Love v The Attorney-General for New South Wales & Anor; Peters & Anor v The Attorney-General for New South Wales

[1989] HCATrans 271

~

~ ':;-~•-;r

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S58 of 1989

B e t w e e n -

MALCOLM JAMES LOVE

Applicant

and

THE ATTORNEY-GENERAL IN AND FOR

THE STATE OF NEW SOUTH WALES

First Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

FOR THE STATE OF NEW SOUTH WALES

Second Respondent

Office of the Registry

Sydney No S61 of 1989

B e t w e e n -

BRENT RICHARD PETERS

KATHLEEN MAREE PETERS

Ap]?ellants

and

THE ATTORNEY-GENERAL IN AND FOR

Love(2)

THE STATE OF NEW SOUTH WALES

First Respondent

THE DIRECTOR OF PUBLIC PROSECUTIONS

FOR THE STATE OF NEW SOUTH WALES

Second Respondent

MASON CJ
BRENNAN J
DAWSON J
TOOHEY J

GAUDRON J

C2'!'2 5 /1 / SH 1 9/11/89

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 NOVEMBER 1989, AT 11.43 AM

Copyright in the High Court of Australia

MR K. HANDLEY, ~C: If the Court pleases, I appear for the

appel ant, Peters, with my learned friend,

MS M. BEAZLEY, QC. (instructed by Newman Freeman)

MR K. HORLER, QC: If the Court pleases, in the

appeal of Love, I appear for him,
appearing with my learned friend, MR P. HAMILL

(instructed by Marsdens)

MR K. MASON, QC: Solicitor-General for the State of New South Wales:

In each matter, I appear for the respondents with my

learned friend, MR L. KATZ (instructed by the Crown

Solicitor for the State of New South Wales)

MASON CJ: Yes, Mr Handley.

MR HANDLEY:	We can hand up our outline, if the Court pleases.
MASON CJ:	Thank you.
MR HANDLEY:	If the Court pleases, it was connnon ground in the

Court of Appeal that the warrants in this case granted

by the supreme court under the LISTENING DEVICES ACT

were judicial orders. As we read the decision of

this Court in MURPh-Y V REG, that view has been

endorsed and I was not proposing to take Your Honours

to Your Honours' reasons for judgment in that case

but, as it were, to flag the point at the outset -

BRENNAN J: Well, it is a flag which, if it falls, brings a

lot into train.

MR HANDLEY: It does, Your Honour; hence I thought I would

raise it in paragraph 1 and in the opening bowl or,

perhaps, I should say, the opening bat.

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MASON CJ:  But, when you say the point is being flagged,

I thought that the court flagged the. point - - -

MR HANDLEY:	Oh, it did, on the special leave application.
·MASON CJ:	- -·.- on the special leave application and made it
clear that it was not, perhaps, all that
impressed by the fact that this was common ground between the parties.
:MR HANDLEY:	No doubt about that, Your Honour, which is another

1Your Honours, the passage in MURPHY's case is	aood reason for mentioning it at the outset.
at page 427, left-hand column, just below the letter F, and if I could read from that:

The third ground relied on by all

applicants is that Maxwell J erred in
refusing to allow counsel for the

applicants to investigate the

circumstances leading to the grant of a

warrant under section 18 of the

LISTENING DEVICES ACT 1984 (NSW) and that

the Court of Criminal Appeal erred in

upholding that decision.

And, there was a particular fact that Miss X had spoken to Michael Murdoch when she was equipped

with an authorized listening device:

A warrant authorising the use of such a device had earlier been granted by a judge

of the Supreme Court of New South Wales

pursuant to section 18 ..... upon complaint by

telephone. It was not contended that the

warrant, on its face, failed to authorise

what Miss X had done. Rather, the

submission was that counsel should have been

permitted to investigate the basis upon

which the warrant had been granted and that,

in the event that there had been some

procedural or substantive error in relation

to its issue, the trial judge should have

rejected the resulting evidence as not

having been obtained pursuant to a valid

warrant.

I can pass over the next paragraph:

The Court of Criminal Appeal agreed with the

trial judge that no investigation of the

circumstances of the grant of the warrant in

relation to Miss X should be permitted in
the course of the trial. In the Court's

view, the warrant was granted by a judge of

the Supreme Court and, being an order of a

C2T26/l/JH	3	9/11/89
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superior court, its validity was to be

presumed "until it be set aside or
corrected on appeal or by other due

process of law".

