Baker, S.J. v Campbell, R

[1982] FCA 233

Re: STEVEN JOHN BAKER
And: RAY CAMPBELL AND TERRENCE ROY McGUIGAN (1983) 66 FLR 29
No. WAG42 of 1982
Administrative Law - High Court and Federal Judiciary

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)

CATCHWORDS

Administrative Law - issue of search warrant - whether mental process of deciding to seek warrant is a "decision" - whether laying information before a justice of the Peace is a decision made "under an enactment" - whether decision to issue warrant is of an "administrative character" - whether mental process of deciding to execute warrant is a "decision" - whether attempt to execute warrant is a decision of an "administrative character" and made "under an enactment" - whether court has associated or implied incidental jurisdiction.

Administrative Decisions (Judicial Review) Act 1977 - ss. 3, 5, & 8

Crimes Act 1914 - s. 10

Administrative Law - Issue of search warrant - Whether Supreme Court of Western Australia had jurisdiction to grant injunction enjoining execution of search warrant - Interim order of Federal Court enjoining execution of search warrant - Whether Federal Court had jurisdiction - Whether decision to seek issue of search warrant was "decision" - Whether decision to seek search warrant was made "under an enactment" - Whether decision to issue search warrant was "decision of an administrative character" - Whether decision was of judicial nature - Whether decision to execute search warrant was "decision" or decision "under an enactment" - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 3, 5, 8 - Crimes Act 1914 (Cth), s. 10.

High Court and Federal Judiciary - Whether Federal Court had implied incidental jurisdiction or jurisdiction to determine alternative claim - Federal Court of Australia Act 1976 (Cth), s. 32(1).

HEADNOTE

On 6th July, 1982, the second respondent McG., who was a justice of the peace and a stipendiary magistrate exercising federal jurisdiction, issued a search warrant addressed to the first respondent C., who was a member of the Australian Federal Police and a "constable" within the meaning of the Crimes Act 1914.

The search warrant authorized the seizure of documents which there were reasonable grounds for believing would afford evidence of the commission of offences by the applicant B. and/or other named persons.

On 7th July, 1982, an injunction was granted by the Supreme Court of Western Australia enjoining C. from executing the search warrant. C. contended that, by virtue of s. 9(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) the Supreme Court of Western Australia did not have jurisdiction to grant the relief sought, as the execution of the warrant involved conduct engaged in by an officer of the Commonwealth.

On 7th October, 1982, upon B. giving certain undertakings, a judge of the Federal Court of Australia made an interim order enjoining C. from executing the search warrant. On 14th October, 1982, B. made an application for an order of review under the Judicial Review Act of the following decisions: 1. C.'s decision to seek the issue of a search warrant by laying the information before McG.; 2. C.'s act in laying the information before McG. and seeking the issue of a search warrant, that act being a decision pursuant to s. 3(2) of the Judicial Review Act; 3. McG.'s decision to issue a search warrant pursuant to the information; 4. C.'s decision to seek to execute the search warrant and seize certain documents; 5. C.'s act in seeking to execute the search warrant and seize certain documents, the act being a decision pursuant to s. 3(2) of the Judicial Review Act.

The application claimed that each "of those decisions was administrative in character and made or proposed to be made under an enactment, namely s. 10 of the Crimes Act 1914 (Cth)". Alternatively, the applicant claimed further relief under s. 32 of the Federal Court of Australia Act 1976. C. contended that in respect of the above matters 1, 2 and 3, the Federal Court of Australia (the court) did not have jurisdiction to try B.'s application on the ground that no "decision to which the Judicial Review Act applied" within the meaning of s. 3(1) of that Act had been made by C. or McG.

Held: (1) The first respondent's mental process in making up his mind to seek the issue of a search warrant was not a "decision" within the meaning of the Administrative Decisions (Judicial Review) Act 1977.

Ricegrowers Co-operative Mills Ltd. v. Bannerman (1981) 56 FLR 443; Evans v. Friemann (1981) 53 FLR 229, referred to.

(2) The Administrative Decisions (Judicial Review) Act 1977 was intended to give certain remedies in respect of the exercise of "powers" which may adversely affect other persons - not the exercise of "rights". Australian National University v. Burns (1982) 64 FLR 166, applied.

