Elliott v Seymour

[1999] FCA 976

FEDERAL COURT OF AUSTRALIA

Elliott v Seymour [1999] FCA 976

JOHN DORMAN ELLIOTT v SERGEANT DOUGLAS SEYMOUR and THOMAS

SHERMAN and NATIONAL CRIME AUTHORITY and DIRECTOR OF PUBLIC
PROSECUTIONS FOR THE STATE OF VICTORIA and AUSTRALIAN
BROADCASTING CORPORATION and STEVEN MARSHALL CRABB

VG 411 of 1993

RYAN J
19 JULY 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 411 OF 1993

BETWEEN:

JOHN DORMAN ELLIOTT
Applicant

AND:

SERGEANT DOUGLAS SEYMOUR
First Respondent

THOMAS SHERMAN
Second Respondent

NATIONAL CRIME AUTHORITY
Third Respondent

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE
OF VICTORIA
Fourth Respondent

AUSTRALIAN BROADCASTING CORPORATION
Fifth Respondent

STEVEN MARSHALL CRABB
Sixth Respondent

JUDGE:

RYAN J

DATE OF ORDER:

19 JULY 1999

WHERE MADE:

MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS:

1.That the applicant file and serve by 3 September 1999 a draft further amended statement of claim conforming with the reasons for judgment published this day.

2.That the applicant’s motion on notice dated 4 February 1998, the first, second and third respondents’ motion on notice dated 4 December 1997, the fourth respondent’s amended motion on notice dated 27 April 1998 and the sixth respondent’s motion on notice filed on 11 December 1998 be adjourned to 27 September 1999.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 411 OF 1993

BETWEEN:

JOHN DORMAN ELLIOTT
Applicant

AND:

SERGEANT DOUGLAS SEYMOUR
First Respondent

THOMAS SHERMAN
Second Respondent

NATIONAL CRIME AUTHORITY
Third Respondent

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE
OF VICTORIA
Fourth Respondent

AUSTRALIAN BROADCASTING CORPORATION
Fifth Respondent

STEVEN MARSHALL CRABB
Sixth Respondent

JUDGE:	RYAN J
DATE:	19 JULY 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. These proceedings were commenced in September 1993 when the applicant obtained, ex parte, an interim injunction restraining Sergeant Seymour, Mr Sherman, the Chairman of the National Crime Authority (“the NCA”) and the NCA itself from charging the applicant “with any breaches or offences contrary to the laws of the State of Victoria, South Australia or the Commonwealth of Australia whether statutory or at common law”.  That injunction was later dissolved by Foster J and the applicant was charged with theft, knowingly giving false and misleading evidence to the NCA and conspiracy to defraud in relation to payments of approximately $39M and $27M respectively by Elders IXL Ltd (“EXL”) of which the applicant (“Elliott”) had been Chief Executive, Chairman of Directors and a shareholder to Equiticorp Tasman Ltd (“ETL”) or persons or entities associated with ETL by way of sham foreign exchange transactions.  Elliott, together with Peter Damian Scanlon and Kenneth Robert Biggins, was committed for trial in the Supreme Court of Victoria on those charges by Mr Hicks SM.  Three other accused, Peter Robert Camm, David Eugene Woods and Victor George Psaltis were also charged with conspiracy to defraud and other offences related to the same transactions.  However, after a lengthy hearing extending over some months of examination on the voir dire of evidence which the Director of Public Prosecutions for the State of Victoria (“the DPP”) proposed to adduce, Vincent J directed that all six accused be acquitted of all charges.

2. In the meantime the applicant had filed in this Court a statement of claim which has undergone far reaching amendments.  In reasons for judgment published on 12 May 1995 I considered a motion on notice by the first three respondents seeking, amongst other things, that this proceeding be dismissed as disclosing no reasonable cause of action.  The sixth respondent (“Crabb”) sought similar relief in respect of so much of the action as sought relief against him.  Those reasons for judgment should be read in conjunction with the present reasons.

3. Subsequently, a yet further amended statement of claim was filed on behalf of Elliott and by motions on notice filed in December 1997 the first three respondents and Crabb sought, amongst other things, further and better particulars of the later statement of claim and directions leading to an early trial of the action.  Those notices of motion prompted Elliott to seek, by notice of motion dated 4 February 1998, leave to file and serve a substituted statement of claim.  That motion was opposed by all remaining respondents who advanced, in various forms, the submission that the whole proceeding should be struck out.  Accordingly, on 11 February 1998 I ordered, amongst other things, that the applicant file and serve by 13 February 1998 a fresh proposed substituted statement of claim embodying the allegations which he then sought to make in a substituted statement of claim.

4. The proposed substituted statement of claim as so filed (“the statement of claim”) occupied some 56 pages and extended over 155 paragraphs.  The device was adopted of embodying in three Schedules, A, B and C, particulars of allegations in some of those paragraphs where the particulars were not comprehensively subjoined to the paragraph in question.  I shall set out extracts from the proposed substituted statement of claim and the Schedules of particulars as necessary for an understanding of the competing submissions for and against the grant of leave to make further amendments to the statement of claim.  The competing contentions of the parties as to whether the proceedings should be struck out require an analysis of issues broader than those illustrated by close textual references to the proposed pleading.  However, I shall also make references of that kind where necessary for an intelligible discussion of those broader arguments.

   THE STRUCTURE OF THE PROPOSED NEW STATEMENT OF CLAIM

5. The introductory paragraphs of the statement of claim identify Elliott and the various respondents and describe the composition of the Inter-Governmental Committee (“IGC”) established pursuant to s 8 of the National Crime Authority Act 1984 (“the NCA Act”). Paragraphs 10 to 151 comprise largely a narrative recital commencing with a request by the NCA for a reference to it for investigation of a matter relating to alleged criminal activity. The reference was granted by a notice (in the pleading called “the Bowen Notice”) which, according to para 14 of the statement of claim:

   “described the general nature of the alleged relevant criminal activity as the activity of a group or groups of persons, members of whom were identified to Bowen by the NCA in writing on 19 December 1989, including the Applicant (the list) and associated persons and companies.”

6. It is then alleged that Mr Bowen, as the responsible Commonwealth Minister, was required before referring a matter to the NCA, to consult the Inter-Governmental Committee (“IGC”) established pursuant to s 8 of the NCA Act and that, in breach of that requirement, the Bowen Notice had been issued without the requisite consultation. The IGC comprised the Attorney-General for the Commonwealth (at first the Honourable Lionel Bowen who was succeeded by the Honourable Michael Duffy) and a Minister of the Crown for each of the States of Victoria and South Australia. The Victorian Minister was initially Crabb and the South Australian Minister was at all relevant times the Attorney-General for that State, the Honourable Christopher Sumner. Reference is then made to other requests by the NCA and references to it embodied in subsequent notices by Crabb (“the Crabb Notice”) and Mr Sumner (“the First Sumner Notice”). That narrative is by way of introduction to para 24 of the statement of claim which is in these terms:

   “Each of the Bowen, Crabb and First Sumner Notices was made for a purpose other than the purpose for which the power to make a Notice was conferred, being one or more of the following purposes:

   (a)discrediting the Applicant;

   (b)causing electoral disadvantage to the Liberal Party in the 1990 Federal election;

   (c)giving an electoral advantage to the Australian Labor Party in the 1990 Federal election.