So, it is clear at that point that the

Court of Criminal Appeal took the view that this

was an order of a superior court:

The question is whether the presumption of validity could be displaced by a

collateral attack upon the warrant founded

on an alleged insufficiency of the materials

placed before the Supreme Court by the

applicant for the warrant. There was no
challenge to the jurisdiction of the Supreme

Court to grant a warrant -

there is, of course, in this case -

counsel sought to challenge -the-

sufficiency of the grounds on which the

warrant had been granted. This attack on

the warrant was misconceived. The

admissibility of the evidence of Miss X

depended on the existence of the warrant,

not on the sufficiency of the grounds for

granting it.

And then, there is a reference to the decision of

this Court in McARTHUR V WILLIAMS.	Going to the
bottom of the page:

Where a warrant can be issued by the

appropriate authority only upon its being

satisfied of prescribed matters to be shown

by the applicant for the warrant, the validity

of the warrant is not open to collateral

attack merely on the ground that the material

laid before the authority was insufficient to

satisfy it of those matters.

And, a reference to other matters and then:

To determine the admissibility of evidence

obtained by the use of a listening device

purportedly under the authority of a warrant,

a court must determine merely whether the

warrant was regularly granted by the Supreme

Court.

That is not without its significance, we suggest:

It does not enquire into the sufficiency of
the material which satisfied the Supreme Court

of the matters referred to in section 18(2)(b).

C2T26/2/JH	4	9/11/89
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There was neither need nor occasion for the Court in the present case to

investigate the basis on which the warrant

had been granted.

And then, I do not think I need trouble Your Honours

with the rest of the decision.

Now, Your Honours, the LISTENING DEVICES ACT 1984

contains the statutory provisions under which the

warrants in this case and, indeed, in MURPHY's

case, were granted and if Your Honours could have

available to you Part 4 of the LISTENING DEVICES ACT,

section 15 says the:

"Court" means the Supreme Court of New

South Wales.

Now, the jurisdiction is given to the court as such.

There is no question under this State Act of the

jurisdiction or the power or authority being given
to a judge as a persona designata; the jurisdiction

is vested in a court as such and that brings with

it well-known consequences that if an existing

court has a statutory addition to its jurisdiction
conferred on the court as such this, prima facie,
is to be treated as an addition to the ordinary
jurisdiction of the court and all the usual

incidents of the court's jurisdiction follow unless

that is excluded by the legislation.

Then, section 16(1):

Upon complaint made by a person that the

person suspects or believes -

(a) that a prescribed offence has been,

is about to be or is likely to be

conn:nitted; and

(b) that ..... the use of a listening device

is necessary,

the Court may, if satisfied that there are

reasonable grounds for that suspicion or
belief, authorise, by warrant, the use of

the listening device.

So, the· court's jurisdiction is invoked by

complaint by a person and the court is required to be

satisfied of certain matters before it authorizes
the use of a listening device by the grant of a

warrant.

C2T26/3/JH	5	9/11/89
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MR HANDLEY (continuing): Subsection (2):

In determining whether a warrant should be granted

under this section, the Court shall have regard to - I do not think I need read the detail of

paragraphs (a) to (e) and (3):

Where a warrant granted by the Court under

this section authorises the installation of

a listening device on any premises, the

Court shall, by the Warrant -

(a) authorise and require the retrieval of the

listening device; and

(b) authorise entry onto those premises .....

(4) A warrant granted by the Court under this

section shall specify -

various matters. I do not think I need to trouble

Your Honours with the detail of that. Subsection (5):

A warrant granted under this section may be

revoked by the Court at any time before the

expiration of the period specified in the warrant.

And then subsection (7):

The regulations may provide that, in such circumstances

as are prescribed, the powers of the Court under

this section may be exercised by the District Court

or a Local Court.

Section 17 requires the moving party to serve on

the Attorney-General certain information. So there

is a respondent - a requirement of service on the

Attorney-General who is, as it were, a respondent.

Subsection (2):

A warrant shall not be granted under section 16

unless the Court is satisfied that -

notice has been given to the Attorney and that

the .Attorney General has had an opportunity to be

heard.

And section 18, Your Honour, enables the Court to

grant a warrant when its jurisdiciton is invoked
by telephone, apart from the fact that it otherwise

follows the scheme of section 16, but again the

jurisdiction is given to the Court and the powers

are vested in the Court as such. Section 19 requires

a report after the event to be given to the Court

and to the Attorney-General.

