Caratti v Commissioner of the Australian Federal Police & Anor

[2018] HCATrans 193

[2018] HCATrans 193

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S147 of 2018

B e t w e e n -

ALLEN CARATTI

Plaintiff

and

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

First Defendant

FEDERAL COURT OF AUSTRALIA AND JUDGES THEREOF

Second Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 19 SEPTEMBER 2018, AT 9.31 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MS R.L. SEIDEN, SC, MR P.K. BRUCKNER and MR W.R. JOHNSON, for the plaintiff.  (instructed by Hardinlaw Solicitors)

MS K.A. STERN, SC:   May it please the Court, I appear with my learned friend, MR D.P. HUME, for the defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Mr Jackson, notwithstanding that your summons comes second ‑ I should have asked Ms Stern this ‑ it seems to me to be appropriate that you should go first.  Ms Stern, is that all right with you?

MS STERN:   Certainly, your Honour.

HER HONOUR:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honour.  Your Honour, so far as the materials are concerned, I read an application for an order to show cause, filed 4 June 2018.  Your Honour, there is a casebook been prepared ‑ ‑ ‑

HER HONOUR:   Yes, I have read that file.  Thank you.

MR JACKSON:   Thank you, your Honour.  There is the summons for directions of 11 September 2018, an affidavit of Mr Hardin, filed 4 June 2018 ‑ and I tender the exhibits to that ‑ and an affidavit, your Honour, which is not in the book, of Kate Herczog in respect of notices of services, of notices under section 78B; that is filed 14 September.

HER HONOUR:   Yes.

MR JACKSON:   Your Honour, there are also submissions that we have made which are behind tab 8 ‑ ‑ ‑

HER HONOUR:   Yes, I have read those.

MR JACKSON:   Thank you, your Honour.

HER HONOUR:   I should also note there is a submitting appearance on behalf of the second defendant.

MR JACKSON:   As your Honour will have seen, we seek in the proceedings certiorari, mandamus and prohibition, and there is an enlargement of time necessary in relation to certiorari and mandamus and we would seek an enlargement of the time for bringing the application until 4 June 2018 when the application was made and that is in respect of both those forms of relief.  I do not know if that is the subject of challenge, your Honour.

HER HONOUR:   It is the subject of challenge, I think, in the sense that I understand from the first defendant’s submissions it is one of their principal complaints.

MR JACKSON:   Well, your Honour, it is related, I think, to the fact that there had been the application for special leave before and that ‑ ‑ ‑

HER HONOUR:   I do not think that is the only basis, Mr Jackson.

MR JACKSON:   Well, your Honour, could I just say that the reasons for the delay are set out in paragraphs 7 to 10 of the plaintiff’s submissions which are behind tab 8 and you will see that at page 2 of that document.  Your Honour, we would seek to rely on those.  Could I just say, your Honour, that what we would say in relation to the substance of the matter goes also to this question in our submission.

Your Honour, the issue which we are seeking to have dealt with by the Full Court is set out in those submissions behind tab 8 at page 3.  May I take your Honour to that for just a moment?  That issue is set out in paragraph 14.

HER HONOUR:   Paragraph 14, yes.

MR JACKSON:   Your Honour will see the issue, and it is right to say that it is an issue which was one of a number of issues sought to be agitated in the application for special leave to appeal from the Full Court of the Federal Court which was refused on 18 May this year.

HER HONOUR:   Well, you seem to accept that to be the position in the 78B notice.

MR JACKSON:   I am sorry, I just did not catch what your Honour said.

HER HONOUR:   I understand from the paragraph in the 78B notice that it proceeds on the assumption that it has already been addressed.

MR JACKSON:   Yes, your Honour, and it is right to say that we are, in relation to that issue, seeking to have a second – if I could put it this way – go.  But we would contend that the underlying issue, narrower than those on the application for special leave, is important and merits its consideration by the Full Court of this Court.

Your Honour, could I develop that just a little. The jurisdiction of the Full Court of the Federal Court in civil appeals is conferred relevantly by section 24(1)(a) of the Federal Court of Australia Act and, as your Honour is aware, it is a jurisdiction to hear and determine appeals from judgments of a single judge of the Federal Court exercising that court’s original jurisdiction.

