Jilani v Wilhelm [2005] FCAFC 269

Jilani v Wilhelm [2005] FCAFC 269

The primary judge erred in granting leave to amend the application for judicial review because the amendments were speculative and unparticularised and did not disclose a triable issue. The basis for discovery orders failed because there was insufficient material to support a bona fide allegation, and discovery would amount to a fishing expedition. The orders for amendment and discovery should be set aside.

Parties
Appellant: Kellie Nadine Jilani; First Respondent: Otto Heinrich Wilhelm; Second Respondent: Michael Perry Dempsey; Third Respondent: Markit Pty Limited (ACN 062 893 707); Fourth Respondent: Urinda Pty Limited (ACN 010 561 314)
Jurisdiction
Australia
Judgment Date
20 December 2005
Procedural Posture
Appeal / Full Court Judgment on Appeal From Interlocutory Orders of a Single Judge
Outcome
Appeal allowed; interlocutory orders appealed from set aside
Legal Topics
Appeal, Judicial Discretion, Judicial Review, Search Warrant, Improper Purpose, Amendment of Pleadings, Discovery, Bad Faith, Administrative Decisions (judicial Review) Act, Crimes Act, Fishing Expedition
Practice and Procedure Administrative Law Appeal Judicial Discretion Judicial Review Search Warrant Improper Purpose Amendment of Pleadings +5 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 33 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Kellie Nadine Jilani

Appellant

Otto Heinrich Wilhelm

First Respondent

Michael Perry Dempsey

Second Respondent

Markit Pty Limited (ACN 062 893 707)

Third Respondent

Urinda Pty Limited (ACN 010 561 314)

Fourth Respondent

Procedural Posture

Appeal / Full Court Judgment on Appeal From Interlocutory Orders of a Single Judge

Legal Issues

  1. 1 Whether the primary judge erred in granting leave to amend an application for judicial review to include unparticularised allegations
  2. 2 Whether limited discovery in support of judicial review was improperly granted for a speculative or 'fishing' purpose
  3. 3 Whether allegations in the amended application disclosed a reasonably arguable case, particularly as to improper purpose and authority for swearing information under s 3E Crimes Act

Ratio Decidendi

The primary judge erred in granting leave to amend the application for judicial review because the amendments were speculative and unparticularised and did not disclose a triable issue. The basis for discovery orders failed because there was insufficient material to support a bona fide allegation, and discovery would amount to a fishing expedition. The orders for amendment and discovery should be set aside.

Court Disposition

Appeal allowed; interlocutory orders appealed from set aside

Orders

  • The appeal be allowed.
  • Orders 1, 2 and 4 made by Finkelstein J on 23 June 2005 be set aside.