(3) In seeking a search warrant the first respondent was not exercising a power conferred by s. 10 of the Crimes Act 1914 and there was not a decision "under an enactment".

(4) The decision of the second respondent to issue the search warrant was not a "decision of an administrative character" within the meaning of s. 3(1) of the Administrative Decisions (Judicial Review) Act 1977. Australian National University v. Burns (1982) 64 FLR 166, referred to.

(5) The decision of the second respondent to issue the search warrant was a decision of a judicial nature, notwithstanding that the justice of the peace was not adjudicating between parties in making that decision.

Ex parte Qantas Airways Ltd.; Re Horsington (1969) 14 FLR 414; R. v. Tillett; Ex parte Newton (1969) 14 FLR 101; Crowley v. Murphy (1981) Trimboli v. Onley (1981) 52 FLR 123; Morse v. Harlock (1977) WAR 65, referred to.

(6) Accordingly, the court did not have jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 to deal with the first, second or third matters in the application.

(7) Even if the decision to issue the search warrant were not a decision of a judicial character, it was not a decision "of an administrative character" within the Act.
(8) The court was under a duty to consider whether it had jurisdiction in respect of the fourth and fifth matters in the application, although no objection to jurisdiction was offered on behalf of the first respondent in those matters.

Thomson Australian Holdings Pty. Ltd. v. Trade Practices Commission (1981) 55 ALJR 614, referred to.

(9) The first respondent's mental process in deciding to execute the search warrant was not a "decision" within the meaning of the Administrative Decisions (Judicial Review) Act 1977, and the court had no jurisdiction under that Act to deal with the fourth matter.

(10) The act of the first respondent in seeking to execute the search warrant was not a "decision of an administrative character" within the meaning of s. 3(1) of the Administrative Decisions (Judicial Review) Act 1977. Australian National University v. Burns (1982) 64 FLR 166, referred to.

Moreover, the act by the first respondent was not a decision "under an enactment" within the meaning of s. 3(1) of the above Act.

Per Keely J. - Although the act (of the first respondent) in seeking to execute the search warrant was not legislative or judicial in character it did not follow that it must have been an administrative act.

Per Keely J. - The Administrative Decisions (Judicial Review) Act 1977 was not intended to apply to such an act by a police constable pursuant to his duty and acting under a search warrant issued by a justice of the peace.

Per Keely J. - Section 10 of the Crimes Act 1914 does not authorize a constable to search any premises; instead it empowers a justice of the peace in certain circumstances to grant a search warrant authorizing any constable to search. When the constable attempted to execute the search warrant he was acting under the warrant and he was not acting under s. 10 of the Crimes Act 1914.

(11) Accordingly, the court did not have jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 in respect of the fifth matter in the application.

(12) Having decided that it had no jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 in respect of any of the five matters in the application, the court had neither implied incidental jurisdiction nor jurisdiction under s. 32(1) of the Federal Court of Australia Act 1976 to determine the applicant's alternative claim.

Thomson Australian Holdings Pty. Ltd. v. Trade Practices Commission (1981) 55 ALJR 614, applied.

(13) Accordingly, the application would be dismissed.

HEARING

Perth, 1982, October 22. #DATE 22:10:1982

APPLICATION.

An application was made to the Federal Court of Australia for an order of review of five decisions concerning the issue of a search warrant issued to a member of the Australian Federal Police by a justice of the peace exercising federal jurisdiction.

I.D. Temby Q.C. and C.R. Humphry, for the applicant.

P.L. Seaman Q.C. and P.S.R. Jackson, for the first respondent.

G.T.W. Tannin, for the second respondent.

Cur. adv. vult.

Solicitors for the applicant: Stone, James, Stephen Jacques.

Solicitors for the first respondent: Commonwealth Crown Solicitor.

Solicitors for the second respondent: Crown Solicitor for Western Australia.

J.D. WHITEHEAD

Application dismissed.

