Coward v Allen

[1984] FCA 54

Re: BRIAN ROBERT COWARD and ORS.
And: JAMES DOUGLAS ALLEN and ORS.
V. Nos. G284-287 of 1983 and G23 and 24 of 1984
52 ALR 320
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.

CATCHWORDS

Administrative Law - remitter of actions from High Court to Federal Court - Federal Court jurisdiction to grant mandamus, prohibition and injunctions against an officer of the Commonwealth - validity of search warrants - validity of execution of search warrants - interlocutory relief.

Crimes Act 1914, s.10

Administrative Decisions (Judicial Review) Act 1977, s.9

Federal Court of Australia Act 1976, s.19(1)

Judiciary Act 1903, s.39B, s.44

Constitution, s.75(iii) and (v)

Banking (Foreign Exchange) Regulations

HEARING

MELBOURNE

#DATE 19:3:1984

JUDGE1

Six separate but related proceedings are before the Court. The parties consented to the six proceedings being heard together, but in an attempt to avoid confusion, the six proceedings were divided into two groups and one proceeding from each group was taken as being typical of that group. Evidence and submissions were made separately with respect to each of those two proceedings but additional facts relative to the first proceeding were discovered during the hearing of the second of the two proceedings. Those additional facts were relevant to both proceedings. This tended to cause confusion. In these reasons all the six proceedings will be considered together.

1. On Tuesday, 25 October 1983, Federal Police officers conducted raids at three separate places in Melbourne, namely the sixth floor of the building known as 434 St. Kilda Road, Melbourne occupied by Commercial Bureau (Australia) Pty. Ltd., ("Commercial Bureau"), the land and dwelling known as 13 Ashdown Way, Wheelers Hill, a suburb of Melbourne, occupied by Brian Robert Coward, ("Coward"), the then Secretary of the Commercial Bureau, and the land and dwelling known as 34 Herbert Street, Mornington, an outer suburb of Melbourne, occupied by William Albert Herman, ("Herman"), the then Shipping and Commercial Manager of Commercial Bureau. The Federal Police officers conducted the raids under the authority of three search warrants granted under s.10 of the Crimes Act 1914. During the raids the officers seized, removed and retained a large number of things including documents.

2. For present purposes, although not strictly accurate as to times, it is sufficient to say that by 28 October 1983, Commercial Bureau, Coward and Herman respectively had each obtained rules nisi issued out of the High Court of Australia calling upon John Milton Dugan ("Dugan"), the Justice of the Peace who had granted the warrants, and each of the police officers to whom each warrant had been granted to show cause why each warrant should not be quashed. Subsequently, in each of those proceedings, the applicants have moved the Court for orders prohibiting each respondent from proceeding further in reliance upon each warrant. Likewise, by the same date, Commercial Bureau, Coward and Herman respectively had each commenced actions in the High Court of Australia seeking orders for the return of the documents and other things seized in the raids and claiming damages for trespass, detinue and conversion. In each of these actions interlocutory relief was sought relating to the things seized in the raids.

3. On 28 October 1983, with the consent of the parties, interlocutory orders were made in the three actions under which all the things seized in the raids were delivered into the custody of the Registrar of the High Court, the defendants were restrained from further executing each of the warrants and from disclosing the contents of the things seized and directing that within seven days the defendants were to notify the Registrar as to which of the things seized should be returned to the plaintiffs, whereupon the plaintiffs were entitled to take custody of those things. In addition, under the orders the plaintiffs had liberty to inspect any of the things in the custody of the Registrar. On the same day orders were made that four of the proceedings issued out of the High Court be remitted to the Supreme Court of Victoria to be heard and determined by that Court.

4. Thereafter, doubts arose relating to whether the Supreme Court of Victoria, having regard to the provisions of s.9, Administrative Decisions (Judicial Review) Act 1977, had jurisdiction to hear and determine those proceedings. As a result, by further orders made on 28 November 1983 the previous remitter orders were vacated and the four proceedings were remitted to the Federal Court of Australia. It was further ordered that the things seized and subsequently placed in the custody of the Registrar of the High Court be forwarded to the Registrar of the Federal Court, and that the remitter orders should take effect at the expiration of twenty-eight days after the Statute Law (Miscellaneous Provisions) Act (No. 2) 1983 had received the Royal Assent. That Act received the Royal Assent on 22 November 1983 and the relevant parts thereof came into operation on 20 December 1983.

5. As a result of that Act coming into operation, sub-section 19(1) Federal Court of Australia Act 1976 now provides:
   
   

"19.(1) The Court has such original jurisdiction as is vested in it by laws made by the Parliament."

and s.39B Judiciary Act 1903 provides:

"39B. (1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(2) The reference in sub-section (1) to an officer or officers of the Commonwealth does not include a reference to -

(a) a person holding office under the Conciliation and Arbitration Act 1904, the Public Service Arbitration Act 1920 or the Coal Industry Act 1946; or

(b) a Judge or Judges of the Family Court of Australia."

