and particularly Federal Commissioner of Taxation v Nestle

Federal Court of Australia|1988-04-08|Before: Woodward J

Australia Ltd (1986) 69 ALR 445 at 452~3, I have an unfettered discretion in this application for judicial review of an administrative decision, whether to order Limited discovery or not; I do not believe there is any real issue as to general discovery. Having listened to the arguments of counsel with care I am not persuaded that any useful purpose

would be served by ordering discovery in this matter.

So far as the decision of 1978 to seize the moneys is concerned, it seems to be clear and common ground that that decision is not directly justiciable in these proceedings and that, therefore, any documents which might arguably have been discoverable by the respondents relating

The only possible qualification to what I have just said is that it might have been argued by the respondents that, when he reviewed the issue generally as to whether the forfeited money should be returned in 1982, the decision maker at that time had regard to the merits of the case as they had appeared to the relevant decision makers in 1978, in

reaching a conclusion that in 1982 that the moneys ought not

However, counsel for the respondents has assured me that it will be no part of the respondents case to argue that the 1978 decision was correct on its merits and that those merits were reviewed in 1982; and he is prepared, on behalf

of the respondents, to undertake to make the necessary

amendments to the respondents contentions of fact and law to

make that situation quite clear. I shall give leave to do

In those circumstances it seems to me quite definite that there could be no documents in the possession of the respondents concerning the 1978 decision which could

So far as the 1982 decision is concerned, as I have indicated, it is not contended and will not be contended on the part of the respondents that a consideration of the merits of the applicant's case - that is to say the appropriateness of the original seizure of the moneys on the basis that they were derived in some way from dealings with narcotics - is to become part of the respondents' defence to

the allegations made in relation to the 1982 decision.

That decision is to be defended essentially on legal grounds, the points being taken that it is not within the power of the respondents, in the circumstances that have transpired, for them to return to moneys sought; that it is not within the power of the court to review that. decision; and even if it were within the power of the court, as a matter of discretion, in all the circumstances of this case including the passage of time and the way in which the application was made in 1982, the court would not wish to

In these circumstances it seems to me to be clear that there are no documents in the possession of the respondents which are going to be of any assistance to the applicant if discovered and, in order to reinforce this impression which I have gained from listening to the argument, counsel for the respondents has informed me that he is not aware of any documents in the possession of the respondents intended to be produced at the trial and adduced in evidence, other than documents which have passed formally between the parties. However, to reinforce the applicant's position I shall order that the respondents give early notice to the applicant of any documents in their possession on

discretion which have indicated, I reject the application and dismiss the relevant part of the notice of motion in so far

a true and accurate copy of the Ex Tempore Judgment herein of The Hon Mr Justice Woodward

Counsel for the Applicants/Appellants: Mr P, Wilson Solicitors for the Applicants/Appellants: Juliano,

Solicitors for the Respondents: Australian Governme Solicitor

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Cases Cited (1)

Cited By (3)