C2T27/l/CM	6	9/11/89
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Section 20 says that:

Where, pursuant to a warrant granted under this

Part, a listening device has been used to record

or listen to the private conversation of a

person, the Court may direct the person authorised

to use the device to supply to that person, within
a period specified by the Court, such information

regarding the warrant and the use of the device

as the Court may specify.

And then subsection (3):

Before giving a direction under subsection (1), the

Court shall give the person to whom the warrant
was granted an opportunity to be heard in relation

to the matter.

Section 21:

Proceedings in the Court under this Part shall be

conducted in the absence of the public.

Subsection (2):

The proceedings in, and the practice and procedure

of, the Court under this Part shall, subject to
this Part and the regulations, be regulated

by rules of court and, without limiti...Lg the

generality of the foregoing, any such rules of

court may make provision for or with respect to -

(a)	the manner of making complaints .....
(b)	the manner in which warrants are granted or directions are given under this Part; -

And then subsection (3):

Subsection (1) does not limit the rule-making

powers conferred by the Supreme Court Act 1970

or any other Act.

Now they are the relevant provisions, Your Honour,

of the Act and, in our submission, and this case

was not on our list of authorities, but the principle

is well established and the passage is very short.

The principle of the POSTMASTER GENERAL's case in

(1913) AC as applied by this Court in a unanimous

decision in ELECTRIC LIGHT AND POWER SUPPLY V ELECTRICITY

COMMISSION 94 CLR 554. At 559 the seven Justices

said this:'

C2T27/2/CM	7	9/11/89
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MR HANDLEY (continuing):

When such a course is adopted it 1s

taken to mean, unless and except in

so far as the contrary intention
appears, that it is to the court as
such that the matter is referred

excising its known authority according

to the rules of procedure by which

it is governed and subject to the

incidents by which it is affected.

There are well-known passages in

NATIONAL TELEPHONE V POST-MASTER-GENERAL

which it may be as well to quote.

Viscount Haldane said:  "When a

question is stated to be referred to

an established court without more, it,

in my opinion, imports that the

ordinary incidents of the procedure

of that court are to attach, and also

that any general right of appeal from

its decisions likewise attaches".

Lord Parker of Waddington said:  "Where

by statute matters are referred to the

determination of a court of record with

no further provision, the necessary

implication is, I think, that the court

will determine the matters, as a court.

its jurisdiction is enlarged, but all

the incidents of such jurisdiction,

the same . includin8 the right of appeal, remain

GAUDRON J:  There are two matters in that passage which actually

cast doubt on the judicial nature of what is here

involved, do they not; firstly, the notion of a

right of appeal?

MR HANDLEY:  Yes.

GAUDRON J:  Can you really spell out a notion of a right of appeal in respect of proceedings ·said not to be held

in public in relation to the only thing that could be

appealed, namely a refusal to issue a warrant?

MR HANDLEY:	Or a refusal to revoke it or a revocation of it.
GAUDRON J:	Yes.
MR HANDLEY:	Or a refusal to give a direction to notify the third

party, or the giving of such a direction, or a case

such as the present.

GAUDRON J: In real terms, there is only ever an applicant in

chambers and the representative of the Attorney-General

if the Attorney-General should think it appropriate

to go, in real terms - - -

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MR HANDLEY:	Certainly, Your Honour.

GAUDRON J: - - - despite what the statute says, so there are

very limited opportunities for appeal.

MR HANDLEY:  When Your Honour says "despite what the statute says",

one can understand in practice, in the day-to-day

operation of this Act, why it should be as Your Honour

says, but we are dealing with an extraordinary situation

in this case and, in our submission, this case is not

to be tested by what happens in practice; it is to

be tested by the statute.

GAUDRON J: Yes. Well, I do not understand if your position is

much affected whether or not the exercise is judicial,

but I may be wrong in that.