   PARTICULARS

   The purpose is to be inferred from the facts and matters contained in Schedule A and from the matters deposed to in paragraphs 12 to 18 of the Applicant’s affidavit sworn 30 September 1993.  Further particulars will be provided after discovery.”

7. In para 27 of the statement of claim the foreign exchange transactions in relation to which Elliott and others were charged are described as follows:

   “In about January and September 1988 EXL made payments to the Bank of New Zealand Ltd (BNZ) purportedly in settlement of foreign exchange transactions (the Forex Transactions).

   PARTICULARS

   (a)   On about 11 January 1988 a payment was made by EXL to BNZ and a subsequent payment was made by BNZ to a company or companies associated with Allan Robert Hawkins (Hawkins) and/or Equiticorp Tasman Ltd (ETL) in the sum of about $39.5 million; and

   (b)   On about 7 September 1988 a payment was made by EXL to BNZ and a subsequent payment was made by BNZ to a company or companies associated with Hawkins and/or ETL of about $27 million.”

8. Reference is then made to the issue on 12 July 1990 of another notice (“the First Sandon Notice”) by Mr Malcolm Sandon who, by then, had succeeded Crabb as the Victorian Minister on the IGC.  It is alleged in para 31 of the statement of claim that the subject matter of the First Sandon Notice was the same as that of the Bowen Notice.  The next three paragraphs then allege that the First Sandon Notice was issued without requesting or obtaining the approval of the IGC.  The pleading narrative continues in paras 35 to 37 to instance the issue of further references to the NCA embodied in a “Second Sandon Notice”, a “Duffy Notice” and a “Second Sumner Notice” which are said to have described in the same terms the general nature of the alleged criminal activity which the NCA was to investigate.  Each of the three last mentioned notices was said to have been issued without consultation with, or obtaining the approval of, the IGC and the Ministers respectively issuing them are alleged to have purported to “reissue” the Crabb, Bowen and First Sumner Notices respectively. 

9. In an echo of para 24, para 45 imputes improper or ulterior purposes for the issue of the First and Second Sandon Notices, the Duffy Notice and the Second Sumner Notice by alleging:

   “Each of the First Sandon, Second Sandon Duffy and Second Sumner Notices was procured by the NCA for one or more of the following purposes:

   (a)discrediting the Applicant;

   (b)obtaining evidence for use by the New Zealand Securities Commission (NZSC);

   (c)obtaining evidence for use by the New Zealand Serious Fraud Office (NZSFO);

   (d)obtaining evidence for use by the Statutory Managers of ETL (SMETL).

   PARTICULARS

   The purpose is to be inferred from the facts and matters set out in Schedule B hereto.  Further particulars will be provided after discovery.”

10. It is then alleged in paras 46 and 47 that the subject matter of the Second Sandon, the Duffy and the Second Sumner Notices was the same as that of the Bowen Notice so that the matter referred by all six notices for investigation by the NCA was the same.  Paras 48 to 50 inclusive then allege that any request by the NCA for a reference or for the IGC to approve a reference, or any consultation with, or approval by, the IGC, or the references themselves did not comprehend the Forex Transactions.  Finally, under the Heading “Scope of the Notices”, it is pleaded:

    “51.A notice in writing made pursuant to sections 13 or 14 of the Act (or the relevant State provisions) is not required to describe, identify or define the matter referred thereby.

    52.If contrary to the allegation made in paragraph 51 a notice in writing issued pursuant to sections 13 or 14 of the Act (or the relevant State provisions) is required to describe, identify or define the matter referred thereby, the Notices and each of them, if valid, did not refer the Forex Transactions to the NCA for special investigation.”

11. It is then pleaded under the heading “Invalidity of Notices for Non-Compliance with the Act” that:

    “53.Alternatively to paragraph 51 in contravention of section 13 or section 14 of the Act, section 5 of the Victorian Act or section 5 of the South Australian Act as the case requires none of the Notices describe, identify or define:

    (a)any matter; or

    (b)any matter purportedly referred to the NCA by the person issuing the Notice.”

12. In paras 54 and 55 it is then alleged that in contravention of identified statutory requirements, each of the Bowen Notice, the Crabb Notice, the First Sumner Notice, the Second Sandon Notice, the Duffy Notice and the Second Sumner Notice “did not describe the general nature of the circumstances or allegations constituting the alleged relevant criminal activity”.

13. Paragraph 56 goes on to assert that, as a consequence of matters alleged in various identified earlier paragraphs, each of the notices “was and is invalid and incapable of authorising the NCA to use its Coercive Powers”, and that as a consequence of “the matters alleged in paragraphs 48 to 52 none of the Notices authorised a special investigation into the Forex Transactions.”

14. The allegation of a duty owed by the NCA to Elliott is to be found in these terms in para 57 of the statement of claim:

    “At all relevant times the NCA when making any request for a reference or that any of the Notices be issued owed a duty to the Applicant to fully inform each Minister requested to issue a notice and/or the IGC of all matters material to the performance of their respective functions under sections 9, 10, 13 and 14 of the Act.

    PARTICULARS

    The duty arises by reason of:

    (a)   the matters alleged in paragraphs 10, 11, 12, 17, 18 and 39;

    (b)   the fact that the special investigation to be and being conducted into the affairs of the Applicant was instigated and controlled by the NCA;

    (c)   the functions and duties of the IGC under the Act;

    (d)   sections 9, 10, 11, 12, 13, 14, 25, 28, 29, 30, 33, 55 and 59 of the Act (and their counterparts, if any, in the State legislation);

    (e)   the fact that the NCA when purporting to perform its functions and duties under the Act did so in the utmost secrecy without the Applicant having the opportunity or ability to ascertain the scope of its lawful authority;

    (f)    the consequence to the Applicant of his being subject to Coercive Powers.”

15. After reciting in para 58 that it was material to the performance by Sandon, Duffy and Sumner and the IGC of certain identified statutory functions that the NCA had used, and proposed to continue to use, its Coercive Powers to investigate the Forex Transactions and for other impliedly impermissible purposes set out in para 45 which I have already quoted, the statement of claim goes on to allege these breaches of the duty imputed to the NCA:

    “59.In breach of the duty referred to in paragraph 57 above, the NCA:

    (a)made the statements and representations referred to in paragraph 39 above;

    (b)did not inform Sandon, Duffy, Sumner or the IGC of the matters referred to in paragraph 58 above.”

16. Paragraphs 60 and 61 of the statement of claim are not cast as allegations of breach of any duty but plead, as a consequence of an intention imputed to the NCA, that each of the Second Sandon, the Duffy and the Second Sumner Notices was invalid and incapable of authorising the NCA to use its Coercive Powers either generally or to investigate the Forex Transactions. 

17. The narrative is then resumed to recite the issue of a summons MS46, accompanied by a copy of the Second Sandon, the Duffy and the Second Sumner Notices to Elliott to appear before the NCA to give evidence and produce documents at a hearing.  He is said to have attended in response to that summons at “the First Hearing” on 10 January 1991 and it is then alleged:

    “70.Summons MS46 set out that the NCA intended to question the Applicant in regard to, and required production of documents concerning, the remuneration of directors of EXL and the obtaining of EXL securities by the directors of EXL.

