Jarrett, K.C. v Seymour, S.D. & Ors Elliott, J.D. v Seymour, S.D. & Ors Camm, P. & Ors v Seymour, S.D.

KENNETH CHARLES JARRETT; JOHN DORMAN ELLIOTT; PETER CAMM; PETER DAMIEN SCANLON
and KENNETH ROBERT BIGGINS v. SERGEANT DOUGLAS SEYMOUR; THOMAS SHERMAN;
NATIONAL CRIME AUTHORITY; DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF
VICTORIA; AUSTRALIAN BROADCASTING CORPORATION and STEVEN MARSHALL CRABB
Nos. VG410, VG411 and VG434 of 1993
FED No. 834
Number of pages - 38
Injunctions - Criminal Law And Procedure - Jurisdiction Practice And Procedure
- Malicious Procedure And False Imprisonment - Administrative Law - High Court
And Federal Court Judiciary
(1993) 119 ALR 10
(1993) 46 FCR 521
(1993) 71 A Crim R 209

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
FOSTER J

CATCHWORDS

Injunctions - Interlocutory Injunctions - injunctions sought to restrain laying of criminal charges - allegations of improper investigation by National Crime Authority - whether a civil court may prevent the laying of criminal charges - whether exceptional circumstances.

Criminal Law And Procedure - Jurisdiction Practice And Procedure - power of civil court to review investigation by National Crime Authority - whether police officer acting independently - whether a civil court may prevent the laying of criminal charges.

Malicious Procedure And False Imprisonment - Abuse of Process - investigation by National Crime Authority - alleged politically motivated conspiracy - whether investigation authorised by references - whether laying of criminal charges would be an abuse of process.

Administrative Law - Administrative Decisions (Judicial Review) Act 1977 (Cth) - National Crime Authority - whether investigation authorised by references - whether investigation a politically motivated conspiracy - whether police officer seconded to the National Crime Authority independently deciding to lay charges - involvement of Victorian Director of Public Prosecutions in giving advice - whether any decision or conduct under an enactment.

High Court And Federal Court Judiciary - Federal Court of Australia - s 4(5) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) - review of investigation by National Crime Authority - charges proposed to be laid by person in capacity as Victorian police officer - involvement of Victorian Director of Public Prosecutions in advising and future prosecution - whether a "criminal matter".

Judiciary Act 1903 (Cth) - s 39B

Federal Court of Australia Act 1976 (Cth) - s 32

Administrative Decisions (Judicial Review) Act 1977 (Cth)

National Crime Authority Act 1984 (Cth) - s 4, s 7, s 8, s 8(7), s 9, s 9(1)(b), s 9(1)(c), s 10, s 11(1)(b), s 11(2), s 12, s 12(1)(a), s 12(1)(c), s 12(4)(a), s 12(4)(b) s 13, s 14, s 17, s 19, s 28, s 28(2), s 29

Director of Public Prosecutions Act 1982 (Vic)

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) - s 4, s 4(5)

Barton v The Queen (1980) 147 CLR 75

Australian Coarse Grain Pool Pty Limited v Barley Marketing Board of Queensland (1983) 46 ALR 398, 57 ALJR 425

Epitoma Pty Limited v AMIEU (No 2) (1984) 54 ALR 730

Murphy v Lush (1986) 60 ALJR 523

MFI v National Crime Authority (1991) 33 FCR 449

Ross v Costigan (1982) 41 ALR 319 and 41 ALR 337

Melbourne Home of Ford Pty Limited and Ors v Trade Practices Commission and Anor 31 ALR 519

Reg v Ireland (1970) 126 CLR 321

Cleland v The Queen (1982) 151 CLR 1

Bunning v Cross (1978) 141 CLR 54

R v Amad (1962) VR 545

Foster v The Queen (1993) 67 ALJR 550

Pollard v The Queen (1992) 110 ALR 385

Rank Film Distributors Limited v Video Information Centre (1982) AC 380

In re Arrows Limited (No 4) (1993) 3 WLR 513

Seymour v Attorney-General (Cth) and Ors (1984) 57 ALR 68

Regina v Horseferry Road Magistrates' Court; Ex parte Bennett (1993) 3 WLR 90

Jago v The District Court of New South Wales and Ors (1989) 168 CLR 23

Connelly v Director of Public Prosecutions (1964) AC 1254

Director of Public Prosecutions v Humphreys (1977) AC 1

Smiles v Federal Commissioner of Taxation and Ors (1992) 109 ALR 449

Williams v Spautz (1992) 174 CLR 509

Clifford and O'Sullivan (1921) 2 AC 570

Provincial Theatres Limited v Newcastle on Tyne Profiteering Committee (1921) 90 LJ(KB) 1064

R v Army Council; ex parte Sandford (1940) 1 KB 719

HEARING

MELBOURNE, 5-9, 25-29 October; 1-5, 8 November 1993

#DATE 23:11:1993

Counsel For Jarrett: Mr D.N. Galbally

Instructed By: Holding Redlich

Counsel For Elliott: Mr J.L. Sher QC with

Mr J.G. Judd And Mr P. Hanks

Instructed By: G.W.P. Aarons And Co

Counsel For Camm, Scanlon
And Biggins: Mr W.F. Lally

Instructed By: Philips Fox

Counsel For The First, Second Dr C.N. Jessup QC with
And Third Respondents: Mr B.E. Walters

Instructed By: Australian Government Solicitor

Counsel For The Fourth Respondent: Mr F.X. Costigan QC with

Mr P. Jopling

Instructed By: Director Of Pubic Prosecutions

For The State Of Victoria

Counsel For The Fifth Respondent: Mr M.G. Sexton

(26 October 1993 Only)

Instructed By: Howie And Maher

ORDER

The Court orders that:

1. In proceedings VG 410 of 1993, VG 411 of 1993 and VG 434 of 1993 the applicants' claims for interlocutory relief be dismissed.

2. In proceedings VG 411 of 1993 the applicant's notice of motion filed on 30 September 1993 be dismissed.

3. In proceedings VG 410 of 1993 orders 3 and 4 made on 29 September 1993, and as subsequently amended and extended, be vacated.

4. In proceedings VG 411 of 1993 orders 3 and 4 made on 29 September 1993, and as subsequently amended and extended, be vacated.

5. In proceedings VG 434 of 1993 order 2 made on 13 October 1993, and as subsequently extended, be vacated.

6. Costs reserved.

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

JUDGE1

FOSTER J The Court has before it applications for interlocutory relief brought on behalf of the applicants in all these proceedings. These seek the continuance of interlocutory injunctions pending the disposal of the proceedings. This is opposed by the respondents who seek the revocation of the injunctions already made. All the applicants have been represented before me and counsel have presented arguments on their behalf. It may be noted, however, at the outset of these reasons, that the major arguments in the case for the continuance of interlocutory orders have been put on behalf of the applicant John Dorman Elliott ("Elliott") and that these arguments have been adopted, where applicable, by the applicant Kenneth Charles Jarrett ("Jarrett") and the applicants Peter Camm ("Camm"), Peter Damien Scanlon ("Scanlon") and Kenneth Robert Biggins ("Biggins"). Some additional submissions have been made on behalf of these other applicants, but it is accepted that if Elliott is unsuccessful in obtaining the interlocutory relief that he seeks, then the other applicants will also be unsuccessful.