MR HANDLEY:	We have an alternative argument.
GAUDRON J:	Yes, and the second thing that seems to me really to

cast doubt on whether you should take it as a judicial

function by reference to that passage is the very nature

of the function reposed. What you are doing is reposing,
if your submission is right, in a court, the function of

involving itself in the investigative process of a

matter which ultimately may come before that court

for decision in a criminal proceeding and that - - -

MR HANDLEY:	Yes, Your Honour, no doubt not before the same judge.
GAUDRON J:	Well one hopes that that is so
MR HANDLEY:	One hopes.
GAUDRON J:	- - - but there is no guarantee in the statute that that is so and there would be no way for any member of
the public to know whether or not that was so or had ever happened otherwise.
MR HANDLEY:	I accept that, Your Honour.
GAUDRON J:	And in those circumstances one really might wonder

whether the very nature of the function reposed in the	court does not itself cast doubt on the notion that it
is a judicial function. It may raise other and larger
questions also.

(Continued on page 10)

C2T28/2/HS	9	9/11/89
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MR HANDLEY:	Yes.	In a sense, is it any different to the making

of a sequestration order on a debtor's petition which

is unopposed, which could be done either in

chambers, or in open court, but nevertheless, one party applies to the court ex parte, that is, the debtor applies to the court ex parte for a

sequestration order to be made against his own

estate: DAVISON V REG?

GAUDRON J: Yes, but in this case the difference, Mr Handley,

is that whereas the debtor's application concerns

himself, the applicant's application concerns the

privacy of other people - - -

MR HANDLEY:	Undoubtedly, Your Honour.
GAUDRON J:	- - - and it concerns it in a way that, as this

case shows, is, at least in some cases, likely to
become the subject of litigation in the same court

in relation to some aspects of the proceeding.

MR HANDLEY:	Yes, I accept that, Your Honour, but - - -
GAUDRON J:	And that seems to be a difference.
MR HANDLEY:	- - - the undesirable aspects of this legislation

apply however you characterize the order that is

made, whether it is treated as - despite the fact that

the jurisdiction is given to the court as such, if it

is treated as being nevertheless purely administrative,

the undesirable consequences remain and, in our submission,

one cannot, or should not use the undesirable features

of this legislation in order to characterize the nature

of the power.	The undesirable features of this
legislation are neutral on the question.	I mean

again and again in Chapter III cases this Court has said

"Well, you have got some powers which are not

necessarily inherently judicial; they are not
necessarily inherently administrative, and they take

their character from the body in whom they are reposed",

and if that is the case in Chapter III cases involving

where there are no constitutional constraints on what a	federal jurisdiction, it is a fortiori in the States
parliament may do by way of giving jurisdiction or
authority to its courts, and here one
comes back to the fact that the jurisdiction is
given to the court as such. My submission -

GAUDRON J:  Would it follow from that that the proper means of

dealing with the warrant was to have had it set

aside on appeal rather than in this proceeding.

MR HANDLEY:  No, Your Honour, because this is an ex parte

order and can be set aside by the judge who issued

it or by any other judge of the same court, and hence

paragraph 2 of our outline, and the cases referred to.

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BRENNAN J:  Mr Handley, what distinguishes the character of

the power exercised under this Act from the character

of the power that was considered in HILTON V WELLS?

MR HANDLEY: In that case, Your Honours, this Court was -

I think I should say, the majority of this Court,

in what I am going to say, took the view there that

the jurisdiction was given to a judge of the

Federal Court as a persona designata. It was not

given to the Federal Court as such.

(Continued on page 12)

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BRENNAN J: That problem arose because the power was

characterized as non-judicial.

MR HANDLEY:  Yes, Your Honour, but part of that characterization

was that it was given to a judge as a persona

designata.

BRENNAN J: Perhaps that is not strictly right. It seems to

have been dealt with by concession in HILTON V "t-TELLS,

but the concession was no doubt based, as the ~?,jority

judgment states, on cases including AST')'t-: V IP.VH~E.

The nature of the power that is exercised here seems

to me to be characteristically rather than of an
administrative kind. True it is that it is vested
in the supreme court because, for the reasons you

state, the State parliaments are not under the same

constraints as the Federal Parliament, but the nature

of the power, one would have thought, was clearly

a - - -

MR HANDLEY: Well, Your Honours, of recent years we have

become familiar, from the law reports if not from

actual Practice, of what is known as an ANTON PILLAR order where a judge, in }Tew 'Soutl:. ·Hales specifically in the Equity Division, in England in the Chancery

Division - and I cannot comment on whether these

orders have been made by the Federal Court yet - where
the judge makes an ex parte order which permits a

plaintiff, its servants and agents, to enter on the

premises of the defendant in order to seize evidence

which might not be available if the ordinary processes

of the court were followed. It is typically used

against companies and actual persons engaged in

surreptitious breach of intellectual property laws

such as production of unlawful conies of tapes, of

popular music, records of popular music and.certain

types of trademark and patent infringements and

documents which indicate that there has been a misuse

of confidential information and so on.