    71.Summons MS46 did not set out that the general nature of the matters in relation to which the NCA intended to question the Applicant was or included the Forex Transactions.

    ...

    73.At the First Hearing the NCA questioned the Applicant in relation to the Forex Transactions and the Applicant gave evidence.”

18. It is then alleged that, in response to another summons MS94 dated 12 June 1991 accompanied by the same Notices as Summons MS46, Elliott attended a “Second Hearing” before the NCA on 21 June 1991 and a “Third Hearing” on 15 November 1991 and was then called upon to produce documents in relation to the Forex Transactions.  The statement of claim then goes on to allege:

    “80.Each of Summons MS46 and Summons MS94 was issued for a purpose other than the purpose for which the power in section 28 of the Act was conferred, namely:

    (a)investigating the Forex Transactions;

    (b)discrediting the Applicant;

    (c)obtaining evidence for use of the NZSC;

    (d)obtaining evidence for use of the NZSFO;

    (e)obtaining evidence for use by the SMETL.

    PARTICULARS

    Each purpose is to be inferred from the facts and matters contained in Schedule B.  Further particulars will be provided after discovery.

    81.Each of Summons MS46 and Summons MS94 was issued with the intention of harming the Applicant.

    PARTICULARS

    That the intention was that alleged is to be inferred from the facts and matters set out in Schedule B.  Further particulars will be provided after discovery.”

19. Corresponding allegations are made in paras 82 and 83 of the purposes for which the First, Second and Third Hearings were convened.  It is then alleged in para 84 that each of Summonses MS46 and MS94 was and is invalid.  Under the heading “Duties Concerning Summons”, the statement of claim goes on to plead as follows that a duty was owed to Elliott by either or both Mr Julian Leckie, an officer of the NCA and the NCA itself:

    “85.At all relevant time Leckie and/or the NCA owed a duty to the Applicant:

    (a)not to issue Summons MS46 or Summons MS94 except for the purposes of a special investigation;

    (b)to attach to each of Summons MS46 and Summons MS94 a copy of each Notice to which a Hearing convened under section 25 of the Act related; and

    (c)to set out in Summons MS46 the general nature of the matters in relation to which the NCA intended to question the Applicant at the First Hearing.

    PARTICULARS

    The duties arise by reason of:

    (i)the matters alleged in paragraphs 63 to 79; and

    (ii)sections 28 and 30 of the Act;

    (iii)the fact that the special investigation to be and being conducted into the affairs of the Applicant was instigated and controlled by the NCA;

    (iv)the consequences for the Applicant of being summoned to a Hearing.”

20. A breach of that duty and other consequences are pleaded in these terms in para 86:

    “By reason of the matters alleged in paragraphs 80 and 81:

    (a)Leckie and/or the NCA was in breach of the duty referred to in paragraph 85(a);

    (b)[Deleted]

    (c)the conduct of Leckie and/or the NCA issuing in [sic] summons MS46 and Summons MS94 was a misfeasance in public office;

    (d)the issuing of Summons MS46 and Summons MS94 was an unlawful act.”

21. By para 89 it is pleaded that the NCA is vicariously liable for Leckie’s breach of duty or misfeasance in public office.  A further set of duties is then imputed to either or both Leckie and the NCA “not to hold the First, Second or Third Hearing except for the purposes of a special investigation”.  The pleading then goes on to allege in paras 90 and 91 that the convening of each of those meetings was in breach of those duties, a misfeasance in public office and an unlawful act. 

1. By paras 92 and 93 it is alleged :

   “92.When conducting the First Hearing the NCA owed to the Applicant a duty to inform him of sufficient information of and concerning the subject matter of the proposed questioning (including informing him of any alleged wrongdoing on his part) as would enable him:

   (a)to know whether he was suspected of having committed an offence in relation to the subject matter of the questioning; and

   (b)to exercise his rights under section 30(4) of the Act.

   PARTICULARS

   The duty arises from the following facts and matters:

   (a)   alleged in paragraphs 63 to 81;

   (b)   sections 25(8), 28(3) and 30(4) of the Act;

   (c)   the fact that the special investigation to be and being conducted into the affairs of the Applicant was instigated and controlled by the NCA;

   (d)   the consequences for the Applicant of being summoned to a Hearing;

   (e)   the fact that at the time of the First Hearing the NCA:

   (i)considered the Applicant a target of the special investigation purportedly conducted pursuant to the Notices;

   (ii)knew or believed the Forex Transactions was not genuine;

   (iii)believed that the Applicant may have committed an offence in relation to the Forex Transactions.

   93.In breach of the duty alleged in paragraph 92 above the NCA and/or Leckie:

   (a)did not inform the Applicant that he was suspected of having committed an offence in relation to the Forex Transactions;

   (b)did not enable the Applicant to properly exercise his rights under section 30(4) of the Act;

   (c)pretended that the Forex Transactions was genuine;

   (d)set out to entrap the Applicant into giving false answers.”

2. Finally in that context, it is alleged in para 94 that the NCA is vicariously liable for the breach of duty or misfeasance alleged against Leckie in paras 90 and 91. 

3. Under the heading “Intimidation by Summons” paras 95 to 100 allege that Elliott was intimidated and coerced by unlawful threats into attending the First, Second and Third Hearings of the NCA.  Paragraph 101 of the statement of claim then alleges that the NCA, Leckie and Livermore (another officer of the NCA):

   “each owed a duty to the Applicant not to divulge or communicate any information purportedly acquired by the NCA by reason of, or in the course of, the performance of the Act concerning its special investigation into the affairs of the Applicant.

   PARTICULARS

   The duties arise by reason of the fact that a special investigation in relation to the affairs of the Applicant was being conducted, the provisions of the Act, particularly section 51 and the damage that may be caused to the Applicant as a person under investigation by a disclosure of information.”

4. It is then pleaded in paras 102 and 103 that one or more of Leckie, Livermore and the NCA provided “information concerning the Forex Transactions obtained using Coercive Powers to the NZSC, the NZSFO or the SMETL or, alternatively to the NZSC and the NZSFO in the knowledge or belief that it would be passed on to SMETL for its use and would eventually be published in New Zealand and, consequently, in Australia. It is further alleged that the provision of information as alleged in paras 102 and 103 was not authorised by, or done for the purposes of, the NCA Act and was not done in connection with the performance of a duty under that Act but was done with the intention of harming Elliott.

5. It is also said, echoing paras 86 and 91 that the provision of information as alleged in paras 102 to 105 was a breach of duty, a misfeasance in public office and an unlawful act and, in so far as it was done by Leckie or Livermore, attracted vicarious liability to the NCA.

6. After making allegations against Crabb which will be considered later in these reasons, the statement of claim goes on to plead in paras 117 and following under the heading “ASSEMBLY OF EVIDENCE AND CHARGES”:

   “117.Once the NCA obtains evidence that would be admissible in a prosecution for an offence, by reason of section 12 of the Act the NCA must assemble that evidence and give it to:

   (a)the Attorney-General of the Commonwealth or the State, as the case requires; or

   (b)the relevant law enforcement agency; or

   (c)any person or authority (other than a law enforcement agency) who is authorised by or under a law of the Commonwealth or of the State or Territory to prosecute the offence.

   118.By reason of section 12 of the Act the NCA owed a duty to the Applicant to assemble and give to Seymour and to the DPP evidence that would be admissible in a prosecution for an offence.

