Jarrett, K.C. v Seymour, D.
[1995] FCA 306
•12 May 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIAN DISTRICT REGISTRY ) VG 410 of 1993
)
GENERAL DIVISION )
BETWEEN:KENNETH CHARLES JARRETT
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
CORAM: RYAN J
PLACE: MELBOURNE
DATE: 12 MAY 1995
MINUTE OF ORDERS
THE COURT ORDERS:
That the relief sought by paragraph 1 of the notice of motion by the first, second and third respondents dated 22 February 1994 be refused.
That the application for the Orders referred to in paragraphs 2 and 3 of the notice of motion referred to in paragraph 1 of this Order be adjourned to a date to be fixed.
That the relief sought by paragraph 1 of the notice of motion by the fourth respondent filed on 21 March 1994 be refused.
That the application for the order referred to in paragraph 2 of the notice of motion referred to in paragraph 3 of this Order be adjourned to a date to be fixed.
That the first, second, third and fourth respondents pay the costs of the applicant (up to and including this day) of and incidental to the motions on notice referred to in paragraphs 1 and 3 of this Order, such costs to be taxed in default of agreement.
That liability for the costs referred to in paragraph 5 of this order be apportioned as to one half to the first, second and third respondents and as to the other half to the fourth respondent.
That liberty be reserved to any party to apply to Ryan J on not less than 48 hours notice in writing to the other parties.
That the directions hearing herein be adjourned to a date to be fixed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIAN DISTRICT REGISTRY ) VG 411 of 1993
)
GENERAL DIVISION )
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
CORAM: RYAN J
PLACE: MELBOURNE
DATE: 12 MAY 1995
MINUTE OF ORDERS
THE COURT ORDERS:
That the relief sought by paragraph 1 of the notice of motion by the first, second and third respondents dated 22 February 1994 be refused.
That the application for the Orders referred to in paragraphs 2 and 3 of the notice of motion referred to in paragraph 1 of this Order be adjourned to a date to be fixed.
That the relief sought by paragraph 1 of the notice of motion by the fourth respondent filed on 21 March 1994 be refused.
That the application for the order referred to in paragraph 2 of the notice of motion referred to in paragraph 3 of this Order be adjourned to a date to be fixed.
That the first, second, third and fourth respondents pay the costs of the applicant (up to and including this day) of and incidental to the motions on notice referred to in paragraphs 1 and 3 of this Order, such costs to be taxed in default of agreement.
That liability for the costs referred to in paragraph 5 of this order be apportioned as to one half to the first, second and third respondents and as to the other half to the fourth respondent.
That sub-paragraph 20B(b) of the further amended statement of claim be struck out.
That the applicant have leave further to amend the further amended statement of claim insofar as it charges the fifth respondent in such manner as he may be advised.
That the application for the order referred to in paragraph 2 of the fifth respondent's notice of motion dated 11 March 1994 be adjourned to a date to be fixed.
10.That the applicant pay the fifth respondent's costs (up to and including this day) of and incidental to the motion on notice referred to in paragraph 9 of this order together with any costs of that respondent thrown away as a result of any further amendment of the further amended statement of claim pursuant to the leave granted by paragraph 8 of this order, such costs to be taxed in default of agreement.
11.That sub-paragraphs 13B(b) and (c) of the further amended statement of claim be struck out.
12.That the applicant have leave further to amend the further amended statement of claim insofar as it charges the sixth respondent in such manner as the applicant may be advised.
13.That the applicant pay the sixth respondent's costs of and incidental to that respondent's motion on notice dated 21 March 1994 together with any further costs of that respondent thrown away as a result of any further amendment of the further amended statement of claim pursuant to the leave granted by paragraph 12 of this order, such costs to be taxed in default of agreement.
14.That liberty be reserved to any party to apply to Ryan J on not less than 48 hours notice in writing to the other parties.
15.That the directions hearing herein be adjourned to a date to be fixed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIAN DISTRICT REGISTRY ) VG 434 of 1993
)
GENERAL DIVISION )
BETWEEN:PETER CAMM, PETER DAMIEN SCANLON & KENNETH ROBERT BIGGINS
Applicants
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
CORAM: RYAN J
PLACE: MELBOURNE
DATE: 12 MAY 1995
MINUTE OF ORDERS
THE COURT ORDERS:
That the relief sought by paragraph 1 of the notice of motion by the first, second and third respondents dated 22 February 1994 be refused.
That the application for the Orders referred to in paragraphs 2 and 3 of the notice of motion referred to in paragraph 1 of this Order be adjourned to a date to be fixed.
That the relief sought by paragraph 1 of the notice of motion by the fourth respondent filed on 21 March 1994 be refused.
That the application for the order referred to in paragraph 2 of the notice of motion referred to in paragraph 3 of this Order be adjourned to a date to be fixed.
That the first, second, third and fourth respondents pay the costs of the applicants (up to and including this day) of and incidental to the motions on notice referred to in paragraphs 1 and 3 of this Order, such costs to be taxed in default of agreement.
That liability for the costs referred to in paragraph 5 of this order be apportioned as to one half to the first, second and third respondents and as to the other half to the fourth respondent.
That liberty be reserved to any party to apply to Ryan J on not less than 48 hours notice in writing to the other parties.
That the directions hearing herein be adjourned to a date to be fixed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIAN DISTRICT REGISTRY ) VG 410 of 1993
)
GENERAL DIVISION )
BETWEEN:KENNETH CHARLES JARRETT
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
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIAN DISTRICT REGISTRY ) VG 411 of 1993
)
GENERAL DIVISION )
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
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIAN DISTRICT REGISTRY ) VG 434 of 1993
)
GENERAL DIVISION )
BETWEEN:PETER CAMM, PETER DAMIEN SCANLON & KENNETH ROBERT BIGGINS
Applicants
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
CORAM: RYAN J
PLACE: MELBOURNE
DATE: 12 MAY 1995
REASONS FOR JUDGMENT
RYAN J: By an amended application filed on 27 October 1993 in VG 411 of 1993 the second of the abovenamed applicants, ("Elliott") invokes the jurisdiction of this Court under s 39B of the Judiciary Act 1903, the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act") and the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) and its inherent jurisdiction.
The first respondent ("Seymour") is alleged in Elliott's statement of claim to have been a member of the Australian
Federal Police and an officer of the Commonwealth and to have acted and purported to act:
(a)as an officer, employee or agent of the National Crime Authority (NCA); and/or
(b)as a special constable of the State of Victoria.
The second respondent ("Sherman") is the Chairman of the NCA which is itself the third respondent. The fourth respondent is the Director of Public Prosecutions for the State of Victoria ("the DPP").
The fifth respondent ("the ABC") is alleged to have published adverse media reports of and concerning Elliott in furtherance of a conspiracy between Robert James Lee Hawke, Paul John Keating, Lionel Frost Bowen and others to injure Elliott "in his reputation, business and public office by making derogatory and defamatory public statements about him by reason whereof the applicant suffered and continues to suffer loss and damage". It is also pleaded against the ABC that the same publications constituted intentional and unlawful acts causing loss and damage to Elliott.
The sixth respondent ("Crabb") has been joined as a party to the conspiracy just referred to and is alleged, while Minister for Police and Emergency Services for the State of Victoria, to have informed the ABC of a reference to the NCA for investigation of a matter concerning Elliott and to have purportedly made a similar reference himself.
The respective applications numbered VG 410 of 1993 by Kenneth Charles Jarrett ("Jarrett") and VG 434 of 1993 by Peter Camm, Peter Damien Scanlon and Kenneth Robert Biggins ("Camm, Scanlon and Biggins") have been brought against only in respect of the first four respondents to Elliott's application. Counsel for those respective applicants on 28 April 1994 foreshadowed applications for leave to amend their statements of claim to conform with the further amended statement of claim filed by Elliott in VG 411 of 1993 but excluding any allegations against the ABC and Crabb. I have proceeded to entertain the respondents' motions against those applicants as if those foreshadowed amendments had been made. That course was taken without prejudice to the rights of the respondents to attack those proposed amendments, or those which I gave leave to Elliott on 24 March 1994 to make to his amended statement of claim, on the ground that the amendments, on some of them, fail to disclose a cause of action or are otherwise objectionable. The reasons which follow have been confined in terms to Elliott's application but they should be read as applying mutatis mutandis to the respective applications by Jarrett and Camm, Scanlon and Biggins as if the proposed amendments had been made.
IS THERE JURISDICTION TO ENTERTAIN ANY OF THE CLAIMS AGAINST SEYMOUR, THE NCA OR SHERMAN?
By motion on notice dated 22 February 1994 the first three respondents seek orders that:
The proceeding herein be dismissed for want of jurisdiction upon the grounds that -
(a)no jurisdiction arises under section 39B of the Judiciary Act 1903 because no writ of mandamus or of prohibition is sought and no injunction is sought against an officer of the Commonwealth;
(b)no jurisdiction arises under section 4 of the Jurisdiction of Courts (Cross-Vesting) Act because the proceeding is a criminal matter; and
(c)the Court does not have accrued jurisdiction because no jurisdiction arises under laws made by the Parliament.
Pursuant to Order 20 Rule 2 the proceeding herein be dismissed on the grounds that no reasonable cause of action is disclosed.
The objection to the competency of the application herein to the extent that the application is made under the Administrative Decisions (Judicial Review) Act 1987, of which notice was given by the First, Second and Third Respondents on 1st November 1993, be heard at the same time as the Respondents' application set out in paragraphs 1 and 2 above."
It is accepted that, for the purposes of determining whether jurisdiction has been attracted by a proceeding, the Court must examine the allegations pleaded when the proceeding was instituted; McIntosh v National Australia Bank (1988) 80 ALR 47 at 49. In the present case that examination requires an analysis of the relevant allegations of fact contained in the further amended statement of claim. It is therefore convenient to examine separately and in order each of the heads under which it is asserted that this court has jurisdiction to try the causes of action which have been pleaded against Seymour, the NCA and Sherman.
Injunction against an officer of the Commonwealth
This jurisdiction is conferred by s 39B of the Judiciary Act which provides:
"(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."
The paragraphs in Elliott's amended application which invoke that jurisdiction are as follows:
"N.An injunction restraining the First, Second, Third and Fourth Respondents themselves, their employees, officers, agents or otherwise howsoever from acting in consequence of the decision to charge, the alternative decision to charge or the refusal referred to in the accompanying Statement of Claim.
