Re Robin David Huston v the Commissioner of Taxation of the Commonwealth of Australia [1986] FCA 11 (24 January 1986)

FEDERAL COURT OF AUSTRALIA

Re: ROBIN DAVID HUSTON
And: THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
No. QLDG123 of 1982
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CATCHWORDS

Practice and Procedure - Federal Court - removal of affidavit at instance of stranger to litigation - person filing affidavit not objecting - whether any question of public interest.

Federal Court Rules, 0.45 R.5(2)

HEARING

BRISBANE
24:1:1986

ORDER

The Director of Public Prosecutions have permission to take out of the Registry the affidavit of Robin D. Huston sworn and filed on 27 January, 1983.

The Director of Public Prosecutions undertakes that the said document will not be damaged or destroyed in any way.

The said document is to be delivered to Russell Charles Lloyd, a Solicitor of the Supreme Court of Queensland, and employee of the office of the Director of Public Prosecutions who is to be responsible for its safe keeping until it is returned to the Queensland District Registry of the Federal Court of Australia.

The said document is to be returned to the Queensland District Registry of the Federal Court of Australia at the conclusion of the trial of the said Robin David Huston on the charge of conspiracy to defraud mentioned in the affidavit of Phillipa Mary Flook filed herein.

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

DECISION

This is an application by the Director of Public Prosecutions made pursuant to order 45 rule 5(2) of the Rules for an order permitting the Director to remove an affidavit from the Queensland District Registry.

2. The affidavit in question was sworn by one R. D. Huston in 1983 and filed in the Registry on the same day. It was filed in support of an application to have certain conduct of the Deputy Commissioner of Taxation reviewed under the Administrative Decisions (Judicial Review) Act, which application was unsuccessful. The case is reported at (1983) 49 ALR 566.

3. On 14 June 1984 the Director made a successful application to Spender J. to remove the affidavit in question. His Honour imposed certain conditions, which apparently were complied with. On that occasion the application was consented to, as appears from the transcript of the proceedings. Spender J., however, expressed the view, with which I agree, that in circumstances of this sort, the person who filed the affidavit should have an opportunity to be heard. The Director has here produced evidence that the application has been served upon a solicitor who is acting for Mr. Huston in criminal proceedings, the producing of evidence in which is the purpose of the application. Miss O'Sullivan, who appears for the Director, has also informed me that she has been in touch with that solicitor, who has told her that the application is not opposed.

4. The decision of Smithers J. in Tradestock Pty. Limited v. T.N.T. (Management) Pty. Limited (1983) 50 ALR 461 was the subject of some discussion. His Honour in that case identified principles of public policy bearing upon the question before me.

5. The argument which was advanced was that the Tradestock case has nothing to do with the present application, because the solicitor for Mr. Huston has said that the application is not opposed. It seems to me that that is correct; that is, although Smithers J. speaks of questions of public interest being involved, the relevant public interest is that which his Honour speaks of at page 466, namely that a citizen:

"... have confidence in the administration of law
and be free of fear that in the assertion at law of
his rights, he will not generally speaking expose
himself to injury at the hands of third parties."

Where the citizen in question has, albeit in a rather informal way, indicated his lack of objection to the proposed removal, it seems to me to be correct that the public interest is not an objection.

6. Putting that more generally, I am of the view that the principles spoken of by his Honour in the Tradestock case cannot apply where the only person interested to resist removal indicates a lack of opposition.

7. I am also influenced by the circumstance that the very document the subject of the application has previously been removed by order of the court. The purpose of the present application and the further removal which would follow, were an order made in favour of the Director, is to produce the document in the District Court in criminal proceedings, which are shortly to commence, to enable identification of signatures on other documents. It appears to me that it is possible to dispose of the present application without greatly concerning myself with the principles set out in the Tradestock case.

8. The Director of Public Prosecutions will have permission to take out of the registry the affidavit mentioned in the application; that is, the affidavit of Mr. Robin D. Huston filed on 27 January 1983 in G123 of 1982.