   119.The NCA was and is not authorised by the Act or otherwise to file charges against or to prosecute a person for the commission of an offence.

   120.The DPP was and is not authorised by the DPP Act or otherwise to investigate whether an offence was committed or to file charges.

   121.After December 1989 and prior to 23 December 1993 the NCA obtained evidence, including transcripts of questioning of the Applicant, and other material relating to the Forex Transactions by use of its Coercive Powers (the Evidence).

   122.The NCA did not give the Evidence to a person to whom it was required to be given under section 12 of the Act.

   PARTICULARS

   Prior to 23 December 1993 the NCA did not give the Evidence to the Attorney-General of the Commonwealth or a State or to a law enforcement agency but retained possession of the Evidence for the purpose of filing charges.”

7. Those matters are said to constitute a breach of the duty alleged in para 118 and a contravention of s 12 of the NCA Act.

8. Reference is then made in para 126 to prosecutorial guidelines (“the Guidelines”) published by the fourth respondent (“the DPP”) pursuant to the Director of Public Prosecutions Act 1982 (Vic) (“the DPP Act”) and to an agreement between the NCA and the DPP (“the DPP/NCA Agreement”) that:

   “in respect of investigations being conducted by the NCA:

   (a)once the NCA determined that an investigation was ready for referral to the DPP, the DPP would provide advice on specific questions of evidence upon being presented with specific material to consider;

   (b)wherever possible the NCA should not lay charges prior to referral of the brief of evidence to the DPP and receiving advice from the DPP about the appropriate persons to be charged and appropriate charges;

   (c)after close consultation with the NCA, the DPP would advise the NCA on the appropriate person to be charged, appropriate charges and the conduct of the prosecution in accordance with the Guidelines.”

9. There follow four paragraphs framed, it appears, to charge only the DPP although para 128 recites that the DPP advised or directed the NCA in various respects and “managed and/or co-ordinated the special investigation being conducted by the NCA.” It is then alleged in paras 131 and 132 that the NCA was not authorised by the NCA Act or otherwise to engage in the conduct referred to in para 128 and that its purported exercise of power was consequently unlawful and invalid.

10. The narrative then resumes by reciting a decision by Mr Sherman or the NCA to file charges against Elliott, the filing of those charges by Sgt Seymour and Elliott’s arrest on 23 December 1993.  It is next alleged that the charges were filed at the direction of the DPP or alternatively of either or both Sherman and the NCA for the purpose of enabling the NCA to charge Elliott.  The first allegation of conspiracy to which “the DPP, Seymour, Sherman and/or the NCA” are said to have been parties is then made as follows by paras 136 to 138A:

    “136.Further or alternatively, the decision to charge was made pursuant to an agreement between the DPP, Seymour, Sherman and/or the NCA to be effected by means of a device or contrivance to enable the NCA to charge the Applicant in circumstances where the NCA well knew it had no power or authority to do so.

    PARTICULARS

    The device or contrivance involved the use of Seymour, a member of the staff of the NCA who happened to be a police officer, to perform a function on behalf of the NCA which the NCA was not authorised to perform.  The agreement was made at a time before the Charges were filed and is to be inferred from the facts and matters set out in Schedule C.

    137.At all relevant times the DPP well knew of the device or contrivance and that the NCA did not have the power or authority to charge the Applicant.

    PARTICULARS

    The Applicant refers to and repeats the particulars under paragraph 128 and in Schedule C.

    138.Accordingly, by reason of the matters referred to in paragraphs 136 to 137 Seymour, Sherman, the NCA and the DPP agreed and thereby conspired to unlawfully prevent or defeat enforcement or operation of section 12 of the Act by assuming the role of a law enforcement agency.

    138A.In furtherance of the conspiracy referred to in paragraph 138 the following acts were taken:

    (a)the NCA retained control of the evidence concerning the Charges;

    (b)the NCA directed Seymour to become a member of the Victoria Police on 4 November 1993;

    (c)the DPP advised the NCA of the Charges;

    (d)the NCA entered into agreements with the Victoria Police concerning payment by the NCA of any costs incurred by or ordered against Seymour and paid those costs;

    (e)the DPP and the NCA acted in accordance with the terms of the DPP/NCA agreement in respect of the Charges.”

11. It is then alleged that “as a consequence” the NCA contravened s 12 of the NCA Act and the filing of the charges was an abuse of process and unlawful. Paragraph 140 alleges a duty owed by the DPP to Elliott when advising the NCA to charge him with any offence and para 141 pleads:

    “In breach of the duty referred to in paragraph 140 above, the DPP advised the NCA and/or Seymour that the Applicant should be charged as he was by Seymour in circumstances where the DPP:

    (a)knew that to charge the Applicant as and when proposed would cause the Applicant irreparable harm, loss and damage and severely prejudice the national interest;

    (b)knew that such of the evidence as has been collected by the NCA was or was likely to be inadmissible against the Applicant or excluded by the Court on the grounds that it was illegally unfairly or unlawfully obtained;

    (c)had not taken into account public interest factors which militated against a decision to proceed with a prosecution against the Applicant;

    (d)had not taken into account the defences which may be open to the Applicant;

    (e)had not taken into account the expenditure that would be involved in such a prosecution;

    (f)had not taken into account the irreparable harm, loss and damage that would be caused to the Applicant by his being charged as and when proposed;

    (g)had not taken into account the prejudice to the national interest that would be caused if the Applicant were charged as and when proposed;

    (h)had not taken into account the circumstances in which the evidence had been gathered by the NCA.”

12. Collected under the heading “Conspiracies” there are then several paragraphs framed to implicate Crabb in a separate conspiracy “to use unlawful acts with the intention of harming” Elliott “in his reputation, business and public office”.

13. A further or alternative allegation of conspiracy is then made in para 144 to the effect that:

    “in or about December 1989 Robert James Lee Hawke, Paul John Keating, Bowen, Crabb, and the ABC agreed to make derogatory public statements about the Applicant with the predominant object of harming him.

    PARTICULARS

    (a)   The agreement is to be inferred from the facts and matters set out in Schedule A.

    (b)   The statements are those referred to in Schedule A.

    (c)   That the statements were made with the predominant object of harming the Applicant is to be inferred from the position of the Applicant as alleged in paragraph 1, from the harm that would be done to any person in the position of the Applicant, and was done to the Applicant, by public disclosure of the fact that his affairs were being investigated by the NCA and from the position of the persons making the disclosures and their knowledge that such harm would or was likely to occur.”

14. Separate conspiracies between Crabb and the ABC to harm Elliott are alleged in paras 146 to 149 and in para 150 a further, similar, conspiracy is alleged between the NCA, the NZSC, the NZSFO and SMETL.  The pleading then concludes with these compendious allegations in paras 152 and 153:

    “152.The Applicant has suffered loss and damage by reason of the following:

    (a)the breach of duty referred to in paragraph 59;

    (b)[Deleted]

    (c)the breach of duty and misfeasance in public office referred to in paragraph 86;

    (d)the breach of duty referred to in paragraph 87;

    (e)the breach of duty referred to in paragraph 88;

    (f)the breach of duty and misfeasance in public office referred to in paragraph 91;

    (g)the breach of duty referred to in paragraph 93;

    (h)the intimidation referred to in paragraph 99;

    (i)the breach of duty and misfeasance in public office referred to in paragraph 106;

    (j)the breach of duty and misfeasance in public office referred to in paragraph 112;

    (k)the abuse of process referred to in paragraph 116;

    (l)the breach of duty referred to in paragraph 123;

    (m)the abuse of process referred to in paragraph 132;

    (ma)the conspiracy referred to in paragraph 138;

    (n)the abuse of process referred to in paragraph 139; and

    (o)the breach of duty referred to in paragraph 140;

    (p)the conspiracy referred to in paragraph 142;

    (q)the conspiracy referred to in paragraph 144;

    (r)the conspiracy referred to in paragraph 146;

    (s)the conspiracy referred to in paragraph 148;

    (t)the conspiracy referred to in paragraph 150.