O.An injunction restraining the First, Second, Third and Fourth Respondents themselves, their employees, officers, agents or otherwise howsoever from charging the Applicant with any offence or offences or breaches of the laws of the States of Victoria or South Australia or of the Commonwealth whether statutory or at common law in relation to the foreign exchange matter.
P.An injunction restraining the First, Second, Third and Fourth Respondents themselves, their employees, officers, agents or otherwise howsoever from charging any person with any offence or offences or breaches of the laws of the States of Victoria or South Australia or of the Commonwealth whether statutory or at common law in relation to the foreign exchange matter.
R.An injunction restraining the First, Second, Third and Fourth Respondents themselves, their employees, officers, agents or otherwise howsoever from doing any act or thing so as to enable, permit, encourage or assist any other person to engage in the conduct the subject of the injunctions sought in paragraphs O and P above."
The "foreign exchange matter" is first mentioned in paragraph 9 of the further amended statement of claim where it is alleged that a particular reference ("the Bowen reference") to the NCA did not authorise it to investigate:
"... a foreign exchange transaction concerning Elders IXL Ltd resulting in a loss to Elders IXL Ltd of approximately $39 million on 11 January 1988 and approximately $26 million on 7 September 1988 (the foreign exchange matter)."
The "decision to charge" is identified in the further amended statement of claim by the following paragraphs:
"37.On 21 September 1993 Seymour requested the Applicant to attend a cautioned interview and threatened that unless he complied
with the request and answered questions the Applicant would be immediately charged with two counts of theft and one count of taking money from one company and giving it to another (the offences).
PARTICULARS
The request and threat were oral and were made in a telephone conversation with the Applicant's solicitor, Graeme Aarons.
37A.Further, the First, Second, Third and Fourth Respondents, or one or more of them, now threaten and intend, unless restrained, to charge the Applicant with the offences.
37B.The conduct referred to in paragraphs 37 and 37A was and is furtherance of a decision made by the NCA to charge the Applicant with the offences (the decision to charge)."
The "alternative decision to charge" is not identified in the further amended statement of claim.
"The refusal" referred to in paragraph N of the prayer for relief in the amended application is described in paragraphs 51 to 57 of the further amended statement of claim:
"51.On 22 and 24 September 1993 the Applicant sought a postponement of the cautioned interview.
PARTICULARS
The request for a postponement was first made by the Applicant's solicitor to Seymour on 22 September 1993 and subsequently in writing to Sherman on 24 September 1993.
On 24 September 1993 Sherman and/or Seymour refused the Applicant's request for a postponement.
The refusal of the Applicant's request for a postponement of the cautioned interview was a decision (the refusal) purportedly made under an enactment for the purposes of section 5 of the AD(JR) Act.
53A.A breach of the rules of natural justice occurred in connection with the refusal.
The procedures that were required by law to be observed in connection with the refusal were not observed.
The refusal constituted an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
There was no evidence or other material to justify the refusal.
The refusal was otherwise contrary to law."
Dr Jessup QC who appeared with Mr B Walters for the first three respondents contended first in this context that Seymour was not an officer of the Commonwealth in the relevant sense. The decision to charge, the alternative decision to charge and the refusal were also said to be decisions taken pursuant to Victorian State law. Any action by Seymour in consequence of those decisions could not, so it was argued, be performed in the capacity of an officer of the Commonwealth. It is clear that a State judge or other official exercising jurisdiction or performing functions conferred by Commonwealth law does not become to that extent an "officer of the Commonwealth" within the meaning of either s 75(v) of the Constitution or s 39B of the Judiciary Act. (See eg R v Murray and Cormie & Ors (1916) 22 CLR 437; R v Anderson; ex parte Bateman (1978) 21 ALR 56 and Coward v Allen (1984) 52 ALR 320). It is also well-established that one and the same person may occupy an office by virtue of a concurrent exercise of Commonwealth and State powers and will, for the purposes of the relevant Commonwealth Act, be an officer of the Commonwealth (Australian Iron & Steel Ltd v Dobb (1958) 98 CLR 586 per Dixon CJ at 596). If such jointly created entities are authorized under the relevant Commonwealth Acts,
"the persons constituting the authorities are necessarily officers of the Commonwealth and remain so in respect of the exercise of all their powers unless, perhaps, the Commonwealth Act evinces an intention that in the exercise of powers derived from the State Act the authorities function in some different capacity":
Re Cram; Ex parte NSW Colliery Proprietors Association Ltd (1987) 163 CLR 117 at 128.
However, in the present case it was argued that the acts in respect of which injunctions are sought against Seymour, Sherman and the NCA were not capable of being performed pursuant to powers conferred by either the National Crime Authority Act 1984 (Cth) or the National Crime Authority (State Provisions) Act 1984 (Vic) (the "NCA Acts"). Rather, they were said to be acts where "someone, as it were, steps outside the framework of the NCA Acts and exercises powers in quite a different frame of reference than would be relevant to an officer of the Commonwealth". The basis of that submission was that neither of the NCA Acts conferred power on any relevant officer to charge a person with a criminal offence. That implied limitation on the power of the NCA was said to be exemplified by s 12(1) of the National Crime Authority Act 1984 (Cth) which provides:
"Where, in carrying out an investigation under paragraph 11(1)(b) or subsection 11(2), the Authority obtains evidence of an offence against a law of the Commonwealth or of a State or Territory, being evidence that would be admissible in a prosecution for the offence, the Authority must assemble the 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."
Since the offences the subject of the alleged decisions to charge are against laws of the State of Victoria, it was said that the injunctions sought in paragraphs N, O and P of the amended application were framed to restrain the first, second and third respondents otherwise than in their capacity as officers of the Commonwealth. A recent discussion of the way in which the exercise of powers and functions by a person who is concededly an officer of the Commonwealth for some purposes may attract the jurisdiction conferred by s 39B of the Judiciary Act is to be found in Bond v Sulan (1990) 26 FCR 580 where Gummow J observed, at 584:
"There was no dispute as to the jurisdiction of this Court, under the law as it presently stands, to grant such relief. But the matter is not free from difficulty, and I should deal with it. The applicant propounded jurisdiction in terms of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (the Cross-vesting Act), but that Act and the corresponding State legislation does not operate so as to invest this Court with federal jurisdiction: Kodak (A/asia) Pty Ltd v Commonwealth (1988) 22 FCR 197; Courtice v Australian Electoral Commission (1990) 21 FCR 554.
As I have said, the capacity of the NCSC to exercise its powers or perform its functions is derived from a law of the Commonwealth, the NCSC Act. Further, at least in so far as it appointed the respondent in compliance with a direction pursuant to s 291 of the Companies Act, as regards the 47 companies incorporated in the Australian Capital Territory, the NCSC represented the Crown in right of the Commonwealth; s 5 of the NCSC Act has that result. Therefore, the respondent is an officer of the Commonwealth so as to attract the jurisdiction of this Court under s 39B of the Judiciary Act 1903 (Cth). This would nonetheless be so because the 47 companies in question were incorporated in the Australian Capital Territory: R v Registrar of Companies (ACT); Ex parte Ganke (1960) 1 FLR 109 at 111. The Companies Act has as its object the making of provision for the government of the Australian Capital Territory in relation to company law: s 3. Nevertheless, it is a law of the Commonwealth: Webster v McIntosh (1980) 49 FLR 317 at 322, per Brennan J; Breavington v Godleman (1988) 169 CLR 41 at 66.
The respondent would remain a federal officer in respect of all his powers and functions unless perhaps the NCSC Act evinced an intention that in the exercise of powers derived from the State statutes, he functioned in some different capacity. The High Court left open that question in Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 128-129, a joint judgment of all members of the Court. A related question has arisen in this Court in litigation arising from concurrent federal and State Royal Commissions to inquire into aboriginal deaths in police custody: Boath v Wyvill (1989) 85 ALR 621; Eatts v Dawson (1990) 21 FCR 166. But as these authorities indicate, questions as to the exercise of powers and functions derived from State law and exercised by the respondent in a distinct capacity, would be part of the one "matter" in the technical sense, there being truly a single controversy.
Accordingly, the jurisdiction of the Court, in so far as injunctive relief is claimed in the application, is attracted by s 39B of the Judiciary Act; in relation to a matter in which this Court has original jurisdiction, it may make binding declarations of right, as provided by s 21 of the Federal Court of Australia Act 1976 (Cth), and in this regard, no distinction is drawn between the accrued and the primary jurisdiction of the Court: Orison Pty Ltd v Strategic Minerals Corp NL (1988) 81 ALR 183 at 191. In so far as the respondent is to be seen as exercising functions reposed in him by State law, there would be a foundation in the accrued jurisdiction for the declaratory relief now sought against him: Attorney-General (Cth) v Queensland (1990) 25 FCR 125 at 145. It follows from what I have said as to the attraction of jurisdiction under s 39B, that in a State Supreme Court this would be a "special federal matter" within the meaning of the definition of s 3(1) of the Cross-vesting Act."
As I understand it, the first, second and third respondents submit that the "matter" of the present application in the sense used by his Honour in that passage gives rise to no questions at all as to the exercise of powers and functions derived by those respondents from Commonwealth law.
The concept of "matter" in the relevant sense has been explained by Isaacs J in R v Murray and Cormie (supra) where, after referring to R v Registrar of Titles (Vic) (1915) 20 CLR 379, his Honour said, at 454:
"If there be alleged an antecedent legal right, the claim made in respect of it is a "matter" within the meaning of sec. 75. I adhere to the words I used in the case referred to "that the word 'matters' includes and is confined to claims resting upon an alleged violation of some positive law to which the parties are alike subject, and which therefore governs their relations, and constitutes the measure of their respective rights and duties" 20 CLR at p 388. If that were not correct, and if the mere fact that the Commonwealth commenced a proceeding in its own name were sufficient to constitute a "matter", then it could intervene in every case in other Courts exercising federal or State jurisdiction throughout Australia, where private persons alone were interested, and if jurisdiction were exceeded could invoke the original jurisdiction of this Court to restrain it. That is an impossible position.