JUDGE1

In this matter it was common ground that at all material times the firstnamed respondent was a member of the Australian Federal Police and a "constable" within the meaning of the Crimes Act 1914 and the secondnamed respondent was "a Justice of the Peace" within the meaning of Section 10 of that Act and was "a Stipendary Magistrate, a State Judicial Officer who was, in issuing the warrant, exercising Federal jurisdiction invested in him" - to use the words of Mr. Temby of Queen's Counsel, who appeared with Mr. C.R. Humphry for the applicant. Mr. Seaman of Queen's Counsel appeared with Mr. P.S.R. Jackson for the firstnamed respondent. Mr. Tammin, who appeared for the secondnamed respondent, said that he did not seek to put forward any factual material or any argument in the proceedings and was granted leave to withdraw.

On 6 July, 1982 the secondnamed respondent issued a search warrant, addressed to the firstnamed respondent, which, omitting formal parts, read as follows:-

"Whereas I, Terrence Roy McGuigan a Justice of the Peace within the meaning of that expression in Section 10 of the Crimes Act 1914 of the Commonwealth of Australia, being satisfied by information on oath placed before me this day that there are reasonable grounds for suspecting that there are in a place being the premises situated at Law Chambers, Cathedral Square, Perth, Western Australia, being premises occupied by Stone James & Company, Barristers and Solicitors, on floors 5, 6 and 7, things being the original or copies of :
correspondence, prospectuses, notes, opinions of Counsel, contracts, agreements, and other documents and instruments all of which have been produced or held by, for, or in respect of, Steven John Baker, and/or other persons namely:
William Leaver trading as Puesra Industries
Fortuna Wholesale Pty. Ltd.
Fortuna Sales Pty. Ltd.
Peta Joy Fisher
Evertsborough Pty. Ltd.
Evertswood Pty. Ltd.
Evertmount Pty. Ltd.
Shilogrove Pty. Ltd.
S.J. Baker Trust
Ian David Stafford Collie
hereinafter referred to as the abovenamed persons as to which there are reasonable grounds for suspecting that the same will afford evidence as to the commission of any offence against Section 49 Sales Tax Assessment Act No. 1 1930 in itself and as applied by Sales Tax Assessment Acts Nos. 2 to 9 1930 respectively by the aforesaid Baker and the aforesaid named persons jointly or severally, and offences against Section 86(1)(b) and (e) of the Crimes Act 1914 by the aforesaid Baker, and the aforesaid named persons in any combination and with any other person or persons unknown.
You are hereby authorised with such assistance as you think necessary to enter at any time the said place if necessary by force and to seize the said: correspondence, contracts, agreements, notes, opinions of counsel, and other documents and instruments as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence and for so doing this shall be your sufficient warrant".

On 7 July, 1982 in proceedings in the Supreme Court of Western Australia in which the present applicant was the plaintiff and the firstnamed respondent was the defendant, an injunction was granted enjoining the firstnamed respondent from executing the search warrant. The injunction was granted "upon condition that the documents, the subject of the said warrant and in the custody of Messrs. Stone James & Co. be produced in the presence of representatives of both parties placed in a sealed envelope and delivered forthwith to the Master of This Honourable Court".

In the Supreme Court proceedings by his defence served and filed on 24 September, 1982, the defendant amongst other things denied that the plaintiff was entitled to any relief and contended that "by virtue of Section 9(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 this Honourable Court does not have jurisdiction to grant any of the relief sought as the execution of the warrant involves conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth".

On 5 October, 1982 the applicant filed in this Court an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (the A.D.J.R. Act). On 7 October, 1982 counsel appeared for the applicant and the first-named respondent before Toohey J. who on that day made the following order:-

"Upon the Applicant by his Counsel undertaking:
(i) To consent to a discharge of the injunction granted by the Supreme Court of Western Australia on the 7th day of July 1982 in action No 1979 of 1982.
(ii) To take all steps necessary on his part to ensure the delivery to the District Registrar of This Honourable Court of the documents presently held by the Master of the Supreme Court in the said action pursuant to the undertaking given by the Applicant in that action.
The Court orders that:
1. Until the determination of this Application or until further order the First Respondent be enjoined from executing the Search Warrant dated the 6th July 1982 referred to in the Affidavit of the Applicant sworn on 5th October 1982 and filed in these proceedings.
2. The costs of the motion be reserved".