All the applicants were, at relevant times, directors and/or senior officers of Elders IXL Limited ("Elders") and, it may be assumed, are the subject of allegations as to their involvement in what has been described in evidence as the "foreign exchange matter". It may also be accepted that, were it not for interlocutory injunctions currently in place, Elliott and Jarrett would already have been charged with alleged offences relating to the "foreign exchange matter", under the law of the State of Victoria. Although it is, perhaps, not so plain that Camm, Scanlon and Biggins would have each been charged in a similar way, I consider it appropriate to approach these proceedings on the basis that, were it not for the current injunctions restraining the laying of such charges, these applicants would also have been charged.
The first respondent, Sergeant Douglas Seymour ("Seymour") is a member of the Australian Federal Police. He is a very experienced policeman and has since January 1993 been seconded to the staff of the National Crime Authority. He is currently, also, a member of the Victorian Police Force, having been sworn in as a Special Constable.
The second respondent, Thomas Sherman ("Sherman"), is the Chairperson of the National Crime Authority, a position which he has held since February 1992. The third respondent, the National Crime Authority (the "NCA") is the organisational entity established by s 7 of the National Crime Authority Act 1984 (Cth) (the "NCA Act"). It does not appear to be a body corporate and therefore consists of its members for the time being. Nothing turns on this for the purpose of these proceedings.
The fourth respondent, the Victorian Director of Public Prosecutions (the "DPP") is the person appointed to that position for the State of Victoria pursuant to the Director of Public Prosecutions Act 1982 (Vic).
Putting the matter in broad terms at this stage, the NCA has been investigating, pursuant to its powers in this regard, the involvement of the applicants and others in what has been described as the "foreign exchange matter". This investigation has, apparently, been proceeding for in excess of two years with work being done by members of the NCA and its staff. Since January this year Seymour has been actively engaged in this investigation as a police officer on the staff of the NCA. The investigation has been conducted pursuant to references given to the NCA under the provisions of ss 13 and 14 of the NCA Act. The DPP has been providing advice to the NCA in relation to these investigations for the period of the last two years. As at September of this year, the investigations had reached the stage where it was proposed that charges be laid against Elliott and Jarrett in relation to the "foreign exchange matter". These charges were to be laid under the law of the State of Victoria. In general terms they were to be charges of theft from Elders of the amount of some $66 million and related charges of conspiracy to defraud the company. Seymour was to lay these charges not as a member of the staff of the NCA nor as a member of the Australian Federal Police, but as a member of the Victorian Police. To this end he had been, purportedly, sworn in as a member and Special Constable of that force in January. On the laying of the charges by Seymour, it was intended that the DPP, pursuant to his statutory role, would take over the prosecution of the charges in the criminal justice system of the State of Victoria. The injunctions already granted in these proceedings have prevented the occurrence of these events. If the injunctions are not continued, it is, apparently, proposed that the laying of charges and their prosecution will take place in this fashion. The propriety and legality of these procedures has been called into question in these proceedings in ways to which I shall make reference hereafter.
The proceedings before this Court commenced with ex parte applications made before Olney J on 27 September. The applications were made on behalf of Elliott and Jarrett. Ex parte injunctions were granted on that day against Seymour, Sherman and the NCA. They were later widened in scope and, on 29 September 1993 the DPP was added as a further respondent. As part of the orders made by Olney J the applicants were required to file and serve applications, statements of claim, affidavits and notices of motion for the continuance of the injunctions. Orders were also made by Olney J, on the applicants' application, that any publication of the proceedings be prohibited until further order and that the proceedings themselves be heard in camera. The notice of motion for the continuance of the injunctions was set down to be heard, subject to these restraints, on 5 October, on which day the matter came on for hearing before me.
On 5 October, counsel appearing for the respondents submitted that the orders previously made prohibiting publication of the proceedings and for their hearing in camera should be revoked. There then ensued a heavily fought contest as to whether these suppression orders should continue. This occupied the balance of the week and resulted in my giving judgment on Saturday 9 October in which I revoked the orders previously made. In relation to the revocation of these orders I have given separate reasons for judgment and shall not further refer to the matter in these reasons. An application for leave to appeal against the revocation of these orders was made to a Full Court of this Court which was constituted urgently for the purpose of the application. Leave was refused. Again, there is a separate judgment of the Court relating to those proceedings.
In view of the general urgency of these proceedings, I made special arrangements for their continuance on Monday 25 October. The hearing of these proceedings, which are interlocutory in nature, continued until Monday 15 November. Prior to the recommencement of the hearing, I granted interlocutory injunctions to Camm, Scanlon and Biggins on the basis that their applications for the continuance of the injunctions would be heard concurrently with those of the other applicants on 25 October. During the course of the proceedings after 25 October, I granted the application of Elliott to join as respondents in the proceedings instituted by Elliott's statement of claim filed on 30 September the Australian Broadcasting Commission (the "ABC") and Steven Marshall Crabb ("Crabb"). The application was opposed by the present respondents and also by counsel for the ABC who sought and was granted leave to be heard. The two further respondents were joined for the purpose of other relief sought in the statement of claim. The injunctions the subject of these applications for interlocutory relief do not relate to them. They have, accordingly, played no part in the argument of the issues presently before me.
Before I turn to those issues, it may be noted that events have, to some extent, overtaken the proceedings as originally formulated. At the time when these proceedings first came before Olney J, orders were being sought for the purpose of preventing Seymour laying charges against Elliott on Monday 27 September. A "cautioned" interview was to be held, it was alleged, in circumstances where if Elliott did not answer the questions that Seymour wished to put to him in relation to the "foreign exchange matter", he would be charged with relevant offences under Victorian law. Efforts had been made by Elliott's solicitors to obtain a deferral of this interview on the basis that it came at a most inconvenient time for Elliott. He was about to travel to Russia in order to finalise commercial negotiations which related to the disposal of a large portion of Australia's wool stockpile. These negotiations were said to be in the national interest and, consequently, provided a reasonable basis for the postponement of the interview. The postponement was asked for not only on the basis of the inconvenience that would be occasioned to Elliott but also on grounds relating to his becoming, perhaps, a persona non grata in the eyes of relevant Russian government officials should the charges be laid against him whilst the negotiations were on foot. The evidence makes it clear that Seymour referred the question of the postponement of the interview to his immediate superiors in the NCA with the result that Sherman himself ultimately became involved in the question. There was a discussion between Sherman and Mr Crean, the relevant Minister in the Commonwealth Government, the details of which appear in the affidavits in these proceedings and which do not require further mention here. The upshot was that the postponement was refused and the interlocutory injunctions were accordingly sought and obtained.
The revocation of the suppression orders has severely diminished the significance of the Russian negotiations as a factor in these proceedings. It is not suggested that they have any current relevance except to a very minor extent in relation to the issue of the balance of convenience. Also the alleged manner in which the threatened interview was to be conducted on 27 September is now of marginal, if any, significance. There was a dispute as to whether Seymour intended to conduct it in a manner which would necessarily render inadmissible in evidence anything that Elliott might say, the threat of prosecution being, it was said, used to induce Elliott to abandon his right to silence. This matter has disappeared from the present proceedings except that it has, perhaps, been faintly argued that if Seymour is not restrained by the continuance of the injunctions he will seek to establish a similarly flawed interview with Elliott. I see no real prospect of this occurring, with the result that, even on a quia timet basis, I can see no present purpose in considering the matters raised in the evidence which related specifically to the intended earlier interview. They may be put to one side.
What is now sought on behalf of the applicants is the continuance of interlocutory injunctions restraining the laying of charges against them pending the determination of the proceedings brought against the respondents by their respective statements of claim. Injunctions are sought, quia timet, on the basis that if restraining orders are not made the charges will be laid and grievous damage will be done to them by that very fact. Such damage, it is submitted, could never be properly compensated for by any subsequent award of damages, however large. Reliance is placed upon statements of high authority to the effect that the mere laying of charges can cause harm which cannot, in the nature of things, be properly redressed by subsequent acquittal and successful proceedings for malicious prosecution (see for example Barton v The Queen (1980) 147 CLR 75 at 96-97 per Gibbs ACJ and Mason J, where their Honours said, "The view that there can be no injustice or unfairness to an accused in putting him on trial without reasonable grounds merely because he will be ultimately acquitted and because he can bring an action for damages for malicious prosecution has been emphatically rejected, as indeed it should be.")
The applicants assert that these proceedings will result in this Court granting permanent injunctions against the respondents which will have the effect of preventing charges being laid against them. They submit that the material placed before me indicates that there is a serious issue to be tried as to their entitlement to such relief and that the balance of convenience requires that such relief be granted now on an interim basis. (Australian Coarse Grain Pool Pty Limited v Barley Marketing Board of Queensland (1983) 46 ALR 398, 57 ALJR 425; Epitoma Pty Limited v AMIEU (No 2) (1984) 54 ALR 730; Murphy v Lush (1986) 60 ALJR 523)
The orders the continuance of which are sought (taken from Elliott's notice of motion) are as follows:-

"2. An injunction until the hearing and determination of the Application or further Order restraining the 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. ...

4. An injunction until the hearing and determination of the Application or further Order restraining the 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 paragraph 2 above."

On behalf of the applicants it is submitted that this Court has jurisdiction to grant this interlocutory relief and, of course, the final relief claimed in the statement of claim, on several bases. First, it is asserted that jurisdiction is conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act") in that reviewable decisions have been made pursuant to "an enactment", the NCA Act, which involve flaws of such a serious nature as to entitle the applicants to appropriate injunctive relief pursuant to the provisions of the statute. Secondly, it is contended that Seymour, Sherman and the NCA have all relevantly been performing activities in their role as officers of the Commonwealth which have been unlawful and have been detrimental to the applicants. Accordingly, it is said that they are amenable to injunction pursuant to s 39B of the Judiciary Act 1903 (Cth).
As to the DPP, and Seymour insofar as he purports to act as a Victorian policeman, it is submitted by the applicants that they are amenable to the jurisdiction of this Court either as a result of the relevant cross-vesting legislation or because of the accrued jurisdiction of this Court pursuant to s 32 of the Federal Court of Australia Act 1976 (Cth).
Allowing for this Court having jurisdiction in those ways, the applicants claim that there has been demonstrated in this hearing a serious question to be tried as to their entitlement to permanent injunctive relief on bases which can reasonably be summarised as follows (again taking Elliott's case as the appropriate example).

(a) The investigations which have been conducted by the NCA since early 1990 into Elliott's alleged involvement in the "foreign exchange matter" have, at all relevant times, been conducted mala fide with the ulterior purpose of damaging his reputation for political reasons. In this regard the NCA from the inception of the investigations has connived with certain Australian Labor Party politicians to use this investigation as a vehicle for attacking Elliott having regard to his prominence in Liberal Party politics.

(b) The NCA, additionally (or, perhaps, only alternatively) had at relevant times the ulterior purpose in relation to this investigation of proving that it was an efficient investigative organ, that it was not afraid to use its powers against "tall poppies" and that the high cost of the investigation into the "foreign exchange matter" was fully justified. This purpose, it was put, related in no small measure to media criticism of its inactivity in this regard as contrasted with the activity of the New Zealand Serious Fraud Office which succeeded in securing the conviction in New Zealand of Mr Alan Hawkins and others who were connected, it was said, at least indirectly with the "foreign exchange matter".

(c) Seymour and Sherman were relevantly connected with the ulterior purposes of the investigation and were "tainted" by them.

(d) The "references" relied upon by the NCA, pursuant to ss 13 and 14 of the NCA Act, were not valid references insofar as the necessary consultation and approval required by the sections had not been obtained prior to their issue.

(e) Even if, contrary to the above submission, the references had been properly established, they were not, by their terms, capable of authorising an investigation into the "foreign exchange matter".

(f) As a result of (d) and (e) the NCA was not authorised to investigate the "foreign exchange matter" or to investigate the matter by utilising its coercive powers of investigation provided by ss 28 and 29 of the NCA Act.

(g) As a result, the evidence acquired by the unlawful use of its powers would certainly be held to be inadmissible in any prosecution of Elliott and the other applicants.