1. In the three prerogative writ proceedings, each of the applicants is seeking orders absolute for certiorari and orders for prohibition against Dugan and the officer named in each of the three warrants. Thus, Coward is seeking orders against Dugan and Federal Police Officer Owen ("Owen"), Commercial Bureau is seeking orders against Dugan and Federal Police Officer Lee ("Lee"), and Herman is seeking orders against Dugan and Federal Police Officer Allen ("Allen"). Final orders are being sought in the prerogative writ proceedings. In the other three proceedings commenced by writ ("the actions"), the applicants are seeking interlocutory injunctions restraining Owen, Lee and Allen from further executing the warrants granted to each of them respectively, from disclosing the contents of the things already seized and which have now been placed in the custody of the Registrar of the Federal Court, and that the applicants have liberty to inspect the things in the custody of the Registrar.

2. In each of the six proceedings the applicants are challenging the validity of each warrant granted by Dugan. They contend that on their face and upon their proper construction each warrant is invalid. In the actions the applicants contend, on the assumption that the warrants are valid, that the method by which Owen, Lee and Allen executed each warrant invalidates the seizure and retention of the things so seized by the police officers.

3. Before considering the determination of the six proceedings, the Court must be satisfied that it has jurisdiction to hear and determine them. None of the proceedings are based on the Administrative Decisions (Judicial Review) Act 1977 and no suggestion was made that the Federal Court had jurisdiction to hear and determine the six proceedings under that Act. The four proceedings were remitted by the High Court to the Federal Court under s.44 of the Judiciary Act 1903. All six proceedings are being conducted as if each had been remitted to the Federal Court. In each of the three prerogative writ proceedings the Court is being moved to grant prohibition as well as certiorari. In an appropriate case that section may confer jurisdiction on the Court to which a matter is remitted; see Johnstone v. The Commonwealth (1979) 143 CLR 398 and re O'Reilly; ex parte Bayford Wholesale Ltd. (1983) 57 ALJR 675. In the present proceedings that principle does not assist in determining the issue of jurisdiction since the original jurisdiction of the High Court to hear and determine each of the six proceedings is questioned by counsel for the respondents other than Dugan. It becomes necessary, therefore, to consider the issue of jurisdiction in some detail.

4. Section 10 Crimes Act is set out in full:
   
   

"10. If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in any house, vessel, or place -

(a) anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;

(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or

(c) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence,

he may grant a search warrant authorizing any constable named therein, with such assistance as he thinks necessary, to enter at any time any house, vessel, or place named or described in the warrant, if necessary by force, and to seize any such thing which he may find in the house, vessel, or place."

1. Mr. Dugan is a Stipendiary Magistrate for the State of Victoria being appointed by that State. By reason of his office he is a Justice of the Peace under s.10 Crimes Act. Mr. Dugan has notified the Court that he does not propose to enter an appearance in the prerogative writ proceedings and that he will abide by any decision the Court makes. For present purposes, it is important to note that Dugan is a person appointed as an officer of the State of Victoria and is exercising powers conferred upon him by the Crimes Act.

2. Under s.75 Constitution, the High Court has original jurisdiction in all matters therein mentioned including all matters coming with placita (iii) and (v). Those two placita are set out:
   
   

"75. In all matters -

...

(iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

...

(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

the High Court shall have original jurisdiction."

The similarity of the jurisdiction conferred upon the High Court by placitum 75(v) Constitution and the jurisdiction conferred upon the Federal Court by s.39B Judiciary Act is readily apparent. The difficulties that arise from the fact that the writ of certiorari is not mentioned in the Constitution or the Judiciary Act does not arise in this case; generally see R. v. Cook; ex parte Twigg (1980) 147 CLR 15 per Gibbs C.J. at pp 25-6. In the prerogative writ proceedings the applicants are seeking prohibition against Dugan and the police officers albeit the motions for prohibition being commenced much later than 28 October 1983.

1. Counsel for the respondents made no submissions against absence of jurisdiction based on the absence of express reference to the writ of certiorari in either placitum s.75(v) Constitution or s.39B Judiciary Act.

