Lord, John Frederick v Commissioner of the Australian Federal Police

CATCHWORDS

ADMINISTRATIVE LAW - Search Warrants - application by company liquidator for relief in respect of decision to issue search warrant under s 3F Crimes Act 1914 (Com), on application of Australian Federal Police ("AFP") in respect of records held by liquidator relating to suspected offences by a bankrupt under Bankruptcy Act 1966 (Com) and Crimes Act - documents include liquidator's copy of his report lodged with Australian Securities Commission ("ASC") as required by s 533 of Corporations Law - power of Chairman of ASC under s 127 of ASC Law to make original of liquidator's report available to AFP - liquidator's "concern" that he might be obliged to claim public interest immunity in respect of his copy of the Report - whether issuer of search warrant obliged to take into account alternative means (from ASC under s 127 of ASC Law) by which AFP might have obtained access to contents of report - whether issuing officer bound to take into account liquidator's "concern" - whether applicant for warrant obliged to disclose these matters to issuing officer - whether applicant for search warrant has a duty of disclosure, and if so, its nature and extent - whether contents of report in fact immune from disclosure by reason of the public interest - weighing of aspects of the public interest.

ADMINISTRATIVE LAW - Search Warrants - s 5 of Administrative Decisions (Judicial Review) Act 1977 (Com) - failure to take into account relevant considerations - whether issuer of search warrant under s 3E of Crimes Act 1914 (Com) failed to take into account relevant considerations, when she failed to take into account availability of a document (liquidator's report lodged with ASC under s 533 of Corporations Law) from another source (ASC under s 127 of ASC Law) without the necessity of a search warrant and when she failed to take into account a liquidator's "concern" that he might be obliged to claim public interest immunity in respect of that document.

ADMINISTRATIVE LAW - s 12 of Administrative Decisions (Judicial Review) Act 1977 (Com) - power of Court to order that a "person interested" in a decision be added as a party - application by liquidator of company for judicial review of a decision to issue search warrant - whether person subject of the investigation "interested" in the issuing officer's decision - exercise of discretion - relevance of right of person subject of investigation to challenge the decision in any criminal proceeding which might eventuate.

PRACTICE AND PROCEDURE - s 12 of Administrative Decisions (Judicial Review) Act 1977 (Com) - power of Court to order that a "person interested" in a decision be added as a party - application by liquidator of company for judicial review of a decision to issue a search warrant - whether person subject of the investigation "interested" in the issuing officer's decision - exercise of discretion - relevance of right of person subject of investigation to challenge the decision in any criminal proceeding which might eventuate.

- 2 -

PRACTICE AND PROCEDURE - public interest immunity - search warrant encompassing report of liquidator lodged with ASC under s 533 of Corporations Law - whether contents of report the subject of public interest immunity - weighing of aspects of the public interest for and against disclosure.

Corporation Law ss 533, 534, 535
Administrative Decisions (Judicial Review) Act 1977 s 12
ASC Law s 127
Crimes Act 1914 (Com) s 3E

Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 (FC)
Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 (FC)
Australian Broadcasting Commission Staff Association v Bonner (1984) 2 FCR 561 (FC)
United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 (FC)
Sankey v Whitlam (1978) 142 CLR 1
Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 (FC)
Jarrett v Seymour (1993) 46 FCR 557 (FC)
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 (FCA/FC)
Dunesky v Elder (1994) 54 FCR 540 (FC)
Rogers v Moore (1992) 39 FCR 201 (French J)
Arno v Forsyth (1986) 9 FCR 576 (FC)
Jacobsen v Rogers (1995) 182 CLR 572
Rogers v Jacobsen (1995) 61 FCR 57 (FC)
Perron Investments Pty Ltd v Deputy Commissioner of Taxation (WA) (1989) 90 ALR 1 (FCA/FC)

Lindgren J
Sydney
14 April 1997

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 3749 of 1996
GENERAL DIVISION )

BETWEEN:
JOHN FREDERICK LORD in his capacity as liquidator of DALLHOLD INVESTMENTS PTY LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED)
Applicant

AND:
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
                   First Respondent
FIONA JAMIESON
                  Second Respondent
WENDY ELDER
                   Third Respondent

CORAM:Lindgren J
PLACE:Sydney
DATE:14 April 1997

MINUTE OF ORDERS
THE COURT ORDERS THAT:

Motion brought by Alan Bond by notice of motion filed on 16 January 1997 be dismissed.

Alan Bond pay the costs of the first and second respondents of that motion.

The application be dismissed.

The applicant pay the costs of the first and second respondents of the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 3749 of 1996
GENERAL DIVISION )

BETWEEN:
JOHN FREDERICK LORD in his capacity as liquidator of DALLHOLD INVESTMENTS PTY LIMITED (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED)
Applicant

AND:
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
                   First Respondent
FIONA JAMIESON
                  Second Respondent
WENDY ELDER
                   Third Respondent

CORAM:Lindgren J
PLACE:Sydney
DATE:14 April 1997

REASONS FOR JUDGMENT
INTRODUCTION
The applicant ("Mr Lord") was appointed as liquidator of Dallhold Investments Pty Limited (in Liquidation) (Receivers and Managers Appointed) ("Dallhold") on 5 July 1991. He is a chartered accountant and a partner of the firm Lord & Brown which practises at Level 8, 1 York Street Sydney ("the Premises"). The present application relates to a search warrant issued by the second respondent ("the Issuing Officer") on 4 October 1996 in exercise of the power given by s 3E of the Crimes Act 1914 ("the Warrant"). The Warrant was issued on the application of the second respondent ("Federal Agent Jamieson"), an officer of the Australian Federal Police
("AFP"). The Warrant authorised her and certain other officers of the AFP to enter the Premises and to search for and seize any evidential materials satisfying all of three conditions described in the Warrant.

The first condition in the Warrant begins:

"Things which are:

- originals or copies of any one or more of the following including any of them which are stored on magnetic or electric storage medium: ..."

There follow descriptions of various classes of documents including "Liquidator's Reports". (Later in these Reasons I will have occasion to set out the whole of the first condition.) The second condition commences:

"Things which relate to any one or more of the following: ..."

There follow the names of certain persons, entities, banks, horses and properties. Seven persons are named, of whom the first is Alan Bond ("Mr Bond"). Fourteen entities are named, including Dallhold and Dallhold Estates (UK) Pty Ltd ("Estates"). The properties include "Upp Hall Estate, Hertfordshire." The third condition begins,

"Things as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following offences against the laws of the Commonwealth: ..."

There follow seven descriptions of offences. The descriptions are all of suspected offences by Alan Bond. Five are suspected contraventions of specified provisions of the Bankruptcy Act 1966 and two are suspected contraventions of specified provisions of the Crimes Act 1914.

Mr Lord's application relates to his copy of a report dated 31 July 1996 which he, as liquidator of Dallhold, lodged with the Australian Securities Commission ("ASC") ("the copy Report"). The Warrant was executed at the Premises on 9 October 1996 when many documents, including the copy Report, were seized. Pursuant to an agreement between the AFP and Mr Lord, the copy Report was sealed up and deposited in the AFP's "exhibits office", pending the resolution of a claim by Mr Lord that the copy Report is immune from seizure and inspection by reason of the public interest.

By his further amended application filed on 6 January 1997, Mr Lord applies for review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") of the Issuing Officer's decision to issue the Warrant. He seeks an order setting aside that decision, or, in the alternative, an order setting it aside in so far as it authorises seizure of the copy Report, and, in lieu of an order remitting the matter for reconsideration, a determination of the question whether the documents seized or any of them are privileged from production on the ground of public interest immunity. As well, he seeks declaratory and injunctive relief and an order that the copy Report be returned to him.

The grounds of the application under the ADJR Act in respect of the Issuing Officer's decision to issue the Warrant that were pressed, are improper exercise of the power conferred by s 3E of the Crimes Act 1914 constituted by a failure by the Issuing Officer to take into account certain relevant considerations, and error of law. Two relevant considerations are relied upon. The first is that there was an alternative source (the ASC) from which the AFP might have become informed of the contents of the copy Report, without the necessity of the Warrant and the associated intrusion upon Mr Lord's privacy. The second is that Mr Lord had concerns (a) that the copy Report might be the subject of public interest immunity, and (b) that it might not be appropriate that the contents of the Report be disclosed without prior notice to third parties named in it, in particular, Mr Bond.

The error of law propounded by Mr Lord is that the Issuing Officer issued the Warrant without providing on the face of it for a procedure to be adopted in respect of documents (such as, it is said, the copy Report), which were or might reasonably be the subject of a claim for privilege from production on the ground of public interest immunity.

As an independent ground of attack on the Issuing Officer's decision, Mr Lord relies on non-disclosure by the AFP to the Issuing Officer of matters which, Mr Lord submits, the AFP was obliged by general law principles to disclose to her.

Mr Lord supports his claim for declaratory and injunctive relief by the submission that the copy Report is in fact immune from seizure by reason of the public interest.

The Issuing Officer appeared for the purpose of submitting to such order as the Court might make, save as to costs.

The hearing took place on 6 and 7 January 1997. By a notice of motion filed on 16 January 1997, Mr Bond moved pursuant to s 12 of the ADJR Act for an order adding him as a party. I heard that motion on 28 January 1997. Mr Lord neither consented to nor opposed the joinder. The first and second respondents ("the AFP respondents") opposed it.

Mr Bond's motion was supported by an affidavit of his solicitor, Philip Maurice Stern. Mr Stern's evidence is that Mr Bond is presently in gaol in Western Australia and that he (Mr Stern) takes his instructions from Mr Bond through his son, Mr John Bond. On 9 January 1997, Mr John Bond informed Mr Stern that Mr Lord's application had only just come to notice through a newspaper report of it. Mr John Bond instructed Mr Stern that Mr Bond wished to be heard in relation to the application as he considered himself to be a person affected by it. Mr Stern's affidavit gives an account of the steps which he subsequently took in order to obtain information about the application. He acted with energy and speed in familiarising himself with the nature of the application and in filing the notice of motion.