Testing this case by the standard I have set, I ask: "How has the District Court Judge, by ordering the person designated by law as the dependants' trustees to invest and distribute the moneys in a particular way, affected any legal right of the Commonwealth, civil or criminal?" It is undoubted law that, though a litigant is interested in a suit, he is only entitled quâ party to get that part of it prohibited in which he is interested. In all other respects he is a stranger (per Cockburn CJ in Forster's Case 4 B & S, 187, at pp 198, 199). The interest which every sovereign has in the lawful discharge of public duties by persons individually entrusted with them is not an interest which can be made the subject of litigation. If it were, then where an officer refused to perform some duty demanded of him the Commonwealth could get a mandamus, and this Court would have to try the question of executive duty.
But if such a violation could be shown here as existed in R v Registrar of Titles (Vic) 20 CLR 379, if, for instance, the Commonwealth were defending or enforcing any proprietary right, or any recognized legal right whatever - not political, - that is, where as Hale CB said in Pawlett v Attorney-General Hardres, 465, at p 467, "the King is in here, and not by his prerogative," it might sue in this Court in original jurisdiction to establish and enforce the right. On the one ground that I have stated, namely, that on the face of the proceedings it clearly appears there is no such right - which fundamentally distinguishes this from the Registrar's case, - I am of opinion that the case turns out now not to be a "matter" within the meaning of s 75, and the application should be dismissed."
I am not able to hold that no "matter" in that sense which is identifiable on the face of the pleadings in the present case rests upon an alleged violation of some positive law to which Seymour or Sherman are subject in their respective capacities as officers of the Commonwealth. If, as is alleged in paragraph 37B of the further amended statement of claim, a decision was made by the NCA to charge the applicant with certain offences then, whether or not that decision was within power, any conduct by Seymour or Sherman in furtherance of it would prima facie be conduct undertaken by each of them qua an officer of the Commonwealth. Similar observations can be made of the refusal of the request for postponement of the cautioned interview. As well, the allegation in paragraphs 21 and 22 of the further amended statement of claim that the NCA, its officers, servants or agents aided, abetted, counselled or procured the making of the adverse media reports in contravention of the National Crime Authority Act 1984 can only be read as asserting a violation by either or both Seymour and Sherman in their capacities as officers of the Commonwealth of the positive law embodied in that Act. Similar observations may be made of the allegation that the investigation of the foreign exchange matter was not authorised by the National Crime Authority Act.
This Court may, on a full investigation of what Lockhart and Beaumont JJ in Jarrett & Ors v Seymour & Ors (1993) 119 ALR 46 called "the factual matrix" in which arise the questions sought to be agitated by the present applicants, conclude that no decisions were taken and no conduct was engaged in by Seymour or Sherman in their respective capacities as a Commonwealth officer. However, although the relevant paragraphs in the prayer for relief are not framed as claims for injunctions expressly restraining either of them in that capacity, on the approach indicated in McIntosh v National Australia Bank (supra,) I am not able to conclude from the face of the pleadings that the injunctions do not rest on an alleged violation of a positive law to which Seymour or Sherman was subject by virtue of being a Commonwealth officer. Accordingly, I consider that this Court has jurisdiction to entertain so much of the matter disclosed by the statement of claim as arguably involves those officers in their capacity as such.
Jurisdiction under the Administrative Decisions (Judicial Review) Act.
The jurisdiction of this Court under the AD(JR) Act depends, by reason of the prefatory words of s 5(1), on an application by a person who is "aggrieved by a decision to which this Act applies". That formulation directs attention, in turn, to the following definition in s 3(1):
""decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1."
For conduct to be reviewable under s 6 of the AD(JR) Act, it must fall within the description incorporating the definition just quoted which is contained as follows in the prefatory words of s 6(1):
"(1)Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on any one or more of the following grounds:"...
In the further amended statement of claim in the present case the decision to charge is pleaded by paragraph 45 to have been purportedly made by the NCA under an enactment for the purposes of s 5 of the AD(JR) Act. It is also related by paragraph 37B to conduct which is pleaded by paragraph 38 to have been engaged in for an improper purpose, to have constituted an abuse of power and to have involved the exercise and threatened exercise of power by Seymour at the direction of the NCA, Sherman or the DPP. Only the last-mentioned allegation expressly raises a ground for review of conduct afforded by s 6(1) or (2) of the AD(JR) Act: See s
6(2)(e). However, by paragraphs 43A, 43B and 43C of the further amended statement of claim it is pleaded that:
"43A.By reason of the foregoing the NCA have made a decision to conduct an investigation pursuant to one or more of the references which was:
(a)a decision under an enactment for the purposes of section 5 of the AD(JR) Act;
(b)not authorised by the enactment pursuant to which the decision was purportedly made;
(c)an improper exercise of power in pursuance of which the decision was purportedly made; and
(d)otherwise contrary to law.
43B.Further and by reason of the foregoing the NCA have made a decision to investigate the foreign exchange matter which was:
(a)a decision purportedly made under an enactment for the purposes of section 5 of the AD(JR) Act;
(b)not authorised by the enactment pursuant to which the decision was purportedly made;
(c)an improper exercise of power in pursuance of which the decision was purportedly made; and
(d)otherwise contrary to law.
43C.Further and by reason of the foregoing the NCA have made a decision to assemble and give the DPP evidence obtained by it pursuant to one or more of the references or in respect of the foreign exchange matter which was:
(a)a decision purportedly made under an enactment for the purposes of section 5 of the AD(JR) Act;
(b)not authorised by the enactment pursuant to which the decision was purportedly made;
(c)an improper exercise of power in pursuance of which the decision was purportedly made; and
(d)otherwise contrary to law."
It is then alleged in paragraph 44 that certain conduct was related to the making of the decision to charge or the alternative decision to charge for the purposes of s 6 of the AD(JR) Act. Subsequent paragraphs allege that the decision to charge or conduct related to it afforded various grounds for review specified in s 5(1) or s 6(1) of the AD(JR) Act. There are then similar pleadings in paragraphs 51 to 57 inclusive in relation to the refusal. The paragraphs which plead the DPP's involvement in the decision to charge, the alternative decision to charge and the refusal do not allege any infringement by the DPP of the AD(JR) Act.
The objection to competency referred to in paragraph 3 of the first, second and third respondents' notice of motion of 22 February 1994 was not in terms relied on by Counsel for those respondents on the hearing of the motion. It referred to paragraph 3 of the amended application filed on 27 October 1993 which, amongst other things, made application for review of the following conduct and decisions pursuant to the AD(JR) Act:
"3(a)the conduct of the First and Second Respondents, referred to in paragraphs 28 to 42 of the accompanying Statement of Claim, engaged in by them for the purpose of making a decision to charge the Applicant with offences.
(b)the conduct of the Third Respondents its officers, servants or agents, referred to in paragraphs 28 to 42 of the accompanying Statement of Claim engaged in by them for the purpose of:
i)making a decision to charge the Applicant with offences;
ii)making a decision to refer the results of any investigation conducted by the NCA, its officers, servants or agents to either or both the Australian Federal Police or the Director of Public Prosecutions for the Commonwealth for consideration as to whether the Applicant should be charged with any offences;
iii)making a decision to refer the results of any investigation conducted by it, its officers, servants or agents to the Director of Public Prosecutions for the State of Victoria and/or any members of the Victorian Police Force for consideration as to whether the Applicant should be charged with any offences.
(c)the decision of the First, Second and Third Respondents, referred to in paragraph 37 of the accompanying Statement of Claim.
(d)the decision of the First, Second and Third Respondents its officers, servants or agents referred to in paragraph 44 of the accompanying Statement of Claim.
(e)the decision of the First, Second and Third Respondents, its officers, servants or agents to refuse the Applicant's application to postpone the cautioned interview."
The notice of objection to competency contends in respect of each of the decisions there identified that it would not be, or was not, made under an enactment or of an administrative character. As well, it is contended that the conduct referred to in paragraphs 3(a) and (b) of the amended application was not engaged in for any of the purposes alleged in those paragraphs. In respect of paragraph 3(c) and (d) it is contended that, contrary to what is alleged in those paragraphs, paragraphs 37 and 44 respectively of the statement of claim do not disclose the making of any decision. The decision referred to in paragraph 3(e) was also contended not to be a substantive determination or a final, operative and determinative decision. It was contended on behalf of Seymour, Sherman and the NCA and the DPP that the decision to charge was not made under a Commonwealth Act which it would have to be in this case to come within the definition of "enactment" in s 3 of the AD(JR) Act. Consequently, so the argument went, any conduct engaged in for the purpose of making that decision could not be characterised as conduct engaged in or proposed to be engaged in for the purpose of making a decision to which the AD(JR) Act applies so as to come with s 6 of that Act. The basis of that argument was the contention, summarised above, based on an implication from s 12 of the National Crime Authority Act, that no power is
conferred by that Act on the NCA or any of its officers to charge a person with a criminal offence.
However, I consider it to be sufficient to attract the jurisdiction of this Court for the decision in question to have been purportedly made under a Commonwealth Act. That follows from the expansive definition of "decision to which this Act applies" in s 3 of the AD(JR) Act which extends to a decision "proposed to be made". It is also significant that among the grounds of review of such a decision afforded by s 5 of the AD(JR) Act are lack of jurisdiction to make the decision (s 5(1)(c)) and that the decision was not authorized by the enactment in pursuance of which it was purported to be made (s 5(1)(d)). Neither of those grounds would avail an applicant if the subject decision were required as a matter of fact and law to have been made under an enactment. Accordingly, I agree with French J's observation in Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442, at 448 that:
"Implicit in the respondent's submissions is the contention that a decision which is beyond the power conferred upon the decision-maker by the relevant enactment is not made "under" that enactment and is therefore not amenable to review. The contention is plainly untenable. If it were correct, reliance upon grounds of review going to power would be denied. A decision is said to be made "under an enactment" if it is made "in pursuance of" or "under the authority of" the Act or Ordinance or instrument concerned: see Evans v Friemann (1981) 53 FLR 229 at 238, per Fox ACJ; Australian National University v Burns (1982) 64 FLR 166 at 173, per Bowen CJ and Lockhart J. In Emanuele v Cahill (1987) 18 FCR 304, Neaves J said the question was whether as a matter of substance the decision has a sufficiently close connection with the legislative provision to make it appropriate to speak of it as having been made "under" that provision in the sense in which that word was understood in Australian National University v Burns (supra). These tests are not exhaustive of the categories of reviewable decision. It is clear, by reference to the grounds of review in s 5, that a decision made in purported reliance upon a power conferred by statute is a decision which is to be treated for the purposes of judicial review as a decision made under that statute."