2. Objection to jurisdiction was based on the fact that Dugan is not an officer of the Commonwealth within the meaning of placitum 75(v) Constitution or s.39B Judiciary Act, even though he was exercising a power conferred by a Commonwealth Act. That contention is accepted as correct; see R. v. Murray & Cormie; ex parte The Commonwealth (1916) 22 CLR 437 and Sankey v. Whitlam (1977) WLR 333 per Hutley J.A. at pp 362-3. Accordingly, in order to found jurisdiction for the granting of the prerogative writs against Dugan it is necessary to ascertain an appropriate officer of the Commonwealth in the matters constituted by each prerogative writ proceeding. It is not sufficient that the actions are proceedings in which injunctions are sought against officers of the Commonwealth since those proceedings constitute distinct matters from the matters constituted by the proceedings seeking certiorari and prohibition. Each Federal Police officer is an officer of the Commonwealth. Each is claiming to be entitled to retain the things seized under the authority of the warrants granted under s.10 Crimes Act. In executing each of those warrants, the officer concerned had an implied authority to search and to decide which of the things mentioned in the warrant should be seized and retained. The power to make decisions of that kind is, in my opinion, sufficient to make those officers subject to the prerogative writ of prohibition; see R. v. Liverpool Corporation; ex parte Liverpool Taxi Fleet Operators' Association (1972) 2 QB 299 per Lord Denning at p 308; compare R. v. Wright; ex parte Waterside Workers' Federation of Australia (1955) 93 CLR 528 per Dixon C.J., McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ. at pp 541-2 and R. v. Industrial Appeals Court; ex parte Victorian Chamber of Manufacturers (1975) VR 84 per Pape, Gillard and Dunn JJ. at pp 86-8 and pp 90-92. The police officers are seeking to retain possession of the things seized. Prohibition can have effect. If on their face the warrants under s.10 Crimes Act are invalid, prohibition should issue against the police officers. Likewise, prohibition could issue against Dugan. Nevertheless, certiorari cannot be directed to Federal Police officers. None of them granted the warrant under s.10 Crimes Act. In the absence of an appropriate officer of the Commonwealth in the certiorari proceedings, neither the High Court nor the Federal Court has jurisdiction to grant certiorari against Dugan who is not an officer of the Commonwealth; see R. v. Commonwealth Industrial Court; ex parte Cocks (1968) 121 CLR 313 per Kitto J. at pp 323-4.

3. It follows that the Federal Court has no jurisdiction to hear and determine the applications for certiorari directed to Dugan or to the police officers. I do not need to consider whether the Federal Court has jurisdiction to quash or set aside each warrant under s.10 Crimes Act on the basis that each is a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies. The absence of jurisdiction to grant certiorari, however, does not prevent the Court from proceeding to hear and determine the applications for prohibition against them. In any event, the question of the validity of the warrants under s.10 Crimes Act arises in relation to motions for interlocutory injunctions in the actions and to that extent the absence of jurisdiction in the certiorari matters is of academic interest. The desirability of quashing the search warrant is very different from the necessity of quashing a finding of contempt of Court; see R. v. Cook; ex parte Twigg, supra.

4. In the three actions, injunctions are sought against officers of the Commonwealth and this Court has jurisdiction to hear and determine those proceedings. It is not necessary at this stage to determine whether this Court has jurisdiction to hear and determine those actions insofar as claims are made for damages for trespass, detinue and conversion. Jurisdiction to hear and determine the claims for injunctions arises both from placitum 75(v) Constitution and the remitter under s.44 Judiciary Act as well as under s.39B Judiciary Act.

5. The Court considers first the validity of the warrants issued by Dugan under s.10 Crimes Act. The warrant issued with respect to the premises occupied by Commercial Bureau is set out in full:
   
   

"TO: Robert Lyndon LEE

an Australian Federal Police Officer

WHEREAS I, JOHN MILTON DUGAN a Stipendiary Magistrate for the State of Victoria and as such a Justice of the Peace within the meaning of that expression in section 10 of the Crimes Act 1914, being satisfied by information on oath placed before me this day that there are in a place being the premises situated on the sixth floor of the building known as 434 St Kilda Road, Melbourne in the said State which floor is occupied by the Commercial Bureau

(Australia) Pty Ltd and all rooms, store-rooms and containers within the said premises, things being all memos, diaries, records, books, ledgers, accountant summaries, auditor's reports, working papers, books of account, authorities for overseas transfers, charterparties, shipping invoices, shipping bills of lading, deposit slips, telexes, telegraphic transfers, cheque books, approvals from the Reserve Bank or its Agent Bank such as permit the export of products for the payment of monies by the overseas purchaser in settlement thereof, documents, relating to investment in or loans from any financial institutions or person in the Commonwealth of Australia or elsewhere, or any other documents or things as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences namely the making, contrary to paragraph 40(c) of the Banking (Foreign Exchange) Regulations, to an agent of the Reserve Bank of Australia of statements known to be untrue or misleading relating to transactions to which a provision of those Regulations namely paragraph 5(1)(b) applies.

YOU ARE HEREBY AUTHORIZED with such assistance as you think necessary to enter at any time the said place, and if necessary by force, and to seize the said things specified above and for so doing this shall be your sufficient warrant.

GIVEN under my hand at Melbourne in the State of Victoria this 24th day of October 1983.