On the hearing of the motion on 28 January 1997, Mr Bond was represented by senior counsel as were the AFP respondents. Detailed submissions were made on the issue of joinder. On the merits of Mr Lord's application, however, Mr Bond, if made a party, would adopt Mr Lord's submissions supplemented but slightly. In substance, Mr Bond wishes to be joined in order to have a right of appeal, against the possibility that Mr Lord should fail in the proceeding and not appeal against my decision; cf Sen v The Queen (1991) 30 FCR 173 (FCA/FC) at 175; Emanuele v Australian Securities Commission (1995) 63 FCR 54 (FCA/FC) at 60. I indicated my intention to deal with Mr Bond's application to be joined in the course of deciding the substantive application by Mr Lord.

I fixed the substantive application for hearing during Vacation on the basis that there was some urgency touching it, but I have been informed that there are no special circumstances of urgency beyond those which affect any ongoing criminal investigation.

RELEVANT PROVISIONS OF THE CORPORATIONS LAW
Sub-sections 533 (1), 534 (1) and 535 (1) of the Corporations Law ("the Law") are as follows:

"533(1)If it appears to the liquidator of a company, in the course of a winding up of the company, that:

(a)a past or present officer, or a member or contributory, of the company may have been guilty of an offence under a law of the Commonwealth or a State or Territory in relation to the company;

(b)a person who has taken part in the formation, promotion, administration, management or winding up of the company:

(i)may have misapplied or retained, or may have become liable or accountable for, any money or property of the company; or

(ii)may have been guilty of any negligence, default, breach of duty or breach of trust in relation to the company; or

(c)the company may be unable to pay its unsecured creditors more than 50 cents in the dollar;

the liquidator shall:

(d)as soon as practicable lodge a report with respect to the matter and state in the report whether he or she proposes to make an application for an examination or order under section 597;

and

(e)furnish the Commission [ASC] with such information, and give to it such access to and facilities for inspecting and taking copies of any documents, as the Commission requires." (underlining supplied)

"534(1)Where:

(a)a report has been lodged under section 533; and

(b)it appears to the Commission [ASC] that the matter is not one in respect of
which a prosecution ought to be begun;

it shall inform the liquidator accordingly, and the liquidator may begin a prosecution for any offence referred to in the report."

"535(1)A liquidator has qualified privilege in respect of a statement that he or she makes, whether orally or in writing, in the course of his or her duties as liquidator."

It will be noted that "the matter" to which a liquidator's report under para s 533 (1) (d) relates is one or other of the various matters referred to in para 533 (1) (a), (b) or (c). They all relate to "the company" that is in liquidation. The Warrant, on the other hand, refers to suspected contraventions by Mr Bond of various provisions of the Bankruptcy Act 1966 and the Crimes Act 1914. Accordingly, the AFP wishes to use the information in the copy Report for a purpose different from that for which Mr Lord lodged the Report with the ASC.

Sub-section 127 (4) of the ASC Law assumes importance in the present case. It is to be read as a special and exceptional provision by reference to the general provisions found in para 1274 (2) (a) of the Law and sub-s 127 (1) of the ASC Law. Paragraph 1274 (2) (a) of the Law provides that, subject to certain exceptions, a person may inspect any document lodged with the ASC. One of the exceptions is a report made or lodged under s 533 of the Law. This exception is reflected in a positive obligation which is imposed on the ASC by sub-s 127 (1) of the ASC Law. Sub-sections 127 (1), (4) and (4A) provide as follows:

"127(1)The Commission shall take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in or in connection with the performance of its functions or the exercise of its powers under a national scheme law of this jurisdiction."

(2)...

(3)...

(4)Where the Chairperson is satisfied that particular information:

(a)will enable or assist an agency, being the Advisory Committee, the Panel, the Disciplinary Board, the Review Board or any other agency within the meaning of the Freedom of Information Act 1982, to perform or exercise any of the agency's functions or powers;

(b)will enable or assist the government, or an agency, of a State or Territory to perform a function or exercise a power; or

(c)will enable or assist a government, or an agency, of a foreign country to perform a function, or exercise a power, conferred by a law in force in that foreign country;

the disclosure of the information to the agency or government by a person whom the Chairperson authorises for the purpose shall be taken to be authorised use and disclosure of the information.

(4A)The Chairperson may impose conditions to be complied with in relation to information disclosed under subsection (4)."

The AFP is an "agency within the meaning of the Freedom of Information Act 1982". It is common ground that the copy Report contains information to which sub-s 127 (1) applies.
Nor has it been in dispute that the terms of para 127 (4) (a) are satisfied on the facts of the present case.

FACTS
As noted earlier, Mr Lord, as liquidator of Dallhold, lodged a report dated 31 July 1996 with the ASC pursuant to sub-s 533 (1) of the Law ("the Report"). The Report consists of a 33 page narrative and glossary together with eight ring-binders of annexed documents. Mr Lord kept the copy Report for his own records. It has not been in dispute that the copy Report is his property. The records of Dallhold that are in his custody fill over 400 archive boxes and encompass documents relating to numerous transactions over many years. In addition, Mr Lord has created or caused to be created more than 150 specific files relating to various aspects of the winding up of Dallhold.

On or about 5 August 1996, Thomas Henry John Iceton, now a partner of Mr Lord's, who had assisted Mr Lord in the conduct of the winding up of Dallhold since 1991 and is familiar with most, if not all, aspects of Mr Lord's administration of the affairs of Dallhold, was telephoned by Acting Sergeant Andrew Tuohy of the AFP. Sergeant Tuohy told Mr Iceton that the AFP was still investigating various matters regarding Mr Bond, including matters relating to a rural property known as "Upp Hall Estate" in England and a collection of works of art established in the 1980s by Mr Bond. Sergeant Tuohy asked to meet with Messrs Lord and Iceton to discuss what records held by Mr Lord might be available to assist the AFP in its investigations, with a view to the AFP's "obtaining a search warrant for the production of those records."

On 21 August 1996 Sergeant Tuohy and Federal Agent Kelvin Mark Kenney from the AFP's Southern Region Headquarters in Melbourne met with Messrs Lord and Iceton at the Premises. Sergeant Tuohy said that the AFP was investigating whether Mr Bond had committed offences under the Bankruptcy Act and the Crimes Act in relation to his bankruptcy. Federal Agent Kenney said that the AFP was investigating, in particular, a large number of transactions concerning artworks purchased by Mr Bond and Dallhold and the Upp Hall Estate, together with associated transactions. Mr Lord inquired whether the police officers had seen the original of the copy Report ("the Report") held by the ASC. Upon being informed that they had not, he said that the Report detailed, among other things, his investigations into those matters. He said that the Report had made recommendations to the ASC about criminal offences and further investigations, but that the ASC had not taken up the recommendations. Mr Lord said that the Report would be relevant to the investigations. Federal Agent Kenney said that the AFP would like to see the Report. Mr Lord said that he was unsure whether he was at liberty to make available the copy Report because the Report was confidential, and that he would need to obtain legal advice as to whether the copy Report was privileged from production. It was agreed that Mr Lord would cooperate with the AFP to the extent of facilitating identification by the AFP of those documents which it would require under a search warrant, which, it was understood, the AFP would seek to obtain.

Over the period 21 August to 23 August, Sergeant Tuohy and Federal Agent Kenney attended at the Premises. Mr Iceton provided various files to them for inspection. They identified documents which they thought relevant to their inquiries and which they would wish to seize under a search warrant if and when one was issued. Mr Iceton told them that various matters contained in the Report might be relevant to their investigations. According to Mr Iceton, he added that Mr Lord had instructed him not to provide access to the copy Report until he (Mr Lord) had established whether it should be withheld as a privileged document. Federal Agent Kenney does not recall Mr Iceton's stating that qualification. It is common ground, however, that Mr Iceton did not produce the copy Report for inspection.

On 19 September, Federal Agent Kenney contacted "AFP Legal" in Canberra about the Report. He next contacted the ASC. He had a telephone conversation with Mr Ian Podmore of the ASC's Sydney office. He informed Mr Podmore that Mr Lord had expressed uncertainty as to whether the AFP could have access to the copy Report. He asked Mr Podmore whether Mr Lord was entitled to maintain a claim of legal professional privilege or public interest immunity, and whether the AFP could obtain a copy of the Report itself from the ASC. According to Federal Agent Kenney, Mr Podmore subsequently advised him by telephone as follows:

"I have consulted my legal section. I believe that it would be more advantageous for the AFP to obtain the report directly from Lord. We cannot see any basis for Mr Lord claiming legal professional privilege or public interest immunity in relation [to - sic] the report. If the ASC were to provide a copy to the AFP, the AFP would have to make an application under section 127 of the Corporations Law and the ASC would then have to contact the parties named in the report to give them the opportunity to contest the handing over of the report. This process could be quite lengthy in comparison to the AFP obtaining the report from Lord under a search warrant."

According to Federal Agent Kenney's affidavit, he formed the view, as a result of that telephone advice, that the AFP should seek to obtain the copy Report from Mr Lord under a search warrant, rather than seek access to the Report itself held by the ASC. Federal Agent Kenney's affidavit includes the following:

"I believed in particular that, if the ASC were to contact Bond in relation to the provision of the report, Bond would have the opportunity of delaying the AFP investigation by commencing proceedings to stop the AFP getting access to the report. Bond has in the past commenced proceedings against the AFP in relation to the investigation."

On 20 September, Federal Agent Kenney drafted a search warrant and sent it to Federal Agent Jamieson at AFP Headquarters in Sydney. In cross examination, Federal Agent Kenney agreed that when drafting the Warrant, he had known, firstly, that Mr
Lord remained concerned that he might be obliged to assert a claim of privilege, and secondly, that if the AFP were to seek access to the Report held by the ASC, the ASC's giving notice to third parties would give rise to delay and expense. I accept Federal Agent Kenney's evidence that he had believed that the AFP was not obliged to disclose either of these matters to the Issuing Officer.