    PARTICULARS

    (i)The Applicant has suffered damage to his reputation.

    (ii)The Applicant lost offices he held and the benefits attached to those offices.

    (iii)The Applicant has incurred costs and expenses of defending his criminal trial.

    (iv)The Applicant has lost the value of his shareholding in EXL and Harlin.

    153.Further, the Applicant claims exemplary damages against the NCA, Crabb and the ABC by reason of their contumelious disregard of his rights and reputation when engaging in the conduct of each of them complained of above.”

15. Presumably to support the claim for injunctive relief in the application, the penultimate paragraph recites:

    “154.The NCA continues to conduct a special investigation into the affairs of the Applicant pursuant to the Notices and each of them.

    PARTICULARS

    The continuation of the special investigation is:

    (a)   admitted by the NCA in its latest annual report prepared pursuant to section 61; and

    (b)   to be inferred from the fact that the NCA has not served written notices pursuant to section 29A(5) on any person upon whom it served a summons.”

16. Schedule A to the statement of claim recites:

    (i)Throughout 1989 the Applicant was the Chief Executive of EXL Limited and a shareholder, director and a chairman of the board of Elders and a shareholder, director and chairman of the board of Harlin, Federal President of the Liberal Party and President of the Carlton Football Club.

    (ii)In 1989 Crabb was Minister for Police and Emergency Services for the State of Victoria and a member of the IGC appointed under the Act.

    (iii)In 1989 Robert Hawke was Prime Minister of, Paul Keating was the Treasurer of and Bowen was the Attorney-General of the Commonwealth of Australia.

    (iv)Each of Hawke, Keating, Bowen and Crabb were members of the Australian Labor Party.

    (v)In September 1989 a Part C offer made by Harlin to the shareholders of EXL had resulted in Harlin acquiring 56% of the shares in EXL.

    (vi)Towards the end of 1989 EXL was negotiating for a restructuring of its businesses. The restructuring proposals under negotiation were widely publicised.

    (vii)One such restructuring proposal involved negotiations with Grand Metropolitan PLC in the United Kingdom which were and which were known to Hawke, Keating, Bowen and Crabb to involve highly sensitive negotiations which may be affected by a challenge made to the credibility of the Applicant.

    (viii)A Federal election was required to be held in the first half of 1990.

    (ix)Towards the end of 1989 it became a strategic policy of the Labor Party to attack the Applicant personally.

    (x)In later 1989 and early 1990 the Applicant was in fact attacked in the print and other news media.

    (xi)On about 14 November 1989 Keating said that the strategy of attacking the Coalition through the Applicant was correct.

    (xii)On about 20 November 1989 Hawke said that the Federal Government would be remorseless and relentless in its campaign against the Applicant in the run up to the next Federal election.

    (xiii)On 21 December 1989 Bowen purported to issue the Bowen reference.

    (xiv)At the time the Bowen reference was made and issued it was known by Bowen and by the NCA to be invalid.

    (xv)On 24 January 1990 Keating said of the Applicant that ‘he is going to cop it right in the neck’.

    (xvi)On 16 February 1990 Hawke announced the Federal election which was to take place on 24 March 1990.

    (xvii)     At some time prior to 20 February 1990 Crabb supplied information to the ABC of and concerning the Bowen reference and an alleged investigation into the affairs of the Applicant by the NCA.

    (xviii)    In about February 1990 Bowen had authorised the leaking of the information to the ABC specifically and/or the media generally of and concerning an alleged investigation by the NCA into the affairs of the Applicant.

    (xix)The ABC broadcast the information on 20 February 1990 during the program ‘The 7.30 Report’.

    (xx)The Crabb reference was made and dated 15 March 1990.”

17. Schedule B to the statement of claim specifies in chronological order from 1 March 1990 to 14 June 1991 a series of communications passing between and within the NZSC, SMETL, the Australian National Companies and Securities Commission (“NCSC”), the NZSFO and the NCA in relation to the Forex Transactions.  Schedule C, it will be recalled, was referred to as furnishing particulars of the agreement alleged in para 136 and the knowledge of the DPP alleged in para 137 that the NCA did not have the power or authority to charge Elliott.  That Schedule is in these terms:

    “(i)     The DPP/NCA Agreement stated that the DPP was to be involved in the decision as to which person should be charged as a result of an NCA investigation and with what charges.

    (ii)The DPP (through himself and his employees, the identity of the latter being presently unknown to the Applicant), the NCA (through Sherman, Livermore, Seymour and others whose identity is presently unknown to the Applicant), Sherman and Seymour each knew that neither the DPP nor the NCA could file the Charges and that section 12 of the Act required the NCA to give all evidence, the conduct of filing the Charges and the prosecution of the applicant to a member of the Victoria Police.

    (iii)The DPP, as admitted in exhibit ‘JB-2’ to the affidavit of Mr John Buckley sworn 4 October 1993, had been advising the NCA concerning the Charges since August 1991 at which time Seymour was not a member of the staff of the NCA and in the course of so advising learnt and agreed to the swearing in of Seymour as a member of the Victoria Police on 4 November 1993 solely for the purpose of filing the Charges.

    (iv)Each of Seymour, Sherman, the DPP and the NCA agreed to the NCA directing Seymour to become a member of the Victoria Police six weeks before the Charges were filed and almost four years after the Bowen Notice was issued so that the NCA could retain control over the evidence, the filing of the Charges and the prosecution.

    (v)The terms of the DPP/NCA Agreement.

    (vi)The particulars under paragraph 135.

    (vii)Seymour has always had his costs of this and other legal proceedings relating to the Charges paid by the NCA as is evidenced by the payment of costs ordered in favour of Messrs Woods and Psaltis consequent upon their discharge at committal.

    (viii)The NCA arranged with the Victoria Police for Seymour to become a member of the Victoria Police.

    (ix)The DPP advised and directed the NCA, not Seymour, in relation to the filing of the Charges and to use Coercive Powers.

    (x)The Decision to Charge was not made by Seymour.”

    SUBMISSIONS OF THE NCA, SEYMOUR AND SHERMAN

1. Counsel for the NCA who also appeared for Sergeant Seymour and Mr Sherman advanced a number of grounds in opposition to the grant of leave to amend the statement of claim and in support of their motion for the whole action to be struck out or permanently stayed.  It is convenient to examine each of those grounds separately and in the order in which it was advanced.

   A.       ABUSE OF PROCESS

2. It was first contended on behalf of the NCA that the statement of claim was in furtherance of an abuse of process.  That contention rested on four separate grounds. 

