Nicholls v Commissioner of Australian Federal Police [2009] FCAFC 100 (11 August 2009)

Last Updated: 24 August 2009

FEDERAL COURT OF AUSTRALIA

Nicholls v Commissioner of Australian Federal Police [2009] FCAFC 100

ARTHUR CHRISTOPHER NICHOLLS v COMMISSIONER OF AUSTRALIAN FEDERAL POLICE and COMMISSIONER OF TAXATION
SAD 16 of 2009

SPENDER, GRAHAM AND GILMOUR JJ
11 AUGUST 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION	SAD 16 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ARTHUR CHRISTOPHER NICHOLLS Appellant
AND:	COMMISSIONER OF AUSTRALIAN FEDERAL POLICE First Respondent COMMISSIONER OF TAXATION Second Respondent

JUDGES:	SPENDER, GRAHAM AND GILMOUR JJ
DATE OF ORDER:	11 AUGUST 2009
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.	The Notice of Motion filed in Court on 11 August 2009, seeking to lead further evidence in this Court and for the issue of subpoenas, is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION	SAD 16 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ARTHUR CHRISTOPHER NICHOLLSAppellant
AND:	COMMISSIONER OF AUSTRALIAN FEDERAL POLICEFirst RespondentCOMMISSIONER OF TAXATIONSecond Respondent

JUDGES:	SPENDER, GRAHAM AND GILMOUR JJ
DATE:	11 AUGUST 2009
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1	We have considered the Notice of Motion filed by the appellant, Arthur Christopher Nicholls, seeking leave to adduce additional evidence and to issue subpoenas.
2	Order 52 r 36 of the Federal Court Rules provides:

36 Further evidence on Appeal

(1) This rule applies to any application to the Court to receive evidence in a proceeding on an appeal additional to evidence in the court below.

(2) This rule applies unless the Court otherwise directs.

(3) The application shall be made by motion on the hearing of the appeal without filing or serving notice of the motion.

(4) The grounds of the application shall be stated in an affidavit.

(5) Any evidence necessary to establish the grounds of the application, and the evidence which the applicant wants the Court to receive shall be given by affidavit.

(6) The applicant shall file any affidavit not later than 21 days before the hearing of the appeal.

(7) The evidence of any other party to the appeal shall unless the Court or a Judge otherwise orders be given by affidavit filed not later than 14 days before the hearing of the appeal.

(8) A party to the appeal shall, not later than the time limited for him to file an affidavit under this rule:

(a) lodge as many copies of the affidavit as the Registrar may direct; and (b) serve 3 copies of the affidavit on each other party to the appeal.

3	It is plain then that this application to receive further evidence is out of time, a circumstance which is consistent with the history of this matter.
4	Notwithstanding that serious deficiency, unfortunately a deficiency repeated many times over in these proceedings thus far, on the merits the application has a number of difficulties to it.
5	The first of them is that Mr Nicholls deposes to the fact that he is in possession of evidence concerning the investigator, Mr Heinjus, which has not been put before the Court. He then seeks a subpoena to the South Australian Commissioner of Police for the purpose of establishing further information into the first respondent’s "unlawful and illegal search warrants" executed on 6 May.
6	None of that is relevant to any of the issues on this appeal. For that reason the application for a subpoena in that respect is refused.
7	From par 19 onwards in his affidavit filed in support of the Motion, Mr Nicholls makes a series of complaints concerning records which came into existence after the execution of the search warrant. There are complaints made in respect of a signed property seizure record, complaints made concerning a receipt dated 6 May 2005, CN6, and concerning an investigation commenced into email evidence. Mr Nicholls then speaks of a redacted civil case plan obtained under the Freedom of Information Act 1982 (Cth), events of 31 October 2008, and a receipt from the first respondent provided to the appellant’s lawyers dated 31 October 2008.
8	None of that material can have any relevance to the judicial reviewability of decisions made concerning the issue, or the execution, of the search warrant on 6 May 2008.
9	Finally, at paragraphs 37 to 39 Mr Nicholls says that he was the subject of various investigations carried out by the Australian Federal Police, seeking to identify unlawful leaks by law enforcement officials and involving sensitive criminal and political investigations directly involving the first respondent. He says that he is seeking disclosure of all inquiries made by the first respondent during 1994 and 1998 into the appellant for the purposes of introducing new evidence in these proceedings.
10	None of those matters can be relevant to any of the issues involved in the judicial reviewability of the decisions to issue and execute a search warrant on 6 May 2008.
11	Even had the application not been seriously out of time (and therefore in disconformity with the requirements of O 52 r 36) on the merits no utility would be gained by permitting the request for further evidence to be lead before this Court, or for having this Court issue subpoenas, as the affidavit requests.
12	The order of this Court is that the Notice of Motion filed on 11 August 2009 is dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Graham and Gilmour.

Associate:

Dated: 24 August 2009

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Ms L Chapman
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	11 August 2009
Date of Judgment:	11 August 2009