Your Honour, if I can say this very briefly because I know it has been the subject of a recent decision by the Court, the Federal Court of Australia Act does not itself define the tests to be applied in such a hearing and determination, to pick out those words.  The earlier view which prevailed in the Full Court of the Federal Court was that the appeal was an appeal in the strict sense ‑ stricto sensu as people used to say – that is, error by the judge appealed from had to be shown.  It was not sufficient that the court on appeal might take a different view of the consequences of the same basic material.

Although different cases have been ascribed to it, it really seems to have been made clear by this Court in Western Australia v Ward (2002) 213 CLR 1 at 87, paragraph 71, that was not the correct approach and the appeal was to be by way of rehearing.

Now, your Honour, this aspect was recently referred to by the Court in Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408. Could I just mention first the reasons for judgment of Justice Gageler? He dealt ‑ if I could put it this way, with respect, rather fully with the nature of an appeal by way of rehearing and he made it clear that such an appeal involves the Court conducting a real review of the trial and the judge’s reasons ‑ as did the other members of the Court ‑ expressed the view that there were two broad standards: that applicable to appeals from the exercise of a discretion and that along the lines of Warren v Coombes applicable to non‑discretionary ones.

Could I go, your Honour, to the summary by his Honour first at page 420, paragraphs [48] to [50]?  Your Honour will see in paragraph [48] – this is Warren v Coombes:

consistent understanding of how the line of demarcation is to be drawn –

and, your Honour, at paragraph [49]:

The line is not drawn by reference to whether the primary judge’s process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ.  The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes –

which, to put it shortly, is discretionary.  Your Honour will see paragraph [50].  Now, to similar effect, your Honour, Chief Justice Kiefel at page 412, paragraph [18], and your Honour Justice Gordon and Justice Nettle in joint reasons at page 429, paragraph [85], and Justice Edelman at page 443, paragraph [153].

Now, your Honour, the error to the extent that error is necessary is arrived at if the conclusion of the Court on a non‑discretionary issue is different from that of the court at first instance.  Your Honour, if I could say then, in practical terms, in the present case, the issue involved in the proceedings concerned whether search warrants issued in respect of the plaintiff were valid, the nature of the matter.  Your Honour can see, if I could go for a moment to tab 8 of the court book and to our written submissions, paragraphs 15 to 17 at page 3 of that tab.  Your Honour will also see paragraphs 23 to 25, pages 4 and 5.

Now, your Honour, the offences to which the search warrants potentially related were set out in the reasons of the Full Court and they can be seen in paragraph 60 of the reasons of the Full Court behind tab 14, and the page numbered 198 in the bottom right‑hand corner.  Although the paragraphs are not numbered, in effect the first offence commences on the fourth line on that page, the second in the next paragraph, the third in the paragraph following that and the fifth to which I will come in the two paragraphs further on.

Now, each of the interpretations of the terms of the search warrant to which we have referred in our written submissions in paragraphs 24(a) to (d) affects one’s understanding of what may lawfully be seized under the warrants.  For example, your Honour, if I could go to – just looking at the first of the offences, that is the one commencing on the fourth line ‑ if the date 2008 refers to the lodging of the tax return or the date of assessment then 2008 signifies the end date of the search period.  On the other hand, if the date refers to the receipt of the royalty payment this indicates the beginning date of the search period.

If one goes to the second offence which is the one commencing in the next paragraph, if 2008 refers to a dishonest failure to pay the net amounts of tax that were due, that is the end date of the search period.  On the other hand, if it relates to a dishonest failure to include GST in its invoices it indicates the beginning.

Your Honour, similar observations apply to the third and also to the fifth offence where the date, December 2011, is referred to, but so far as the fifth offence is concerned if it relates to the agreement to falsify costs it could signify the beginning of the search period.  If it relates to the lodgement of false BAS statements it could indicate the end of the search period.  Your Honour, to put it shortly, if a single date is mentioned in the warrant and it is not clear what it refers to it indicates one end of the search period but the question is, of course, which end.