   (a)      Collateral Attack on the Acquittal

3. This ground invoked the proposition that the maintenance of the present proceedings involved a collateral attack on final determinations of the criminal proceedings in the Supreme Court of Victoria. To understand that submission, it is necessary to set out in more detail than I have so far, the history of the criminal proceedings which resulted in Elliott’s acquittal. In the course of those proceedings, it was contended on behalf of Elliott that the NCA hearing at which he had given the evidence to which the criminal charges related had been conducted as part of a deliberate abuse by the NCA of its statutory powers under the NCA Act. In a related way, it was contended that the NCA, before it embarked on its investigation into the foreign exchange transaction, had failed to perceive or identify any nexus between the subject of that investigation and the matters which had been referred to the NCA pursuant to ss 13 and 14 of the NCA Act.

4. In the course of Ruling No 2 given during the voir dire to which I have already referred, Vincent J noted that, before a jury had been impanelled, Counsel for Elliott had argued:

   “the inference is open, on the basis of disclosed material, that the National Crime Authority, when investigating the transactions with which this trial is concerned, was acting outside the parameters of references given to it.  Accordingly, it was contended that at the time at which it employed, in relation to the accused man, the special powers available to it when specifically authorised by the granting of a reference it was acting unlawfully.”

5. That submission and the consequences which were said to flow from it made it necessary for his Honour to examine a large body of documents which had been produced on subpoena addressed to the NCA.  Near the end of Ruling No 2, Vincent J observed that a particular problem had arisen from a contention which had been advanced that, at the relevant time, the NCA was not pursuing an investigation of the Forex Transactions within the terms of reference which it had been given.  After noting that the accused contended that disclosure of the material produced on subpoena would “indicate that there was no such relationship ever perceived”, his Honour continued:

   “I think that it is appropriate for me to say that, bearing the nature of the issue in mind, I carefully scrutinised the documents to see if there was any indication or sign of the existence of a perception of a relationship between an investigation of the foreign exchange transactions and the question of securities acquisition and disposal in the Elders company.  I found no document which contained any express statement or which, at least to my untutored eye indicated that any such perception of connection existed.  If that is correct, then it appears to me that the proper course would be for that concession to be made on behalf of the National Crime Authority.”

6. At the outset of Ruling No 9 published on 6 May 1996, Vincent J noted that the prosecution was seeking to adduce evidence of statements made by each of the accused in the course of hearings conducted by the NCA in the purported exercise of its powers under s 25 of the NCA Act. In the course of those statements, according to the prosecution, each of the accused, including Elliott, had provided a false version of his knowledge of, and the circumstances relating to, the Forex Transactions. It was further recorded in Ruling No 9 that the learned trial Judge had perused a large number of documents and had heard a deal of evidence from witnesses called by the prosecution. None of the accused gave evidence on the voir dire and nor were any witnesses called on their behalf. After observing that the voluntariness of any of the impugned statements could not be denied on the ground that any of their makers had lacked appropriate legal advice or had his will overborne in any way, his Honour continued:

   “The argument with respect to the issue of voluntariness is based upon a quite different proposition; namely, that the National Crime Authority acted unlawfully in conducting hearings into the foreign exchange transactions with which this trial is concerned.  It is said that this subject was not encompassed by any reference given to the Authority to conduct a “special investigation” and that, accordingly, the Authority had no power to require any of the accused to attend at a hearing, or to compel them to answer questions, in relation to it.  Each responded, as he reasonably understood that he was required to do by law, to a summons served upon him to attend a hearing.”

7. After reviewing the early history of the NCA investigation into the affairs of EXL which had been initiated by a conversation between Mr Bosch, who was then Chairman of the National Companies and Securities Commission (“NCSC”) and Mr Faris QC, then Chairman of the NCA, Vincent J concluded:

   “The subject of the proposed, and then authorised investigation, (setting to one side the question of the validity and the precise wording of the Notices of Reference) was ‘the way in which directors of Elders IXL have gained effective control of one of Australia’s largest companies’.  There were suspicions that ‘relevant offences’ may have been committed in the achievement of this objective and possibly, if the note made by Mr Bosch, on 22 November 1989, accurately records the views expressed to him by Mr Faris, the involvement of some directors in a ‘conspiracy of huge magnitude’.

   It is painfully obvious that the Authority neither sought, nor was it granted, a general reference to investigate the affairs of Elders IXL Ltd, its directors, or associated companies or persons.”

8. In the course of Ruling No 9, Vincent J identified a preliminary, or earlier, stage in a process of investigation at which connections between the matter being investigated and some randomly perceived or discovered subject may not be apparent.  He continued:

   “However, whether or not any such linkages exist at all, or whether or not the new subject bears upon the authorised subject matter, may be unclear or unknown.  This does not mean that the investigator is simply precluded from looking at the new subject.  Commonsense would suggest that some pursuit of it may be required, to the extent, at least, of determining whether it may bear upon the subject matter of the authorised investigation.  But, commonsense would also suggest that, in circumstances where the investigator is provided with coercive powers which can only be exercised for the purposes of pursuing an authorised investigation, it would follow that they cannot be employed at that initial stage.  Before they can be used there must be, in my opinion, at minimum, the existence of the perception of a nexus between the new subject of interest and the subject matter of the authorised investigation.

   …

   A hearing could not be justified as having been conducted for the purposes of a ‘special investigation’ unless those who proposed to do so had addressed the question of its purpose in relation to the special investigation.  Before coercive powers were employed, they would, at least, need to be satisfied on reasonable grounds that there was reason to suspect that the subject matter of the hearing bore upon the subject matter of the ‘special investigation’.  [See George v Rockett (1990) 170 CLR 104 and the cases cited therein].”

9. After concluding that, within the NCA, “no seriously arguable formulation of a possible nexus [between the matter referred to the NCA and the Forex Transactions] was ever advanced even retrospectively” Vincent J observed near the end of Ruling No 9:

   “In the course of argument, it was contended on behalf of the accused that the proper inference to be drawn from the evidence is that the Authority and those who represented it, for one or more basic reasons, embarked upon a course involving the deliberate abuse of powers at their disposal.  In a previous ruling, I expressed the view that, on the basis of the material then before the Court, a good arguable case existed for this proposition.

   Since that time I have perused additional documents and heard a great deal more evidence bearing on the question.  In order to ensure that the accused enjoyed an ample opportunity to canvass any relevant issue with the various witnesses and in order that I might be properly informed about the matter, I accorded to counsel considerable latitude in cross-examination, sometimes over the understandable expressions of frustration of counsel appearing for the prosecution.

   At the end of this process, whilst I have some reservations concerning the conduct of certain witnesses, I do not consider that the inference of deliberate abuse, for which the accused contend, can be drawn.  Of course, as I have indicated, this view does not dispose of the problem but it does, I think, place it in its proper perspective.”

10. His Honour’s reasoning in Ruling No 9 led him to this conclusion:

    “In conclusion, I consider that for the above reasons the impugned statements were not made voluntarily in the relevant sense and are inadmissible.

    For completeness, I should add that I have not found it necessary to address a further argument advanced on behalf of the accused which rested upon the proposition that strict compliance with the statutory requirements as to the Notices and summonses served on the accused was necessary before the accused could be required to attend at a s 25 hearing or answer questions concerning a specific subject at such a hearing, although there is some obvious force to this assertion.”