It may emerge, after the filing of a defence or upon full examination of the facts, that no decision under an enactment was made or even purported to have been made by any of Seymour, Sherman or the NCA. A finding of just that kind was indicated by the High Court to be required in Glasson v Parkes Rural Distributions Pty Ltd (1984) 155 CLR 234 to which I was referred by Dr Jessup. In that case it was a State Act under which a Commonwealth officer could be authorized to issue a certificate that was held to be the source of the power to make the decision. Accordingly, since no Commonwealth Act was the source of the power to appoint the decision-maker, or the source of his or her power to make the decision, there was no "decision under an enactment" within the AD(JR) Act. However, as with the invocation of jurisdiction over a matter in which an injunction is sought against an officer of the Commonwealth, I am not able to conclude from the factual matrix revealed by the further amended statement of claim analysed in the light of the relevant legislation that there is no allegation of an actual or purported decision under an enactment so as to attract the jurisdiction conferred on this Court by the AD(JR) Act.
I similarly regard as premature the contention advanced on behalf of Seymour, Sherman and the NCA that any application under the AD(JR) Act is out of time by virtue of s 57 of the National Crime Authority Act. That section provides:
"Section 11 of the Administrative Decisions (Judicial Review) Act 1977 has effect in relation to matters arising under this Act as if subsections (1) to (5), inclusive, of that section were omitted and the following subsection were substituted:
`(1)An application to the Court for an order of review in respect of a matter arising under the National Crime Authority Act 1984:
(a)shall be made in such manner, and shall contain such particulars, as are prescribed by Rules of Court and shall contain such other particulars (if any) as the Court directs;
(b)shall set out the grounds of the application; and
(c)shall be lodged with a Registry of the Court within the period of 5 days (excluding days on which the Registry is closed) after the day on which the applicant becomes aware of the matter or within such further period as the Court (whether before or after the expiration of the first-mentioned period) in special circumstances allows.'."
The application of that limitation will require identification of the matter (if any) arising under the National Crime Authority Act and a finding of fact as to when each of the applicants became aware of the matter. Even if favourable to the respondents those findings will not be conclusive against the applicants who will still have the right to seek to persuade the Court of the existence of "special circumstances" in which it should exercise its discretion to extend time. It is inappropriate, in my view, to attempt to resolve these questions on an application which seeks to stay the whole proceedings on the threshold for want of jurisdiction.
Jurisdiction under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic)
Section 4 of this Act provides:
The Federal Court has and may exercise original and appellate jurisdiction with respect to State matters.
The Family Court has and may exercise original and appellate jurisdiction with respect to State matters.
The Supreme Court of another State or of a Territory has and may exercise original and appellate jurisdiction with respect to State matters.
The State Family Court of another State has and may exercise original and appellate jurisdiction with respect to State matters.
Sub-section (1), (2), (3) or (4) does not -
(a)invest the Federal Court, the Family Court or a Supreme Court with; or
(b)confer on any such court -
jurisdiction with respect to criminal matters."
Section 3 of the same Act does not contain any definition of "criminal matters" but does define "State matter" by providing:
"State matter" means a matter -
(a)in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State; or
(b)removed to the Supreme Court under section 8."
The claims against Seymour, Sherman and the NCA in the present application were said to be with respect to criminal matters because they pertained to the initiation, conduct and consequences of a criminal investigation. Support for that contention is provided by Re Clifford and O'Sullivan [1921] 2 AC 570 where a question arose as to whether an appeal from an order refusing a writ of prohibition directed to a military court came within the provision in s 50 of the Judicature Act (Ireland) that no appeal should lie from a judgment of the High Court "in any criminal cause or matter". Viscount Cave did not regard the judgment of Powell J at first instance as answering that description. His Lordship observed, at 580:
"But, however wide be the meaning to be attached to the words in question, they cannot, I think, apply to the decision of Powell J in this case. No doubt that decision was given in a cause or matter, such matter consisting of the application to the learned judge for a writ of prohibition; but in order that a matter may be a criminal cause or matter it must, I think, fulfil two conditions which are connoted by and implied in the word "criminal". It must involve the consideration of some charge of crime, that is to say, of an offence against the public law (Imperial Dictionary, tit. "Crime" and "Criminal"); and that charge must have been preferred or be about to be preferred before some Court or judicial tribunal having or claiming jurisdiction to impose punishment for the offence or alleged offence. If these conditions are fulfilled, the matter may be criminal, even though it is held that no crime has been committed, or that the tribunal has no jurisdiction to deal with it (see Reg v Fletcher .... 2 QBD 43, 47, per Amphlett JA, and Rex v Garrett [1917] 2 KB 99, 105, per Bankes LJ), but there must be at least a charge of crime (in the wide sense of the word) and a claim to criminal jurisdiction."
Lord Sumner, the only member of the House who disagreed on that point, suggested that the characterization of proceedings as criminal or otherwise turns on their subject matter, saying at 586:
"An application for a writ of prohibition is in itself no more and no less criminal than it is the contrary. This quality of the matter of an application for that writ must be decided according to the subject matter dealt with on the application. The same is true of certiorari (Reg v Fletcher 2 QBD 43) and of habeas corpus (Ex parte Woodhall 20 QBD 832). Nor is there anything peculiar about prohibition for this purpose. Prima facie a writ of prohibition is one to be directed to an inferior Court, its members and officers; habeas corpus on the other hand is not specially concerned with the jurisdiction or officers of an inferior Court, and therefore in habeas corpus no such question determines the issue of criminal or not criminal for the purpose of an appeal. I think the real test is the character of the proceedings themselves which are the subject matter of the particular application, whatever it be, that constitutes the cause or matter referred to. Can it be, when an inquiry is held under regular forms of criminal judicial procedure into the commission by accused persons of acts, which could lawfully be charged as crimes before another body, and the result of the inquiry on conviction may be a sentence of death, that this is not an inquiry of a criminal character? If it be of a criminal character, an attempt to obtain its prohibition, whether it fails or succeeds and on whatever ground, must be of a criminal character likewise. If the body, against which the writ was sought, was a Court having some legal authority and competent to try some crimes but not to try these accused persons or to try them for the crime with which they were charged, it is clear that the application for a prohibition would be a criminal matter."
A wide view was also taken of s 47 of the Judicature Act (1873) by the House of Lords in Provincial Cinematograph Theatres Ltd v Newcastle-upon-Tyne Profiteering Committee (1921) 90 LJ (KB) 1064 where a judgment on an application for certiorari in respect of a decision to institute a prosecution for profiteering was held to be within the exception because the subject decision was the first step in a "criminal cause or matter". Other applications for prerogative writs have been held to be within the exception in R v Army Council ex parte Sandford [1940] 1 KB 719 (application for mandamus seeking mitigation or remission of sentence of a court-martial on charges of forging and uttering), and Amand v Home Secretary [1943] AC 147 (application for habeas corpus by Dutch national arrested as an absentee without leave from the Netherlands army).
For Elliott it was argued that the Cross-Vesting Act should be accorded a benevolent construction so as to make the widest possible range of matters amenable to cross-vesting. Reference was made to the second-reading speech of the Attorney-General when the Bill for the Act was before the Victorian Legislative Council. That speech expounded the evils of "forum shopping", in eliminating which the courts applying the proposed Act were exhorted to be ruthless, by approaching the legislation "in accordance with its spirit and purpose". However, the text of the Cross-vesting Act and the preparatory material both make clear that it is concerned with civil jurisdiction. As well, the Victorian legislature was astute to express by s 4(5) its concern not to confer on this Court jurisdiction "with respect to criminal matters". Those words are wider than "jurisdiction in criminal matters" and, I consider, are intended to exclude from the cross-vesting regime not merely criminal trials but any question which arises for adjudication out of the investigation of, prosecution for, or determination of guilt or innocence in, any matter which is to be characterised as criminal under Victorian law.
The causes of action relied on in the present proceedings arise out of decisions to investigate alleged criminal activities of identified persons and to institute prosecutions in respect of those alleged activities. They are, therefore, distinguishable from the application in R v Commissioner of Police of the Metropolis ex parte Blackburn [1968] 2 QB 118 for mandamus to the respondent Commissioner requiring him to reverse a policy decision not to attempt to enforce s 32(1)(a) of the Betting Gaming and Lotteries Act 1963 in London gaming clubs. Edmund Davies LJ referred, at 147 to the line of cases discussed above and continued:
"In my judgment they have no bearing upon the quite general application now made that the commissioner be compelled to reverse a policy directive regarding the enforcing of a statute. Such an application has no reference to any particular criminal cause or matter, and is not even a remote step in relation to a criminal cause or matter, but is designed simply and solely to ensure that the police do not abdicate, in consequence of a policy decision, their functions as law enforcement officers. I therefore agree with my lords in holding that this court has jurisdiction to hear and examine the present appeal. But it is necessary to add that I am persuaded so to hold by reason of the abandonment of all but the last portion of the motion, for the earlier parts (and particulars that which related to the prosecution of a specific, named club) seems to me truly open to the objection as to jurisdiction raised by the respondent."
I find nothing in the reasons for judgment of the Court of Appeal of Western Australia in Dempster v National Companies and Securities Commission (unreported, WA Court of Appeal, 23 May 1994) to which I was referred by Counsel for Elliott, to suggest that an application which the Court there described as made "when an accused seeks to have uncompleted criminal proceedings against him stopped", is not one with respect to criminal matters. Similarly, a conclusion that an order setting aside a subpoena issued in relation to a criminal trial was not with respect to a criminal matter is not supported by the orders for costs made by the same Court in Carter v Mallesons Stephen Jaques (unreported, WA Court of Appeal, 21 September 1993).
