Federal Court of Australia|1990-11-29|Before: Foster J, Morling J, September Foster J, Fox J

Re Irene Vera Oliphant v Commissioner of Australian Federal Police [1990] FCA 475; 27 FCR 146 (29 November 1990)

Practice and Procedure - Appeals - motion for an order that appeal be dismissed as incompetent - application for leave to appeal from interlocutory judgment.

Solicitors for the appellant: Bernard D. Brassil and Co.

Solicitors for the respondent: Director of Public Prosecutions

The appellant pay the costs of the respondents of the motion and of the appeal.

The motion for leave to appeal from the interlocutory judgment of Foster J. of 20 September 1990 be dismissed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is a motion by the Commissioner of Australian Federal Police for an order that an appeal by Irene Vera Oliphant be dismissed as incompetent. The appeal was commenced by the filing of a notice of appeal on 21 September this year by the appellant and it seeks to appeal from the whole of the judgment of a single Judge of this Court (Foster J.) given on 20 September 1990 whereby his Honour dismissed a motion before him which in turn sought to set aside an order of another single Judge of this Court (Morling J.) made on the previous day, 19 September 1990.

2. Morling J.'s order was that the appellant should appear before a Registrar of this Court at 2.15 pm the following day (20 September) to be examined under s. 243F(1)(e) of the Customs Act 1901 concerning the nature and location of the property of one Brent Richard Peters. This order of Morling J. was made in the course of a substantive proceeding for the recovery of pecuniary penalties pursuant to s. 243B of the Customs Act.

3. Section 243F(1)(e) empowers the court as an incident of the substantive proceeding to make orders for the examination on oath of the owner of the relevant property or another person before the Court or a Registrar, concerning the affairs of the owner, including the nature and location of the owner's property. Hence that was the source of the power exercised by Morling J. in making the order of 19 September.

4. On 20 September Foster J., having dismissed the motion before him to set aside Morling J.'s order, proceeded to order that the appellant be examined before him forthwith but that the transcript be kept confidential to the legal representatives of the appellant and the Commissioner. The examination was conducted and the confidentiality order made by his Honour was in these terms:

"That the transcript of evidence given by Irene Vera

Oliphant on 20 September 1990 be marked confidential

and be kept confidential pending the outcome of any

appeal, provided that if such appeal is not

instituted by 4.15 pm on 21 September 1990, this

order shall cease to be of effect."

5. We do not know at what time of day the notice of appeal was lodged but it was certainly lodged on 21 September 1990; so we assume and the contrary is not suggested, that the order for confidentiality of his Honour commenced to operate and will remain operative pending the outcome of the appeal the subject of the motion for dismissal before us this morning.

6. The Commissioner supports his motion for dismissal on the basis that the order of Foster J. was of an interlocutory nature. He relies upon the very nature of a proceeding for the recovery of a pecuniary penalty in the course of which an order is made under s. 243F(1)(e) and upon certain observations by Fox J. in Kirk v Commissioner of the Australian Federal Police, the judgment delivered 8 July 1988. The judgment the subject of the appeal before us is not, of course, Morling J.'s order, rather it is Foster J.'s order. But in our opinion the useful starting point is the order of Morling J. which as we said earlier was made pursuant to s. 243F(1)(e) of the Customs Act for the examination of the appellant. In our opinion that order was plainly of an interlocutory nature and a fortiori the subsequent order of Foster J. dismissing the application to set aside Morling J.'s order is of an interlocutory nature. Even if, however, Foster J.'s order were to be considered alone rather than in the light of its predecessor order, it would in our opinion be plain that it is of an interlocutory nature. If authority be needed for the proposition we are content for present purposes to rely upon the judgment already mentioned of Fox J. in Kirk v Commissioner of the Australian Federal Police with which we agree.

7. The order of the Court is that the appeal be dismissed and that the appellant pay the respondent's costs of the motion and of the appeal. There is no necessity to make any order in terms of paragraph 2 of the motion, that is, to vary Foster J.'s order of 20 September so as to permit publication of the transcript of the examination of the appellant conducted before his Honour that day because it is plain from the very terms of the order itself which the Court read out a few moments ago, that order is, in light of the dismissal of the appeal, now spent. It is now plain, therefore, that the transcript is no longer the subject of a confidentiality order.

8. Counsel for the appellant now seeks leave to appeal from the judgment of Foster J. given on 20 September 1990 to which reference was made by us earlier. There are two preliminary barriers to hearing the application for leave to appeal which we shall briefly mention. The first barrier is that it is plain from order 52 rule 10, that where application is made for leave to appeal from an interlocutory judgment of a single Judge of this Court, which this is, it must be filed and served. Hence, it must be a document and the second barrier is that it must be filed and served within seven days from the pronouncement of the interlocutory judgment and that time is long since passed. Having stated those two preliminary hurdles to Mrs Oliphant, we nevertheless indicate that we are prepared to dispense with those two preliminary requirements and hear orally the motion for leave to appeal, which in fact we have done.

9. The motion is opposed by the Commissioner. In the opinion of the Court there is no real prospect of success on any of the grounds of appeal set out in the notice of appeal which is before us; in particular the appeal would be academic. The substratum of the appeal has gone in that the examination of Mrs Oliphant under s. 243F(1)(e) of the Customs Act 1901 has been held and concluded.

10. Accordingly, the motion for leave to appeal from the interlocutory judgment of Foster J. of 20 September 1990 is dismissed. There shall be no order for costs of the motion for leave to appeal.

Re Irene Vera Oliphant v Commissioner of Australian Federal Police [1990] FCA 475; 27 FCR 146

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)

Re Irene Vera Oliphant v Commissioner of Australian Federal Police [1990] FCA 475; 27 FCR 146 (29 November 1990)

Parties