(h) The NCA and Seymour (and presumably Sherman) must have known or be held to have known that at all relevant times they were acting unlawfully in investigating the "foreign exchange matter" by the use of their coercive powers. By persisting in this conduct they committed a flagrant abuse of their investigatory powers and, in doing so, nullified the safeguards which Parliament had put in place to protect citizens against unwarranted invasion of their civil rights, namely that the NCA's coercive powers, denied to ordinary police forces, would be used only when authorised by the terms of a reference properly obtained in accordance with the NCA Act.

(i) The NCA, as it and Sherman well knew, was not empowered by the NCA Act to lay charges against any citizen. It was required, pursuant to s 12 of the NCA Act, where its investigations indicated that it might be appropriate for charges to be laid against a citizen, to hand the matter over to an appropriate Commonwealth or State law enforcement agency. Despite this requirement it unlawfully adopted a "device" of handing the matter over to a policeman, in this case Seymour, a member of its staff. The "device" was further effectuated by requiring the policeman staff member to go through "the charade" of joining the police force of the State in which the charges were to be laid, so that the charges could be laid in accordance with the law of the relevant State.

(j) This "procedural device" was adopted so that the NCA could retain control of the matter in circumstances where, its investigation being completed, it should have relinquished control.

(k) As a matter of construction of the NCA Act this procedure was unlawful and would have been known to be unlawful.

(l) The DPP, as admitted, had been rendering advice to the NCA in relation to the "foreign exchange matter" for approximately two years. It was doing so on the basis that when the investigation reached a stage appropriate to the laying of charges, an appropriate policeman in the employ of the NCA, in this case Seymour, would be temporarily made a member of the Victorian Police Force so that, in ostensible exercise of an independent judgment as a member of that force, he could lay the charges formulated as a result of the DPP's advice. Upon the laying of such charges, the DPP would take over the prosecution in accordance with the relevant Victorian statute. It would then conduct the case against Elliott and the others on the basis of evidence acquired by the NCA through use of its coercive powers.

(m) This entire procedure was unlawful and would have been known to be unlawful. The DPP was not entitled to play any role, by advice or otherwise, in the NCA's investigation. The NCA should have investigated the matter without reference to the DPP and, when satisfied that the investigation was complete and the material gathered was such as to warrant consideration by a prosecuting authority for the purpose of considering whether charges should or should not be made, it should then have handed the material over to the DPP or the Victorian police. At no time was the DPP entitled, itself, to make use of the NCA's coercive powers of investigation. Under its statute it could utilise only the investigatory powers of the Victorian Police Force. These did not include coercive powers such as those provided by ss 28 and 29 of the NCA Act.

(n) The DPP was, at all relevant times, aware that it was acting unlawfully and was involving itself with the NCA and Seymour in an unlawful procedure in breach of the civil rights of Elliott and the other applicants.

These are the main contentions raised by the applicants. It may well be that the current applications and statements of claim do not adequately embrace them all. They have, however, been clearly enough raised in the hearing which has extended over a large number of days. I propose to approach this matter on the basis that these are the contentions which the applicants would wish to raise at a final hearing and to determine whether there has been demonstrated on the part of the applicants a serious issue to be tried in relation to them.
I should state that in addition to these topics there were other matters which were the subject of considerable debate before me. The question whether I was in a position to exercise the jurisdiction of a Victorian Supreme Court Judge in granting relief against persons who were neither relevantly officers of the Commonwealth for the purpose of s 39B of the Judiciary Act nor were making decisions under "an enactment" for the purpose of the ADJR Act was heavily in contest. There were also issues as to whether Seymour necessarily remained an officer of the Commonwealth even when performing a temporary role as a member of the Victorian Police Force. There were further questions as to whether he had been validly appointed a Special Constable in Victoria. Indeed, during the course of the proceedings, because of perceived problems in relation to his earlier appointment, he was in fact reappointed. These problems were very properly made known to me by Dr Jessup QC, counsel for the NCA. Whatever problems may stem from possible past defects in appointment, I am satisfied that I can approach this matter on this basis, that so far as Seymour seeks to act as a Special Constable in the Victorian Police Force in relation to future activity that appointment will now be formally and technically correct.
Debate also focused upon questions such as whether this Court had any power to forbid the laying of a charge and thus prevent the institution of the criminal justice process as against its undoubted power, exercisable only in exceptional circumstances, to interfere in the processes of criminal courts once those processes had begun. Questions as to whether Seymour had the power to lay a charge de facto even if not legally empowered to do so were the subject of extensive argument and reference to authority, much of very considerable antiquity. Also there was considerable debate on the question whether it was essential to the proper laying of a criminal charge, as opposed to the making of an arrest, that the person laying the charge should do so in the exercise of an independent discretion.
Matters going to the exercise of the Court's discretion also received a due measure of attention. The allegation was made on behalf of the DPP that Elliott did not come to Court "with clean hands" and was therefore disentitled in equity to seek the discretionary remedies of declaration and injunction. Reference was made to the fact that, concurrently with the application to Olney J to restrain the laying of charges, Elliott had made representations to the relevant Minister in the Victorian Government to bring pressure to bear upon the DPP, whose role is quite obviously intended to be independent of the Government, to abstain from the laying of charges, this matter not being made known to Olney J. In view of the decision I have come to on other grounds, I have not found it necessary to determine this matter.
Reliance was also placed by the respondents on the equitable doctrine of laches, it being alleged that Elliott had failed to make complaints about the alleged lack of authority in the NCA to investigate the "foreign exchange matter" on earlier occasions when it would have been appropriate to do so and that he was debarred from raising it only at the stage when it became obvious to him that he was about to be charged.
Much time was necessarily spent in Court in argument, factual and legal, in relation to these various topics. In the course of argument I was taken to numerous decided cases. Despite the sitting of extended hours in order to finalise the hearing, it was still the position that much of the case law cited was necessarily referred to briefly and discursively. Since reserving my decision in this matter I have found it necessary to read and re-read much of this material and also the transcribed arguments of counsel in order to arrive at my decision. It is not my intention in these reasons for interlocutory judgment to enter into any detailed analysis of the authorities which counsel have brought to my attention and which I have considered. Indeed, in view of the decision I have come to, it is neither necessary nor desirable that I express concluded views on many aspects of the case. It has been put to me on behalf of the applicants that the very complexity of many of the aspects of the argument in this case should necessarily indicate that the matter must be kept in statu quo until final determination. Whilst that may often be a valid argument for the granting or maintenance of interim relief, I am not persuaded that it is so in this case, for reasons to which I shall refer later.
In the list of topics set out above, those that relate to the allegation, in effect, of a conspiracy involving the NCA and Labor politicians are relevant only to the case that Elliott brings. Indeed, Elliott alleges that the ABC and Crabb were also parties to this conspiracy. All other topics, however, are common to the cases of all applicants. It is convenient, therefore, to consider in the first instance whether there has been demonstrated a serious issue to be tried in relation to those other topics.
It will be observed that it is central to a large number of these topics that the NCA should have undertaken its investigation into the "foreign exchange matter" without there being in existence any reference authorising it to do so. The allegations are twofold, namely (a) the references that existed and which are relied upon were not properly called into existence under the legislation and (b) that, even if they were, they were not apt to authorise the investigation that took place. It is necessary to consider each of these questions separately.
As to (a) it is necessary to have regard to particular sections of the NCA Act.
Sections 28 and 29 of the NCA Act provide powers to a member of the NCA to summon witnesses and take evidence from them and to require persons to produce documents to the NCA. These are compulsory powers which are not available to members of police forces conducting investigations in the ordinary way. They are special coercive powers given to the NCA for the purpose of its investigations. They are not exercisable by a member of the NCA "except for the purposes of a special investigation" (s 28(7)).
A "special investigation" is defined in s 4 of the NCA Act as meaning "an investigation that the Authority is conducting in the performance of its special functions". The "special functions of the Authority" are defined in s 11(2) of the NCA Act as being:-

(a) where a reference to the Authority made under section 13 is in force in respect of a matter relating to a relevant criminal activity - to investigate the matter in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or of a Territory; and

(b) where a reference to the Authority made in accordance with section 14 by a Minister of the Crown of a State is in force in respect of a matter relating to a relevant criminal activity - subject to subsection 14(1), to investigate the matter in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State."

"References" are the subject of definition and exposition in ss 13 and 14 of the NCA Act. Section 13 provides, so far as relevant, as follows:-

"(1) The Minister may, after consulting the Inter-Governmental Committee, by notice in writing to the Authority, refer a matter relating to a relevant criminal activity to the Authority for investigation in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or of a Territory.

(2) A notice under subsection (1) referring a matter to the Authority for investigation:

(a) shall describe the general nature of the circumstances or allegations constituting the relevant criminal activity;

(b) shall state that the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or a law of a Territory but need not specify the particular offence or offences; and

(c) shall set out the purpose of the investigation."

Section 14, so far as relevant, provides as follows:-

"(1) If a Minister of the Crown of a State has, whether or not pursuant to a law of the State, with the approval of the Inter-Governmental Committee, by notice in writing to the Authority, referred a matter relating to a relevant criminal activity to the Authority for investigation in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of that State and has not, by notice in writing to the Authority, withdrawn the reference, the Authority shall, with the consent of the Minister, perform the function of investigating that matter.

(2) A notice referred to in subsection (1) referring a matter to the Authority:

(a) shall describe the general nature of the circumstances or allegations constituting the relevant criminal activity;

(b) shall state that the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State but need not specify the particular offence or offences; and

(c) shall set out the purpose of the investigation."