11. In Ruling No 13, after rehearsing some of the conclusions reached in Ruling No 9, the learned trial Judge noted that Ruling No 9 had been concerned with the admissibility of certain statements made by the accused themselves in NCA hearings.  His Honour then observed:

    “Second, the factual situation is now relatively clear.  It would appear that each of the pieces of evidence in respect of which the present submissions have been made was obtained through the unlawful employment of the coercive powers available to the National Crime Authority in strictly designated circumstances in a similar fashion to and as part of the same Operation Albert activities as the evidence I have already found to have been unlawfully obtained.  There has been no suggestion that any significant distinction can be made at this level.”

12. Another reference was then made to Ruling No 9 as embodying a statement that:

    “…I was not satisfied that deliberate abuse of power had been made out by the accused.”

13. His Honour then continued:

    “My attention was drawn to the oral evidence of a number of witnesses, the effect of which was that none perceived themselves as acting unlawfully or inappropriately.  No expression of curial disapproval is called for in that situation, and certainly the employment of the sanction of excluding vital evidence would not be justified, Mr Woinarski [Senior Counsel for the Prosecution] argued.

    …

    Although I am not persuaded that there has been any deliberate abuse of those powers, I am satisfied that they were certainly employed in a regrettably casual fashion with little indication that any significant regard was had to important constraints set out in the Act under which the National Crime Authority was established.”

14. Near the conclusion of Ruling No 13 his Honour observed:

    “Generally, and, I suspect, only rarely prior to trial, would a court look behind the words of the authorising instrument on the basis of which an investigative body had purported to act.  Even at the trial level, this would be an extremely unusual occurrence.  I certainly am not aware of another case where there has been a comprehensive examination of the lawfulness of the investigative process of the kind that has occurred in this matter and it is not to be ignored that the real situation did not emerge until after months of argument and evidence.”

15. After the acquittal of the six accused had been directed by Vincent J, the DPP, pursuant to s 450A of the Crimes Act 1958 (Vic), referred to the Victorian Court of Appeal questions on several points of law which were said to be raised by rulings given on the voir dire, particularly Ruling No 9 and Ruling No 13.  In DPP Reference No 2 of 1996 [1998] 3 VR 241 the Court of Appeal held that the “matter” referred for investigation under s 13(1) of the NCA Act is to be ascertained solely from the notice in writing under that section without regard to extrinsic material. Secondly, it was held that perception of a nexus between the subject inquired into at a hearing and the matter referred is not essential to the validity of the hearing. All that is required, Brooking JA indicated at 261, is that “the subject to be inquired into shall in fact fall within the scope of the matter that has been referred” to the NCA. However, his Honour went on to observe, also at 261:

    “To say that the phrase ‘for the purposes of’ in s 25(1) and s 28(7) is not concerned with the state of mind of members of or other persons representing the authority is of course not to say that that state of mind may not be called in question in an attempt to show, in reliance upon the doctrine of administrative law, that a power has been exercised for an ulterior purpose.”

16. Finally, the Court of Appeal held that statements made by a witness in evidence given at a NCA hearing are not necessarily involuntary and accordingly inadmissible in criminal proceedings by reason only of the circumstance:

    (a)that the hearing was not held for the purposes of a special investigation, or

    (b)that the summons directed to the witness was not issued for the purposes of a special investigation

    within the meaning of the NCA Act.

17. In the light of that history, Counsel for the NCA argued before me that the contention rejected by Vincent J in Ruling No 13 that the NCA had deliberately abused its statutory powers was the foundation of part of the case pleaded in the statement of claim and it would be an abuse of process for the same issue to be litigated again in the present proceedings.

18. In support of that contention, Counsel for the NCA relied on Hunter v Chief Constable of the West Midlands Police [1982] AC 529. In that case, the factual issue was whether a confessional statement made by the appellant, one of the “Birmingham Six”, had been induced by violence and threats by the police. After a voir dire lasting eight days, the trial Judge found beyond reasonable doubt that the statement had been voluntary and not induced by police assaults. The issue was also left to the jury who were warned by the trial Judge that if the allegations of the accused were, or might reasonably be, true, the statements were worthless. All six were convicted. Writs claiming damages for physical injuries allegedly caused by the police were issued against the relevant Chief Constables and the Home Office. Applications to strike out the actions were refused at first instance but upheld by the Court of Appeal. On appeal to the House of Lords it was held that considerations of public policy precluded the bringing of a civil action which depended for its success on controverting findings of fact necessarily made in the course of reaching a verdict of guilty in a criminal trial.

19. Lord Diplock, with whom the rest of their Lordships agreed, identified, at 540, the applicable legal principle when he cautioned:

    “Nevertheless it is my own view, which I understand is shared by all your Lordships, that it would be best, in order to avoid confusion, if the use of the description ‘issue estoppel’ in English law, at any rate (it does not appear to have been adopted in the United States), were restricted to that species of estoppel per rem judicatam that may arise in civil actions between the same parties or their privies, of which the characteristics are stated in a judgment of my own in Mills v Cooper [1967] 2 QB 459, 468-469 that was adopted and approved by this House in Reg v Humphrys [1977] AC 1, the case in which it was also held that ‘issue estoppel’ had no place in English criminal law.

    The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.

    The proper method of attacking the decision by Bridge J in the murder trial that Hunter was not assaulted by the police before his oral confession was obtained would have been to make the contention that the judge’s ruling that the confession was admissible had been erroneous a ground of his appeal against his conviction to the Criminal Division of the Court of Appeal.  This Hunter did not do.”

20. The nature of the final decision against which no collateral attack may be brought was described by his Lordship in these terms, at 542:

    “In the instant case the relevant final decision by a competent court in which the identical question sought to be raised has been already decided is the ruling of Bridge J, on the voir dire in the murder trial, that Hunter’s confession was admissible.  Initially his ruling may have been provisional in the limited sense that up to the time that the jury brought in their verdict he had power to reconsider it in the light of any further evidence that might emerge when the whole question of the circumstances in which the confession was obtained was gone into again before the jury on the question of the weight to be attached to it: Reg v Watson (Campbell) [1980] 1 WLR 991. But his ruling became final when the trial ended with the return of the jury’s verdict of guilty and the pronouncement by the judge of the mandatory sentence of life imprisonment. Bridge J thereupon became functus officio. His ruling that the confession was not obtained by the use of violence by the police, as Hunter had alleged, could thereafter only be upset upon appeal to the Court of Appeal (Criminal Division).

    The fact that the whole matter of the circumstances in which the confession was obtained was gone into a second time before the jury and that the jury, in view of the judge’s direction to them, must clearly also have been satisfied beyond reasonable doubt that Hunter’s account of the assaults upon him by the police was a fabrication does not affect the finality of the judge’s ruling, though it would exacerbate the public scandal to the administration of justice that would be involved if Hunter, by changing the form of the proceedings to a civil action, were to be permitted to set up in that action the same case that must have been decided against him not only once but twice, even though technically it was only the first of those decisions that eventually qualified as the final decision against him by a competent court upon the very question that he seeks now to raise.”