( Signed )

STIPENDIARY MAGISTRATE"

Each of the warrants issued with respect to the premises occupied by Coward and Herman respectively contain a number of minor differences to that already set out in full, but each contains two major differences on which further contentions of invalidity were based. The minor differences may be ignored, but, in order to illustrate the major differences, one of the warrants is set out in full and for ease of reference, the major differences are underlined:

"TO: James Douglas ALLEN an Australian Federal Police Officer

WHEREAS I, JOHN MILTON DUGAN a Stipendiary Magistrate for the State of Victoria and as such a Justice of the Peace within the meaning of that expression in section 10 of the Crimes Act 1914, being satisfied by information on oath placed before me this day that there are in a place being the premises at 36-38 Herbert Street, Mornington in the said State and all rooms and other parts within the said premises and all garages, sheds, store-rooms and containers at the said premises and in the blue Ford LTD sedan motor vehicle registered number AVY 775 which is usually garaged at the said premises, things being all memos, diaries, records, books, ledgers, accountant summaries, auditor's reports, working papers, books of account, authorities for overseas transfers, charterparties, shipping invoices, shipping bills of lading, deposit slips, telexes, telegraphic transfers, cheque books, approvals from the Reserve Bank or its Agent Bank such as permit the export of products or the payment of monies by the overseas purchaser in settlement thereof, documents relating to investment in or loans from any financial institutions or person in the Commonwealth of Australia or elsewhere, or any other documents or things as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences namely the making, contrary to paragraph 40(c) of the Banking (Foreign Exchange) Regulations, to an agent of the Reserve Bank of Australia, of statements known to be untrue or misleading relating to transactions to which a provision of those Regulations namely paragraph 5(1)(b) applies.

YOU ARE HEREBY AUTHORIZED with such assistance as you think necessary to enter at any time the said place and the said vehicle, and if necessary by force, and to seize the said things specified above and for so doing this shall be your sufficient warrant.

GIVEN under my hand at Melbourne in the State of Victoria this 24th day of October 1983.

( Signed )

STIPENDIARY MAGISTRATE"

Subject to referring to a different motor vehicle, the third warrant was in similar form to the second.

1. Counsel for the applicants contended that each of the three warrants was invalid by reason of either of two reasons conveniently described as the construction reason and the particularity reason. In broad outline, the construction reason was based on the contention that on their proper construction, the words "as to which there are reasonable grounds for believing that the same will afford evidence" etc., are linked to the words immediately preceding them, namely "or any other documents or things" and are not descriptive of and have no application to the large number of things specified earlier in each warrant. Counsel relied strongly on the existence of the comma immediately preceding the words "or any other documents or things".

2. The particularity reason was based on the contention that the offence or offences described in each of the warrants was too wide and amounted to a failure to comply with the requirements of s.10 Crimes Act. In this respect, it is necessary to make brief reference to the Banking (Foreign Exchange) Regulations made under the Banking Act 1959 ("the Foreign Exchange Regulations"). Paragraph 40(c) of the Foreign Exchange Regulations is set out:
   
   

"40. A person shall not make -

...

(c) to any officer of the Bank or of an agent of the Bank; ...

any statement, whether oral or in writing, relating to any act, transaction, matter or thing to which any provision of these Regulations applies, which he knows to be untrue, or which is misleading, in any particular, or which is made by him without his having first made proper inquiries to ascertain the truth thereof."

Paragraph 5(1)(b) of the Foreign Exchange Regulations is set out:

"5.(1) Subject to sub-regulation (3), except with the authority of the Bank -

...

(b) a resident, or a person acting on behalf of a resident, shall not buy, borrow, sell, lend or exchange outside Australia, or otherwise deal outside Australia with, foreign currency."

For present purposes it is not necessary to refer to paragraph 5(3) nor to any of the definitions contained in the Foreign Exchange Regulations. Any person who contravenes any of the provisions of the Foreign Exchange Regulations commits a criminal offence and is liable to a penalty prescribed by reg.42.

1. During the hearing of submissions, a large number of authorities were cited to the Court. Reference will not be made to all of those authorities, but as an aid for reference they are listed in an appendix to these reasons. Much assistance has been received from a consideration of those authorites and in particular from the opinions expressed in R. v. Tillett; ex parte Newton (1969) 14 FLR 101, Crowley v. Murphy (1981) 52 FLR 123, Inland Revenue Commissioners v. Rossminster Ltd. (1980) AC 952, particularly the speeches of their Lordships constituting the majority; the opinion of Lord Denning in the Court of Appeal commencing at p.968 and being markedly similar to the submissions of counsel for the applicants in the present case, an opinion, however, which differed from the opinions of the majority of their Lordships in the House of Lords; Trimboli v. Onley (No. 3) (1981) 56 FLR 321 and Baker v. Campbell (1983) 57 ALJR 749.