The establishment of the Inter-Governmental Committee and its functions are provided for by ss 8 and 9 of the NCA Act. The Committee consists of a Commonwealth Minister to represent the Commonwealth and a Minister of the Crown to represent each State. Section 9 provides for the functions of the Committee. By s 9(1)(b) it is provided that it is a function of the Committee:-

"where the Commonwealth Minister proposes to refer under section 13 a matter relating to a relevant criminal activity to the Authority for investigation - to consult with the Commonwealth Minister in relation to the proposed reference."

By s 9(1)(c) it is another function of the Committee:-

"to consider whether approval should be given for a matter relating to a relevant criminal activity to be referred in accordance with section 14 by a Minister of the Crown of a State, or by Ministers of the Crown of 2 or more States, to the Authority for investigation."

There is no dispute that the "foreign exchange matter" would be a "relevant criminal activity" for the purpose of these sections.
There is no dispute that the role of the Inter-Governmental Committee provided for in these sections furnishes particular safeguards for the protection of citizens whose affairs are sought to be made the subject of "a special investigation" involving the use of the special coercive powers of ss 28 and 29. Such an investigation can only take place after a proper involvement of the Inter-Governmental Committee. It is the applicants' contention that they have demonstrated the existence of a serious issue to be tried as to whether the Inter-Governmental Committee was ever lawfully involved in the references relied on to support the investigations. Specifically, it is put that there is a serious issue as to whether an appropriate consultation took place or whether appropriate approval was given as required by ss 13 and 14.
In considering this aspect of the case it is necessary to have regard to certain matters referred to in the evidence. These are as follows.
On 16 February 1990 there was a general announcement that a Federal election was to be held on 24 March 1990. Elliott was then the Federal president of the Liberal Party of Australia and both for that reason and because of his prominence in the commercial world he was a well known public figure. As a lead-up to the election, certain Labor Party politicians indicated that Elliott would be made a special target in the Party's campaign. Statements were made to the effect that he represented the evil face of capitalism and the like, such statements being prominently reported by the media. On 23 February 1990, however, he received a different form of exposure in the media. The ABC in its "7.30 Report" on that day announced in the program, inter alia, that the NCA was conducting an investigation into Elliott's affairs and into matters relating to the well-known takeover of Elders by Harlin Holdings Limited. It is clear the program came as a shock to Elliott. He and his advisers considered it defamatory of him. He commenced proceedings for defamation in the Victorian Supreme Court against the ABC. Those proceedings are not yet resolved. However, as a result of discovery processes in those proceedings material came into the hands of Elliott and his advisers, which, as a result of the obtaining of relevant permission from the Supreme Court, has been used in these proceedings.

As was not infrequently pointed out to me in argument it is contended on Elliott's behalf that were it not for the discovery processes in the defamation proceedings there would have been little available information, at this stage, as to the NCA's investigation which has resulted in the current intention to lay charges against Elliott and the other applicants. It must be noted, however, that Elliott has himself appeared on two occasions before a member of the NCA to answer questions and produce documents pursuant to ss 28 and 29 of the NCA Act. I shall refer to these occasions in more detail later. The first occasion was 10 January 1991 and the second occasion was 21 June 1991. He was accompanied by counsel on each occasion. On each occasion he had received the relevant summonses under the NCA Act which were, as required by s 28(2), accompanied by a copy of the notice, or of each of the notices, by which the matter or matters to which the hearing related was or were referred to the Authority under s 13 or s 14. It is clear that with these summonses he received copies of references dated 10 September 1990 (Commonwealth), 5 September 1990 (Victoria) and 20 September 1990 (South Australia). These examinations would have provided Elliott and his advisers with information as to the nature of the NCA's inquiries as would the summonses and copy references.
The discovery processes, however, produced from the ABC other documents relating to the NCA investigations which were then in their possession. One such document is document A44, an exhibit to Elliott's affidavit of 30 September 1993 in these proceedings. Parts of the document are the subject of a suppression order made with the consent of all parties in these proceedings but, as submitted by Elliott's counsel, its contents are said to be illuminating when read with other material in the case. More importantly for present purposes, however, another document was discovered. This was a Commonwealth reference of 21 December 1989 under the hand of the then Attorney-General for the Commonwealth. There is nothing in this document which directly relates to any inquiry into Elliott or matters relating to the Harlin takeover of Elders. However, when read with the other document produced by the ABC, a reasonable inference arises that it does so relate. There is also evidence before me which suggests that Crabb, who was a member of the Inter-Governmental Committee, as a Minister in the Victorian Government, in fact provided this material to the ABC. There is also before me a statement by Crabb in the form of an affidavit, apparently intended for use in the defamation proceedings, which relates to the 1989 reference. Clearly it is not a statement concerning any meetings of the Inter-Governmental Committee prior to the issuing of that reference. It is directed to other matters. However, Crabb states in this affidavit that he was a member of the Committee and that he "became aware in early 1990 that the Authority had commenced an investigation into" the matter the subject of the reference.
On the basis of this statement, I have been asked on behalf of the applicants to find that a serious issue exists to the effect that there could not have been a consultation within the meaning of the NCA Act with the members of the Inter-Governmental Committee prior to the issue of the Commonwealth reference on 21 December 1989. This is not a finding that I am prepared make. The snippet of information in Crabb's affidavit is not directed towards any Committee meeting or consultation. It is directed towards Crabb's knowledge of whether an investigation had commenced. Clearly enough, investigations would not necessarily commence immediately upon receipt by the Authority of a relevant reference. Crabb's becoming aware early in 1990 of the commencement of an investigation cannot reasonably indicate, in my view, that he was not aware of a consultation in relation to the reference prior to its issue in December 1989. Moreover, the NCA has placed some evidence before me as to the Attorney-General's having held telephone conversations with members of the Committee prior to the issue of the reference and of his having stated that, in effect, there had been agreement by the Committee to its issue. Certainly, it is very much a hearsay document and, no doubt, better evidence could have been put before me by the NCA on this topic. However, in my view, it is more than adequate to outweigh any inference that might conceivably have been drawn from the material that I have just referred to.
Ironically, despite the fact that counsel for Elliott objected to the affidavit as to the phone calls being received in evidence at all, reliance was then placed upon it as indicating that no proper consultation had taken place. It was submitted that dictionary definitions of the word "consult" indicated that the series of telephone conversations could not amount to a proper consultation. However, I am satisfied that s 8(7) of the NCA Act provides an answer to this submission. I can find no serious issue to be tried as to the authorising of the 1989 reference.
In any event, it appears that later references were issued. In particular three references provided in September 1990 are the references to which Sherman, in his evidence, particularly related the investigation into the "foreign exchange matter". There is some evidence before me as to these references having been considered in an appropriate way at meetings of the Committee. Dr Jessup QC for the NCA submits, correctly in my view, that in these proceedings I can have regard to a presumption that things have been done correctly in relation to the operation of the Inter-Governmental Committee. Despite earnest submissions to the contrary, I can see no factual issue arising in relation to consultation or approval by the Committee which could remotely be described as a serious issue requiring ultimate determination at a final hearing.
The next question, which was strenuously debated, was whether the references were apt to cover "the foreign exchange matter".
It must be said immediately that there is nothing in the case which, at this stage, indicates with any semblance of precision what the "foreign exchange matter" consists of. There is enough material, however, including reasonably elaborate references in newspaper articles which are part of the evidence, to provide me with some concept of it. Broadly, the allegations involved are that two amounts of money totalling $66 million were paid from the funds of Elders to recipients in New Zealand being Alan Hawkins and persons associated with him. The payments were disguised as losses on foreign exchange transactions by Elders in respect of which there were corresponding disguised gains on foreign exchange transactions on behalf of the recipients, the transactions being further disguised by the interposition of other company accounts. It seems, also, to be suggested that the payment of this large amount to Hawkins had some relation with assistance allegedly given by Hawkins to Elliott and his interests in relation to attempts to gain control of Broken Hill Proprietary Company Limited or to prevent Mr Holmes-a-Court and his interests gaining control.
All this is very hazy and this formulation may be quite wide of the mark. Neither Elliott nor the other applicants have been charged and the precision that one would expect in charges is, of course, totally lacking at this stage. One cannot avoid gaining, however, a fairly distinct impression that the general nature of the subject matter of the "foreign exchange matter" is not a total mystery to the respondents. In fact, as I understand it, it is not submitted that it is. Indeed, in his affidavit, Elliott indicates that he received a summons dated 21 November 1990 to appear before the NCA. The relevant summons with attached reference notices is Exhibit A1. Elliott deposes that he answered questions in relation to the matters referred to in the summons when he attended the NCA on 10 January 1991. On that occasion he was asked questions and gave answers in relation to "foreign exchange dealings between Elders and Equiticorp". Equiticorp was, of course, a company associated with Hawkins in New Zealand. It is not suggested on behalf of Elliott that these questions did not relate to the "foreign exchange matter". It appears to be clearly accepted that they did. Elliott was represented by senior counsel on this occasion and there is no suggestion made that any objection was taken to answering the questions on the basis that there was no authority to ask them. The references attached to the summons were a Commonwealth reference of 10 September 1990, a Victorian reference of 5 September 1990 and a South Australian reference of 20 September 1990.
On 12 June 1991 a further summons was issued to Elliott pursuant to s 28 of the NCA Act to attend before Mr Leckie, a member of the NCA, for the purpose of answering questions. He was also required to produce certain documents. These were referred to in a schedule to the summons as follows:-

"All original or copy minutes, diary notes, letters, agreements, undertakings, notices or any other document whatsoever concerning:

(i) The acquisition by the Harlin Group of BHP's shareholding in Elders IXL Ltd. in February 1988;

(ii) The acquisition by the Harlin Group of control of the options over shares in Elders IXL Ltd. held by Faversham Finance Ltd., in 1988.

(iii) Foreign exchange transactions concerning Elders IXL Ltd. and resulting in a loss of

approximately $39M, on 11 January 1988 and approximately $26M on 7 September 1988 to Elders IXL Ltd."