Accrued or Associated Jurisdiction
The rationale for the accrual to this Court of accrued or associated jurisdiction has been explained by Barwick CJ in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 where his Honour observed at 474:
"It is also important to observe that a matter may relevantly exist which may not in itself attract federal jurisdiction. That jurisdiction may be attracted, eg by some assertion made within the facts or as a consequence of them or in relation to them or, indeed, by some assertion or claim made by the opposing party or sometimes by the identity of one of the parties. Thus, there may be circumstances in which the matter does not in substance itself attract federal jurisdiction, though that which attracts federal jurisdiction must in some way relate to the matter. Once federal jurisdiction is attracted, it is not lost because the claim or assertion which attracted it has not been substantiated or has been displaced by some countervailing fact. Once attracted, by whatever path attracted, the jurisdiction persists to enable the Court to resolve the matter. The jurisdiction to do so accrues to the Court because there is a matter, in relation to which federal jurisdiction has been attracted, to be resolved. The jurisdiction thus accrued is itself federal jurisdiction. But, of course, it is limited to the resolution of the matter in relation to which, but not necessarily by which, the federal jurisdiction was attracted in the first instance. But the jurisdiction will not extend to any other matter, though that other matter might in some sense be an allied or associated matter. To be outside the accrued jurisdiction, however, the other matter must be separate and disparate from the matter in relation to or in connexion with which federal jurisdiction has been attracted. The federal jurisdiction will not extend to enable the Court to resolve the further matter, being as I have said in substance a disparate and independent matter. But this does not involve any close confinement of the federal jurisdiction by too narrow a view of what is relevantly the matter. The emphasis on the disparate and independent nature of what is not part of or within the matter should ensure that no narrow view is taken of the parameters of the matter."
In the joint judgment of Mason, Murphy, Brennan and Deane JJ in Fencott v Muller (1983) 152 CLR 570 the extent of the accrual was made subject to this qualification at 609:
"However, federal judicial power is attracted to the whole of a controversy only if the federal claim is a substantial aspect of that controversy. A federal claim which is a trivial or insubstantial aspect of the controversy must, of course, itself be resolved in federal jurisdiction, but it would be neither appropriate nor convenient in such a case to translate to federal jurisdiction the determination of the substantial aspects of the controversy from the jurisdiction to which they are subject in order to determine the trivial or insubstantial federal aspect. Again, impression and practical judgment must determine whether it is appropriate and convenient that the whole controversy be determined by the exercise of federal judicial power."
Since I have found it impossible to conclude on the facts disclosed by the further amended statement of claim that federal jurisdiction has not been attracted to this Court under either or both s 39B of the Judiciary Act or the AD(JR) Act, it would be premature now to decide whether the other matters discernible from the pleading are relevant to those matters which arguably attract federal jurisdiction under those Acts. Some of the other matters may prove, on a complete examination and determination of the facts, to be disparate and independent of the matter, if it be made out, which is indisputably within the jurisdiction of this Court. Alternatively, the federal aspect imported by the claim under s 39B or under the AD(JR) Act may be so trivial or inconsequential a part of the whole controversy that it would be inappropriate or inconvenient for the non-federal elements of the controversy to be resolved in this Court. The problem is further complicated by the fact that the attraction of federal jurisdiction does not depend on the cause of action which is within that jurisdiction being substantiated; even the availability of a plea raising a statute of limitations to defeat the claim which attracted federal jurisdiction does not entail the loss of this Court's jurisdiction (Dorotea Pty Ltd v Vancleve Pty Ltd (1987) 75 ALR 629 at 632).
Conclusion as to Seymour, the NCA and Sherman
For these reasons, I am unable to accede to the motion of the first, second and third respondents that these proceedings as against them be dismissed summarily for want of jurisdiction. That is not to say that some of the arguments canvassed above may not succeed when issues of fact which I have been obliged to assume in the applicants' favour have been fully examined. The results of that examination could well influence the way in which the Court exercises its discretion whether or not to adjudicate those causes of action on which it can pass only in the exercise of its accrued jurisdiction. The existence of that discretion was indicated by Barwick CJ in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (supra) where it was pointed out, at 475, that the
"exercise of this jurisdiction, which for want of a better term I shall call 'accrued' jurisdiction is discretionary and not mandatory,
though it will be obligatory to exercise the federal jurisdiction which has been attracted in relation to the matter."
Some of the considerations which will weigh with this Court in exercising the discretion can be gleaned from the passage which I have already quoted from the joint judgment in Fencott v Muller (supra). However, since Seymour, Sherman and the NCA have not been able at this stage of the proceedings to establish that this Court totally lacks jurisdiction to entertain them, their motion on notice dated 22 February 1994 must be dismissed with costs.
JURISDICTION OVER CLAIMS AGAINST THE DPP
Paragraphs 20, 20A and 20B of the further amended statement of claim refer to the publication on television and radio and in the print media of what are called "the adverse media reports". It is then alleged in paragraph 21 that:
"The NCA its officers, servants or agents and/or the DPP aided, abetted, counselled or procured the making of the adverse media reports."
It is also pleaded in paragraphs 32 and following that:
"32.The NCA and/or one or other of its officers, servants or agents and/or Seymour:
(a)in about 1991 or 1992 purported to refer the foreign exchange matter to the DPP.
(b)has or have, from time to time, sought the advice and assistance of the DPP as to whether or not the Applicant should be charged and prosecuted in respect of the foreign exchange matter.
(c)intend to act upon the advice and recommendation of the DPP to charge the Applicant with offences in respect to the foreign exchange matter.
(d)intend to encourage and permit the DPP to prosecute the Applicant by providing to the DPP the evidence which the
NCA has obtained in respect of the foreign exchange transaction.
32A.At all relevant times the NCA and the DPP had agreed that in respect of a matter referred by the NCA to the DPP under section 12 of the Act:
(a)the prosecutorial guidelines of the DPP would apply in respect of any decision to prosecute or not to prosecute a person or persons in respect of any such matter;
(b)the DPP would advise the NCA on the appropriate charges to be laid by the NCA in respect of such a matter.
32B.As a result, the DPP was in a position to decide whether or not the Applicant would be charged and whether or not the Applicant would be prosecuted.
The DPP has published prosecutorial guidelines pursuant to the obligation or power contained in the DPP Act (the guidelines).
The guidelines require, among other things, that:
(a)a decision whether or not to prosecute must not be influenced by -
i)the political associations, activities or beliefs of the alleged offender;
ii)personal feelings concerning the offender;
iii)possible political advantage or disadvantage to the Government or any political group or party;
or
iv)the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.
(b)that when deciding whether or not to prosecute, the DPP is required to take into account:
i)public interest factors which militate against the decision to proceed with a prosecution;
ii)the admissibility of evidence and, in particular, whether the evidence was properly obtained;
iii)the expenditure involved in such a prosecution;
iv)the lines of defence which may be open to the alleged offender;
v)any other factors which could affect the likelihood or otherwise of a conviction.
At all relevant times the DPP has advised the NCA its officers, servants or agents and/or Seymour as to whether or not the Applicant should be charged with offences in relation to the foreign exchange matter.
The DPP is required by law to comply with the guidelines when deciding whether or not to charge a person with offences and when giving advice or purporting to give any advice in that regard."
Paragraph 37A alleges that Seymour, Sherman, the NCA and the DPP or one or more of them have threatened to charge Elliott with certain offences. Standing alone, that allegation might be read as made only in support of the claim for injunctive relief and not as an element in any cause of action against the DPP. However, by paragraph 38 it is alleged:
"The conduct referred to in paragraphs 37 and 37A above was and is unlawful in that it:
(a)involves the use and threatened use of power by the First, Second, Third, and Fourth Respondents or one or more of them for an improper purpose;
(b)constitutes an abuse and threatened abuse of power by the First, Second, Third and Fourth Respondents or one or more of them; and
(c)involves the exercise and the threatened exercise by Seymour of his power at the direction of the NCA and/or Sherman and/or the DPP."
It is then pleaded in paragraph 40 that certain conduct by Seymour, described in paragraph 37, in threatening Elliott, that, unless he attended a cautioned interview and answered questions, he would immediately be charged with certain offences of dishonesty was:
"at the direction of and/or was authorised by Sherman and/or the NCA and/or an officer, servant or agent or agents of the NCA and/or the DPP."
Paragraphs 41 to 43 go on to allege:
"41.At all relevant times Sherman, the NCA its officers, servants or agents and the DPP well knew:
(a)that Seymour was not authorised to charge the Applicant as he had threatened;
(b)that Seymour was not authorised to interview the Applicant as he had proposed;
(c)that the NCA its officers, servants or agents were not authorised to charge the Applicant as was threatened by Seymour or at all;
(d)that the NCA its officers, servants or agents were not authorised to interview the Applicant as was proposed by Seymour;
(e)of the conduct referred to in paragraphs 58, 59 and 61A below;
(f)that by reason of the matters referred to in sub-paragraphs (a), (b), (c), (d) and (e) above the conduct referred to in paragraphs 37 and 37A above was unlawful.
As a consequence of the matters referred to in paragraphs 32 to 41 above, Sherman and/or the NCA and/or the officers, servants or agents of the NCA and/or the DPP:
(a)knowingly directed and/or authorised Seymour to act or to attempt to act unlawfully;
(b)used or attempted to use their powers for an improper purpose;
(c)abused or attempted to abuse their powers.
By reason of the matters referred to in paragraphs 32 to 42 above the decision to charge was unlawful and the First, Second, Third and Fourth Respondents their officers, servants or agents made, alternatively aided, abetted, counselled or procured the making of that decision."
Paragraphs 43A to 50 are apparently designed to provide a basis for the application for a review under the AD(JR) Act of certain conduct and decisions of which only conduct is imputed to the DPP by the following paragraphs:
"44.Further or alternatively, the conduct of the First, Second, Third and Fourth Respondents their officers, servants or agents referred to in paragraphs 32 and 35 above and 59, 59A and 59B below was conduct relating to the making of the decision to charge or the alternative decision to charge for the purposes of section 6 of the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act).
The decision to charge was purportedly made by the NCA under an enactment for the purposes of section 5 of the AD(JR) Act.
45A.A breach of the rules of natural justice occurred in connection with the conduct referred to in paragraph 44 above and the making of the decision to charge.
The procedures that are required by law to be observed in respect to the said conduct and the said decision had not been or are not being observed.
The First, Second, Third and Fourth Respondents do not have jurisdiction to engage in the said conduct or make the said decision.
The said conduct and the making of the said decision was or involved an improper exercise of the power in pursuance of which the conduct occurred and the decision was made.
There is no evidence or other material to justify the said decision.
The said decision is otherwise contrary to law."
Paragraph 58 under the heading "Director of Public Prosecutions" alleges that the DPP has advised one or more of the NCA, its officers, servants or agents and Seymour that Elliott should be charged with the offences, which advice was given in disregard of the prosecutorial guidelines and the agreement between the DPP and the NCA.