2. The applications before the Court illustrate the difficulties resulting from two conflicting principles, namely a citizen's right to privacy and the power of the Executive to detect and bring to trial persons who have committed breaches of the criminal law. Where these principles conflict, the Court should not attempt to legislate by refusing to apply the law as made by Parliament, but at the same time the Court should examine critically that legislation as well as any Executive action taken pursuant to that legislation and where doubts arise, those doubts should be resolved in favour of the citizen. At the same time, the Court should not frustrate the intention of Parliament as expressed in the legislation. Further, it must be remembered that a warrant under s.10 Crimes Act is "part of the investigative pre-trial process of the criminal law, often employed early in the investigation and before the identity of all of the suspects is known". It can be said with equal truth that the investigation may be undertaken before full particulars of a suspected crime are ascertained. The investigation may well be necessary in order to obtain material which can be used as evidence in a subsequent trial with respect to an offence or offences against any law of the Commonwealth. The true position is described in Baker v. Campbell by Mason J. at pp 760-1:
   
   

"The search warrant has been described as 'part of the investigative pre-trial process of the criminal law, often employed early in the investigation and before the identity of all of the suspects is known': Attorney-General of Nova Scotia v. MacIntyre

(1982), 132 DLR (3d) 385, at p 397, per Dickson J. Its function is to authorize a search and seizure of materials which will implicate a person in the commission of the offence. The search and seizure which it authorizes is designed, among other things, to yield evidence which can be tendered by the prosecution in the subsequent trial of a person for the offence described in the warrant.

For present purposes the important characteristics of the search warrant procedure are that its foundation is the making of an order by a judicial officer and that the warrant which issues by virtue of the order authorizes the search and seizure of documents in the possession of another for use in the investigation and in any subsequent trial arising out of the investigation."

1. In the present proceedings, as in the Rossminster case, no question arises relating to the exercise of the power by Dugan to grant the search warrants. The proceedings were conducted on the basis that Dugan was satisfied by information on oath that there was reasonable ground for suspecting that there were in the premises described in each of the warrants things as to which there were reasonable grounds for believing would afford evidence as to the commission of an offence or offences against a law of the Commonwealth. In paragraph 10(b) Crimes Act, the words "any such offence" refer to "any offence against any law of the Commonwealth or of a Territory" contained in paragraph 10(a) Crimes Act. Under the Acts Interpretation Act 1901 the word "offence" is to be read in the plural as well as the singular. Mr. Dugan granted the three search warrants. Each warrant authorized the constable named therein, with such assistance as he thought necessary, to enter at any time the premises described in the warrant and to seize the things described in the warrant. It is to be noted that s.10 Crimes Act does not require the warrant to identify the person who has committed or who is suspected of having committed an offence under paragraph 10(a). None of the warrants identified such a person. In fact, the name of the company, Commercial Bureau, is included in the first warrant solely for the purpose of identifying the premises to be entered. To comply with the requirements of s.10 Crimes Act, the warrant must identify the premises to be entered and the things to be seized. Under the three warrants, the things authorized to be seized must be found in the premises identified in each warrant and must be things "as to which there are reasonable grounds for believing ... will afford evidence as to the commission of any" offence or offences of a kind coming within paragraph 10(b) Crimes Act. If a warrant authorizes the seizing of things which do not come within paragraph 10(b) Crimes Act, the warrant may be invalid.

2. As has been said, the contention of counsel for the applicants on the construction question depends upon giving effect to the comma immediately before the words "any other documents or things". If the words of description commencing with the words "as to which there are reasonable grounds for believing" do not apply to the multitude of specified things set out before the comma, those specified things are not limited by the subsequent words of description. On that contention, those specified things do not come within paragraph 10(b) and the warrants do not authorize their seizure. Grammatically the comma should not be there, but see the presence of the comma after the word "vessel" and before the words "or place" in the opening paragraph of s.10 Crimes Act; note also the reservations expressed by Lord MacKay in the reference about to be given. In construing the warrants the comma must be disregarded if to give effect to it would alter the sense of the warrant so as to be contrary to the plain meaning of the warrant when read as a whole; see Alexander v. Mackenzie (1947) Session Cases (J) 155 per Lord Jamieson at p 166, Lord MacKay at pp 160-2 and Lord Stevenson at p 168. See also Geelong City Council v. Geelong Harbour Trust Commissioners (1923) VLR 652 per Schutt J. at p 657.

3. Reading each warrant as a whole, it is clear that the draftsman intended the words of description or qualification to apply to all the things specified in the warrant. There is an enumeration of a large number of specified things coming within the word "anything" as used in paragraph 10(b) Crimes Act followed by the words "or any other documents or things" followed by an adjectival phrase, namely "as to which there are reasonable grounds for taking" etc. The use of the word "other" in the context suggests that the documents or things other than those previously specified must be of the same general description and that the adjectival phrase qualifies not only "the other documents or things" but each of the things previously specified. The existence of the comma should not prevent that normal construction applying to the warrants. The contentions of counsel for the applicants with respect to the construction question are not accepted.

