CRIMINAL LAW AND PROCEDURE - warrants - warrants issued by eligible judges under Telecommunications (Interception) Act 1979 (Cth) and Customs Act 1901 (Cth) in relation to a practising barrister - whether warrants authorise the interception and recording of communications the subject of legal professional privilege - whether failure of warrants to provide for or deal with the protection of legal professional privilege may invalidate warrants.
PRACTICE AND PROCEDURE - whether leave to amend statement of claim to include allegations substantially the same as those previously struck out by trial judge ought to be granted.
CHRISTOPHER JOHN CARMODY v PAUL STEPHEN MACKELLAR & ORS VG 875 of 1995
BLACK CJ, LINDGREN, SACKVILLE JJ. MELBOURNE 30 JULY, 1997
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No VG 875 of 1995 ) GENERAL DIVISION )
BETWEEN:
CHRISTOPHER JOHN CARMODY Applicant
AND:
PAUL STEPHEN MACKELLAR First Respondent
PETER EDWARD PHILLIPS Second Respondent
ALLAN JAMES DAVID SHARP Third Respondent
COMMISSIONER OF POLICE, AUSTRALIAN FEDERAL POLICE Fourth Respondent
KENNETH JOSEPH JENKINSON Fifth Respondent
CHARLES AUGUSTINE SWEENEY Sixth Respondent
DONNELL MICHAEL RYAN Seventh Respondent
CORAM:Black CJ, Lindgren, Sackville JJ
PLACE:Melbourne
DATE:30 July 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed, with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No VG 875 of 1995 ) GENERAL DIVISION )
BETWEEN:
CHRISTOPHER JOHN CARMODY Applicant
AND:
PAUL STEPHEN MACKELLAR First Respondent
PETER EDWARD PHILLIPS Second Respondent
ALLAN JAMES DAVID SHARP Third Respondent
COMMISSIONER OF POLICE, AUSTRALIAN FEDERAL POLICE Fourth Respondent
KENNETH JOSEPH JENKINSON Fifth Respondent
CHARLES AUGUSTINE SWEENEY Sixth Respondent
DONNELL MICHAEL RYAN Seventh Respondent
CORAM:Black CJ, Lindgren, Sackville JJ
PLACE:Melbourne
DATE:30 July 1997
REASONS…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Carmody v MacKellar [1997] FCA 839
Case
[1997] FCA 839
Decision Date
CaseChat Overview and Summary
The applicant, a practising barrister, sought a review of warrants issued by eligible judges under the Telecommunications (Interception) Act 1979 (Cth) and the Customs Act 1901 (Cth). The warrants authorised the interception and recording of communications that the applicant claimed were subject to legal professional privilege. The applicant sought to amend his statement of claim to include allegations that the Federal Police officers who applied for the warrants had a duty to disclose to the issuing judges all matters that might vitiate the warrants. The Full Court considered the application and the proposed amendments. The Court found that neither the Telecommunications (Interception) Act nor the Customs Act permitted the interception of communications subject to legal professional privilege. The Court also found that the issuing judges were not bound to consider whether the warrants would result in the interception of privileged communications. The Court held that the applicant's motion for leave to amend should be dismissed with costs.