The relevant summons and schedule were served on Elliott by way of a letter sent to his solicitors. The letter indicated that the date for the giving of Elliott's evidence had been agreed upon as being 21 June. The letter contained the following paragraph:-

"The Authority has previously heard evidence from Mr Elliott regarding the matter the subject of (iii) in the Schedule and will not seek to question Mr Elliott further regarding those matters but as a matter of completeness requires the production of any documents held by Mr Elliott regarding those transactions."

Elliott attended the NCA on the agreed date in response to the summons of 12 June. He indicated that he had no documents in relation to the third paragraph of the schedule. Quite clearly that paragraph was regarded as relating to the "foreign exchange matter". On that day Mr Sher QC, appearing for Elliott, entered a series of strong protests about the allegedly apparent leaking of information from the NCA concerning the investigation. The transcript of that hearing has been tendered in evidence at Mr Sher's insistence. It does not record, however, any significant protest being made on behalf of Elliott that the inquiry into the foreign exchange transactions was unfair or, in particular, unauthorised.
The complaint is now, however, very stoutly made that the NCA had no business to be inquiring into the "foreign exchange matter". Its doing so, it is said, was a clear abuse of power and in total derogation of Elliott's civil rights. It is put that it was not a matter which fell within the references available to the NCA to enliven its coercive powers of inquiry. This allegation is, perhaps, the central allegation in the whole of this case. On it depends the claim that the NCA, Seymour and the DPP deliberately or recklessly engaged in a course of conduct which necessarily involved an abuse of power, a course of conduct so reprehensible as to require that they be prohibited by order of this Court from laying charges against the applicants.
The applicants' case, in this regard, is based upon a consideration of the document A44 and the various references which have become exhibits in this case. It is submitted that an examination of the wording of those documents indicates quite clearly that there is a triable issue as to whether the NCA has exceeded the bounds of its permitted inquiries and has trespassed into unauthorised areas. It is further put that the NCA should reasonably have known that it was so doing and that its failure to offer any explanation in these proceedings enables an inference to be drawn, prima facie, that it had engaged in deliberate or at least reckless wrongdoing. The submission was put in various forms and with varying degrees of rhetorical flourish but, so far as I can see, that is what it amounts to.
The argument starts by reference to the document A44. Parts of this document are subject to a suppression order. There are certain parts of it, however, which are not of a sensitive nature and to which I can refer. It is a submission made pursuant to s 10 of the NCA Act by the NCA. It seeks references from Victoria and South Australia, a procedure permitted by the section. The submission refers to the fact that the National Companies and Securities Commission on 16 November 1989 referred a matter to the NCA in a letter containing the following paragraph:-

"We have reviewed the work programme before us and have come to the conclusion that there is one investigation that fits your criteria outstandingly well. We have been concerned about the way in which some directors of Elders IXL have gained effective control of one of Australia's major companies. It appears that there may have been breaches of the Companies legislation, the Companies (Acquisition of Shares) legislation and possibly State Crimes Acts. The matters we have been investigating occurred over at least three years and are very complex. Major principles of company law and corporate governance are at issue and the matter is of considerable public importance."

The submission continued by indicating that counsel had advised that the matter was appropriate for investigation by the NCA and for the use by it of its special powers. It is indicated that the NCA agreed with the advice and consequently was seeking the references. The submission goes on to provide "details of relevant criminal activity" ("relevant criminal activity" is defined in the NCA Act). It provided details as follows:-

"Allegations have been made to the Authority by the National Companies and Securities Commission that those directors of Elders IXL who are associated with Harlin Holdings Ltd may have committed offences under a number of Commonwealth and State Acts, and at common law.

Harlin Holdings Ltd (Harlin) is a company registered in the Australian Capital Territory controlled by a number of directors of Elders IXL (Elders). Elders is registered in South Australia. Its head office is in Victoria. Majority control of Elders recently passed to Harlin, following a complex series of transactions involving not only those two companies but also other companies including (not copied). The circumstances in which these transactions occurred imply that the Elders directors associated with Harlin (the associated Elders directors) may have committed offences under the Companies Act 1981, the Security Industry Act 1980, and the Companies (Acquisition of Shares) Act 1980 (all Commonwealth), the corresponding Victorian and South Australian Codes, secret commissions legislation and the offence of conspiracy to defraud at common law. Associations or understandings are alleged to have existed between Harlin and other companies in relation to the control of Elders. It is alleged further that Elders tends to provide the minimum possible amount of information to shareholders, and that the personal shareholdings of Elders directors (including the associated Elders directors) continually increase as a result of the operation of 'incentive schemes'."

The submission concludes by saying:-

"In summary, the circumstances revealed by the information held by the Authority concerning these matters, and the allegations made, suggest substantial planning and organisation by those involved in respect of the relevant criminal activities herein referred to involving the use of sophisticated methods and techniques to camouflage the illegal activities in a manner calculated to defeat ordinary police methods of investigation.

So as to enable the advancement of the investigation, it is necessary that the Authority have the powers of a special investigation. Accordingly the Authority seeks the granting of references in the terms set out in the draft References attached."

The submission also includes a list of companies and persons, this list being particularly the subject of the suppression order. Counsel for the applicants, however, rely upon the list for the fact that it makes no reference to Hawkins or Equiticorp.
Thereafter the NCA has received various references. It would seem that not all of them are in evidence before me. There are, however, six references which are in evidence. The first is dated 21 December 1989 and is the reference that the ABC produced on discovery. I am not clear as to the precise origin of the other five. It is obvious, however, that the references were regularly attached, as required, to summonses issued pursuant to s 28 of the NCA Act. The first Commonwealth reference is in the following form:-

"NOTICE

TO: NATIONAL CRIME AUTHORITY

PURSUANT to Sub-section 13(1) of the NATIONAL CRIME AUTHORITY ACT 1984 I HEREBY REFER to the National Crime Authority for investigation the following matter relating to a relevant criminal activity insofar as the relevant offence or the relevant offences are or include an offence or offences against the law of the Commonwealth or of a Territory. MATTER

The nature and scope of any relevant criminal activity, the identity of the persons involved and the nature of their involvement disclosed by the circumstances or allegations described below or otherwise revealed by investigations into those circumstances or allegations.

PARTICULARS PURSUANT TO SUB-SECTION 13(2)

(a) The general nature of the circumstances or allegations constituting the relevant criminal activity is activity by a group or groups of persons members of whom were identified to me by the Authority in writing on the 19th day of December 1989 and associated persons and companies suggesting offences involving:

(b) The offences referred to are, or include, offences against laws of the Commonwealth or of a Territory and in particular include the following:

(i) breaches of section 229 of the Companies Act 1981, section 128 of the Securities Industry Act 1980 and Section 11 of the Companies (Acquisition of Shares) Act 1980.

(ii) conspiracy in contravention of section 86 of the Crimes Act.

(c) The purpose of the investigation is:

(i) to ascertain whether any or what relevant offences (including any offence deemed to be a relevant offence pursuant to s.4(2) of the National Crime Authority Act 1984) have been or are being committed against laws of the Commonwealth or of a Territory:

(ii) to identify the offender or offenders;

(iii) to assemble evidence that would be admissible in the prosecution of the offenders;

(iv) to furnish that evidence to the Attorney-General of the Commonwealth of Australia or of a State or Territory or to the relevant law enforcement agency for the prosecution of those offences."

A Victorian reference of 15 March 1990 is in substantially similar terms. There are differences to reflect the fact that breaches of the law of Victoria are suggested.
There is a further reference from the State of Victoria dated 12 July 1990. This is basically similar but the particulars are framed differently. They read as follows:-

"PARTICULARS PURSUANT TO SUB-SECTION 5(3) NATIONAL CRIME AUTHORITY (STATE PROVISIONS) ACT 1984 (Vic)

(a) The general nature of the circumstances or allegations constituting the relevant criminal activity is activity by persons and/or companies (directly or indirectly) concerning or relating to the acquisition by Harlin Holdings Pty Limited, and its associates

("Harlin"), and/or by any directors of Elders IXL Limited ("Elders") of any interest in securities in Elders and any related transactions including, but not limited to, transactions involving Harlin, Elders, (other company names not copied) and their associates suggesting relevant offences including but not limited to:

(i) breaches of section 229 of the Companies

(Victoria) Code, sections 123, 124, 125, 126, 127 and 128 of the Securities Industry

(Victoria) Code and section 52 of the Companies (Acquisition of Shares) (Victoria) Code; and

(ii) conspiracy to defraud contrary to common law."

In September 1990 three further references were obtained. It appears that these references were described as "revised" or "reissued" references in the NCA's annual reports. It also appears that these references were obtained on counsels' advice. The reason for the fresh references and the nature of the advice is not disclosed in evidence. These references are for practical purposes identical, the differences being those required to make the reference appropriate to the laws of the Commonwealth or of the State of issue. I set out for convenience the Victorian reference of 5 September 1990:-

"NOTICE

TO: NATIONAL CRIME AUTHORITY

PURSUANT to Sub-section 5(1) of the NATIONAL CRIME AUTHORITY (STATE PROVISIONS) ACT 1984 (Vic) and Sub-section 14(1) of the NATIONAL CRIME AUTHORITY ACT 1984 and having been approved by the Inter-Governmental Committee, I HEREBY REFER to the National Crime Authority for investigation the following matter relating to a relevant criminal activity insofar as the relevant offence or relevant offences are or include an offence or offences against the law of the State of Victoria.

MATTER

Whether any relevant offences have been committed as alleged in the allegations particulars of which are set out below, and if so the identity of the person or persons involved and the nature of their involvement.