4. Section 10 Crimes Act empowers a Justice of the Peace to grant a warrant authorizing the seizure of things specified in the warrant. A warrant which does not specify those things with sufficient particularity may be invalid. The need for particularity is obvious. It places a limit on what things may be seized. The constable exercising the warrant and any person assisting that constable must be able to decide whether any thing being searched comes within the description of the things authorized to be seized. Here, the things are described by the words as "things as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences, namely the making, contrary to paragraph 40(c) of the Banking (Foreign Exchange) Regulations, to an agent of the Reserve Bank of Australia, of statements known to be untrue or misleading relating to transactions to which a provision of those regulations, namely paragraph 5(1)(b) applies". Note the word "offences" used in that description.

5. The offences are described as offences against a law of the Commonwealth, namely reg.40(c) Foreign Exchange Regulations. There may be many different transactions and types of transactions involved; see reg.5(1)(b). On the particularity question, counsel for the applicants contended that the description of the offences in the warrants was so wide as to be meaningless and therefore the things authorized to be seized were not identified with sufficient particularlity. Particularity was needed, so it was contended, not only to enable the constable deciding which things came within the description of things contained in the warrant, but also to enable the person who was in occupation of the premises being searched and the person who might have committed the offences described, to know if the things so seized were in fact authorized to be seized. To some extent counsel equated the description of the offence in the warrant with a presentment of an indictment with the concomitant necessity for particulars.

6. In the Rossminster case, the statute itself authorized the seizure of things which the officer executing the warrant "has reasonable cause to believe may be required as evidence for the purposes of proceedings in respect" of an offence mentioned in sub-section 20(c)(1) Taxes Management Act 1970 (Eng). The sub-section provided that the specified judicial authority was empowered to issue a warrant if satisfied "(a) there is reasonable ground for suspecting that an offence involving any form of fraud in connection with, or in relation to, tax has been committed and that evidence of it is to be found on premises". A contention similar to that put by counsel for the applicants in the present case with respect to the particularity question was rejected by each of their Lordships. Lord Wilberforce said at p.999:
   
   

"The Court of Appeal took the view that the warrants were invalid because they did not sufficiently particularise the alleged offence(s). The court did not make clear exactly what particulars should have been given - and indeed I think that this cannot be done. The warrant followed the wording of the statute 'fraud in connection with or in relation to tax': a portmanteau description which covers a number of common law (cheating) and statutory offences (under the Theft Act 1968 et al.). To require specification at this investigatory stage would be impracticable given the complexity of 'tax frauds' and the different persons who may be involved (companies, officers of companies, accountants, tax consultants, taxpayers, wives of taxpayers etc.). Moreover, particularisation, if required, would no doubt take the form of a listing of one offence and/or another or others and so would be of little help to those concerned. Finally, there would clearly be power, on principles well accepted in the common law, after entry had been made in connection with one particular offence, to seize material bearing upon other offences within the portmanteau. So, particularisation, even if practicable, would not help the occupier.

I am unable, therefore, to escape the conclusion, that adherence to the statutory formula is sufficient."

See also Viscount Dilhorne at p.1005, Lord Salmon at p.1020 and Lord Scarman at p 1023-4. See also Coghill v. McDermott (1983) VR 751 per Marks J. at p 757.

1. In the present case, counsel for the applicants contended further that in the Rossminster case the statute itself described the offences, while in the present case the offences were described in the warrant and that the warrant should be construed more strictly in favour of the applicants.

2. The contentions of the applicants in support of the particularity question are not accepted. It must be remembered that a search warrant is used as an aid to investigation of offences or suspected offences against a law of the Commonwealth. The warrant may be granted where there is reasonable ground for suspecting that an offence against a law of the Commonwealth has been, or is suspected on reasonable grounds to have been, committed. At the stage of the investigation when a search warrant is granted, it may not be known what particular offence or offences have been committed. It is sufficient that the warrant specifies the offences in such a way as to enable the constable executing it, as well as those assisting him, to decide if the things seized come within the things described in the warrant. By making reference to the particular parts of specified regulations of the Foreign Exchange Regulations relied upon, Dugan has complied with the requirements of s.10 Crimes Act.

3. Counsel for the applicants relied strongly on opinions expressed by Moshansky J. of the Supreme Court of Alberta in Re Alder and The Queen (1977) 37 Canadian Criminal Cases (2d) 234 in quashing part of a search warrant issued under Canadian legislation similar in some respects to s.10 Crimes Act on the grounds that the warrants did not set out with sufficient precision the documents to be seized. I decline to apply that opinion to the facts of the present case, preferring as I do the opinions expressed in the Rossminster case and in Coghill v. McDermott.

4. Accordingly, the rule nisi for prohibition obtained by Commercial Bureau must be discharged.

5. A further challenge made to the validity of the other two warrants, based on the reference in each of them to motor vehicles, is now considered.