On 23 September, Federal Agent Kenney telephoned Mr Iceton and inquired as to progress of the photocopying of documents which the AFP had identified as those which were to be the subject of the search warrant. Mr Iceton informed Federal Agent Kenney that a decision had still not been taken as to whether Mr Lord could hand over the copy Report. Federal Agent Kenney replied:

"It is not a question of handing the report over. It will be within the terms of the warrant and will be seized unless you claim that it attracts legal professional privilege or public interest immunity."

On 30 September, there was a further telephone conversation between Federal Agent Kenney and Mr Iceton. There were differences between the two men as to precisely what was said. Both agree that Mr Iceton said that Mr Lord had still not clarified his position in relation to the copy Report. According to Mr Iceton, he also said that all of the records which had been identified by the AFP had been photocopied and were ready to be delivered up pursuant to a search warrant. Federal Agent Kenney's evidence is that Mr Iceton said that the photocopying had not been finished. In cross examination, Mr Iceton conceded that he may have advised Federal Agent Kenney a little later than 30 September, and possibly on 2 October, that the photocopying was completed.

Both men agree that Federal Agent Kenney said that the terms of the search warrant would be fairly general and that in his opinion they would cover the copy Report. (It will be recalled that the Warrant referred to "Liquidator's Reports", although it did not refer to the particular Report.) According to Mr Iceton, Federal Agent Kenney said that as the search warrant would be issued under the Commonwealth Crimes Act, the AFP believed that it would "override" provisions of the Corporations Law. Federal Agent Kenney does not recall saying this. It is not disputed that Federal Agent Kenney asked Mr Iceton to advise him once Mr Lord's position in relation to the copy Report had been clarified.

Two days later, on 2 October, there was a further telephone conversation between Federal Agent Kenney and Mr Iceton. Again, there are differences between the recollections of the two men. According to Mr Iceton, he told Federal Agent Kenney that Mr Lord wished to obtain directions from the Court as to whether he "should be claiming privilege under Section 535 of the Corporations Law" and that Mr Lord wished to obtain "a Court order to clarify the Liquidator's position." (The reference to the making of a claim of privilege under s 535 of
the Law reveals a misconception.) Further, according to Mr Iceton, Federal Agent Kenney replied:

"The Liquidator can only claim privilege under legal professional privilege or public interest privilege. You need to advise me which way you are going. You don't hand over anything voluntarily under a search warrant, the AFP seizes the documents. A search warrant is issued by the Court. The AFP only applies to the Local Court. Therefore, the warrant is a Court document.

An AFP officer based in Sydney will be applying to the Local Court either today or tomorrow for the issue of the search warrant."

Federal Agent Kenney says that there was not a conversation to the effect recounted by Mr Iceton. Rather, he says that he inquired of Mr Iceton as to whether the photocopying was finished and that Mr Iceton replied:

"Yes.The documents are ready. We do not believe that the Report is privileged or attracts public interest immunity. Both Lord and myself wish to be present during the execution of the warrant."

Mr Iceton denies that he said, "We do not believe that the Report is privileged or attracts public interest immunity." Federal Agent Kenney made contemporaneous notes of the conversation but they do not include a note that Mr Iceton said anything to that effect.

I accept Mr Iceton's denial. It is improbable that Mr Iceton would have expressed himself in such unequivocal terms because they did not reflect his understanding at the time. In this respect, Federal Agent Kenney's recollection must be erroneous. On the other hand, Mr Lord had not decided, as at 2 October, definitely to assert a claim. It may be that Mr Iceton said to Federal Agent Kenney some words to the effect that no decision had yet been taken to assert a claim, as distinct from words to the effect that a decision had been taken not to assert a claim. Both men agree that there was a discussion about a convenient date and time for execution of the proposed warrant and that they agreed on 9.00 am on Wednesday 9 October. Immediately following his conversation with Mr Iceton, Federal Agent Kenney advised Federal Agent Jamieson of the agreed time and date for execution of the Warrant.

On 3 October, Mr Lord received by fax a letter of advice dated 2 October from his solicitors, Kemp Strang & Chippindall, advising him as to how to conduct himself upon execution of the Warrant, and as to the possible necessity of an urgent application to the Court for directions. In cross examination, he said that he was not able to say whether he decided on 2, 3, 4, 5 or 6 October to make that application.

On 4 October, Federal Agent Jamieson applied for and obtained the issue of the Warrant. I have described the content of the Warrant earlier in these Reasons.

According to Federal Agent Kenney, it was on 8 October 1996 that he first became aware of Mr Lord's intention to apply to the Court in order to clarify his position in relation to the copy Report. He says that on that date Sergeant Tuohy informed him of that intention of Mr Lord's, of which he, Sergeant Tuohy, had himself learned only in the course of a telephone conversation with Mr Lord earlier that day. Federal Agent Kenney says that he then telephoned Mr Iceton and said:

"Andrew ((Tuohy)) has just spoken to me and told me that John Lord wants to delay the execution of the warrant so that you can approach the court for directions about whether you should claim public interest immunity. The warrant has already been sworn and has to be executed tomorrow otherwise we have to go through the whole process of swearing the warrant again. If you like, we can enter into a separate agreement about how we will deal with the section 533 report."

Federal Agent Kenney described to Mr Iceton a procedure generally similar to that contained in the guidelines agreed upon by the AFP and the Law Council of Australia as to the execution of search warrants on lawyers' premises, law societies and like institutions, in circumstances where a claim of legal professional privilege is made.

Pursuant to the arrangement which had been made, Federal Agents Jamieson and Calvin executed the Warrant at the Premises on 9 October 1996. They seized documents in four boxes. Two of the boxes contained documents from the records of Dallhold that had previously been identified by Sergeant Tuohy and Federal Agent Kenney. They were documents of which Mr Iceton had caused photocopies to be made for retention by Mr Lord. The other two boxes contained the copy Report. In relation to the copy Report, an agreement in writing was entered into by Mr Lord and the AFP at the time of execution of the Warrant. The agreement was that the copy Report would be sealed and delivered to the AFP exhibits office in Sydney pending an application by Mr Lord to the Court for a direction that he was justified in claiming privilege, and that Mr Lord would so apply within seven days.

On 10 October, Paul Anthony Fury of Kemp Strang & Chippindall, pursuant to Mr Lord's instructions, wrote to the ASC. After an account of certain background facts, the letter said:

"Counsel has informed Mr Lord that the attitude of the ASC to this matter may be a very significant factor in any direction that the Court gives to Mr Lord. Accordingly, we would pleased [sic] to receive your advice as soon as possible in relation to the following matters:

(a)whether the ASC has any and, if so, what general view in relation to the claiming of public interest immunity by liquidators in respect of section 533 reports;

(b)whether the ASC has any and, if so, what view as to whether it would be appropriate for Mr Lord, as liquidator of Dallhold, to claim public interest immunity in respect of the Report;

(c)whether the ASC would be prepared to appear upon the proposed directions application by Mr Lord for the purpose of making such submissions as it considers appropriate; and

(d)whether, further or in addition to (c), the ASC would be prepared to provide Mr Lord with an affidavit sworn by an appropriate officer that sets forth the views of the ASC in relation to the matter raised in (a) and (b)."

Both before and following the sending of this letter, Mr Fury had conversations with Mr Zeke Pattra of the ASC. In the first, Mr Fury foreshadowed the writing of the letter. In the second, Mr Pattra advised him of the general nature of the reply which was coming from the ASC. That reply was dated 11 October. The material part of it was as follows:

"I confirm my telephone advice that enquiries of the ASC's Perth Regional Office indicate that there are no further investigations stemming from the Section 533 report. I also understand that the Australian Federal Police did have a joint role in some aspects of this matter. If the AFP applied to the Perth Regional Office for the release of the Section 533 Report, then under section 127 of the ASC Law, subject to advising the liquidator, the ASC would probably release it to the AFP in these circumstances. Accordingly, in this instance, the ASC has no objection to the production of the section 533 report to the AFP pursuant to the search warrant." (underlining supplied)

Mr Lord received that letter on 14 October, five days after the copy Report had been seized and "quarantined" in the AFP's exhibits office. Mr Fury then telephoned Federal Agent Kenney and informed him that the ASC had advised that it had no objection to his (Mr Lord's) producing the copy Report in response to the Warrant, and, further, that if the AFP were to apply to the ASC, the ASC would probably provide a copy of the Report to the AFP. Federal Agent Kenney replied:

"We are aware of that and have considered that option. However, if we made application to the ASC then they would have to notify Alan Bond and the other people mentioned in the report. They could
then take legal action and that could cause considerable delay in us getting the report."

The conversation was also to the following effect:

"Fury:'John Lord is concerned as to what use the AFP proposes to put the report [sic].'

Kenney:'I'm mainly interested in it with regard to Dallhold Estates. I've got about 18 or 19 boxes of documents in relation to that matter and I'm aware that John Lord has done a lot of work on it. If I can get access to his report, I think it will probably save me about 3 months work.'

It is not intended to use the report as an exhibit in Court proceedings.

Fury:'I would not have thought that it would be admissible in any event.'

Kenney:'No. We're looking for it mainly for background information or to assist us to make requests overseas to get hold of further documents.'

Fury:'Could you say that Alan Bond would not get hold of the report?'

Kenney:'No, I wouldn't rule out us having to produce it under a subpoena or if he got discovery of all of our documents. We would certainly fight to oppose this though.'"

On 16 October, Mr Lord applied to this Court for directions pursuant to sub-s 479 (3) of the Law. The application was heard ex parte by Foster J who directed that Mr Lord "should assert a claim for privilege from production".