Your Honour, in our submission, the case is one where the question was whether the warrants in the form in which they took were or were not authorised by section 3E of the Crimes Act.  This was an issue which, in our submission, the Full Court should have decided for itself.

HER HONOUR:   Do you accept that if on a fair reading of the reasons for decision it did decide for itself then your application fails?

MR JACKSON:   Well, should fail, your Honour, I suppose the ‑ ‑ ‑

HER HONOUR:   Should fail.  Sorry.  Correct.

MR JACKSON:   Yes.  Your Honour, one could understand that if the position is that the issue has been decided by the Full Court on what we would submit is the correct basis to which I have referred then it would be difficult to succeed in an application to have the matter ultimately reheard by the Full Court or by this Court; yes, your Honour.  Your Honour, that would be for a number of reasons, including the lack of desirability in an inappropriate case, having a decision heard twice.

Your Honour, we would submit that it is a case – the question that was before the Full Court was one that really had a correct conclusion or, to use the expression of Justice Gageler in paragraph [49] in the decision to which I referred, demanded a unique outcome.

Your Honour, in this regard, if one looks at what was actually said by the Full Court, could I take your Honour to page 176 behind tab 14 in the earlier part first of the Full Court’s judgment.  You will see in paragraph 10 ‑ ‑ ‑

HER HONOUR:   In 12.

MR JACKSON:   Paragraphs 10 and 12, your Honour.  Yes, insofar as 12 is concerned, where it is said – if I could go to that first:

by which the primary judge arrived at the . . . while being far from inevitable, were fairly available to his Honour.

Then, your Honour, in the paragraph 10, the fifth line:

it is important to keep in mind that while this appeal was a rehearing, the finding of error on the part of his Honour was indispensable.  It is not enough that this Full Court would have reached a different conclusion on any topic that was fairly open to his Honour –

Then, your Honour, if one goes through, for example, to paragraph 40 in the Full Court’s reasons, at page 188 and 189, you will see at the top of page 189 in I think about the fifth line from the top of the page:

It is largely a factual and practical evaluation, which may be affected to a significant degree by –

content and situation.  Then, your Honour, the next line:

as the subjective nature of the determination will seldom lend itself to being a conclusion that was not open to a primary judge, even if members of an appeal court might have reached a different conclusion.

That goes on throughout that paragraph.  Your Honour, if one goes then to paragraphs 50 to – I am not going to ask your Honour to read them one by one, but if one goes through paragraphs 50 to 83 your Honour will see a discussion of the terms of the warrants and the affidavits in support.  What one sees from it is that the Full Court did not ever consider the warrants in isolation, independent of the sworn complaint and independent of the views of the primary judge but rather deferred to the views of the primary judge on the issue.  Your Honour, if one goes then to paragraph 90 at page 215 ‑ ‑ ‑

HER HONOUR:   Can I just test that submission that you just put to me, Mr Jackson, by reference to what appears at paragraph 56 and following?

MR JACKSON:   Yes, I am sorry, your Honour, the point your Honour was asking me to ‑ ‑ ‑

HER HONOUR:   The contention you just put to me was, as I understood it, that at no point between paragraphs 50 and 83 did the Full Court consider the terms of the warrants themselves in isolation.  As I understood the proposition you put to me was that they were always considered in the context of the affidavit material and the judge’s findings in respect of the warrants.

MR JACKSON:   Yes, your Honour.  Your Honour will see a number of matters recited but where one actually sees the Full Court itself forming a view about – or forming its own view about validity, I do not think that your Honour will find it in those paragraphs.  Your Honour, if one goes then to paragraphs 112 to 123, commencing at page 224, your Honour will see passages at paragraphs 115, 116 and 117. 

Could I just say in relation to those, your Honour will see in paragraph – as we have said in our written submissions in the paragraph behind tab 8, at paragraphs 31 and 32, in the last four lines particularly in paragraph 31 the test being applied is that of “a value judgment that was open for his Honour to make”, his “conclusions that were fairly open to his Honour”, and “it was open to the primary Judge to conclude”.  We say in paragraph 32 the context appears from paragraph 122 of the reasons.