6. A reference to the second and third warrants shows that Mr. Dugan granted each warrant to enter and search a place and in addition to enter and search a motor vehicle irrespective of where that motor vehicle happened to be. In each warrant the place is defined as premises identified by reference to an address and extended to any house on those premises as well as to "garages, sheds, store-rooms and containers at the said premises". In the authorization contained in the warrants, those premises are referred to as "the said place". If a motor vehicle happened to be on those premises at the time of entry and search, presumably the search could extend to and include the seizure of things as described found inside that motor vehicle. In the two warrants, coextensive with the described place, each warrant identified a motor vehicle. Part of the identification of the motor vehicle referred to the vehicle "which is usually garaged at the said premises". The words in the authorization "and the said vehicle" make it clear that the warrant is directed to the motor vehicle irrespective of where it is situated and to be valid the motor vehicle must be a "house, vessel, or place" within the meaning of those words contained in s.10 Crimes Act.

7. Counsel for the respondents contended that a motor vehicle was a "place" within s.10 Crimes Act. A reference to any dictionary illustrates that the word "place" has many different meanings. Generally, the word is found in conjunction with other words and must take its meaning from the context in which it is used, in this case s.10 Crimes Act. The word "place" is used in the context of a power to authorize the entry and search for things in "any house, vessel, or place". The section was first enacted in 1914, see s.10 Act No. 12 of 1914, and for present purposes was in the same form as it is now. The section was based on s.679 Criminal Code (Qld.) as enacted by the Criminal Code Act 1899 (Qld.) where the same phrase "any house, vessel, or place" appeared, punctuation and all. The word "house" has many different meanings and need not be limited to a place in which human beings reside. The phrase "Houses of Parliament" illustrates this. A caravan while parked and used as a dwelling may be a house, but is it a house when being towed on a public road? The word "vessel" is normally used to denote a sea-going craft or ship, but has many other meanings. Questions can arise as to whether an aircraft, especially a large commercial aircraft, is a vessel. Are shipping containers vessels, and if so, are they vessels when packed or stacked ashore? In the present case, it is not necessary to determine all these questions or the question of whether caravans, aircraft, ships or containers are places. In its context in s.10 Crimes Act, the word "place" should be construed as meaning "a part of space of definite situation". Thus, the place can be defined by reference to an area of land, whether private or public, or an area of space, for example by reference to a specified floor in a multi-storied building. The place may be private or public. The place may be part of an airport or a seaport. Provided the place is defined with sufficient particularity, the authority to search could be expressed to include an authority to search all things found on or within that place, whether a motor vehicle, a caravan, a container, or an aircraft. The essential feature, however, must be a definition of a place by reference to a part of space of definite situation.

1. In the two warrants, the motor vehicles are not defined by reference to a part of space of definite situation. Motor vehicles, of necessity, move from place to place and the warrants purport to authorize the persons named in them to enter and search the motor vehicles no matter where they happen to be. In my opinion, a motor vehicle described merely by its registration number and the place at which it is usually garaged is not a "place" within the meaning of the words "any house, vessel, or place" contained in s.10 Crimes Act and that part of the warrants which authorizes entry and search of the motor vehicles is beyond the power conferred on Mr. Dugan to grant a warrant and therefore is invalid.

2. In my opinion, however, the offending words, being the words underlined in the second warrant set out in these reasons, can be severed from the warrant without affecting the validity of the rest of the warrant. This can be done by reference to paragraph 46(b) Acts Interpretation Act 1901, and see Cocks's case, supra, per Kitto J. at p.323. The warrants are valid instruments to the extent to which they are not in excess of the power conferred by s.10 Crimes Act. In any event, this is a case where at common law the offending parts of the warrants can be severed and the remaining parts remain valid; see Kingsway Investments (Kent) Ltd. v. Kent County Council (1971) AC 72 per Lord Reid at pp 89-91 and Lord Upjohn at pp 112-4. The severance question did not call for consideration by the majority of their Lordships and the dissent of Lord Reid and Lord Upjohn on the substantive issue required them to consider the severance question. These facts do not detract from the authority of the passages relied upon. It is interesting to note that in Alder's case, supra, the Court severed offending parts of a search warrant without quashing the whole of it. In the present case, the offending parts of the warrants can be severed without affecting in any way the remaining parts of the warrants. There is no suggestion that the motor vehicles were searched at any place other than at the premises described at Wheelers Hill and Mornington respectively. Accordingly, the motions for prohibition by Coward and Herman respectively must each be refused.

3. The applicants are moving the Court for interlocutory injunctions restraining Owen, Lee and Allen from further executing the warrants granted by Dugan, from disclosing the contents of the things already seized and from inspecting and examining any of the things already seized, all of which are presently in the custody of the Registrar of the Federal Court. The things seized are contained in eighteen boxes but, pursuant to orders previously made, the respondents in November 1983 notified the applicants that the things in seven of those boxes were not needed and could be returned to the applicants. They have not yet been so sought. The interlocutory injunctions are being sought on the basis that each of the warrants relied upon by the respondents is invalid, or if valid, the method by which the things were seized invalidates the seizure with the result that the respondents should not have the benefit of their wrongful actions.