21. Counsel for the NCA also referred in this context to Ricardo Lessur-Millar (aka Walter Levinge) (1990) 47 A Crim R 111 where the applicant sought in this Court orders under s 39B of the Judiciary Act 1903 restraining the further prosecution of criminal proceedings against him in New South Wales.  He also sought a declaration that his extradition from the USA in 1986 had been illegal.  Lockhart J made an order permanently staying the application, saying at 117:

    “For this Court to allow the present matter to proceed and to consider granting the relief sought by the applicant would be to lend its aid to a further investigation of the very matters which have been fully considered by judges at first instance and on appeal in New South Wales and, though a special leave application and not the hearing of a substantive appeal, by the High Court.

    No fresh evidence of any probative kind has been placed before the Court additional to what was before the New South Wales courts.

    It is vexatious and an abuse of process for a party, having sued unsuccessfully before the courts of New South Wales, to seek to agitate the very same issues and facts in this Court.  The proceedings, remedies and parties are not precisely identical; but they are in all essential respects the same: see Moore v Inglis (1976) 50 ALJR 589 which, though not directly applicable to this case, is akin to it.”

1. I have already adverted at para 131 of these reasons to the notion of a conspiracy for the performance of an unlawful act which only one party is capable of performing, such as misfeasance in public office where only one public officer is said to have been party to the alleged agreement.  On the assumption, authorized by the majority of the High Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (supra), that persons other than the public officer can be parties to such a conspiracy, the terms of the agreement to that effect must be alleged and particulars must be given of the documents or conversations said to constitute that agreement or the facts and circumstances from which it is to be inferred.

2. It is significant that no date is ascribed in para 142 to the making of the agreement there alleged.  However, Schedule A which is said to provide particulars of the matters from which the making of the agreement is to be inferred, recites events extending throughout 1989 up to 15 March 1990.  I entertain grave doubts whether all those so-called particulars support an inference as to the making of an agreement to which Crabb was a party.  Some go no further than suggesting a motive for some of the alleged conspirators to seek to injure or discredit Elliott.  It is not alleged that Crabb had any knowledge of some other matters alleged in Schedule A.  The unlawful acts alleged in para 24 of the statement of claim are the issue of the Bowen, Crabb and First Sumner Notices which occurred respectively on 21 December 1989, 15 March 1990 and 18 May 1990.  However, if the agreement was made in or about December 1989 it is not clear why the conspirators would then have foreseen a need or occasion for the issue of the Crabb or First Sumner Notices.  Another deficiency in this part of the pleading is that no indication is given in either the body of paras 142 and 144 or the particulars of how the alleged conspirators intended that economic loss would be inflicted on Elliott.  Nor are any particulars given of the loss actually suffered.  The general allegations in para 152 and the particulars thereto are insufficient in that respect because it is inconceivable that the damage intended, and actually caused, by a conspiracy, for example between Hawke, Keating, Bowen, Crabb and the ABC was co-extensive with that caused by the alleged negligence of the DPP or a misfeasance in public office for which the NCA is said to be liable. 

3. Similar considerations apply to the conspiracies between Crabb and the ABC alleged in paras 146 and 148 which are presumably alternative.  The publication by the ABC of matter allegedly damaging to Elliott occurred on 20 February 1990 so the unlawful acts contemplated by the third conspiracy alleged against Crabb was his misfeasance in public office in disclosing the information to the ABC.  Presumably, the same damage was inflicted by both torts but particulars should be given of the nature of the damage which Crabb intended to inflict and the extent of the damage which Elliott actually sustained as a result of the publication.  Nothing in Schedule A seems, on its face, to support an inference that the ABC had entered into an agreement with Crabb with the intention of harming Elliott and it is to be remembered that the broadcast occurred before the issue of the Crabb Notice.  Accordingly, if Elliott is to be permitted to persist in the allegations presently made in paras 146 and 148 of the statement of claim, those allegations will have to be expanded and adequate particulars provided of the making of the agreement between Crabb and the ABC and the damage intended to be caused to, and actually inflicted on, Elliott in consequence of the broadcast of 20 February 1990. 

   CONCLUSION

4. It was urged by Counsel for the respondents who opposed the grant of leave to further amend the statement of claim that the history of the applicant’s attempts to formulate the various causes of action discussed above strongly suggests that none of those causes of action can be made out.  That view was taken by Gleeson CJ in Trau v University of Sydney (1989) 34 IR 466 where his Honour said, at 475:

   “Even under the modern system of pleading, considerations of form and substance are often closely intertwined.  If one sees that a plaintiff’s lawyers are experiencing extreme difficulty in formulating with clarity and particularity their client’s cause of action then that is often a very good indication that there is no cause of action.  The history of the present matter creates the strong impression that such a problem exists, compounded by an additional difficulty created by a need to manoeuvre around problems concerning periods of limitation.”

5. It will be apparent from the examination which I have already undertaken of the causes of action which the applicant’s advisers have sought to formulate in various parts of the statement of claim that I do not consider that it is impossible properly to plead all of those causes of action. 

6. I have not dealt in these reasons with all of the detailed criticisms of the form of the statement of claim made, in particular, by Counsel for the DPP.  That is not to say that none of those criticisms has validity.  However, the conclusions which I have reached about the availability of specific causes of action and the concessions made by Counsel for the applicant that certain paragraphs of the present statement of claim cannot stand will necessitate considerable reformulation and reduction of the whole pleading. Concessions made on behalf of the applicant included the abandonment of paras 32, 40 and 51 of the present statement of claim.  Also, as I understand it, the judgment of a Full Court of this Court in A B v National Crime Authority (1998) 156 ALR 52 concededly compels the abandonment of at least paras 48, 52 and 53 of the present statement of claim.

7. I therefore consider it appropriate to allow the applicant to reformulate the statement of claim as he may be advised giving effect to the concessions to which I have just referred.  The new draft statement of claim should be confined to the causes of action indicated in these reasons to be arguably available and should also take account of criticisms of form made in these reasons and by Counsel for the respondents in the course of argument on the motion for leave.  The reformulated statement of claim should be filed and served by 3 September 1999.  The remaining respondents will then be afforded an opportunity to indicate any remaining or new respects in which the new draft statement of claim is said to fail to disclose a cause of action or to be otherwise embarrassing.  To that end the applicant’s motion on notice dated 4 February 1998 and the motions by the various respondents which are presently before the Court will be adjourned to 27 September 1999 when I shall also receive submissions as to the orders for costs in respect of those motions and the costs occasioned by any order which may be made granting leave further to amend the statement of claim.  I shall make similar orders in respect of Mr Scanlon’s application in proceeding No VG 434 of 1993 against the DPP as sole remaining respondent.

I certify that the preceding one hundred and fifty-seven (157) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             19 July 1999

Appearance in VG 411/93

Counsel for the Applicant:

Mr J Judd, QC

with Mr R Peters

Solicitors for the Applicant:

Barker Gosling

Counsel for the First, Second and Third

Respondents:

Mrs S Crennan, QC

with Mr B Walters

Solicitors for the Respondent:

Australian Government Solicitor

Counsel for the Fourth Respondent:

Mr R Redlich, QC

with Mr P Kidd

Solicitors for the Fourth Respondent:

Peter Wood,

Solicitor for Office of Public Prosecutions for

the State of Victoria

Counsel for the Sixth Respondent:

Mr S Southall, QC

Solicitors for the Sixth Respondent:

Maurice Blackburn & Co

Date of Judgment:

19 July 1999