Your Honour, the position we would submit is, in short, as we have set out in our written submissions in paragraph 36.  We would submit, your Honour, this is an important and arguable and potentially recurring point in relation to whether the matter should be referred to the Full Court of this Court. 

The position of the Federal Court is, of course, different from that of the Supreme Courts of the States.  In the first place, there may be no provision for appeal to the High Court from them.  We have referred to that in paragraph 46 of our written submissions.  Secondly, the jurisdiction of the Federal Courts has undergone much change from time to time.  Look at the many changes, the very many changes, there have been in the jurisdiction of the Federal Court, mostly adding, some taking away, some rendering non‑exclusive jurisdiction which formerly was exclusive.

So too, your Honour, there is a degree of ephemerality in the potential existence of federal courts and could we refer to the examples we have given in paragraph 46 of our written submissions and they are not the only examples.  Your Honour, what those matters emphasise is that the ability to invoke section 75(v) remains of significance, unlike section 74, time has not passed it away.  I think we described it as constitutional desuetude in our written submissions.

Your Honour, we would submit, with respect, it is a somewhat ambitious claim to say it is an abuse of process to seek to utilise one of the procedures constitutionally available to review a decision of the Federal Court because an application for special leave to review given by a statute has failed.  Your Honour, we would submit one should not easily transfer over to constitutional entitlements and principles applicable to ordinary litigation inter partes.  Your Honour, of course, there is a discretion to

refuse the order nisi but that is an exercise rather than a denial on the constitutional jurisdiction.

Your Honour, so far as discretion is concerned, could I take your Honour back for just a moment to our written submissions behind tab 8 and to paragraph ‑ ‑ ‑

HER HONOUR:   These are the matters addressed at paragraph 62?

MR JACKSON:   Yes, your Honour.  I was going to say paragraphs 56, 62, 63, 64 and 65.

HER HONOUR:   Yes.

MR JACKSON:   Your Honour, those are the submissions we seek to make.

HER HONOUR:   Thank you, Mr Jackson.  Ms Stern.

MS STERN:   Your Honour, we seek to move on our summons for dismissal or permanent stay and your Honour will have appreciated that we, in essence, raise two grounds.  One is abuse of process and the second is insufficient prospects of success.  Your Honour, if I could start with the insufficient prospects of success ground and with the risk of repetition if I could ask your Honour to go back to tab 14 of the court book.  First, if I could ask your Honour to turn to page 176 which is paragraph 11.

HER HONOUR:   Yes.

MS STERN:   Your Honour will see there that the grounds that were raised before the Full Court included the insufficient precision ground at subparagraph (1) but also a ground that the search perimeters were not reasonably justified by the affidavit material, and that would explain why your Honour will have seen that the Full Court analysed both the terms of the warrant and the affidavit material in the substance of its reasoning, given the way in which the grounds were put in front of the court.

If I could then ask your Honour to turn through to paragraph 50 which is at page 193, and there your Honour will see that the Full Court considered both the terms of the search warrant and the affidavits in support and your Honour has already been taken to paragraph 60 where the third condition of the warrant was considered.  So we say it is not correct to say that the Full Court did not consider the terms of the warrant for itself, nor that the Full Court did not consider the substance of the ground of appeal that was raised and the correctness of the trial judge, or the primary judge’s decision.

In that regard, if I could ask your Honour then to turn through to paragraph 90, page 215 and your Honour will see in the last sentence of paragraph 90, third line from the bottom:

Mr Caratti must show not merely that a different conclusion was open, but that the conclusion reached was wrong and therefore not available to his Honour.

We say there you can see that the Full Court is approaching its appellate role in accordance with the correctness, or incorrectness, standard of review, not with the standard of review which has been described in SZVFW as the deferential standard of review.

Then if I could ask your Honour to turn on please to paragraph 112, page 224, and it in this part of the judgments of the Full Court where the first and second appeal grounds - and they are the first two appeal grounds I took your Honour to in paragraph 11 - are considered.  In paragraph 113 your Honour will see four lines into that paragraph:

His Honour effectively concluded that it was open to have a search warrant that focused on a part of the period in which material conduct contributing to the commission of an offence was suspected to have taken place.