The application was amended pursuant to leave granted by Toohey J. on 7 October, 1982 and was further amended by leave granted on 14 October, 1982. In its final form the application sought to review the following "decisions":-

"1. The decision of the First Respondent to seek the issue of a search warrant by laying before the Second Respondent the information dated 6 July 1982 . . .
2. The act of the First Respondent in laying before the Second Respondent the information dated 6 July 1982 and seeking the issue of a search warrant, that act being a decision pursuant to Section 3(2) of the Administrative Decisions (Judicial Review) Act 1977 . . .
3. The decision of the Second Respondent to issue a search warrant pursuant to the information dated 6 July 1982 . . .
4. The decision of the First Respondent to seek to execute the search warrant dated 6 July 1982 and seize pursuant to Section 10 of the Crimes Act 1914 the documents now in the custody of the Registrar of this Court . . .
5. The act of the First Respondent in seeking to execute the search warrant dated 6 July 1982 and seize pursuant to Section 10 of the Crimes Act 1914 the documents now in the custody of the Registrar of this Court, that being a decision pursuant to Section 3(2) of the Administrative Decisions (Judicial Review) Act 1977 . . . "

The application then claimed that each "of those decisions was administrative in character and made or proposed to be made under an enactment, namely Section 10 of the Crimes Act 1914".

By notice of objection to competency dated and filed 11 October, 1982, the firstnamed respondent objected "to the jurisdiction of this court to try this application" on the grounds that no "decision to which (the A.D.J.R.) Act applies" within the meaning of Section 3(1) had been made by the first-named respondent or by the second named respondent. At the commencement of the hearing on 13 October, 1982 Mr. Seaman, on behalf of the firstnamed respondent, said that he maintained the objection to jurisdiction in respect of matters 1, 2 and 3 of the application in its final form but that, having regard to the fact that the firstnamed respondent had taken an objection to jurisdiction in the Supreme Court of Western Australia, he had received instructions to offer "no objection to jurisdiction in this court in relation to anything that might be said to be a decision of the first respondent following, subsequent to, the issue of the warrant". I shall deal with the objections to jurisdiction in matters 1, 2 and 3 and then consider whether there is jurisdiction in matters 4 and 5.

As to matter (1) Mr. Seaman's submission was that the firstnamed respondent's mental process in making up his mind to seek the issue of a search warrant was not a "decision" within the meaning of the A.D.J.R. Act. I agree with what Northrop J. said in Ricegrowers Co-Operative Mills Ltd. v Bannerman and Trade Practices Commission (1981) 38 A.L.R. 535 at 544 :-

"The mere thought processes taking place in the mind of the person when considering whether or how to exercise a power or to perform a duty of an administrative character under an enactment do not, in my opinion, constitute a decision. In addition to thought processes, there must be some over act by which the conclusions reached as a result of those thought processes are manifested".

Reference may also be made to Evans v Friemann (1981) 35 A.L.R. 428 at 431 per Fox A.C.J..

As to matter (2) in the application Mr. Seaman submitted that the act of the firstnamed respondent in laying the information before the secondnamed respondent and seeking the issue of a search warrant was not a decision "under an enactment". He pointed out that Section 10 of the Crimes Act did not confer any power upon any person other than a justice of the peace; it did not confer any power upon the firstnamed respondent notwithstanding that he had a "right" to place information on oath before a justice of the peace with the object of a search warrant being granted - as did all other members of the public. He submitted that a decision to exercise such a right - as distinct from a power - was not a decision to which the A.D.J.R. Act applied and relied upon the Full Court decision in The Australian National University v Burns (unreported judgment delivered 8 October, 1982). In their joint judgment Bowen C.J. and Lockhart J. said that the "clear object" of the Act "is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment". I accept Mr. Seaman's submission that the Act is intended to give certain remedies in respect of the exercise of "powers" which may adversely affect other persons - not the exercise of "rights". In my opinion the firstnamed respondent in seeking a search warrant was not exercising a power conferred by Section 10 of the Crimes Act and there was not a decision "under an enactment".