On 28 October, Messrs Lord and Fury met with Mr Zeke Pattra of the ASC. Mr Pattra handed to Mr Fury two documents: a memo
dated 24 July 1991 from Brendan Byrne, Consultant Legal Adviser, addressed to "All ASC Staff" on the subject of s 127 of the ASC Law, and Policy Statement 78 under the ASC Law issued on 28 February 1994 ("the Policy Statement"). In the Policy Statement, the ASC indicated the practices which it would adopt in relation to the disclosure of information obtained by the exercise of its compulsory powers, in the light of the High Court decision in Johns v Australian Securities Commission (1993) 178 CLR 408. The Policy Statement included paras 46-48 and 56-58 which are as follows:

"46Disclosures to other agencies for use in the administration of Commonwealth, state or overseas law are made under s127(4), which is a discretionary power. The ASC will usually give a person whose secrets or reputation would be affected by such a disclosure the opportunity to make submissions on:

(a)whether the precondition for release is satisfied;

(b)whether the public interest in the disclosure of the information outweighs the prejudice to that person;

(c)whether any information should be withheld; and

(d)what conditions should be imposed.

However, the ASC will not invite the person to make submissions if the administration of justice would be adversely affected by disclosing certain things, such as:

(a)the nature of the information to be released; and

(b)any background information which they would require in order to assess the effect on them and what submissions to make.

However, the ASC will consider the person's interests in deciding what information to release and what conditions to impose on its use."

"56Requests for the release of information should cover any of the matters mentioned above which are relevant to the particular case. Applications should:

(a)explain how the applicant proposes to use the information;

(b)undertake to give persons affected the opportunity to oppose publication of information in court, where relevant; and

(c)specify any grounds for limiting the scope of natural justice in relation to the release.

Applications should be made in writing addressed to the Regional Commissioner of the relevant Regional Office. In the case of an application under s25 or 37, this is the office responsible for the relevant investigation.

SECTION 127(4) APPLICATIONS

An application under s127(4) should specify which persons would be affected by the release. It should also indicate whether the administration of justice would be prejudiced by giving any person affected an opportunity to oppose the release, and if so, which person or persons. Whether the ASC has an agreement with the applicant governing procedures for the release of information, the application should be made in accordance with that agreement. Any additional information needed to meet the policy set out in this Policy Statement should be added."

On 11 November, Mr Fury wrote to the Australian Government Solicitor ("AGS") seeking answers to certain questions. These related to the information on oath that had been provided to the Issuing Officer upon the making of the application for the issue of the Warrant. Paragraph 5 of Mr Fury's letter was as follows:

"5.If the Australian Federal Police are not prepared to or, alternatively, are unable to provide us with copies of documents that fully set out all of the matters put before the magistrate, we would be pleased if you could advise us as to the following matters to the extent to which they are not clearly apparent from such copy documents, if any, as may be supplied by you in response to this facsimile:

(a)at the time when the Search Warrant was obtained, was the Magistrate given information in any way and to any extent, either orally or in writing, to the effect that:

(i)to the knowledge of the Police, the documents that they were to seize at the office of Lord & Brown included a copy of a report made by Mr Lord pursuant to Section 533 of the Corporations Law ('the Report');

(ii)the original of the Report had been lodged by Mr Lord with the Australian Securities Commission;

(iii)it was open to the Australian Federal Police to request the Chairperson of the Australian Securities Commission to authorise the disclosure to them of the Report; and/or

(iv)the Police had not made a request to the Chairperson to authorise the disclosure to them of the Report; ..."

On 16 December, the AGS replied, by facsimile dated 13 December 1996. In reply to (i), the AGS quoted references in the application to, inter alia, "liquidator's reports" and "reports made to the Australian Securities Commission in LORD's capacity as a liquidator of Dallhold Investments Pty Ltd." What is perhaps more significant is that the AGS replied "No" to each of paras 5 (a) (ii), (iii) and (iv).

OUTLINE OF MR LORD'S CASE ON PUBLIC INTEREST IMMUNITY
Mr Lord's case for the existence of public interest immunity assumes the possibility that the AFP may be required, pursuant to a subpoena, to produce the copy Report to a court and that, in consequence, its contents may be disclosed to persons other than the AFP.

There are three forms of injury to the public interest on which Mr Lord relies in support of his claim of public interest immunity. The first is the inhibiting effect on auditors generally in the performance of their duty to report to the ASC under s 533 of the Law. This aspect is well set out in paras 21-26 of Mr Lord's affidavit sworn 23 December 1996:

"21.When preparing the Report, in accordance with what I perceive my duty as Liquidator of Dallhold to entail, I have been frank and candid in discussing in it certain aspects of the affairs of the company. In various places in the Report, I have expressed the view that named individuals may have committed criminal offences and that certain aspects of the affairs of Dallhold warrant further investigation. I consider that such investigations may reveal that these named persons may have committed further offences or that other persons may have committed offences.

22.As an officer of the Court, I consider it appropriate though to state that I have been advised in writing by the ASC that it does not propose to prosecute the persons named by me in the Report or conduct the further investigations that I have recommended.

23.In the course of my administration of the winding up of Dallhold, it has become apparent to me that the affairs of the company are of considerable public interest and, to my knowledge, there have been a considerable number of media reports since 1991 in relation to Dallhold.

24.Given this level of public interest in the affairs of the company as well as the facts that the ASC does not propose to take further action in relation to the matters raised in the Report, I am concerned that should all or part of it become public then such disclosure will be the subject of reporting in the media and that such reporting will or may cause considerable embarrassment to the persons named in the Report.

25.In this regard, I draw two specific matters to the attention of the Court. They are:

(a)although I have endeavoured to ensure that the contents of the Report are as accurate as possible, for a number of reasons, the principal one being the complexity of the company's affairs as compared with the resources available to me to enquire into them, my investigations of certain aspects of the affairs of Dallhold are and will remain incomplete. Notwithstanding my most diligent efforts to the contrary, I am therefore concerned that where there may be incomplete information in the Report, a reader may draw incorrect conclusions; and;

(b)on the information provided to me, it appears that the present investigations of the AFP are primarily concerned with offences under the Bankruptcy Act alleged to have been committed by Alan Bond. In other words, it appears to me that the present Police investigations could very well not result in anyone other than Alan Bond being charged with offences.

26.If reports made by Liquidators pursuant to section 533 of the Corporations Law begin to become public more than very infrequently, I am concerned that the likelihood of such public disclosure may cause the Liquidator preparing the report to display less frankness and candour in the preparation of it than he or she would if the report were to remain confidential."

A second and related aspect of Mr Lord's claim relates to the possibility of his being sued by Mr Bond for defamation. Mr Lord has been advised that statements made by him in his Report enjoy the benefit of absolute privilege at common law, provided they have been made by him in the course of the performance of his duties as liquidator of Dallhold. He has been further advised that in relation to statements contained in the Report, he enjoys the benefit of the qualified privilege expressly provided for in s 535 of the Law, noted earlier. He says that he is of the view that he has acted properly and within the course of his duties as liquidator in preparing the Report, but remains concerned that if all or part of its contents is publicly disclosed, he "may be subjected to frivolous proceedings for defamation by Alan Bond and other persons named or identified in the Report".

The third basis of the claim of public interest immunity relates to documents authored by others which are annexed to the "text" or "narrative" of the Report, but which, nonetheless, form part of the Report. They include documents obtained by Mr Lord from certain banks pursuant to orders made by this Court in relation to examinations conducted by Mr Lord under the Law, and documents obtained by Dallhold in the course of discovery in proceedings in 1991 in the Supreme Court of New South Wales. As well, they include documents which have been provided voluntarily to Mr Lord. Such documents include documents provided to Mr Lord by Robert Ramsay in his capacity as trustee in bankruptcy of the estate of Alan Bond, in order to assist Mr Lord in inquiries that were also of interest to Mr Ramsay. They also include documents provided to Mr Lord by Terrence Gumbley and Barry Davis who were successively the Administrators in the United Kingdom of Estates, each having been appointed by the High Court of Justice following the issue of a Letter of Request by this Court. Those documents were provided by those Administrators to assist Mr Lord in investigations concerning the affairs of Dallhold and Estates.

Mr Lord's concern is that if reports made by liquidators pursuant to s 533 of the Law are made public, persons such as Messrs Ramsay, Gumbley and Davis may be dissuaded from disclosing voluntarily to liquidators, documents or information that may be of assistance to them.

THE QUESTION OF JOINDER OF MR BOND AS A PARTY
Section 12 of the ADJR Act provides, relevantly, as follows:

"12(1) A person interested in a decision in conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision, or in a failure to make a decision, being a decision, conduct or failure in relation to which an application has been made to the Court under this Act, may apply to the Court to be made a party to the application.

(2)The Court may, in its discretion -
(a)grant the application either unconditionally or subject to such conditions as it thinks fit; or

(b)refuse the application."

Mr Bond makes submissions along the following lines.

Mr Bond is a "person interested" in the decision to issue the Warrant and the Court should, in the exercise of its discretion, order that he be made a party to the proceeding.

He is "interested" because:

(a)he is the target of an investigation by the AFP into whether he committed offences against the Bankruptcy Act 1966 and the Crimes Act 1914;

(b)the Report contains or may contain information relevant to that investigation;

(c)pursuant to the Warrant, confidential information relating to the business and personal affairs of Mr Bond will be disclosed to the AFP without his being afforded the opportunity, otherwise available to him by reason of the ASC Policy Statement, to be heard; he cites Johns v Australian Securities Commission (1993) 178 CLR 408 at 430-431, 437, 470-473);

(d)exercise of the authority given by the Warrant will facilitate the AFP's investigation in relation to his alleged commission of offences, an investigation which may result in his being charged with, and subsequently convicted of, the offences, a result which would affect his reputation and may affect his liberty.