Paragraph 59 alleges that the DPP threatens and intends to charge Elliott, or advise Seymour, Sherman and the NCA that he should be charged, with offences in relation to the foreign exchange matter without taking into account any of seven allegedly relevant matters.
By paragraphs 59A and 59B it is pleaded that Seymour, the NCA and the DPP, in breach of obligations imposed on them by law failed to afford Elliott an opportunity to place material before them as to why he should not be charged as threatened, or failed to take into account such material as Elliott did place before them. Excluding paragraph 61 which is confined
to the NCA, the further amended statement of claim concludes with the following paragraphs:
"60.Accordingly, the decision to charge, the alternative decision to charge and any advice in relation thereto given to Seymour, Sherman and the NCA was unlawful and in breach of the DPP Act.
60A.The decision to charge was made by the NCA to be effected by means of a device or contrivance designed 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 a member of 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.
60B.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.
60C.Accordingly, by reason of the matters referred to in paragraphs 59 to 61B and [sic] NCA and the DPP agreed and thereby conspired to unlawfully prevent or defeat enforcement or operation of the Act."
Does the AD(JR) Act confer jurisdiction in respect of the DPP?
Although it is alleged in paragraphs 44 and 47 of the further amended statement of claim that the DPP engaged in conduct for the purpose of making a decision to which the AD(JR) Act applies, it cannot be suggested that any decision of that kind was, or could be, made by the DPP. The DPP could only have engaged in the conduct on behalf of, or as agent for, some person to whom the making of the decision was entrusted by the relevant Commonwealth statutory provision. That will suffice to make the conduct reviewable in the way suggested by a Full Court of this Court in Gunaleela v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 543 at 556, but does not give rise to a separate cause of action under the AD(JR) Act against the person engaging in the conduct. That is not say
that this Court does not possess a wide-ranging power to restrain, on an interim basis, administrative action by a person amenable to the AD(JR) Act. Beaumont J acknowledged as much in Minister for Immigration Local Government and Ethnic Affairs v Msilanga (1992) 105 ALR 301 at 313 where he discussed the combined operation of s 23 of the Federal Court of Australia Act and s 15 of the AD(JR) Act. However, those remarks have to be understood against the background that primary "parties" for the purposes of the AD(JR) Act are the person aggrieved by the decision and the person in whom the decision is reposed. A person interested in, or entitled to the benefit of, a decision only becomes a "party" on applying under s 12 and obtaining an order to that effect.
It cannot be doubted that a declaration is part of the armoury of relief which a court in the exercise of a wide discretion can grant in determining a matter accepted as being within its jurisdiction; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421. However, in Johns v Australian Securities Commission (1993) 116 ALR 567 Brennan J at 583 expressly held that there was no basis for the grant of relief against certain respondents under the AD(JR) Act, and confined the remedy to a declaration against the Australian Securities Commission and one of its officers that a decision made under the Australian Securities Commission Act 1989 (Cth) to release certain transcripts was invalid as being in breach of the rules of natural justice. The jurisdiction of this Court to entertain a cause of action arising in that way was not contested. However, the remedy of declaration is not capable of extension in the way suggested to a party, like the DPP, not already, or otherwise, amenable to the jurisdiction of this Court. This aspect of the case may be contrasted with Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 and Annetts v McCann (1990) 170 CLR 596 to which I was also referred by Counsel for Elliott, because in each of those cases it was unarguably within the supervisory jurisdiction of the respective Supreme Courts of Queensland and Western Australia to ensure that the rules of natural justice were observed by the administrative tribunals with which those cases were concerned.
It is also not without significance that the applicant's amended application claims no relief against the DPP under the AD(JR) Act. In the light of all these considerations I am led to conclude that no jurisdiction to grant relief against the DPP is conferred on this Court by the AD(JR) Act.
The effect of the Jurisdiction of Courts (Cross-vesting) Act on the claims against the DPP
The allegations against the DPP in the further amended statement of claim are variously framed as constituting a breach of the prosecutorial guidelines or the agreement between the DPP and the NCA, an abuse of power or process, breach of a statutory duty to accord natural justice, or civil conspiracy. However, in each of those formulations the allegations are related to a decision whether or not to charge Elliott with a criminal offence, the giving of advice bearing on that decision, or investigations preparatory to it. In that sense the whole of those allegations are with respect to a criminal matter. Accordingly, for the reasons outlined above in respect of the claims against Seymour, Sherman and the NCA, I regard the claims against the DPP as excluded by s 4(5) of the Cross-vesting Act from the jurisdiction conferred on this Court by that Act.
Are the claims against the DPP within the accrued or associated jurisdiction of this Court?
The impression which I have formed of the relevant parts of the further amended statement of claim is that it is primarily concerned to allege that various respondents invalidly and for ulterior purposes invoked the mechanism created by the National Crime Authority Act or made decisions purportedly pursuant thereto. The allegation against the DPP is that he knowingly lent his aid to that conduct by providing legal advice and proposed to charge Elliott with various offences thereby enabling the NCA and other respondents to achieve indirectly what they were prohibited by law from doing directly. If that impression be correct, jurisdiction over a substantial part of the whole controversy is attracted to this Court via s 39B of the Judiciary Act or the AD(JR) Act. On my impression of the pleadings, that part of the whole controversy arises out of the same substratum of facts as forms the basis of the claims in civil conspiracy, abuse of process and breach of statutory duty made against the DPP. That being so, I am not able, at this stage of the litigation, to say as a matter of discretion that it is inappropriate or inconvenient for the non-federal elements of the whole controversy which make up the causes of action pleaded against the DPP to be resolved in this Court. I therefore decline, before findings of fact necessary to determine the indisputably federal part of the whole controversy have been made, to strike out the claims against the DPP. Accordingly, the DPP's motion on notice filed on 21 March 1994, like that of Seymour, Sherman and the NCA must be dismissed with costs.
ACTION AGAINST THE ABC
By its motion on notice, the fifth respondent the Australian Broadcasting Corporation ("the ABC") seeks that:
Pursuant to Order 20 Rule 2 the proceeding herein be dismissed as against the Fifth Respondent on the grounds that no reasonable cause of action is disclosed.
The proceedings herein be stayed as against the Fifth Respondent as an abuse of process upon the grounds that -
(a)some or all of the issues of fact and law are the same as those raised in proceedings brought by the Applicant against the Fifth Respondent in the Supreme Court of Victoria;
(b)insofar as an allegation of participation in a conspiracy is alleged against the Fifth Respondent, that allegation merges in the allegation of defamation made by the Applicant in proceedings brought against the Fifth Respondent in the Supreme Court of Victoria."
The allegations in the further amended statement of claim which charge the ABC are in comparatively short compass, comprising the following paragraphs:
"20.On 20 February 1990 and at various times thereafter there occurred reports on television, radio and in the print media of and concerning alleged investigations by the NCA into the affairs of the Applicant (the adverse media reports).
20A.On 20 February 1990 during the programme "The 7.30 Report" broadcast on television Channel ABV-2 in the State of Victoria and on other television channels throughout Australia the ABC published of and concerning the Applicant the words set forth in Schedule A attached hereto (the original television broadcast).
20BThe adverse media reports and the original television broadcast made by the ABC:
(a)were made in furtherance of the conspiracy referred to in paragraph 13A above;
(b)constituted intentional and unlawful acts -
by reason whereof the Applicant has suffered and continues to suffer loss and damage."
Paragraph 13A to which reference is made in paragraph 20B(a) is in these terms:
"13AFurther, the conduct of Crabb referred to in paragraph 10 above was in furtherance of a conspiracy between Robert James Lee Hawke, Paul John Keating, Lionel Frost Bowen and others to injure the Applicant in his reputation, business and public office by making derogatory and defamatory public statements about him by reason whereof the Applicant suffered and continues to suffer loss and damage.
PARTICULARS
The conspiracy was entered into at some time in about 1989. The conspiracy is to be inferred from the following facts and matters:"
Then follow some twenty sub-paragraphs none of which appears to support an inference that the ABC was a party to the alleged conspiracy.
Cause of action in conspiracy
The principal attack by Counsel for the ABC on this part of the pleading was that it does not contain any allegation of fact fixing the ABC with complicity in the conspiracy pleaded in paragraph 13A in which Messrs Hawke, Keating and Bowen and others are specifically alleged to have engaged. Counsel for Elliott accepted the dichotomy established by a long line of
authority between a conspiracy to perform an unlawful act or use unlawful means on the one hand, and a conspiracy to injure by the use of lawful means on the other. The conspiracy alleged here, it was said, was of the former type. However, to confine the pleading in that way is not to absolve an applicant from the need to plead and prove that each relevant respondent was a party to an agreement to interfere with the applicant by the use of unlawful means. That was how the first alternative formulation of the cause of action in conspiracy was expressed by Dixon J in McKernan v Fraser [1931] 46 CLR 343 at 359.
It is true, as Lord Bridge of Harwich pointed out in Lonhro Plc v Fayed [1992] 1 AC 448 that:
"Where conspirators act with the predominant purpose of injuring the plaintiff and in fact inflict damage on him, but do nothing which would have been actionable if done by an individual acting alone, it is in the fact of their concerted action for that illegitimate purpose that the law, however anomalous it may now seem, finds a sufficient ground to condemn their action as illegal and tortious. But when conspirators intentionally injure the plaintiff and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests; it is sufficient to make their action tortious that the means used were unlawful."
However, as the passage itself makes clear, that is not to deny the need to prove in an "unlawful means" conspiracy, the agreement or combination, which is of the essence of the tort in either formulation, to cause damage to the plaintiff.
Counsel for Elliott point to the allegation in paragraph 20B that the impugned media reports and television broadcast were made by the ABC "in furtherance" of the conspiracy referred to in paragraph 13A as equivalent to an allegation that the ABC had agreed with the conspirators specifically named in that paragraph. I am unable to accept that contention. The expression "in furtherance of" in this context is ambiguous. In Express Newspapers Ltd v McShane [1979] 2 All ER 360, Lord Denning MR, with whom Lawton and Brandon L.JJ agreed, observed, at 364, of the word "furtherance" as it appeared in the phrase "in contemplation or furtherance of a trade dispute" in the Trade Union and Labour Relations Act 1974 (UK):
"Taking now the very words of the statute. The words `in contemplation of' do not apply because the dispute was already in existence. The only words in question are `in furtherance of'.