That is a consideration of precisely the submission that my learned friend made in relation to the time limits in the third condition of the warrant and the description of the offences, and the Full Court has concluded that:

No error in that approach has been demonstrated.

HER HONOUR:   Is the next bit – just so that I am clear as to the way in which you put your submission – is the next sentence in a sense the Full Court determining for itself that that is the right answer?

MS STERN:   Your Honour, yes.  We would say that when one reads this entire section of the Full Court’s reasons what the Full Court has done is consider the correctness or otherwise of the conclusions of the primary judge as to the construction of the warrant and that in the terms that were referred to earlier at paragraph 90, they were considering whether or not his Honour’s conclusion as to construction was right or wrong and, in that way, they were applying the correct standard on appeal.  Your Honour will see four lines from the bottom of page 224, paragraph 114:

What was required was sufficient material giving rise to conjecture or surmise . . . and that the suspected offences stated in the search warrants sufficiently identified what was being investigated to limit the ambit of the search and any seizure that might follow -

setting out the test, and then critically the next line in paragraph 115:

The primary judge was correct to conclude that the necessary bar for validity had been met both as to the sufficiency of the material . . . and in the adequacy of the offence descriptions –

and then second line from the bottom of that paragraph, his Honour “correctly rejected the submission” that we made before Justice Wigney in relation to the low bar.  What one sees here is a conclusion which clearly considers whether or not the primary judge was correct or incorrect in relation to the construction of the warrant ‑ ‑ ‑

HER HONOUR:   Is that right?  Can I just then test what follows in 116 and 117?

MS STERN:   Your Honour, the language there is language of “fairly open” but we would say that when one looks at that language that has to be considered in the context of paragraph 90 which looked at what the conclusion had to be shown to be and identified that Mr Caratti had to show the conclusion was wrong and that was a right or wrong standard.  Moreover, when one looks at the conclusions that were reached by the Full Court, I have already taken your Honour to paragraph 115 where the language of correctness is used.  Paragraph 118, four lines into that paragraph the Full Court ‑ ‑ ‑

HER HONOUR:   Sorry, where are we now, Ms Stern?

MS STERN:   Paragraph 118, page 225.

HER HONOUR:   Yes.

MS STERN:   Four lines in, the Full Court concludes:

None of the offence descriptions took the search inquiry beyond the conduct being investigated and the supporting affidavit material.  To the contrary, the focus was perhaps more on the time at which key aspects of the conduct took place than on the time of legal incidence of fraud . . . Viewed in this way, the offence descriptions were narrower in time than might validly have been used.

Again, it is the correctness standard which is clearly being considered and applied by the Full Court in these key passages setting out the Full Court’s conclusion on the grounds before it.  One sees exactly the same six lines from the bottom of paragraph 119:

The search ambit cannot be said to have been misstated in any material way by being expressed in narrower terms by date than it had to be –

and then the same conclusion in relation to whether or not the area of search was “broader than was justified by the supporting affidavit material”.  Then, your Honour, the key concluding paragraphs over the page, page 227, paragraph 121:

It follows that the search warrant offence descriptions were not beyond the scope of the affidavit . . . and there was no fatal departure from the information that was before the issuing officer.

Then there is the reference to the criticisms that the primary judge had made of the drafting but then the second sentence in paragraph 122:

However, as his Honour concluded, the search warrants were sufficient for the statutory purpose of confining the object of the search that was authorised and provided sufficient guidance as to what was and was not permitted to be seized.

Your Honour, that paragraph in particular cannot be read as anything other than a conclusion by the Full Court as to the correctness of the primary judge’s conclusions as to whether or not there was intolerable ambiguity or whether the description of the offences in the third condition of the warrant went beyond that which was permitted by the relevant legislation.

So, your Honour, we say that the ground that is sought to be agitated in this application is simply one which is doomed to fail because when one looks at the clear terms of the Full Court’s conclusions, the Full Court manifestly considered for itself the correctness of the primary judge’s conclusions.