PARTICULARS PURSUANT TO SUBSECTION 5(3) NATIONAL CRIME AUTHORITY (STATE PROVISIONS) ACT 1984 (VIC)

(a) The general nature of the allegations is: That, in and in relation to transactions concerning (directly or indirectly) the disposal and/or acquisition of securities in Elders IXL Limited, certain directors of that company, alone, or in concert with other persons, improperly used their positions as directors of that company, and improperly used information acquired by virtue of those positions, in order to gain an advantage or advantages for themselves or some other person or persons or to cause detriment to that company and that with fraudulent intent, certain directors of that company, alone, or in concert with other persons, failed, in and in relation to the said transactions, to act honestly in the exercise of their powers and the discharge of the duties of their office as directors of the said Elders IXL Limited.

(b) The allegations constitute a relevant criminal activity because the alleged activities may have constituted, or may be continuing to constitute, an offence against a law of the State of Victoria:

(i) involving 2 or more offenders and substantial planning and organisation including the use of complex corporate structures and complex commercial transactions;

(ii) of a kind or kinds ordinarily involving the use of sophisticated methods and techniques, including the deployment of persons with extensive knowledge of company law and regulation and with expertise in the area of corporate structures and financing mechanisms;

(iii) of a kind or kinds ordinarily committed in conjunction with other offences of like kinds; and

(iv) involving fraud, company violations, matters of the same general nature as fraud, and matters of the same general nature as company violations.

(c) The offence or offences which may have been, or are being committed, are as follows:

(i) breaches of sub-s 229(1) of the Companies

(Victoria) Code to which paragraph (b) of that sub-section applies;

(ii) breaches of sub-ss.229(3) and (4) of the Companies (Victoria) Code.

(iii) conspiracy to defraud, contrary to common law.

(d) The purpose of the investigation is:

(i) to ascertain whether any or what relevant offences (including any offence deemed to be a relevant offence pursuant to ss.3(3) of the National Crime Authority (State Provision) Act 1984 (Vic)) have been or are being committed against the laws of State of Victoria;

(ii) to identify the offender or offenders;

(iii) to assemble evidence that would be admissible in the prosecution of offenders; and

(iv) to furnish the evidence to the Attorney-General of the Commonwealth of Australia or of a State or Territory or the relevant law enforcement agency for the prosecution of those offences."

The applicants' submission, put shortly, is that the terms of these references when read with document A44, the NCA's submission requesting references, show that there is a serious issue to be tried in these proceedings as to whether the NCA has ever received authority by way of references to investigate, pursuant to its coercive powers, any matter other than the Harlin takeover of Elders. In particular, it is submitted that there is nothing in these references which could reasonably be regarded as providing authority to the NCA to investigate the "foreign exchange matter".
The broad response made on behalf of the respondents is that this question cannot be approached on the basis that there is some fundamental distinction between an inquiry into the Harlin takeover of Elders and an inquiry into the "foreign exchange matter". It is submitted that there is, in effect, no basis for a simple assertion that the "foreign exchange matter" is a discrete subject of inquiry unrelated to matters properly to be inquired into in respect of the conduct of persons concerned in the broad question of the Harlin takeover of Elders.
It is also submitted on behalf of the respondents that it is not appropriate to approach this question on the same basis that the Court might adopt in construing litigious pleadings to determine what are the issues in a case and what evidence may or may not be admissible in relation to those issues. It is submitted that no such stringent approach should be adopted in relation to a reference. A reference should be regarded simply as a broad charter for inquiry and not as a document precisely defining discrete subject matters of investigation.
In support of these submissions the respondents rely upon cases such as MFI v National Crime Authority (1991) 33 FCR 449 and Ross v Costigan (1982) 41 ALR 319 and 41 ALR 337.
In Ross, at first instance, Ellicott J was faced with a similar problem to that which is posed for me here. The question was whether a line of inquiry in a Royal Commission was reasonably open as being relevant to the terms of the inquiry. His Honour had to consider the matter at the level of the granting or withholding of interlocutory relief. He discussed the matter in terms which do not appear to have been differed from when the matter was dealt with on appeal in the Full Court. His Honour said (at 334-335):-

"If I am to grant interlocutory relief I should, I think, be satisfied that there is a probability that at the hearing the applicants would be able to satisfy the court that this matter is not relevant to the inquiry. In determining what is relevant to a Royal Commission inquiry, regard must be had to its investigatory character. Where broad terms of reference are given to it, as in this case, the Commission is not determining issues between parties but conducting a thorough investigation into the subject matter. It may have to follow leads. It is not bound by rules of evidence. There is no set order in which evidence must be adduced before it. The links in a chain of evidence will usually be dealt with separately. Expecting to prove all the links in a suspected chain of events, the Commission or counsel assisting, may nevertheless fail to do so. But if the Commission bona fide seeks to establish a relevant connection between certain facts and the subject matters of the inquiry, it should not be regarded as outside its terms of reference in doing so. This flows from the very nature of the inquiry being undertaken. In McGuinness v Attorney-General (Vic) (63 CLR) at 86, Latham CJ said: 'The Royal Commissioner was appointed to inquire into a specified subject matter, namely, the suggested bribery of members of Parliament. He was not appointed to determine an issue between the Crown and a party, or between other parties. The Commission was appointed to conduct an investigation for the purpose of discovering whether there was any evidence of the suggested bribery. Such an investigation may be, and ought to be, a searching investigation - an inquisition as distinct from the determination of an issue. In the course of such an inquiry it would or at least might be a valuable step forward if the identity of the persons giving information to the editor of the newspaper could be discovered so that they could be summoned for the purpose of giving evidence on oath as to their knowledge, or as to the source of their information if they had no direct personal knowledge of the matters in question.' This does not mean, of course, that a Commission can go off on a frolic of its own. However, I think a court if it has power to do so, should be very slow to restrain a Commission from pursuing a particular line of questioning and should not do so unless it is satisfied, in effect, that the Commission is going off on a frolic of its own. If there is a real as distinct from a fanciful possibility that a line of questioning may provide information directly or even indirectly relevant to the matters which the Commission is required to investigate under its letters patent, such a line of questioning should, in my opinion, be treated as relevant to the inquiry."

To the same effect was the decision of a Full Court of this Court in the MFI case. The question was whether a respondent to a summons to produce documents could allege a reasonable excuse for failing to produce them based upon a claimed lack of relevance to the special investigation which had been initiated by references. Ryan J (at 471) referred to the relevant principles as follows:-

"I agree with the learned primary judge that the principles to be applied in determining relevance in the context of an investigatory inquiry are those enunciated by the Full Court in Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1980) 47 FLR 163 at 173-175. Those principles recognise a much broader concept of relevance than the notion which is applied to determine the admissibility of evidence in adversary litigation. Even there, a determination whether a given fact or matter is relevant may have to await the proof, or absence of proof, of other facts or matters which, in combination with the first, establish its relevance."

Again in Melbourne Home of Ford Pty Limited and Ors v Trade Practices Commission and Anor 31 ALR 519 at 530-531, the Court (Brennan, Keely and Fisher JJ) stated, in relation to the question of exceeding investigatory powers, as follows:-

"The court cannot undertake the task of determining the way in which an investigation should be carried out, for that is a task which the legislature has confided to the Commission, the Chairman or the Deputy Chairman. The court's jurisdiction is not to set the course of an investigation but to call a halt if it is shown that the investigation exceeds the powers conferred. Short of that point, the protection of the corporate citizen from harassment rests in the good sense of the repository of the power. To say that an undue or oppressive burden is imposed by a notice is not legally significant unless what is meant is that the powers conferred by s 155 have been exceeded in the particular case. An excess of power may appear if the requirement for information or documents is couched in such wide and general terms that a proper exercise of the investigatory power could not support the requirement in question. This is but a particular application of the general principle that the exercise of a discretionary power must be reasonably capable of being regarded as related to the purpose for which the power is conferred (see, eg Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490:

(1971) ALR 201). If the requirement expressed in a particular notice is reasonably capable of being so regarded, that ground for alleging an excess of power fails."