It follows that Mr Bond is a person likely to gain an advantage special to him by a setting aside of the Warrant (he cites Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 530, Australian Broadcasting Commission Staff Association v Bonner (1984) 2 FCR 561 (FC) ("ABC") at 573, Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 (FCA/FC) ("Right to Life") at 250-251), and that his grievance extends beyond that which he has as an ordinary member of the public. The decision to issue the Warrant directly affects his existing legal rights, including his right to privacy and potentially his right to liberty of his person and his financial interests (he cites Right to Life at 251-252, 265-268 and United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 (FC) ("US Tobacco") at 527-530).

Mr Bond should be joined as a party, given the importance of his concern with the subject matter of the decision and the closeness of his relationship with that subject matter; the admitted fact that the AFP's purpose in seeking the Warrant in preference to inspecting and photocopying the Report held by the ASC was to defeat his right to, or at least the likelihood that the ASC would afford him, an opportunity to be heard; the importance of the legal issues involved and the possibility that Mr Bond might wish to appeal if Mr Lord's application were to be refused; the fact that joinder would not cause any significant increase in costs or hearing time; and the fact that Mr Lord does not oppose Mr Bond's motion.

"The importance of the legal issues involved" is indicated by the difference between the views on the question of any duty of disclosure owed by an applicant for a warrant expressed in the joint judgment of the Full Court in Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 (FC) ("Karina Fisheries") at 480-483 and in the joint judgment of Beaumont and Whitlam JJ in Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 (FC) ("Lego"). The possibility of obtaining access to the Report through the ASC, the existence of the Policy Statement and of its procedures protective of Mr Bond and the AFP's resort to a search warrant in order to circumvent those procedures, were all matters material, and acknowledged by the AFP to be material, to the Issuing Officer's decision, but not disclosed to her. Accordingly, the facts provide an ideal vehicle for clarification of the nature of the duty of disclosure incumbent on an applicant for a search warrant.

In opposition to Mr Bond's motion, the AFP respondents make submissions along the following lines.

The investigation and prosecution of alleged crime is important from society's viewpoint, as the law recognises. Search warrants are an important tool in criminal investigation, particularly in the investigation of "fraud type offences". The law protects competing interests by entertaining challenges to the validity of search warrants. But those competing interests are limited to proprietary or possessory interests. In no known case has the person the subject of investigation been accorded, merely on that basis, standing to challenge a warrant. That person might have standing by reason of the fact that the things to be searched for belong to him or her, or that the premises where the warrant is to be executed are owned or occupied by him or her, but that is another matter.

If Mr Bond should be charged, he will be entitled, in the criminal proceeding, to challenge the validity of the Warrant
and the admissibility into evidence of "product" of the Warrant (cf Evidence Act 1995 s 138).

The expression "[a] person interested in a decision" in s 12 of the ADJR Act, like the expression "[a] person who is aggrieved by a decision ..." in s 5 of that Act, is, admittedly, to be given a broad construction. The decided cases indicate an approach but do not dictate answers; cf ABC at 573 (Kirby J); Fordham and State of Victoria v Evans (1987) 14 FCR 474 (Jenkinson J) at 476; US Tobacco at 526 ff; Telecasters North Queensland Ltd v Australian Broadcasting Tribunal (1988) 82 ALR 90 (FCA/Pincus J) at 98-99. The difference between the expressions used in ss 5 and 12 should be taken to indicate a difference of legislative intent. The expression "person interested" is the narrower one. It refers to a person whose legal rights are, will or may be affected by the decision.

Even if Mr Bond is a person "interested in" the Issuing Officer's decision, the Court's discretion should be exercised against joinder. Any interest of Mr Bond is distant and tenuous. There is no utility, or only limited utility, in a joinder of him because, in substance, he merely wishes to support the submissions of Mr Lord. Joinder would permit an unwarranted intrusion into the process of criminal investigation by the AFP.

CONCLUSIONS ON MR BOND'S MOTION
Is Mr Bond "a person interested in" the decision to issue the Warrant?
Clearly, s 12 of the ADJR Act contains "broad and beneficial provisions": ABC at 571 (Kirby J - and cf at 573). "The necessary interest [to which s 12 refers] need not be a legal, proprietary, financial or other tangible interest": US Tobacco at 527.

Mr Bond submits that the expression "[a] person interested" in s 12 is even broader than the expression "[a] person who is aggrieved" in ss 5, 6 and 7. He submits that it is therefore not necessary for him to show that he is a person aggrieved by the Issuing Officer's decision to issue the Warrant. However, if necessary, he submits that he is a person aggrieved by that decision. In one respect, the standing to apply to be joined to which s 12 refers is broader than the standing to apply for relief described in s 5: a person benefited by and satisfied with a decision, although not aggrieved by it, may have the "interest" necessary to support the making of an application to be joined.

The existence of a relationship between the notion of "[a] person who is aggrieved" in ss 5, 6 and 7 and that of "[a] person interested" in s 12 is suggested by sub-s 3 (4). That sub-section provides that a reference in the Act to a person aggrieved by a decision includes a reference to a person whose "interests" are adversely affected by the decision. The relationship has been the subject of comment. In ABC Kirby J said that s 12 was "deliberately included in the [ADJR] Act to enhance slightly the standing of parties in judicial review proceedings validly commenced under the Act", and that "[i]t ought not to be construed narrowly so as to undermine the legislative intent" (at 573). In US Tobacco, a Full Court described s 12 as "concomitant to" ss 5 and 6 (at 526, 527).

It seems to me that the authorities which establish the breadth of the "person aggrieved" test of standing to apply for relief which is invoked in ss 5, 6 and 7 (see, for example, Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 (FCA/Ellicott J) at 79, Ricegrowers
Co-operative Mills Ltd v Bannerman (1981) 38 ALR 535 (FCA/FC) (Bowen CJ, Franki J), Ogle v Strickland (1987) 13 FCR 306 (FCA/FC), Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 (a case under the general law); and Right to Life) show that the "person interested" criterion of standing to apply to be joined invoked in s 12 is no less broad.

It is not necessary or appropriate for me to attempt to circumscribe the nature of the "interest" that will satisfy s 12. The interest propounded by Mr Bond has two aspects. First, he is the target of the AFP investigation and the copy Report contains information which would assist the AFP in that investigation. Although it is not known whether Mr Bond will be charged, the provision of the information in the Report can only be inimical to his interests.

The second matter relied on is the deprivation of an opportunity to be heard in opposition to the disclosure of the contents of the Report. This aspect calls for further discussion. I raised with the parties the question of the joinder of the ASC. Both prior to the hearing, and at my suggestion at an early stage during the course of it, the ASC was informed of the proceeding but indicated that it did not wish to participate. The ASC's Policy Statement refers to Johns v Australian Securities Commission (1993) 178 CLR 408. I do not find it necessary to decide whether that case has the effect that the ASC is required to observe requirements of natural justice in favour of Mr Bond, before allowing the AFP access to the Report: there are similarities and differences between the circumstances in Johns' case and those in which Mr Bond is placed.

Would the ASC in fact have given Mr Bond an opportunity to be heard before making the Report available to the AFP? The latest and only written evidence of its stance in relation to the Report in particular, is found in its letter dated 11 October 1996 to Mr Lord's solicitors. The ASC advised that since the AFP had had "a joint role" with the ASC "in some aspects of this matter",

"[i]f the AFP applied to the Perth Regional Office for the release of the Section 533 Report, then under section 127 of the ASC Law, subject to advising the liquidator, the ASC would probably release it to the AFP in these circumstances."

The letter went on to advise that:

"[a]ccordingly, in this instance, the ASC has no objection to the production of the section 533 report to the AFP pursuant to the search warrant."

Mr Podmore of the ASC had told Federal Agent Kenney on 19 or 20 September on the telephone that the ASC would give Mr Bond "an opportunity to contest" the ASC's making available the Report to the AFP. By 11 October 1996, however, the ASC's position, stated in writing, was that it would "probably" allow the AFP to make a copy of the Report without first notifying Mr Bond or anyone else. I infer that, although Federal Agent Kenney did not know it, if the AFP had applied to the ASC on 4 October, the date of issue of the Warrant, the ASC would probably, after advising Mr Lord, have made the Report available to the AFP for copying without first giving Mr Bond the opportunity to oppose that course. It follows that, in my view, there is no substance in the second aspect of "interest" relied on by Mr Bond.

Notwithstanding this, having regard to the broad construction that has been given to the expression "person interested" in s 12 of the ADJR Act, I think that Mr Bond satisfies that description in relation to the Issuing Officer's decision to issue the Warrant. The copy Report will inform the AFP of Mr Lord's investigations, to the extent to which they had progressed, touching possible offences by Mr Bond, and of Mr Lord's recommendations for the making of further investigations. The copy Report may or may not contain information which the AFP would ultimately acquire in the ordinary course in any event, but at least, according to Federal Agent Kenney, access to it will probably save the AFP substantial work and time. Availability of the copy Report may cause the AFP to charge Mr Bond with having committed further criminal offences with which he would not otherwise be charged. Accordingly, there are potential disadvantages to Mr Bond arising from the decision to issue the Warrant.

I conclude that Mr Bond is a person interested in the decision to issue the Warrant.

Should the Court order that Mr Bond be made a party to Mr Lord's application?
A conclusion that Mr Bond is a "person interested" does not entitle him to be joined. Rather, that conclusion gives rise to "merely a right to have exercised the Court's discretionary judgment whether to make the applicant under s 12 a party": Fordham v Evans, supra, at 477; US Tobacco at 527.

I noted earlier, in outline, Mr Bond's and the AFP respondents' submissions for and against the exercise of discretion sought by Mr Bond. The following four considerations suggest that the discretion should be exercised against joinder.

First, apart from a "gloss" on Mr Lord's submissions, Mr Bond does not claim to be in a position to lead evidence or make submissions, beyond the evidence led, and the submissions made, by Mr Lord. Mr Bond's primary objective is to secure a right of appeal against the cumulative possibilities that Mr Lord's application should fail, and that Mr Lord should not appeal. While this objective is entitled to be given some weight (cf ABC at 573), its contingent nature must be taken into account in the assessment of that weight.