So, your Honour, that is all I wanted to say over and above what we have already set out in our written submissions in relation to merit.  Your Honour will ‑ ‑ ‑

HER HONOUR:   Can I just make sure that I understand one further aspect to which you have not referred but which seemed apparent from your submissions in this context ‑ that is no substantial prospects of success ‑ and that is that I had understood your submissions to rely upon two bases:  one was in a sense, as you describe it in your submissions, as a misreading by the plaintiff of the reasons for decision of the Full Court, and then the second is, as I understood it, a contention that to the extent to which paragraphs such as 116 and 117 deal with identified errors or questions about the way in which the primary judge had approached it, they were as a result of the way in which the plaintiff had conducted the appeal.  Do you maintain those submissions?  Do I have that right?

MS STERN:   Your Honour, yes, and that was in the context of a complaint being made of intolerable ambiguity and the language in which the claim was put, but when one reads the analysis as a whole, despite those comments which we say were responsive to the way in which the claim was put, the error that is alleged is not an error that could properly be said to have infected the reasons of the Full Court.

HER HONOUR:   Thank you.

MS STERN:   Your Honour will have seen that we then make a submission that, in any event, the error would not be jurisdictional.

HER HONOUR:   Yes.

MS STERN:   Your Honour, I do not propose to elaborate upon that in oral submissions.  Your Honour will also have seen that we make a separate contention which is that there is a separate ground upon which the application should be dismissed or permanently stayed and that is on the basis of abuse of process.  Your Honour will also have seen that we rely as to that on the judgment of Justice Gageler in the case S3/2013 (2013) 87 ALJR 676. Your Honour, that is at tab 24 in volume 2 of the authorities that we have hopefully provided to your Honour.

HER HONOUR:   Yes.

MS STERN:   Your Honour, that is a case in which there was an application seeking relief in the original jurisdiction of this Court.  It was in the context in which there had been an appeal – the Refugee Review Tribunal had affirmed a decision of the Minister to refuse a visa.  There had been an appeal from the Federal Circuit Court to the Federal Court but no appeal beyond that, and then there was an application for a show cause order made to the High Court, and that is apparent when one looks at the judgment of Justice Gageler at paragraphs [5] to [6] which is at page 677 of the report.

HER HONOUR:   Yes.

MS STERN:   At paragraph [8], Justice Gageler identifies that:

Of the two grounds on which the plaintiff seeks to rely in this proceeding, it is apparent that the first has been determined adversely to her on the merits by the decision of Griffiths J in the Federal Court and that the second ground at least could have been raised in the Federal Magistrates Court -

Then in paragraph [11], Justice Gageler identified – and this is in particular, I think, about eight lines into the paragraph:

It is sufficient to recognise the application to that original jurisdiction of the general principle, stated in the joint judgment of three members of the High Court in Walton v Gardiner, that –

and then I will not read it but your Honour will see the terms of it effectively identifying that where there is litigation which has already been completed it could be an abuse of process to seek:

to litigate anew a case which has already been disposed of by earlier proceedings.

Your Honour, we say that that case clearly recognises that recognition of the abuse of process jurisprudence in the context of applications relying upon section 75(v) is appropriate and we rely upon those principles in this case.

Your Honour, if I could then just outline the four particular characteristics of the history of this matter that we rely upon in support of our contention that it would be an abuse of process to allow this to proceed.  The first is that the applicant is seeking to relitigate the very ground upon which special leave was refused by this Court such that there is a complete identity of issues as between the analysis of the Judges of this Court in refusing special leave and the summons.

The second is that the refusal of special leave was on the basis that that ground had insufficient prospects of success.  The third is that no new facts or law are relied upon.  The fourth is that the relief sought is essentially the same as that which would have been available on appeal.  We say that this is, thus, an abuse of process in effect seeking to set up the same case, albeit by changing the form of the proceedings.

Your Honour, we say for all the reasons that we have set out in our submissions that provides an alternative basis upon which the application should be dismissed or permanently stayed, and I should make it clear that the contentions that we have made apply equally to the applications for the extensions of time that are necessary to enable relief to be sought by way of certiorari and mandamus. 

