimant's case on the appeal to the District Court in its criminal jurisdiction had its difficulties, but I am unable to find, in accordance with Stead v SGIC (1986) 161 CLR 141 at 147 that a properly conducted hearing could not possibly have produced a different result. A litigant in our Courts has a right not only to a decision that is legally correct, but also to a fair hearing. I agree with Simos AJA that the claimant did not receive a fair hearing, and that orders should be made as he has proposed. 1. Record of proceedings in the matter of the appeal of Abdul Hamid Etri be removed into the Supreme Court of New South Wales. 2. Orders of His Honour Judge P.J. Phelan made in the District Court of New South Wales (Criminal Jurisdiction) on 17 May 1996 confirming forfeiture of the sum of $120:000 under section 19 of the Proceeds of Crime Act 1987 be quashed. 3. Matter remitted to the District Court of New South Wales (Criminal Jurisdiction) to be heard and determined according to law. 4. Second Opponent to pay the costs of the claimant of the application. Counsel for the claimant: Mr. L.P. Robberds: Q.C.: with Mr. R.K.M. Rasmussen Solicitors for the claimant: Michael Doueihi Counsel for the first opponent: Mr. M.J. Ierace Counsel for the second opponent: Mr. M.A. Wigney Solicitors for the first opponent: District Court of New South Wales Solicitors for the second opponent: Commonwealth Director of Public Prosections