In contesting the jurisdiction of the court as to matter (3) in the application, Mr. Seaman submitted that the decision of the secondnamed respondent to issue a search warrant was not a decision of an administrative character. He submitted that it was a judicial decision and cited a number of decided cases. In R. v. Tillett; Ex Parte Newton (1969) 14 F.L.R. 101 in considering the issue of a search warrant under Section 10 of the Crimes Act by a justice of the peace, Fox J. referred (p. 106) to "the judicial duty cast upon him" and said (at p. 118) that ". . . the justice has a judicial discretion to exercise; he has to decide on sworn information whether certain matters are established and whether he will issue an authority to a constable under which the constable can lawfully interfere with the privacy and property of another, or others". After citing a statement in 2 Hale's Pleas of the Crown, p. 150, that "the issue of a search warrant is a judicial act", Fox J. referred to an attempt to distinguish certain cases and said (at p. 119) "This circumstance seems to me to afford no basis at all . . . for treating the function of the justice as other than judicial".

In Crowley and others v Murphy (1981) 34 A.L.R. 496 Lockhart J. (at p. 514), with whom Northrop J. agreed, referred to the duty of the justice to "act judicially" in "determining whether or not to issue a search warrant" and in that connexion mentioned "the dangers inherent in investing them with judicial powers". In Rex v Wilson; Ex Parte Battersea Borough Council (1948) 1 K.B. at 47, Lord Goddard L.C.J. said that a summons "is the result of a judicial act. It is the outcome of a complaint which has been made to a magistrate and upon which he must bring his judicial mind to bear and decide whether or not on the material before him he is justified in issuing a summons". In Hill v Anderton (1982) 2 All E.R. 963, Lord Roskill with whose judgment Lord Diplock, Lord Elwyn-Jones, Lord Keith and Lord Bridge agreed, said that "the acts of delivery and receipt (of an information) are ministerial" but that :-

"What happens thereafter is not within the province of the prosecutor or of the complainant but of the court. But (subject to one argument of counsel for the respondents which I will shortly consider) if a summons is required the information or complaint must then be laid before a justice of the peace or before the clerk to the justices. This function of a justice of the peace or of the clerk to the justices in determining whether a summons should be issued is a judicial function which must, therefore, be performed judicially. This function, in my view, cannot be lawfully delegated to any subordinate".

It is true that the passage was an obiter dictum but at the commencement of his judgment Lord Roskill stated that the appeals "raised a question of great importance to the administration of justice in magistrates' courts in England and Wales".

Mr. Seaman also relied upon Re MacIntyre and The Queen 110 D.L.R. (3d) 289 at 294 and 299 and upon an obiter dictum by Powell J. who, in Trimboli v Onley (1981) 37 A.L.R. 38 at 44, in dealing with a search warrant under the Crimes Act 1914 said :-

"It is my view that the decision of a justice to issue a search warrant is not a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applied. To be such a decision, the decision of a justice in such a matter would need to be "a decision of an administrative character" (s.3(1))".

The nature of the discretion to be exercised by the justice in deciding whether to issue a summons is dealt with in Ex Parte Qantas Airways Ltd.; Re Horsington and another (1970) 71 S.R.(N.S.W.) 291 at 301 per Sugerman J.A. (with whom Mason J.A. agreed), and at 305 per Asprey J.A.. Sugerman J.A. said "a judicial mind is to be brought to bear" and referred to "the judicial character (in the sense indicated) of the functions" and Asprey J.A. said that "such justice is exercising a judicial function". Reference may also be made to the decision in Morse and Thompson v Harlock and others (1977) W.A.R. 65 of Burt J. who (at 71) said :-

"It is of course clear that the issue of a warrant was a judicial act and that it involved the exercise of judicial discretion".

Mr. Temby and Mr. Humphry on behalf of the applicant both put submissions as to the court's jurisdiction in respect of matter (3). It was submitted that the judgments cited were not binding upon this court or were distinguishable or that the passages were obiter dicta. It is true that several of the cases cited were dealing with the issue, by a justice of the peace, of a summons - not a search warrant. Reference was also made to the opinion expressed by Windeyer J. in Electronic Rentals Pty. Ltd. v Anderson (1971) 124 C.L.R. 27 at 39 that the function of issuing a summons probably "would be better described as an administrative or ministerial act . . . or as a matter of procedure". On this question doubts were expressed by Macfarlan J. in Shilton v Miller (1930) V.L.R. 400 at 407 as to whether receiving a complaint and issuing a summons thereon was "a merely ministerial act". However I do not regard the dictum of Windeyer J. as requiring me to decide that the decision to issue a search warrant was a "decision of an administrative character" within Section 3(1) of the A.D.J.R. Act.