Your Honour, unless there is any other matters upon which I could assist, those are the only matters we wish to raise in oral submission in elaboration on the matters we have set out in our written submissions.

HER HONOUR:   Thank you, Ms Stern.  Mr Jackson.

MR JACKSON:   Your Honour, may I just say something first in relation to the extension of time question and could I take your Honour behind tab 8 to the plaintiff’s submissions and, in particular, to I think paragraph 48.

HER HONOUR:   Paragraph?

MR JACKSON:   Paragraph 48, your Honour.

HER HONOUR:   Thank you.

MR JACKSON:   At page 9.  There is a reference there to a number of – in paragraphs 48 and 49 – a reference to a number of cases in which it has been said that an application in the original jurisdiction should not be brought until after the other rights of appeal have been exhausted.

The second thing, your Honour, is this.  Our learned friend’s arguments say look through the Full Court’s judgment and you will see they dealt with these issues, but the question really is whether the Full Court applied the right test in dealing with these issues and if your Honour ‑ and our submission your Honour has heard.

But if one really looks at the judgment of the Full Court – and may we go back to it for just a moment, behind tab 14 – your Honour sees the way in which in paragraphs 10 and 12 to which reference has been made earlier, the reasons for judgment start out, indicating the test that is being applied.  You will see paragraph 10 at page 176 is speaking of what is described I think is the deferential review rather than one on the merits.

If one goes to paragraph 12, it speaks of the judgment, that is the judgment of the primary judge, being “fairly available to his Honour”.  If one goes then to the concluding parts of the Full Court’s reasons, you will see paragraphs 115, 116 and 117, all of which are framed in terms that reflect what was said at the commencement of the reasons and then if one goes to paragraph 123, upon which some reliance is placed by our learned friends ‑ ‑ ‑

HER HONOUR:   I think it was 122 rather than 123.

MR JACKSON:   Well, your Honour, what I was yet to say was one does need to look at both 122 and 123 together because our learned friends said, well, the ultimate conclusion one sees in 123, no error demonstrated in the conclusion reached by the primary judge but, your Honour, could we just say if you go back to 122 what you will see is that the court says that the judge:

concluded, the search warrants were sufficient for the statutory purpose of confining the object of the search that was authorised and provided sufficient guidance –

But, your Honour, one does have to read that with what has gone before in paragraphs 115 to 117 and with the task that the Full Court set itself in the earlier paragraphs.  Could I turn then to the question of the abuse of power question.

HER HONOUR:   I think it is abuse of process rather than power.

MR JACKSON:   I am sorry, my mistake, your Honour ‑ my inability to read one’s own writing.  The abuse of process, there is not, of course, a complete identity between the issue sought to be raised now and the various issues that were raised on the application for special leave ‑ ‑ ‑

HER HONOUR:   Is that right?  That is why I raised with you in your submissions in‑chief because your section 78B notice in effect says that in terms.

MR JACKSON:   No, I am sorry, the point I am making, your Honour, is that this is one issue ‑ ‑ ‑

HER HONOUR:   Correct, but this one issue was dealt with below.

MR JACKSON:   Yes, your Honour, I accept that.

HER HONOUR:   Yes.

MR JACKSON:   Your Honour, I think I said that at the start of our submissions.

HER HONOUR:   Yes.

MR JACKSON:   But could we just say, your Honour, in relation to this, the question of whether there is an abuse of process must depend on the particular case that is involved and the particular circumstances involved, and in circumstances where, in our submission, the issue was not properly dealt with as a matter of law in the sense that the correct test was not

applied by the Full Court, then it is not, we would submit, an abuse of process to use, or to seek to utilise, the constitutional means available for correction of that issue which is a question about the correct exercise of the appellate powers of that court.  Your Honour, those are our submissions.

HER HONOUR:   Thank you.  What I propose to do is to reserve my decision and publish reasons for judgment on a date which will be advised to your instructing solicitors.  It will not be necessary for counsel to attend and you will be notified in the usual way. 

Adjourn the Court.

AT 10.20 AM THE MATTER WAS ADJOURNED