It is said on behalf of the NUJ leaders that `furtherance' depended on their state of mind. If they genuinely and honestly believed that the 'blacking' would advance the cause of the provincial journalists, then their acts were done `in furtherance of' the dispute. The judge did not accept that submission. Nor do I. `Furtherance' is not a merely subjective concept. There is an objective element in it. The Shorter Oxford Dictionary defines `furtherance' as `the fact or state of being helped forward'. It seems to me that, for an act to be done `in furtherance of' a trade dispute, it must be reasonably capable of doing so, or have a reasonable prospect of it, in this way that it must help one side or the other to the dispute in a practical way by giving support to the one or bringing pressure to bear on the other."
An appeal against the judgment of the Court of Appeal succeeded in the House of Lords but the speeches of their Lordships ([1980] AC 672) make clear at some length that the phrase "in furtherance of" is capable of both a subjective and an objective connotation. In my view, that feature enables the phrase in the present context to indicate, on the one hand, an act done with knowledge of an agreement between others and the purpose which actuated that agreement so as to make the actor a party to the agreement. On the other hand, it may signify no more than an act which the agreement contemplates will occur but which is performed by a third party without knowledge of the agreement or a sharing of the intention of those who participated in it.
For these reasons, I consider that the pleading, if it is intended to make the ABC liable in conspiracy, should expressly state that the ABC agreed with the other named conspirators, as well as that it performed acts in pursuance or furtherance of the conspiracy. Support for this requirement is to be found in Quinn v Leathem [1901] AC 495 at 501 and it has been observed in the precedent for a statement of claim alleging an "unlawful means" conspiracy in Bullen & Leake & Jacobs Precedents of Pleadings 13th Edn p 223. See also Atkin's Encyclopaedia of Court Forms and Precedents 1st Edn Vol 7 pp 30-33. The second edition of that work, Vol 38 (1995 Issue) contains the injunction, at 146, that "in all cases where the plaintiff relies upon the conspiracy it should be alleged that the defendants conspired `with intent to injure the plaintiff'" (citing Lonhro Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173). However, the only precedent of a statement of claim reproduced in that edition (at 294) is one alleging conspiracy to injure by lawful means. The omission from the second edition of the "unlawful means" precedents may reflect the doubt expressed in Fleming, The Law of Torts 8th Edn p 709 whether conspiracy "adds anything of substance to the conditions under which a single individual would be liable for the modern tort of interference with business by `unlawful means'".
Claim against ABC under Beaudesert principle
The allegation in paragraph 20B(b) of the further amended statement of claim that the adverse media reports and the original television broadcast made by the ABC constituted intentional and unlawful acts invokes the principle enunciated by the High Court in Beaudesert Shire Council v Smith (1966) 120 CLR 145 at 156 that "independently of trespass, negligence or nuisance by an action for damages upon the case, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from that other".
Doubts were subsequently cast on that principle, or at least its width, in Lonhro Ltd v Shell Petroleum Co Ltd (No 2) (supra) at 187-8, Dunlop v Woollahra Municipal Council [1982] AC 158, Kitano v The Commonwealth (1973) 129 CLR 151 at 173-4 and other cases most recently collected by Mullane in "Beaudesert Bounces Back" (1995) 111 LQR 44. In that note the learned author cautiously expressed the view that the decision of the Northern Territory Court of Appeal in Northern Territory of Australia v Mengel (1994) Aust Torts Rep 81-267 might lead to revived use of the principle in actions for damages flowing from the actions of governmental agencies.
However, that prospect has now been dispelled and the doubts which attended Beaudesert resolved by the High Court in Northern Territory v Mengel (unreported, High Court, Full Court, 19 April 1995) which declared that Beaudesert should no longer be followed. In the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ it was observed, at 21:
"The lack of authoritative support for the principle stated in Beaudesert, the difficulties associated with the notions of "unlawful act" and "inevitable consequence", and the further difficulty of reconciling liability under that principle with the limitations upon liability for negligence and for breach of statutory duty and with the general trend of legal development confining liability to intentional or negligent infliction of harm compel the conclusion that Beaudesert should no longer be followed."
Their Honours went on, at 22, to reject a reformulation proposed by the respondents to the effect that liability should attach for unlawful acts causing harm when harm is foreseeable and is, in fact, foreseen. That reformulation was described as suffering:
"from the same critical defects as the Beaudesert principle. It is not supported by authority, it runs counter to the trend of legal development and, also, counter to the limitations which have been placed on liability for damages flowing from breach of statutory duty. Further, the reformulation serves no useful purpose in cases where there is a duty of care to avoid foreseeable harm and is anomalous in cases where there is not, at least if the plaintiff is not actuated by an intention to harm. Subject to the qualification that there may be cases in which there is liability for harm caused by unlawful acts directed against a plaintiff or the lawful activities in which he or she is engaged, the Beaudesert principle should be overruled."
Not having the benefit of the High Court's authoritative pronouncement, Counsel for the ABC contended that there is nothing in paragraphs 20 to 20B of the further amended statement of claim to identify the basis on which the intentional acts attributed to that respondent are said to be unlawful. As I understood the case which Counsel for Elliott contended was disclosed by the pleadings, it was that the NCA procured references which it knew were invalid and that the respondent Crabb unlawfully disclosed to the ABC and other entities controlling media outlets the fact that investigations were being undertaken pursuant to those references. However, those facts did not, of themselves, establish that either the ABC's making of the adverse media reports or the original television broadcast was intentionally unlawful as performed by the ABC. The recent judgment of the High Court now makes it unnecessary to consider whether sub-paragraph 20B(b) of the further amended statement of claim can be saved by further amendment. That sub-paragraph must be struck out.
Conclusion as to claims against the ABC
Although I have upheld certain criticisms which have been made on behalf of the ABC of the further amended statement of claim, I do not consider that the conclusions which I have reached require the whole of the pleading as against the ABC to be struck out; see Coe v The Commonwealth (1979) 53 ALJR 403 per Jacobs J at 409 and Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305 per Lockhart J at 323. Rather, I consider that the ambiguities and omissions to which I have drawn attention, except those involved in invoking the Beaudesert principle, can be cured by appropriate amendments and additions to the existing pleading. I shall therefore give leave to the applicant further to amend the further amended statement of claim as against the ABC in such manner as he may be advised.
The alternative grounds raised by paragraph 2 of the ABC's notice of motion should await consideration in the light of whatever amendments are made to the further amended statement of claim pursuant to the leave which I have just resolved to grant. Any correspondence between the cause of action against the ABC which may be disclosed by the pleading in this Court, and the cause of action in the Supreme Court of Victoria can then better be evaluated.
The applicant must pay the ABC's costs of and incidental to the motion on notice dated 11 March 1994 and any of that respondent's costs thrown away as a result of the further amendment.
THE CLAIM AGAINST CRABB
Paragraph 6 of the further amended statement of claim alleges in respect of one reference to the NCA ("the Bowen reference") that it was made:
"(b)for a purpose other than the purpose for which the power to make references was conferred, being one or more of the following purposes:
i)bringing the Applicant into disrepute;
ii)causing electoral disadvantage to the Liberal Party in the 1990 Federal Election;
iii)giving an electoral advantage to the Australian Labor Party in the 1990 Federal Election."
It is then pleaded under the heading "Crabb reference" that:
"10.In furtherance of one or more of the purposes referred to in paragraph 6 above, the then Minister for Police and Emergency Services for the State of Victoria, Steven Marshall Crabb (Crabb), who was, at all relevant times, a member of the Inter-Governmental Committee:
(a)informed the Australian Broadcasting Corporation of the Bowen reference;
(b)purported to refer a matter concerning the Applicant to the NCA for investigation pursuant to the Act (the Crabb reference).
PARTICULARS
The Crabb reference is in writing dated 15 March 1990.
The Crabb reference was made without the approval of the Inter-Governmental Committee.
As a consequence, the Crabb reference did not authorise the NCA its officers, servants or agents to investigate any matter purportedly referred thereunder and was invalid.
Further, the Crabb reference did not authorise or purport to authorise the NCA its officers, servants or agents to investigate the foreign exchange matter."
Crabb has been added as the sixth respondent to the application by Elliott and paragraph 13A which is quoted above under the heading "Action against the ABC" has been inserted in the further amended statement of claim specifically in relation to Crabb. The particulars subjoined to that paragraph are:
"PARTICULARS
The conspiracy was entered into at some time in about 1989. The conspiracy is to be inferred from the following facts and matters:
Throughout 1989 the Applicant was the Chief Executive of Elders IXL Limited and a shareholder, director and chairman of the board of Elders and a shareholder, director and chairman of the board of Harlin Holdings Pty Ltd, Federal President of the Liberal Party and President of the Carlton Football Club.
In 1989 Crabb was Minister for Police and Emergency Services for the State of Victoria and a member of the Inter-Governmental Committee appointed under the Act.
In 1989 Hawke was Prime Minister of Australia, Keating was the Treasurer of the Commonwealth of Australia and Bowen was the Attorney-General.
Each of Hawke, Keating, Bowen and Crabb were members of the Australian Labor Party.
In September 1989 a Part C offer made by Harlin Holdings to the share-holders of Elders IXL Ltd had resulted in Harlin Holdings acquiring 56% of the shares in Elders IXL Ltd.
Towards the end of 1989 Elders was negotiating for a restructuring of its businesses. The restructuring proposals under negotiation were widely publicised.
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.
A Federal election was required to be held in the first half of 1990.
Towards the end of 1989 it became a strategic policy of the Labor Party to attack the Applicant personally.
In later 1989 and early 1990 the Applicant was in fact attacked in the print and other news media.
On about 14 November 1989 Keating said that the strategy of attacking the Coalition through the Applicant was correct.
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.
On 21 December 1989 Bowen purported to issue the Bowen reference.
At the time the Bowen reference was made and issued it was known by Bowen and by the NCA to be invalid.
On 24 January 1990 Keating said of the Applicant that "he is going to cop it right in the neck".
On 16 February 1990 Hawke announced the Federal election which was to take place on 24 March 1990.
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.
In about February 1990 Bowen had authorised the leaking of information to the media of and concerning an alleged investigation by the NCA into the affairs of the Applicant.
The Crabb reference was made and dated 15 March 1990.