Mr. Temby submitted that the issue of a search warrant was not a judicial act because it was done ex parte and secretly and was a decision which did not give judgment or make any order against the person the subject of the warrant. However, having considered the cases cited, in my opinion the decision of the secondnamed respondent to issue the search warrant was a decision of a judicial nature notwithstanding that the justice of the peace was not adjudicating between parties in making that decision. (cf. Ex parte Qantas (supra)). Even if that opinion were not correct I would conclude that the decision was not "a decision of an administrative character" within the meaning of Section 3(1), having regard to the context of the A.D.J.R. Act and the decisions of this court upon it including the recent decision of the Full Court in Burns' case (supra).

It follows that in my opinion there is no jurisdiction in this court under the A.D.J.R. Act to deal with any of the first, second or third matters in the application in its final amended form. The firstnamed respondent's notice of objection to competency must be upheld as to those three matters.

As I have already mentioned Mr. Seaman's instructions were to offer no objection to jurisdiction in the court in relation to the fourth and fifth matters in the application. However the court is under a duty to consider whether it has jurisdiction in respect of those two matters (cf. Thomson Australian Holdings Pty. Ltd. v Trade Practices Commission and others (1981) 37 A.L.R. 66 at 75).

Matter (4) in the application plainly relates to the firstnamed respondent's mental process in deciding to execute the search warrant. For substantially the same reasons as those already given in considering the first matter in the application, in my opinion this is not a "decision" within the meaning of the A.D.J.R. Act and the court has no jurisdiction under that Act to deal with the matter.

Matter (5) is the act of the firstnamed respondent in seeking to execute the search warrant. Having regard to the context and the purpose of the A.D.J.R. Act in the light of the decisions of this court including Burns' case (supra) I have come to the conclusion that that act was not a decision of "an administrative character" within the meaning of Section 3(1). I accept that the act was not legislative or judicial but in my opinion it does not follow that it must have been administrative. I do not consider that the A.D.J.R. Act is intended to apply to such an act by a police constable pursuant to his duty as such and acting under a search warrant issued by a justice of the peace.

Further, in my opinion the act by the firstnamed respondent was not a decision "under an enactment" within the meaning of Section 3(1). Mr. Temby submitted that the act was "under an enactment", namely, Section 10 of the Crimes Act, in that "were it not for s. 10 . . . he could not have entered those premises". He conceded that the firstnamed respondent's immediate authority to conduct the search was the search warrant itself and that neither Section 10 nor any other section of the Crimes Act expressly stated that the constable was empowered to execute the search warrant.

Mr. Temby sought to distinguish the decision of the Full Court in Burns' case (supra) saying that the contract under consideration in Burns' case "did not need a statutory underpinning" but the search warrant did. He pointed out that Burns' case accepted that an action could, in a particular case, be both "under a contract" and also "under an enactment"; accordingly he submitted that the court should find that the act of seeking to execute the search warrant was an act both under the warrant and under Section 10 of the Crimes Act. I am unable to uphold that submission. In my opinion Section 10 of the Crimes Act, upon which the applicant relies, does not in terms authorize a constable to search any premises; instead it empowers a justice of the peace in certain circumstances to "grant a search warrant authorizing any constable" to search. When the constable attempted to execute the search warrant he was acting under the warrant which used the words "you are hereby authorized" and concluded "and for so doing this shall be your sufficient warrant". In my opinion he was acting under the warrant and was not acting "under" Section 10 of the Crimes Act (as contended by the applicant) - notwithstanding the fact that Section 10 had at an earlier stage empowered the justice of the peace to issue the search warrant.