What is said on behalf of the NCA and adopted by the other respondents in the present case is that the references, and in particular those given in September 1990 contained a wide charter of investigation. The reference to company names which I have not reproduced in these reasons indicate a greater width of inquiry than appears in the wide terms which I have cited. There can be no doubt that whether or not it could be argued that earlier references were restricted to the Harlin matter, the later references are not so restricted. They move beyond it into related areas of potential wrongdoing.
Much has been made in argument on behalf of the applicants of the undoubted fact that the NCA has not sought to adduce evidence before me to explain why fresh references were obtained in September 1990 in circumstances where at least three earlier references were in place. It is submitted that through thus choosing the well of the Court rather than the witness box they have laid themselves open to an adverse inference that, at least in respect of investigations conducted under the earlier references, they were aware that their coercive powers were being used in areas where no warrant for their use existed. Reliance is also placed upon some evidence given before me relating to objections taken by legal representatives appearing for witnesses summonsed under references to give evidence or produce documents to the effect that the requirement did not seem to accord with the terms of the references attached to the summonses. The evidence in this regard was imprecise and based upon recollections acknowledged to be hazy. Clearly the objections referred to amounted to no more than tentative inquiries as to relevance. It does not appear that any proceedings were taken to challenge the validity of the summonses on this basis, although such proceedings could have been taken in this Court and, as the reports show, have been taken in the past. It appears from this evidence, again in hazy form, that such objections received the response that the answers or the material sought related to the inquiry in a manner clear to the inquirer but not necessary to be known by the witness. Such a response would, clearly enough, be in keeping with the investigative nature of the procedure which could necessarily require that, in contrast to litigation, the investigator should keep significant matters relating to the investigation secret to himself.
It is suggested in this evidence that on at least one occasion, in response to a suggestion that the matters being inquired into fell outside the terms of reference, the response was given that, if that were so, another reference could be obtained. It is said that this suggests some guilty knowledge on the part of the investigator that he was using his coercive powers beyond proper bounds. A court must always be astute to evaluate what is said in oral evidence, having regard to the way in which the evidence was given, the demeanour of the witness and the general impression which is created by the evidence. I found it impossible to attribute any real significance to this statement. The witness appeared to be reporting no more than a casual remark occurring between lawyers at a hearing and not intended and not accepted as having any real significance at the time.
In determining whether this material, unanswered by direct evidence, tends to establish a serious issue to be tried, it is, in my view, necessary to consider carefully two matters.
First, it is perhaps strange that Elliott in seeking to raise a case of serious abuse of power relies upon the hazy recollection of tentative remonstrances made on behalf of others attending the NCA under compulsion. The fact is that he himself attended the NCA pursuant to summonses under s 28. He was represented by senior counsel of great experience on each occasion. He would have known and his legal advisers would have been well aware of the contents of the references authorising the investigation to which he was being required to contribute information. On each occasion he was required to answer questions or produce documents relating to the "foreign exchange matter". It is clear that this provoked no complaint from Elliott or those representing him. No objection was made as to the relevance of the information being sought to the subject matter of the inquiry. Certainly no heated assertion was made that a gross abuse of power was taking place in defiance of Parliamentary safeguards of the civil rights of citizens.
It is to be noted that in the transcript of Elliott's interview at the NCA on 21 June 1991, when he was specifically required to produce any documents he had relating to the "foreign exchange matter" no complaint was made as to relevance let alone abuse of process. Very considerable complaint was made about alleged leaks of information from the NCA to the media. These complaints were made with some vehemence. The fact that no challenge was then made to relevance or authority contrasts markedly with the robust assertions made before me that a scandalous abuse of power was taking place. Whether or not these considerations appropriately attract the doctrine of laches, they are certainly capable of raising the suggestion that this attack upon the legitimacy of the inquiry into the "foreign exchange matter" is a highly elaborated afterthought.
Secondly, the question for decision is not whether issues of fact as to the authority to investigate the "foreign exchange matter" are exposed in these proceedings but whether those issues are sufficient to indicate the existence of a serious triable question as to the occurrence of an abuse of power sufficient to warrant the final relief sought, namely a permanent injunction against the laying of charges. In my view, it would not be sufficient that an issue is raised as to whether certain evidence may have been unlawfully obtained through the use of coercive powers outside the authorised ambit of the inquiry. If that were established, and nothing more, then questions would necessarily arise as to whether that evidence should be admitted at any trial of offences charged as a result of the inquiry. Such evidence would not automatically be excluded. It would depend upon the discretion of the trial judge who would determine that question in light of the whole of the material before him or her including the other evidence as to the commission of the offences and the cogency of the evidence sought to be excluded. He or she would be required to balance considerations of the utility of the evidence in the proving of the commission of a criminal offence against considerations of unfairness to the accused and the public policy involved in courts refusing to countenance unacceptable methods of investigation of crime (Reg v Ireland (1970) 126 CLR 321 at 334-5; Cleland v The Queen (1982) 151 CLR 1 at pp 26-27; Bunning v Cross (1978) 141 CLR 54 at 72, 77-78; R v Amad (1962) VR 545; Foster v The Queen (1993) 67 ALJR 550 at 554-5, 557; Pollard v The Queen (1992) 110 ALR 385). In this regard, I am satisfied that nothing would be accomplished by this Court, at a final hearing, making declarations as to the inadmissibility of evidence in circumstances where it could not possibly have the material available to it which would be available to a trial judge hearing or presiding over the hearing of criminal charges in which the evidence was sought to be tendered. This plain matter of commonsense is recognised in cases of high authority. Thus in Rank Film Distributors Limited v Video Information Centre (1982) AC 380 Lord Wilberforce (at 442) said: "But I cannot accept that a civil court has any power to decide in a manner which would bind a criminal court that evidence of any kind is admissible or inadmissible in that court". (See also In re Arrows Ltd (No 4) (1993) 3 WLR 513 at 518, 530.) Also in Seymour v Attorney-General (Cth) and Ors (1984) 57 ALR 68, a decision of a Full Court of this Court, Beaumont J (at 74) said in relation to this question:-

The first question would appear to be whether there is anything in the NCA Act, properly construed, which would prevent the NCA, in the course of its investigations, seeking advice or assistance from the organisation which might ultimately be entrusted with the prosecution of a person should the NCA, in its investigations, acquire evidence that that person may have committed a relevant offence. In the first place the NCA acquires its coercive powers of investigation from the receipt by it of appropriate references. Those references come from relevant Ministers of the Crown in right of the Commonwealth or a State. Clearly they do not emanate from the Director of Public Prosecutions in any State. Such a prosecutorial organisation has no power under the NCA Act to confer investigatory powers upon the NCA. I am satisfied that there is no evidence pointing to any serious issue in this case that the Victorian DPP in some fashion or other arranged for the NCA to be given coercive powers of investigation into the "foreign exchange matter" so that the DPP could utilise those powers vicariously.
Once the NCA was authorised by appropriate references to use its coercive powers it could, in using them, in performance of its special functions, have recourse to s 19 of the NCA Act which provides that:-

"The Authority has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of its general functions or of its special functions, and any specific powers conferred on the Authority by this Act shall not be taken to limit by implication the generality of this section."

As it is plain that the legislature contemplated that the NCA would undertake investigations of particular complexity into serious criminal activity it is, in my opinion, quite reasonable to construe this section as empowering the NCA to seek advice in relation to its investigations and as to the significance or utility of evidence uncovered by it in relation to any charges that might be laid against any persons. I do not consider that it could reasonably be argued to the contrary. Moreover, under s 17 of the NCA Act the Authority is required, so far as practicable, to "work in co-operation with law enforcement agencies".
I can see nothing arguably unlawful in the NCA's having sought or received advice from the DPP over the period of its investigations, at least in relation to matters potentially connected with criminal activity in the State of Victoria. Conversely, I can see no serious issue to be tried relating to this topic which could conceivably result in this Court granting a permanent injunction restraining the DPP from prosecuting Elliott or the other applicants.
Furthermore, I am not satisfied that s 12 on its proper construction, contrary to submissions put on behalf of the applicants, requires the NCA to assemble and hand over the evidence which it has obtained immediately upon its obtaining it. I am not satisfied that this question of construction raises a serious issue. Clearly enough, in my view, it comes under this obligation only when it is satisfied as a result of its investigation that the evidence is in a sufficient state to warrant its being so handed over. In determining whether the evidence is in such a state I can see no prohibition in the NCA Act against it seeking advice even from the person or organisation into whose hands the completed evidentiary material may ultimately come.
Nor can I see anything intrinsically wrong with the fact that the NCA has apparently entered into an agreement establishing guidelines to govern operations between itself and the DPP of the Commonwealth and the States. These guidelines are in written form and are an exhibit in these proceedings. The DPP tendered them. It would seem to be a matter of practical commonsense that the agencies, being all involved in the problem of dealing with serious and complex criminal activity in the community, should evolve and systematise working relationships. These guidelines draw the distinction between the NCA's investigative role and the prosecutorial functions of the DPP. However, they contemplate that there will be "pre-charge liaison" between the two organisations. This is provided for in paragraph 3 of the guidelines which reads as follows:-

"The NCA and DPP recognize the importance of interaction and consultation between investigative staff and the prosecutor from an early stage in the investigative/prosecutorial process to the point of disposal of the matter. In large documentary-based investigations the DPP will, where appropriate, make a case officer/s available to discuss at an early stage the progress of an investigation conducted by the NCA and to be appraised by the NCA of the matter and its likelihood of being referred to the DPP. Once the NCA has determined that a matter is appropriate for referral to the DPP, the DPP will provide advice on specific questions of evidence upon being presented with specific material to consider. This is advice only and operational decisions always remain the responsibility of the NCA."

I am quite unable to see anything in the wording of the NCA Act which would preclude the NCA from entering into an agreement along these lines with the DPP or in giving effect to it. Paragraph 5 of the guidelines does, perhaps, present some difficulties. It relates to "decision to lay charges". It reads as follows:-

"Wherever possible the NCA should not lay charges prior to referral of the brief of evidence to the DPP and receiving advice from the DPP of the appropriate charges. After close consultation with the NCA, the DPP will advise on the appropriate charges and the conduct of the prosecution in accordance with the prosecution guidelines of the DPP."