4. In considering the motions for interlocutory injunctions, I apply the approach referred to in Australian Coarse Grain Pool Pty. Ltd. v. The Barley Marketing Board of Queensland (1983) 57 ALJR 425 per Gibbs C.J. in deciding whether there is a serious question to be tried and if so to consider the balance of convenience. In considering the motions I propose to apply the well-known principles stated by Lush J. in Slater Walker Superannuation Pty. Ltd. v. Great Boulder Mines Ltd. (1979) VR 107 at p 110 which were adopted and approved by the Full Court of the Supreme Court of Victoria in Magna Alloys & Research Pty. Ltd. v. Coffey (1981) VR 23 at p 28:
   
   

"'The weight to be given to the various considerations shown by the authorities to be relevant will vary from case to case. All the authorities say in one way or another that the plaintiff must show he has a chance of success before he will be granted an interlocutory injunction. The authorities refer to the use of the injunction for the purpose of maintaining the status quo or maintaining a state of affairs which is on the balance of convenience appropriate to be maintained until the trial. They refer to avoiding irreparable harm to the plaintiff. There will be situations in which the plaintiff cannot expect to be granted an injunction unless he can show that he can prove positively the existence of his rights and the infringement of them. There will be other situations in which though the plaintiff's proof of his rights or the infringement of them is not strong, an injunction may be granted because to withhold it would do the plaintiff irreparable harm, while to grant it would not greatly injure the defendant. The possible variety of situations is unlimited.'"

1. In the present proceedings, the Court has held that the warrants were valid insofar as they authorize the seizure of things at the premises occupied by Commercial Bureau and at the premises at Wheelers Hill and at Mornington. It remains to consider whether there is a serious question to be tried with respect to the method by which the warrants were executed.

2. Affidavit evidence was given by Coward and Herman. Coward was cross-examined. Almost at the end of the hearing of the motions, the Court refused to permit the applicants to file further affidavit material directed to what occurred during the searches and what type of things were seized. There was material before the Court to suggest that some of the documents seized could not, on any view, afford evidence as to the commission of any offence against the law of the Commonwealth. No evidence was given by any of the respondents.

3. Leaving aside the problems associated with the question of jurisdiction, no procedural difficulties of the kind that arose in Trimboli v. Onley (No. 3) supra, were debated in this case. I do not find it necessary to refer to the reasons for decision in that case, but in adopting this course I am not to be taken as accepting every view stated in those reasons. In particular, I express reservations relating to who must make the decision to seize, namely should that decision be taken personally by the person named in the warrant or can the decision be made by persons assisting him? Also, I express reservations relating to the power to remove things from the premises being searched for the purpose of studying them at another place to decide whether they come within the terms of the warrant. It is not necessary for me to decide those questions in the present case. It is sufficient to say that on the whole of the evidence I am not satisfied that the searches and seizures were so random that excess of authority is demonstrated. Even though no evidence was given by or on behalf of the respondents, I am so satisfied, and with respect, approach the matter in a way similar to that adopted in Coghill v. McDermott, supra, per Marks J. at p 759. At the same time, I am satisfied that on the material presented to the Court there is a serious question to be tried. This question relates to the manner in which the warrants were executed and whether the seizure of things was valid. It becomes necessary, therefore, to consider the question of the balance of convenience.

4. The respondents have seized things pursuant to valid warrants under s.10 Crimes Act. Because of orders already made, they have been unable to proceed with their investigations into suspected offences under a law of the Commonwealth. Counsel for the respondents has contended that having regard to the public interest, the respondents should be permitted to continue their investigations by the examination of the things seized to enable them to decide whether criminal prosecutions should be commenced. In this regard counsel relied strongly on statements contained in Rossminster's case, namely those of Lord Wilberforce at pp.1000-1 and Lord Diplock at pp.1012-3.

5. Counsel for the applicants contended that the motions went far beyond any question of the balance of convenience. He contended that they involved fundamental issues relating to the right of privacy and the need to ensure that executive agencies do not flout the law. He relied strongly on the opinions expressed in Bunning v. Cross (1978) 141 CLR 54, especially the joint judgment by Stephen and Aickin JJ.

6. In my opinion, the motions for interlocutory injunctions should be refused. The balance of convenience weighs in favour of the respondents. In the public interest, they should have a reasonable time to examine the things seized, to decide whether to prosecute or not, and to retain the things needed as evidence in support of any prosecutions. The other things should be returned to the applicants. The court hearing those criminal proceedings may have to determine, on the principles expressed in Bunning v. Cross, whether evidence obtained by means of the search warrants is admissible or not. Any civil action arising from the seizure could be continued at the conclusion of those criminal proceedings. If no prosecutions are commenced, the applicants would be free to continue with their actions based on the unlawful execution of the warrants. In the meantime, the public interest requires that the respondents to the actions should be able to continue their investigations. Accordingly, the motions for interlocutory injunctions are refused.