Section 8 of the A.D.J.R. Act confers upon the court "jurisdiction to hear and determine applcations made to the Court under this Act". For jurisdiction under the Act to exist the applicant must show that the act of seeking to execute the search warrant was "a decision of an administrative character" and also that it was a decision "under an enactment". For the reasons given he has failed to establish either of those two propositions and accordingly the court has no jurisdiction under the Act in respect of matter (5). Nor has it jurisdiction under the Act in respect of matters 1, 2, 3 or 4 in the application.

The application in its final form, after setting out the five matters claimed to be decisions "of an administrative character made . . . under an enactment", claimed that the applicant was aggrieved and continued :-

"Alternatively, application is further made for relief in the following associated matters :
A. The decision of the Second Respondent to issue the search warrant;
B. That which is contained in the Statement of Claim which is exhibit "C" to the Affidavit of the Applicant sworn 5th October 1982.
The Applicant claims :
(i) An order quashing each of the decisions;
(ii) a declaration that the documents to which the search warrant relates are protected by legal professional privilege and cannot be made the subject of a search warrant issued under the Crimes Act 1914, or alternatively, cannot be seized under the warrant;
(iii) Further and in any event a declaration that the search warrant is invalid or was invalidly issued or both;
(iv) An injunction restraining the First Respondent from executing the search warrant;
(v) Further or other relief as is appropriate".

In answer to a question as to the meaning of the alternative claim, Mr. Temby said that he was asking the court "to exercise a general law jurisdiction as opposed to a statutory jurisdiction to grant the relief sought in the statement of claim" filed in the Supreme Court of Western Australia. He also submitted that "the matter being within jurisdiction and the substratum of facts . . . being precisely the same" the court "could otherwise than with reference to the (A.D.J.R.) Act grant appropriate relief". At a later stage Mr. Temby submitted that if the court held that it had no jurisdiction under the A.D.J.R. Act it nevertheless could grant the substance of the relief sought by "exercising this associated jurisdiction under Section 32" and referred to Philip Morris Inc. v Adam P. Brown Male Fashions Pty. Ltd. (1981) 55 A.L.J.R. 120.

Mr. Seaman put brief submissions on this aspect and in a short reply Mr. Humphry, on behalf of the applicant, referred to the court's implied incidental jurisdiction, cited Moorgate Tobacco Co. Ltd. v Philip Morris Ltd. and another (1980) 31 A.L.R. 161 and relied upon the decision in The King v Bevan; Ex Parte Elias and Gordon (1942) 66 C.L.R. 452. He submitted that, if the court held that it had no jurisdiction under the A.D.J.R. Act because the application did not relate to any decision to which the A.D.J.R. Act applies, it nonetheless had jurisdiction to deal with the alternative claim in the application - provided that the court accepted (as it does) that the application under the A.D.J.R. Act had been genuinely brought.

Counsel for both parties described this aspect of jurisdiction as being a very difficult question. However, doubtless because of the urgency of the matter and the relative brevity of the hearing, I have not had the benefit of full and detailed submissions by counsel for either party on the question. On my examination of the authorities to which I have referred, including the decision of the High Court in Thomson's case (supra) the court, having decided that it has no jurisdiction under the A.D.J.R. Act in respect of any of the five matters in the application, has neither implied incidental jurisdiction nor jurisdiction under Section 32(1) of the Federal Court Act to determine the applicant's alternative claim. Accordingly, the application is dismissed.

Submissions were also put to the court as to various other matters including questions as to the validity of the search warrant and questions as to the availability and the effect of legal professional privilege. Those matters do not now arise for decision but Mr. Temby asked that the court express its opinion as to all of the issues raised. The hearing of this matter concluded last Friday and these reasons for judgment have been prepared in haste because of the urgency of the matter which was stressed by both parties but, even if there were more time available, I do not consider that it would be appropriate for me to accede to Mr. Temby's request (cf. the unreported decision of the Full Court, given 10 June, 1982 in Goodfellow v The Commonwealth of Australia). In the present case there are no disputed questions of fact as to which it is necessary to make findings. Lastly I should mention that, having regard to my decision as to jurisdiction it has not been necessary to consider whether the court could and, if so, whether it should examine the documents the subject of the search warrant. Accordingly they have remained in the custody of the Registrar.