This paragraph appears to contemplate that the NCA lays charges. It does not do so as such. However, as I have already indicated the NCA Act obviously contemplates that members of relevant Police Forces will be members of its staff from time to time and will play a role in the investigation of matters under references and, presumably, of matters being investigated without references. Such persons retain their role as police officers. If they lay charges in their role as police officers, this does not mean that, even though they are concurrently members of the staff of the NCA, that they do not exercise, should this be necessary, an independent discretion in the laying of the charge. Sherman, in his evidence, quite clearly contemplated that police officers on the staff of the NCA would, as part of their function, exercise this independent role. It is not necessary for me to decide in these proceedings whether it might not be a better practice for the relevant materials to be referred to a police officer not a member of the staff of the NCA for the purpose of laying charges resulting from NCA investigations. All that matters for present purposes it whether the pre-charge relationships between the NCA and the DPP could arguably lead to this Court granting the injunctions sought on a permanent basis. I am quite satisfied that they could not.
I am satisfied, therefore, that the contentions of the applicants which are common to all applicants do not require that I continue the injunctions previously granted until the determination of these proceedings.
Do the other matters raised on behalf of Elliott produce any different result so far as he is concerned? These are the matters relating to the alleged "conspiracy" involving the NCA to injure Elliott through damage to his reputation. These allegations are associated with claims that the investigation was conducted mala fide with the ulterior purpose not only of damaging Elliott's reputation but also of advancing the reputation of the NCA as a diligent and successful investigative body. This latter assertion was made in the context that, it was said, the NCA was undergoing criticism at governmental levels and in the media for wasting time and money.
The material upon which it is contended that a serious issue to be tried arises in respect of these allegations is to be found for the most part in Elliott's affidavit and documents exhibited to it. I do not find it necessary to set this material out in detail. It, and counsel's submissions in respect of it, are readily available in the material and in the transcript of the lengthy hearing before me.
The announcement in the "7.30 Report" on the ABC on 23 February 1990 was undoubtedly harmful to Elliott in that it asserted that there was an NCA investigation into the affairs of himself and Harlin. This program appeared in the context of an impending Federal election when he was president of the Liberal Party. It had been preceded by statements and comments made in the media from about August 1989, which comments were adverse to him. There can be no doubt that he was being made, as he asserts, a political target by Labor Party politicians. I have already made some reference to the content of these comments. Elliott has sued the ABC for defamation and has joined it in these proceedings in the claims for damages that are made for conspiracy. The NCA has also been charged with this tort. Other claims in tort for abuse of process and misfeasance of public office are made against other parties including the DPP. These are common law claims for damages and, it appears, will continue to be pressed whether or not interlocutory injunctive relief is given and whether or not final injunctive relief continues to be claimed. I do not find it necessary to discuss these aspects of the claim as I cannot see that they have any significant bearing upon the interlocutory relief currently sought.
Adverse references to Elliott and the NCA investigation did not cease with the bringing of defamation proceedings by Elliott after the "7.30 Report" of 23 February 1990. Elliott and his advisers obviously suspected that information was being leaked by the NCA to the media. His solicitors wrote a number of letters complaining of these matters and senior counsel made extensive complaints on his behalf at the NCA hearing on 21 June 1991 to which I have already made reference. The NCA denied the existence of any leaks. Sherman in evidence has indicated that he is not willing to institute internal inquiries unless some hard evidence is available that some member or members of the organisation are responsible. The adverse publicity has occurred concurrently with proceedings being heard in the criminal courts in New Zealand against Hawkins and others in relation to the transactions involving Equiticorp. It is sufficiently clear that material coming into the public domain in those proceedings has provided not a little of the material used in media publications in this country. Moreover one cannot ignore that fact that, as deposed to by Seymour, there have been many witnesses interviewed by the NCA and much documentary material gathered together in the investigation. It is likely that, notwithstanding the secrecy provisions of the NCA Act and the directions given to witnesses to obey them, that, nevertheless, information about the investigation has filtered out and fed the rumour mill.
In my view, it would require a quantum leap to infer from this material that the NCA had entered into an unlawful conspiracy with politicians and the media to attack Elliott's reputation. Especially is this so where it seems to be acknowledged that it was Crabb who informed the ABC as to the existence of the NCA investigation. As already indicated, Crabb was a member of the Inter-Governmental Committee and a Minister in the Victorian Government at the time. The propriety or legality of his having done so is not in question in these proceedings, although some argument has been addressed to me that he was not prevented by any relevant sections of the NCA Act from providing the information. I find it unnecessary to consider this question which, of course, may be highly relevant elsewhere.
Again, it is very difficult to see any viable link between these allegations of conspiracy and the claim that there should be an injunction at an interlocutory and final level restraining charges being brought against Elliott. There is nothing, in my opinion, in the material before me to indicate a serious issue that the NCA conspired to undertake this lengthy investigation for the ulterior purpose of damaging Elliott's reputation and not as part of its highly important and legitimate role of investigating complex criminal activity in the community. (Williams v Spautz (1992) 174 CLR 509)
Moreover, the evidence given as to the charging of other alleged conspirators in Sydney, by way of arrest rather than summons, does not, considering the serious nature of the charges, add anything, in my view, to the claim of ulterior motive and mala fides in relation to the investigation and proposed charges against Elliott and the other applicants.
In my view, these allegations do not raise a serious issue to be tried.
Accordingly I find that there has been no demonstration of any serious issue to be tried warranting in favour of any of the applicants the continuance of the interlocutory injunctions currently in place.
I would, in any event, discharge the current injunctions on the basis that the balance of convenience favours this course. The applicants have submitted that, having regard to the lengthy period that has already been involved in the NCA's investigation there will be small inconvenience occasioned to it and the other respondents if the laying of charges is delayed until these proceedings are finally determined, a contrast with the severe hardship that will be suffered by the applicants if they are now charged. These submissions quite fail to take into account the major public interest that exists in the prompt prosecution of alleged serious crime. There is also a major public interest in the proper administration of justice in the community. (Jago v The District Court of New South Wales and Ors (1989) 168 CLR 23; Seymour v Attorney-General (Cth) and Ors (1984) 57 ALR 68). One thing is very clear in this case. Had it not been for the granting of injunctions by this Court charges would have been laid by Seymour against Elliott and Jarrett and in all probability Camm, Scanlon and Biggins. The prosecution of those charges would by now be in the hands of the DPP and events in relation to those prosecutions would have now been taking their course. Seymour has given evidence of investigations having reached fruition and there being available for prosecution purposes numerous witnesses who have provided statements and a very considerable amount of documentary evidence. It is clear that it has taken considerable time for this evidence to be accumulated. It is quite apparent to me that the interests of justice require that this evidence be produced and its strength or otherwise tested by the ordinary procedures of the criminal law rather than in the artificial confines of these proceedings. This cannot be done while these injunctions remain in place.
I should add that I have considerable doubt as to whether this Court has jurisdiction to grant injunctive relief against the DPP and against Seymour, whilst he is acting as a Victorian policeman. I think it most likely that the submission of the applicants that I can exercise the supervisory jurisdiction of the Victorian Supreme Court in respect of them is not correct. The cross-vesting of that jurisdiction in this Court under s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) is subject to the operation of sub-s 4(5). This section was not brought to the attention of Olney J when the injunctions were granted and was only raised in these proceedings by the respondents when it became their turn to make submissions. I am certainly of the strong provisional view that cases such as Clifford and O'Sullivan (1921) 2 AC 570; Provincial Theatres Limited v Newcastle on Tyne Profiteering Committee (1921) 90 LJ(KB) 1064 and R v Army Council; ex parte Sandford (1940) 1 KB 719 make it extremely likely that the Court would ultimately hold that such part of these proceedings as seeks to restrain the laying of criminal charges must be characterised as "a criminal matter" within the meaning of sub-s 4(5). That being so, jurisdiction would not pass to this Court but would remain with the Victorian Supreme Court where as a matter of commonsense, practical convenience and federal comity it should remain. I should add that, in these circumstances, the prospect of this Court dealing with the matter under the accrued jurisdiction provided by s 32 of the Federal Court of Australia Act would be remote indeed.
Also the prospects of the applicants being successful in claims for injunctive and other relief under the ADJR Act are, in my view, equally remote. Very little reliance was placed upon this legislation in argument. Clearly there is very considerable difficulty in isolating conduct of and decisions made by the respondents which could be characterised as conduct or decisions "under an enactment" within the meaning of that Act. Consequently I am of the view that the prospect of this Court granting any form of final relief based upon that Act is also extremely remote. Moreover, it must be borne in mind that any such relief would be granted only as a matter of discretion.
In my view, in a case such as this, these are matters which can properly be taken into account in assessing where the balance of convenience lies.
The principle that civil courts should not interfere in the process and procedures of the criminal courts except in exceptional circumstances is so well established by numerous decided cases of high authority that I will not lengthen these reasons by their citation. In my view, no reasonably arguable case of the existence of such circumstances has been demonstrated here. That the laying of charges against the applicants should be further delayed until the ultimate disposal of these proceedings would, in my view, be a quite unacceptable interference with the administration of criminal justice in the State of Victoria. The proceedings in the Victorian courts will, in themselves, provide the applicants with well established safeguards. The nature of the prosecution case, at present unknown, will be revealed in all its detail with all its strengths and weaknesses at committal proceedings which, in themselves, provide an acknowledged traditional safeguard for the citizen. (Barton v The Queen (1980) 147 CLR 75 at 99-101). Arguments as to the admissibility of evidence allegedly obtained unlawfully can be fully ventilated in those proceedings. The applicants can have recourse to voir dire hearings to determine admissibility. It may safely be assumed that every opportunity will be afforded to the applicants to raise and litigate those matters. Insofar as they may wish to seek the protection of the supervisory jurisdiction of a superior court, they can have recourse to the jurisdiction of the Supreme Court of Victoria whose right to exercise appropriate control over the proceedings in the criminal jurisdiction of Victoria is free from the doubts which attend the exercise of that jurisdiction by this Court.
I unhesitatingly find that the balance of convenience favours the discharge of the existing injunctions.
I have, at this stage, heard no submissions on the question of costs. In the circumstances I consider that I should reserve that question. It may be argued at a time convenient to counsel and the Court.
I accordingly make the following orders:-

1. In proceedings VG 410 of 1993, VG 411 of 1993 and VG 434 of 1993 the applicants' claims for interlocutory relief be dismissed.

2. In proceedings VG 411 of 1993 the applicant's notice of motion filed on 30 September 1993 be dismissed.

3. In proceedings VG 410 of 1993 orders 3 and 4 made on 29 September 1993, and as subsequently amended and extended, be vacated.

4. In proceedings VG 411 of 1993 orders 3 and 4 made on 29 September 1993, and as subsequently amended and extended, be vacated.

5. In proceedings VG 434 of 1993 order 2 made on 13 October 1993, and as subsequently extended, be vacated.

6. Costs reserved.

[1993] FCA 834

23 NOVEMBER 1993