Secondly, Mr Bond may not be charged, and if he is, he will be entitled to challenge the validity of the Warrant and the
admissibility of evidence obtained as a result of execution of it, on a voir dire in the course of the criminal proceeding; cf Bunning v Cross (1987) 141 CLR 54; Hilton v Wells (1985) 157 CLR 57 at 77 (Gibbs CJ, Wilson, Dawson JJ); Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 (FC); and see s 138 of the Evidence Act 1995. Of course, to be charged is itself a detriment, but relevant to the assessment of it are the facts that it may never eventuate at all, and that if it does, Mr Bond will be able, albeit subsequently, to mount the challenge to which I have referred.

Thirdly, this Court will intervene in the criminal process only in exceptional circumstances. This general principle has been conceived of as applicable both in cases in which a criminal proceeding has already commenced (cf Sankey v Whitlam (1978) 142 CLR 1; Flanagan v Commissioner of the Australian Federal Police, supra), and at the antecedent stage of criminal investigation (cf Jarrett v Seymour (1993) 46 FCR 557 (FC) at 564-565 per Lockhart and Beaumont JJ, Sheppard J agreeing esp at 573; Right to Life at 268 (Beaumont J), 270 (Gummow J)).

Fourthly, countervailing against Mr Bond's submission as to his objective, is the consideration that if Mr Lord's application were to fail, and if he did not appeal, and if Mr Bond did appeal, it would transpire that the joinder of Mr Bond would have delayed and rendered more costly the process of criminal investigation.

Ordinarily, the foregoing factors would clearly dissuade me from ordering that Mr Bond be joined. But the present case is unusual in that the attack which Mr Bond wishes to make against the decision to issue the Warrant is already under way at the instance of a third party, Mr Lord. If Mr Bond is not joined, he will not be bound by my decision or by any appellate decision as a result of an appeal by Mr Lord. If charges should be brought against Mr Bond, it seems reasonable to assume that he will, in the course of the criminal proceeding, raise the same grounds of challenge to the Issuing Officer's decision as Mr Lord raises (and he, himself, would raise if joined) in the present proceeding. A decision by the trial Judge adverse to Mr Bond on the voir dire could be relied on by him in an appeal against conviction. Is it better that any challenge by Mr Bond be resolved as part of the present proceeding which is far advanced, than that it be allowed to occupy judicial time again in any criminal proceeding which may eventuate?

These considerations do not move the AFP respondents. They prefer to meet any future attack by Mr Bond on the decision to issue the Warrant if and when it arises. Apparently they think that Mr Bond would, and that Mr Lord would not, be likely to appeal a decision in their favour, so that if they succeed in the absence of Mr Bond as a party, they will have access to the copy Report, and be enabled to progress their investigation, sooner than if he were a party.

Notwithstanding the considerations of efficient use of judicial time to which I have referred, I have reached the view that Mr Bond should not be joined. My reasons include the four general considerations identified earlier. I do not think that the unusual circumstances of the present case to which I have referred outweigh them. It must always be remembered that we are concerned with the investigatory stage and that charges may not be brought. Not only does this consideration reduce the strength of Mr Bond's interest: if charges are not brought, the question of efficient use of judicial time to which I have referred will not arise. I also take into account the fact that the AFP respondents are clearly prepared, and prefer, to bear the risk (and associated delay) of Mr Bond's raising afresh in any criminal proceeding the matters advanced by Mr Lord in this present proceeding.

Finally, one cannot be certain that even if charges were to be brought, considerations of efficiency would favour joinder. They would not do so if Mr Lord did not appeal and there were to be an acquittal in the criminal proceeding. They might not do so if Mr Lord were not to appeal and Mr Bond were to appeal on other grounds against conviction in such a proceeding in any event.

Mr Bond's motion will be dismissed with costs.

FAILURE TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS - GENERALLY
The parties are agreed, and I accept, that "relevant considerations" for present purposes are to be identified by reference to certain propositions which were formulated by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39-41 as follows:

"(a)The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: ...

(b)What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. ... If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. ... where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

(c)Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision; ...

(d)The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: ..."

The foregoing propositions require attention to be given, in the first instance, to the relevant provisions of s 3E of the Crimes Act 1914. Sub-section 3E (1) is as follows:

"3E(1)An issuing officer may issue a warrant to search premises if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises."

The expression "evidential material" is defined in sub-s 3C (1) to mean:

"a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form".

The expressions "thing relevant to an indictable offence" and "thing relevant to a summary offence" are both defined in sub-s 3 (1) as follows:

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

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

(c)anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence."

Sub-sections 3E (3) and (4) require a person applying for a warrant to state certain things in the information in particular circumstances. Sub-section 3E (5) requires an issuing officer to state certain matters in the warrant. In order that that obligation be performed, it will be necessary that certain basic information be provided by the applicant for the Warrant. Otherwise, the express terms of s 3E do not indicate what factors an issuing officer is bound to consider in deciding whether to issue a warrant. Clearly, however, an issuing officer must be satisfied that there is, or will be within the next 72 hours, evidential material at the premises.

In his submissions, Mr Lord refers to the importance of the role of the issuing officer in standing between the police and the citizen, and, in particular, in safeguarding interests of privacy and private proprietary rights; cf Crowley v Murphy (1981) 52 FLR 123 (FCA/FC) at 140 (Lockhart J); Parker v Churchill (1985) 9 FCR 316 (Burchett J) at 322-323. The significance of this consideration is, according to the submission, that the issuing officer must have regard to the question whether the warrant sought, and the concomitant intrusion into privacy, are necessary. Mr Lord submits that
the availability of the alternative procedure under s 127 of the ASC Law is pertinent to this question. Mr Lord's outline of submissions includes the following:

"It [s 127] provided a means of obtaining the evidential material without interfering with the liquidator's privacy while, at the same time according natural justice to third parties."

In enacting s 3E, the legislature may be taken to have contemplated that often the evidential material to which a search warrant will refer will be voluminous documents, described in more or less general terms, copies or originals of which will, in many cases, be found elsewhere, some of which will be available to the AFP without the necessity of a search warrant. Publicly registered documents afford an obvious, but not the only, example. Indeed, such documents are referred to in the Warrant, in the form of "Certificates of Title".

Mr Lord's present submission is one of general application. It is that the subject-matter, scope and purpose of the Crimes Act 1914, and its search warrant provisions in particular, show that an issuing officer is bound to take into account the availability to the AFP, without the necessity of the search warrant applied for, of copies or originals of any of the documents the subject of the proposed warrant. As demonstrated below, the proposition expressed in the submission, if correct, would entail practical difficulties
which it should not be readily concluded the legislature intended to beset a criminal investigation.

The statutory provision, as part of the armoury of criminal investigation, accepts that the identity of particular documents to be the subject of a search and seizure may not be known. (In Dunesky v Elder (1994) 54 FCR 540, a Full Court of this Court upheld the validity of a "three-condition warrant" similar to the Warrant.) The "FIRST CONDITION" of the Warrant illustrates:

"FIRST CONDITION: Things which are:

-originals or copies of any one or more of the following including any of them which are stored on magnetic or electric storage medium:

.Letters of Correspondence
.Examinations under the Bankruptcy Act 1966
.Liquidator's Reports
.Financial accounts
.Company records
.Trust records
.Business records
.Telexes
.Facsimiles
.Invoices
.Receipts
.Transcripts
.Certified Statements
.Statements
.Bank statements
.Trust statements
.Money transfers
.Powers of Attorney
.Purchase Agreement
.Contracts
.Loan Agreements
.Investment Certificates
.Share Certificates
.Certificates of Title
.Certificates of Ownership
.Real Estate Documents
.Travel Records

.Telephone Records
.Files notes
.Files
.Records of Conversations
.Minutes of conferences"

It is reasonable to think that of these documents, copies or originals of more than merely "Liquidator's Reports" and "Certificates of Title" would be available to the AFP without the necessity of intrusion into Mr Lord's privacy. It is reasonable to think that some persons or entities having possession of such copies or originals would be willing to make them available to the AFP voluntarily. Moreover, in the case of others, although a search warrant might be necessary, it might involve a lesser invasion of privacy than would the Warrant in respect of Mr Lord's privacy.

This last consideration leads to three others which, in my view, tell against the submission. First, apparently, the proposition advanced would require the Issuing Officer to take into account the comparative degrees of invasion of privacy which would result from execution of the warrant sought on the one hand, and that which would result from the execution of, perhaps several, other search warrants at other premises on the other hand. Search for and seizure of all the documents referred to in the warrant sought on the one occasion might reasonably be considered to involve a lesser invasion of privacy over all, than the invasions of several persons or entities caused by the execution of a number of more limited search warrants. But it might not.

Secondly, it is reasonable to think that the legislature intended simultaneous execution of search warrants at various premises in respect of documents of the same kinds. A requirement that each issuing officer take into account the availability of copy or original documents elsewhere without any, or with less, intrusion into privacy, would compound the practical difficulty in such a case.

Thirdly, there is the consideration that if an issuing officer might properly issue a search warrant in respect of some of the things described in it, no additional invasion of privacy would be caused by the inclusion of a document that is available elsewhere or even from the person in occupation of the subject premises without the necessity of a warrant. In the present case, for example, no additional invasion of Mr Lord's privacy was caused by the inclusion in the Warrant of "Liquidator's Reports".

The foregoing practical implications of the general proposition relied on by Mr Lord strongly suggest that it is not consistent with the legislature's intention. I do not accept the general proposition that an issuing officer is bound to take into account the fact that there are or may be alternative means available by which the applicant for a search warrant might obtain access to copies or originals of documents the subject of the proposed warrant and which would or may involve less invasion into privacy than the warrant would do. In particular, I do not accept the submission that the Issuing Officer was bound to take into account the fact that there was an alternative means available under s 127 of the ASC Law by which the AFP might have obtained access to the contents of the copy Report. Nor do I accept that the express provision in sub-s 127 (4) of the ASC Law for the disclosure of information given to the ASC to an agency such as the AFP, signifies an intention that the procedure under that sub-section must be availed of by the AFP to the exclusion of s 3E of the Crimes Act 1914 in respect of the information contained in a liquidator's report lodged with the ASC pursuant to s 533 of the Law.