The matters alleged in paragraphs 5 to 13 above and 14 to 19 below."
Paragraph 13B of the further amended statement of claim, also directed to Crabb, is in these terms:
"13B.Further, the conduct of Crabb referred to in paragraph 10 above constituted:
(a)a misfeasance in public office;
(b)an abuse of process; and
(c)an intentional and unlawful act -
by reason whereof the Applicant has suffered and continues to suffer loss and damage."
By motion on notice dated 21 March 1994, Crabb seeks the following orders:
Pursuant to Order 20, Rule 2, the proceeding herein be dismissed as against the Sixth Respondent on the grounds that no reasonable cause of action is disclosed.
The proceedings hereby be stayed as against the Sixth Respondent as an abuse of the process of this Honourable Court."
The claim in conspiracy against Crabb
Although paragraph 13A of the further amended statement of claim alleges that "the conduct of Crabb referred to in paragraph 10 above was in furtherance of a conspiracy between Robert James Lee Hawke, Paul John Keating, Lionel Frost Bowen and others", it is not specifically alleged in either paragraph 10 or paragraph 13A itself that Crabb was a party to an agreement so as to constitute him a co-conspirator with the three persons named in paragraph 13A. It is true that paragraph 10 imputes to Crabb that he performed two actions "in furtherance of one or more of the purposes referred to in paragraph 6". However, whether or not the expression "in furtherance of" is understood as having the subjective connotation discussed above in relation to the claim against the ABC, paragraphs 10 and 6 do not necessarily signify a common purpose arrived at as a result of any agreement or combination between Crabb and one or more of Hawke, Keating and Bowen. It is equally open, on a fair reading of the two paragraphs together, to conclude that Crabb, independently of any of Hawke, Keating or Bowen, but to achieve one or more of the purposes which actuated them, informed the ABC of the Bowen reference and initiated the Crabb reference.
It may be said that the ambiguity to which I have just drawn attention is resolved by the particulars subjoined to paragraph 13A, especially sub-paragraphs (ii), (iv), (vii), (xvii) and (xix) which expressly refer to Crabb. However, I am not persuaded that those references alone or in combination necessarily negative the alternative inference that Crabb's actions were coincidental with those of the named co-conspirators although actuated by some or all of the same purposes. In any event, it is trite law that one cannot resort to particulars to supply deficiencies of allegations of material fact in the body of a pleading; see eg Rubenstein v Truth and Sportsman Ltd [1960] VR 473 at 476 citing Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-13.
Accordingly, for the reasons outlined above in respect of the claim in conspiracy against the ABC, I consider that this part of the further amended statement of claim should be amended to make clear all of the necessary elements of that cause of action against Crabb.
Misfeasance or abuse of public office
Counsel for Crabb pointed to the observations of the Privy Council in Dunlop v Woollahra Municipal Council [1982] AC 158 as supporting the contention that a plea of misfeasance of public office must allege that the defendant knew of the invalidity of his action and undertook it maliciously in the sense of intending to cause harm to the plaintiff. In the passage relied on from the reasons of the Board, it was observed, at 172:
"In pleading in paragraph 15A of the statement of claim that the council abused their public office and public duty the plaintiff was relying upon the well-established tort of misfeasance by a public officer in the discharge of his public duties. Yeldham J rightly accepted that the council as a statutory corporation exercising local governmental functions was a public officer for the purposes of this tort. He cited a number of authorities upon the nature of this tort, to which their Lordships do not find it necessary to refer, for they agree with his conclusion that, in the absence of malice, passing without knowledge of its invalidity a resolution which is devoid of any legal effect is not conduct that of itself is capable of amounting to such "misfeasance" as is a necessary element in this tort. So, in their Lordships' view, the claim as framed in paragraph 15A also fails."
However, in Little v Law Institute of Victoria [1990] VR 257, Kaye and Beach JJ (with whom Ormiston J agreed on this point) reviewed a number of earlier authorities on the tort of misfeasance in a public office, including Brasyer v Maclean (1875) LR 6 PC 398 and Farrington v Thompson and Bridgland [1959] VR 286 as well as Dunlop v Woollahra Municipal Council (supra) and concluded, at 270:
"We are therefore of the opinion that the omission from paras 10(1) and (2)(a) of an allegation of malice does not invalidate the pleading of the cause of action of misfeasance in a public office, and that at the trial of the action the plaintiff might prove his cause of action by proving that at the time when the second-named respondent commenced either the restraining proceedings or the committal proceedings he knew that the regulations had been made invalidly."
The elements of the cause of action for misfeasance in a public office were also examined by the High Court in Northern Territory v Mengel (supra). In the joint judgment of Mason CJ and Dawson, Toohey, Gaudron and McHugh JJ, after discussion of Farrington v Thompson and Bridgland (supra) and Tampion v Anderson [1973] VR 715, the Court observed at 25:
"The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. See James v The Commonwealth (1939) 62 CLR at 359-360 per Dixon J. See also Racz v Home Office [1924] 2 WLR 23 at 25-28 per Lord Jauncey of Tullichettle. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton [1897] 2 QB 57, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.
It may be that analogy with the torts which impose liability on private individuals or the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin SA v Ministry of Agriculture [1986] QB 716, namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm."
In the same case Brennan J indicated, at 37, that something further, relating to the state of mind of the public officer when the relevant act is done or the omission is made, is required in order to constitute the tort. His Honour continued, at 39:
"I respectfully agree that the mental element is satisfied either by malice (in the sense stated) or by knowledge. That is to say, the mental element is satisfied when the public officer engages in the
impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform the functions of a public office is reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce. The state of mind relates to the character of the conduct in which the public officer is engaged - whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury. In my opinion, there is no additional element which requires the identification of the plaintiff as a member of a class to whom the public officer owes a particular duty, cf Tampion v Anderson [1973] VR 715 at 720, though the position of the plaintiff may be relevant to the validity of the public officer's conduct. For example, the officer's administrative act may be invalid because he or she did not treat the plaintiff with procedural fairness. It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete."
A similar conclusion was expressed by Deane J at 55.
In my view, the allegation in paragraph 10 of the further amended statement of claim that the actions there specified had been done in furtherance of one or more of the purposes referred to in paragraph 6 amounts to a clear imputation that those actions were performed for an ulterior purpose. If made out, that plea would establish knowledge of invalidity and likelihood of causing damage arising from the ulterior purpose. On the authority cited above together with Jones v Swansea City Council [1990] 1 WLR 54 at 69 and 71, it is not necessary in this context to plead malice as well. However, the combination of allegations to which I have referred which imputes, as one of Crabb's ulterior purposes, "bringing the Applicant into disrepute" is probably sufficient also to
constitute an allegation of malice on the part of Crabb. For these reasons, I am satisfied that the further amended statement of claim discloses, as against Crabb, a cause of action in misfeasance in a public office.
Abuse of process
This cause of action against Crabb is alleged in paragraph 13B(b) of the further amended statement of claim to have been constituted by his conduct referred to in paragraph 10, namely informing the ABC of the Bowen reference and initiating the Crabb reference to the NCA. In my view, it is of the essence of the tort of abuse of process that damage be suffered as a result of the misuse or abuse of the process of the courts; see eg Hanrahan v Ainsworth (1990) 22 NSW LR 73 per Clarke JA at 107, Williams v Spautz (1992) 174 CLR 509, Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 and Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509. Neither of the acts attributed to Crabb in paragraph 10 involved the use in any way of the process of any court. Although it could be said that the making of the Crabb reference to the NCA had, as a possible consequence, the institution of criminal proceedings, the connection is too remote and tenuous to permit a finding of an abuse by Crabb of the process of any court. Accordingly, paragraph 13B(b) of the further amended statement of claim should be struck out.
The claim against Crabb under the Beaudesert principle
The overruling of Beaudesert discussed in relation to the claim against the ABC has the consequence that the corresponding claim against Crabb cannot be sustained. Accordingly, sub-paragraph (c) as well as sub-paragraph (b) of paragraph 13B of the further amended statement of claim must be struck out.
Conclusion on claims against Crabb
Consistently with the course which I have taken in respect of the claims against the ABC, I shall give the applicants leave further to amend the further amended statement of claim as against Crabb (excluding the claim for abuse of process and that invoking the Beaudesert principle) as the applicants may be advised. Since Crabb has succeeded in most, although not all, of his attacks on the applicants' pleadings, I consider that the applicants should pay his costs of and incidental to the motion on notice dated 21 March 1994.
I certify that this and the preceding fifty three (53) pages are a true copy of the reasons for judgment of his Honour Justice Ryan
Associate:
Date:
VG 410 of 1993
Counsel for the applicant: Mr D Galbally
Solicitors for the applicant: Holding Redlich
Counsel for the first, second Dr C Jessup QC
and third respondents: with Mr B Walters
Solicitors for the first, second Australian Government
and third respondents: Solicitor
Counsel for the fourth Mr F Costigan QC
respondent:with Mr P Jopling
Solicitors for the fourth Solicitor to the Director
respondent: of Public Prosecutions for the State of Victoria
Hearing dates: 26-29 April 1994
VG 411 of 1993
Counsel for the applicant: Mr J Sher QC
with Mr G McEwen
Solicitors for the applicant: G W P Aarons & Co
Counsel for the first, second Dr C Jessup QC
and third respondents: with Mr B Walters
Solicitors for the first, Australian Government
second and third respondents: Solicitor
Counsel for the fourth respondent: Mr F Costigan QC
with Mr P Jopling
Solicitors for the fourth Solicitor to the Director
respondent: of Public Prosecutions for the State of Victoria
Counsel for the fifth respondent: Mr M Sexton
Solicitors for fifth respondent: Howie & Maher
Counsel for the sixth respondent: Mr A Southall
Solicitors for sixth respondent: Maurice Blackburn
Hearing dates: 26-29 April 1994
VG 434 of 1993
Counsel for the applicants: Mr W Lally QC
Solicitors for the applicants: Phillips Fox
Counsel for the first, second Dr C Jessup QC
and third respondents: with Mr B Walters
Solicitors for the first, second Australian Government
and third respondents: Solicitor
Counsel for the fourth respondent: Mr F Costigan QC
with Mr P Jopling
Solicitors for the fourth Solicitor to the Director
respondent:of Public Prosecutions for the State of Victoria
Hearing dates: 26-29 April 1994
0
45
0