Finally, it is not shown that the Issuing Officer did not take into account the possibility that the contents of the copy Report might have been available to the AFP elsewhere. The expression:

"-originals or copies of any one or more of the following ........ ........ ........ ........ .....:

.Liquidator's Reports ..."

must have suggested to the Issuing Officer that what was sought was an original or copy of a report by a liquidator of a company to someone, and that if a copy was at the Premises, the original may well be elsewhere, and if the original was at the Premises, a copy may well be elsewhere. The Issuing Officer may have taken into account the possibility that the original or copy elsewhere may have been available to the AFP, but decided that since she was minded to issue the Warrant in respect of other documents and to authorise concomitant invasion of Mr Lord's privacy, it was appropriate to include "Liquidator's Reports" on the "no additional intrusion" principle.

Both Mr Lord and the AFP respondents referred to certain remarks by French J in Rogers v Moore (1992) 39 FCR 201. In that case, search warrants issued under the predecessor of s 3E of the Crimes Act 1914 (s 10 of that Act), authorised members of the AFP in Perth to enter premises of the Fisheries Department of Western Australia and to seize specified categories of documents which might afford evidence of offences against Commonwealth law relating to the evasion of income tax in the rock lobster fishing industry. The Director of Fisheries for Western Australia (Rogers) sought, inter alia an order for review of the decision of the magistrate (Moore) to issue the warrants. Rogers submitted that Moore had failed to take into account a relevant consideration, namely that the warrants would reveal no information additional to that which the AFP had already obtained by the investigation of relevant processing establishments. At the time of French J's decision (4 December 1992) Karina Fisheries had been decided, but Lego had not (see later). In Karina Fisheries, Sheppard, Foster and Hill JJ held, in a joint judgment, that the applicant for such a warrant, like an applicant for ex parte equitable relief in private litigation, was obliged to bring to the notice of the issuer of a search warrant, all facts material to the exercise of the discretion. Their Honours referred to the duty as "a strict duty of full disclosure of material facts" and accepted that "uberrima fides" is required.

Notwithstanding this, French J said:

"In considering the range of factors which ought to be drawn to the attention of the issuing justice by the informant, it is necessary to bear in mind the nature of the function being undertaken. It is the administrative act of issuing an investigative process. It is in most cases necessarily ex parte. The application for the issue of a warrant is not a function of its nature congruent in kind with an ex parte application for an interlocutory injunction. While the duty of full disclosure imposed by the courts in such cases to avoid the possibility of misuse of coercive powers is able to be applied in the case of a search warrant, its content is to be determined by reference to the statutory purpose. The purpose of a warrant is not to advance or protect private rights as in an application for an injunction, but to gather information to determine whether an offence has been committed and to facilitate proof of it. Although s 10 of the Crimes Act confers a discretion upon the justice asked to issue a warrant, it does not, having regard to the statutory purpose, require an inquiry into the possible inconvenience of the execution of the warrant proposed. If that were so then, in seeking the issue of a warrant against a private citizen or corporation, the informant might be required to draw to the attention of the issuing justice the particular circumstances of the citizen or corporation so far as they bore upon the issue of disruption to business or private life and the economic loss or effects upon reputation that might flow from the execution of the warrant. The observations of the Full Court in Karina Fisheries in my opinion, would require the disclosure to the issuing justice of matters relevant to the power to issue the warrant. In certain circumstances matters going to the utility of the warrant might have to be disclosed. If, for example, an offer of full and voluntary disclosure of the documents sought had been made, that might be material in deciding whether or not the issue of the warrant was necessary. Anything of significance going to the question whether there were reasonable grounds for the suspicion that conditions [of -sic] the power

The second unusual feature of the present claim is that while an individual can raise a claim of public interest immunity, it is not common, as in the present case, that the claim is made in respect of a document (the copy Report) not in the possession of the Crown or of a public authority and is not supported by the Crown or public authority, but is made in respect of a document in the possession of a private person (Mr Lord) against the Crown (the AFP).

The third feature is that the claim is not supported by the public body or authority most closely associated with the
public interest relied upon to outweigh the public interest in criminal investigation, detection and prosecution, namely the ASC. As noted earlier, the matters required to be addressed in a report under s 533 are matters related in various ways to a company and which are properly the concern of the ASC. Not only has the ASC, although aware of the present proceeding, chosen not to appear; the evidence suggests that if pressed by the AFP, it probably would be willing to produce the Report for inspection by the AFP, in view of certain joint activities which the ASC and the AFP have undertaken in respect of Dallhold.

Mr Lord expresses "concerns" which he has in case the copy Report should become publicly disclosed. Disclosure to the AFP itself is not public disclosure. On the evidence, I accept that the AFP intends to keep the copy Report confidential and not to disclose it publicly, except pursuant to a court order made after Mr Lord has been given the opportunity to object.

The concerns expressed by Mr Lord are to be understood against the background of his evidence that because of lack of resources available to him, and the complexity of Dallhold's affairs, his investigation of certain aspects of those affairs is incomplete and a reader of the Report might draw incorrect conclusions from it. His concerns can be summarised as follows:

if reports under s 533 of the Law become public more than infrequently, liquidators may display less frankness and candour in the preparation of such reports;

if reports under s 533 of the Law are made public, disclosure may dissuade persons from voluntarily disclosing to liquidators, documents or information that may be of assistance in their inquiries;

if the copy Report becomes public, it will be the subject of reporting in the media which will, or may, cause considerable embarrassment to the persons named in it;

Mr Lord may be subjected to frivolous proceedings for defamation by Alan Bond and others named in the copy Report.

Concerns (1) and (2) are, in substance, "class claims" of public interest immunity, while concerns (3) and (4) are "contents claims".

I accept the substance of the following submissions of the AFP respondents on the class claims and the contents claims:

"8.The class claims

8.1Class claims are generally made in respect of documents produced at high levels of government, such as cabinet minutes and minutes of discussions between heads of departments: Sankey v Whitlam (1978) 142 CLR 1 at 39 (Gibbs ACJ); Zarro v Australian Securities Commission (1992) 36 FCR 40 at 46. The burden of securing the exclusion of documents in the case of a class claim is a heavy one and the court should examine such a claim with great care: Sankey v Whitlam at 62.9 (Stephen J); Rogers v Home Secretary [1973] AC 388 at 400 (Lord Reid).

8.2A traditional reason given for excluding high level governmental documents from disclosure was that proper decisions can be made at high levels of government only if there is complete freedom and candour and that the possibility of disclosure might effect the frankness and candour of those preparing such documents. It is this formulation which Mr Lord uses, though liquidators hardly operate at high levels of government. This ground has been disposed of as a tenable basis for public interest immunity: Sankey v Whitlam at 40.2 (Gibbs ACJ) and 63.4 (Stephen J); citing Lord Radcliffe in the Glasgow Corporation Case 1956 S.C (H.L) at 20; the Grosvenor Hotel Case [1965] Ch at 1255; Conway v Rimmer [1968] AC 901 and Rogers v Home Secretary at 413, where Lord Salmon referred to the "candour" argument as "the old fallacy". Mason J in Sankey v Whitlam stated (at 97.5) that "... the possibility that premature disclosure will result in want of candour in cabinet discussions or in advice given by public servants is so slight that it may be ignored ...".

8.3In Boys v Australian Securities Commission (Federal Court, unreported 9 May 1996, Carr J), a similar argument was put forward to support an argument that public interest immunity attached to a report by a receiver under section 422 of the Corporations Law. Carr J stated (at 17):

`... Receivers are under a statutory obligation to furnish these reports. I think it unlikely that Receivers will shirk their responsibilities to make full reports to the Commission because, occasionally, the interests of justice will require production of these reports to the persons mentioned in them ...'

8.4In Zarro v Australian Securities Commission, Lockhart J stated (at 46.3)

`Documents within the possession of the ASC (an investigative and law enforcement agency) of a confidential nature, which record information received by it concerning possible offences or irregularities and recording the possible course of investigations or information with respect to evidence concerning proceedings to which the ASC is a party, plainly may fall within the scope of public interest immunity; but as present advised I cannot conceive of a case where they would fall with the class doctrine and thus be immune from disclosure irrespective of the contents of any particular document.'

This would apply to the Report in question in this case, as it has been lodged with the ASC. Even if the ASC supported the Applicant's class claim in relation to the Report, it would be unlikely to be successful.

8.5In Saunders v National Australia Bank (1988) 12 NSWLR 623, a similar class claim was made in respect of the Companies Code equivalent of a section 533 Corporations Law report. Rogers CJ Comm D, whilst accepting the concerns of Mr Blackwell, the liquidator in that case who claimed public interest immunity (supported by evidence from a senior officer of the then Corporate Affairs Commission) very much doubted that there was what his Honour described as `permanent immunity from production' in respect of liquidator's reports. In refusing the claim for public interest immunity, his Honour was particularly influenced by the fact that there were no further investigations on foot and that criminal charges were not still pending. In this case, Mr Lord has been informed by the ASC that the ASC does not propose to prosecute any persons named in the Report or to conduct the further investigations recommended by Mr Lord in the Report.

8.6It is accordingly submitted that, even if the Court accepts that Mr Lord is concerned as alleged, these concerns do not amount to a risk of injury to the public interest sufficient to justify the suppression of section 533 reports as a class of document.

8.7..., it is difficult to conceive how public interest immunity could attach to the documents annexed to the report. The claim is not analogous to the accepted head of public interest immunity which protects the identity
of police informers [Cain v Glass (No.2) (1985) 3 NSWLR 230], because there is no evidence that the report discloses the source of the documents (or other information). There is also no evidence that the documents were provided to the Applicant on a confidential basis. In any event, liquidators are able to compel the production of documents pursuant to provisions of the Corporations Law.

8.8The fact that the Applicant is under a statutory duty to prepare and lodge the Report with the ASC and that the report is lodged with the ASC in confidence is not itself sufficient to justify a claim for public interest immunity: Sayer v National Mutual Life Association of Australia Limited & Ors (1994) 34 NSWLR 132 at 144E-F and 145A (also at 146D-F)

9.The contents claims

9.1To attract public interest immunity, disclosure of a document must be harmful to the state or public interest. It is not sufficient that disclosure would be injurious to a private interest or that disclosure would be inconvenient or embarrassing: Cross on Evidence at paragraph 27035. It is submitted that the contents claims ... reveal, at best, a concern that private interests may be injured: embarrassment to persons named in the report (7.3.1) and possible frivolous defamation proceedings against Mr Lord (7.3.3). Neither would justify a conclusion that disclosure would be injurious to the public interest.

9.2Mr Lord's concerns in this respect are distinguishable from Lord Reid's reference in Conway v Rimmer [1968] AC 910 at 952 to "ill‑informed or captious public or political criticism" by those "without adequate knowledge of the background". These remarks concerned the effect which premature disclosure of high level cabinet minutes would have on the business of government. In Sankey v Whitlam, Gibbs ACJ stated (at 40.6) that "... the object of the protection is to ensure the proper working of government, and not to protect Ministers and other servants of the Crown from criticism, however intemperate and unfairly based." There is no suggestion, let alone evidence, that embarrassment of persons named in the Report or frivolous defamation proceedings against Mr Lord would have any
effect on any decision making by the Applicant or the ASC or anyone else."

The aspects of the public interest relied on by Mr Lord are contingent and speculative. It should be noted that Mr Lord conceded in cross examination that although liquidators' reports had sometimes been made public over the liquidator's objection, his own awareness of this fact had never caused him to be less candid and frank in reporting to the ASC.

I find that the contents of the Report are likely to assist the AFP to serve the public interest in furthering the investigation, detection and punishment of crime. They include an account of Mr Lord's investigation into the very transactions the subject of the AFP's own investigation, and his (Mr Lord's) recommendations to the ASC relating to the possible commission of criminal offences and the pursuit of further investigations. In my view, the aspects of the public interest which would be served by the availability of the contents of the Report to the AFP clearly outweigh those aspects, if any, which would be served by their suppression.

In the exercise of balancing aspects of the public interest, I take into account the fact that the ASC has indicated that it "would probably release it to the AFP" (letter dated 11 October 1996 from ASC to Kemp Strang & Chippindall). It has been said that where the relevant public authority has considered the question and decided that no objection should be taken, it "would be most exceptional for the court to intervene": Sankey v Whitlam (1978) 142 CLR 1 at 44 (Gibbs ACJ; and cf at 68 per Stephen J); A v Hayden (1984) 156 CLR 532 at 548-9 (Gibbs CJ), 576 (Wilson and Dawson JJ). Although the public interest which the ASC "represents" is not as strong as that of national security which was in issue in A v Hayden, it nonetheless remains true that "[Mr Lord] cannot be expected to have the knowledge that would be likely to make his views on such a question preferable to those of the [ASC], ..." (at 549 per Gibbs CJ).

A further matter which I take into account is that disclosure is only to the AFP. The AFP may use the copy Report and the information gleaned from it only for the purposes for which it was seized, namely, the investigation referred to in the Warrant. The personnel of the AFP are prohibited from divulging or communicating information obtained in the course of carrying out, performing or exercising their duties, functions or powers, for other purposes; Australian Federal Police Act, 1979 s 60A.

There is, moreover, evidence as to the course which the AFP would follow if a subpoena were received for production of the copy Report. Federal Agent Peter John Baxter has given evidence that once the documents falling within the terms of a subpoena served on the AFP are collected, an assessment is made to determine whether any document or information contained in it may be the subject of a claim of legal
professional privilege or public interest immunity. If it is decided that it may be:

" ... the person or entity from whom the document was sourced is contacted by the AFP, advised that the AFP has been subpoenaed and asked whether they have any objection to the document being produced, either on the basis of legal professional privilege or public interest immunity; ..."

If the AFP or that other person or entity is concerned that a document is immune from production on the ground of public interest immunity, the AFP will either make the claim itself or advise that person or entity that the AFP is not in a position to make it and that the person or entity should consider whether the claim should be made.

Similarly, Federal Agent Kenney has given evidence that in relation to the AFP's investigation in respect of Mr Bond, the AFP has executed a large number of search warrants on various premises and seized a large number of documents, and that at various times, notices or summonses to produce such documents have been served on the AFP. He says that in such a case he has adopted the following practice:

"(a)I would consult the Australian Government Solicitor ("AGS") or the Commonwealth Director of Public Prosecutions ("DPP") and seek advice as to whether the AFP was obliged to comply with the particular notice and whether there were any grounds on which the AFP could or should oppose production, including public interest immunity;

(b)If advised by the AGS or DPP that there were no
grounds to oppose production of the documents, I would send a letter to the third party from whom the documents were seized and advise them that the AFP had received a notice or summons to produce and would comply with the notice on a certain date so as to give that third party the opportunity to oppose production if they so desired."

Federal Agent Kenney continued by saying that if the AFP obtains the copy Report and were subsequently subpoenaed or otherwise called upon to produce it, the matter would be referred to himself or Federal Agent Tuohy for action, in which event he would adopt his practice described above.

I accept that it is likely that the AFP would notify Mr Lord if a situation of the kind feared by Mr Lord were to transpire, so that Mr Lord would have, in due course, the opportunity to re-assert public interest immunity, if he so wished.

A particular aspect of the public interest on which Mr Lord relies is that the public interest is served by preserving the basis upon which information is given under compulsion of law to public authorities. Mr Lord refers, in particular, to Jacobsen v Rogers, supra, at 589-590, and cases there cited. In their joint judgment, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ quoted passages from Conway v Rimmer [1968] AC 910 (HL) and Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 (HL). In Conway v Rimmer, Lord Reid had said (at 946):

"If the state insists on a man disclosing his private affairs for a particular purpose it requires a very strong case to justify that disclosure being used for other purposes."

In the Norwich Pharmacal case, Viscount Dilhorne had said (at 189):

"I do not accept the proposition that all information given to a government department is to be treated as confidential and protected from disclosure, but I agree that information of a personal character obtained in the exercise statutory powers, information of such a character that the giver of it would not expect it to be used for any purpose other than that for which it is given, or disclosed to any person not concerned with that purpose, is to be regarded as protected from disclosure, even though there is no statutory prohibition of its disclosure."

Following these passages, their Honours said this (at 590):

"The principle does not appear to depend upon the encouragement of candour but rather upon the consideration that the public interest is best served by preserving the basis upon which the information was given. It may be necessary for the proper functioning of the public service to withhold documents where failure to do so would impair confidence in its assurances [Sankey v Whitlam (1978) 142 CLR 1 at 39]. Confidential information of a business character required to be given by a statute which prohibits the disclosure of the information and protects it from production to a court would appear to present a particularly strong case for immunity. Nevertheless, even where the private right to confidentiality is of some magnitude and its preservation is in itself in the public interest, it must be weighed against the public interest in disclosure for the purposes of the investigation and prosecution of the offences in question [Sankey v Whitlam (1978) 142 CLR 1 at 60-62]. Ultimately, that issue may require judicial determination but, as we have said, if the warrant is executed in a reasonable manner, as it must be [Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR at 417-418, 437-438], there is no reason why that issue may not be resolved by a court."

In my respectful opinion, for two reasons these passages do not apply in the circumstances of the present case. The first reason relates to the nature of the information contemplated by these passages. In Conway v Rimmer, Lord Reid referred to the "private affairs" of the person making the disclosure; in the Norwich Pharmacal case, Viscount Dilhorne referred to "information of a personal character"; and in Jacobsen v Rogers, their Honours referred to "[c]onfidential information of a business character" and "the private right to confidentiality". In the present case, Mr Lord has not, by means of the Report, disclosed to the ASC his "private affairs", "information of a personal character" or "[c]onfidential information of a business character". On the contrary, the information contained in the Report does not relate to Mr Lord at all. The information contained in the Report was obtained by Mr Lord in his role as an officer of the Court.

Secondly, it cannot be said that the information in the Report is "of such a character that the giver of it [Mr Lord] would not expect it to be used for any purpose other than that for which it [was] given, or disclosed to any person not concerned with that purpose". I do not find it necessary, for present purposes, to attempt to circumscribe "the purpose" for which a report required of liquidators by s 533 of the Law is provided. The purpose does not include the investigation by the AFP of offences of the kinds described in the Warrant. But para 127 (4) (a) of the ASC Law makes it clear that the information contained in the Report may be used for the purpose of such an investigation and that it may be disclosed by the ASC accordingly. Mr Lord cannot be heard to say that the information in the Report was furnished by him on the basis of a reasonable assumption that it would be kept confidential to the ASC, in view of the express provision of sub-s 127 (4) of the ASC Law to the effect that it might not be.

For all the foregoing reasons, in my view the claim of public interest immunity is not made out.

CONCLUSION
The application will be dismissed with costs.

I certify that this and the preceding 72 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated:14 April 1997

Heard: 6, 7, 28 January 1997

Place: Sydney

Decision: 14 April 1997

Appearances: Mr P M Donohoe QC of counsel instructed by Kemp Strang & Chippindall, solicitors, appeared for the applicant.

Mr I M Temby QC with Mr M Wigney of counsel instructed by the Australian Government Solicitor appeared for the first and second respondents.

Mr J S Hilton SC instructed by Phillips Fox appeared for Alan Bond as applicant on the motion.

[1997] FCA 243

14 APRIL 1997