The first thing that the defendant knows about

the making of an ANTON PILLAR order is that the

plaintiff has turned up with a copy of the order and

a lot of people in order to search the defendant's

premises and seize and take back and hand in to the court

copies of illicit tapes or records of copyright music

and the like. The function is not on all fours with

this but it is a function that has been exercised in

the established courts in the United Kingdom and in

this country and the appeal process can be and has

been invoked and so on.

So we have there a jurisdiction similar to that

which is invoked here. KALIBIA V W.ILSON, as it

happens, was an application under the SEAMENS

COMPENSATION ACT of the Commonwealth in its then form

ex parte to a judge of the State court to arrest a ship and to detain it until security was given for

payment of any seamens compensation that might be

awarded. In that respect, the jurisdiction is not

2T30/1/LR	12	9/11/89
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unlike that exercised by Courts of Admiralty

in issuing warrants for the arrest of a vessel.

In some respects not a particularly happy precedent

as far as the appellant is concerned but in SMORGON's

case a warrant for the arrest of someone for contemot of court was granted ex parte by the Supreme Court of Victoria.

(Continued on page 14)

C2T30/2/LR	13	9/11/89
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MR HANDLEY (continuing):  So that warrants of one form or

another are not foreign to the judicial process

and one comes back here to the fact that the power

is given to the Court as such while, in the ordinary

course, the persons most affected will not know

that the warrant has been issued or executed until

perhaps, at some stage following their arrest if

any supposedly incriminating evidence has been

discovered and if no incriminating evidence has been discovered they may never know that their privacy has been intruded upon. But, of course,

in MURPHY's case, Your Honours, this Court - because

all the other members of the Court accepted what

was said by the Chief Justice and Mr Justice Toohey -

quoted, without any manifestation of disapproval the
view of the Court of Criminal Appeal in that case

that the warrant was"an order of a superior court and

its validity was to be presumed until it be set aside

or corrected on appeal or by other due process of law"

and we rely upon that case, in our submission, as

authority for the proposition- for the support of the conclusion that this jurisdiction is judicial; it is given to the court and the fact that it is going to

be exercised ex parte is not to the point. It does

not cut away from the fact that the jurisdiction is

given to the court; is invoked by complaint; service

is required.	The court has got to be satisfied; it
can be revoked on judical grounds.	The court has got

to exercise a discretion as to the form of the warrant,

the extent of it and then section 21, of course:

Proceedings in the Court under this Part shall

be conducted in the absence of the public.

But:

The proceedings -

are to -

be regulated by rules of court - However strange it may be, there is nothing to stop

the State parliament by conferring jurisdiction on

a supreme court in this way and when that is done,

the exercise of the power, in our submission, under
legislation in this form, takes on the flavour and

the character of the body to which it has been entrusted

and, hence, it is, we submit, a judicial power.

Now, if that is not correct, then the warrant

ought to have been open to collateral attack in

MURPHY's case at the criminal trial, perhaps, not

on the ground on which counsel sought to attack it by looking at the evidence on which it was granted

but it does mean that issues such as those which

are raised here could be raised by way of collateral

C2T31/l/SH	14	9/11/89
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attack on a warrant, seen as an administrative act,

in the middle of other legal proceedings. The one advantage and not an inconsiderable one, I submit,

. of characterizing these warrants as judicial orders

is that collateral attack is entirely excluded and

anyone wishing to attack the order has to attack it

at its source directely, either on appeal or by an

application to the court which granted it and to

set it aside.

BRENNAN J:  How can it be attacked collaterally in the midst

of a criminal trial when the parties who are interested
in applying for the warrant and the Attorney-General

are not parties?

MR HANDLEY: Collateral attack, Your Honour, does not depend

upon notice of that kind. A document is tendered and

it is said to be ultra vires the statute under which

it is issued, shall we say.

(Continued on page 16)

C2T31/2/SH	15	9/11/89
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MR HANDLEY (continuing): That can be attacked in the middle

of another case without giving notice to anybody.

That is the point about collateral attack as opposed

to direct attack. Direct attack, either by
prohibition or certiorari, appeal or application to
the officer or party that granted it to discharge
it, is one thing an4 of course, the usual incidents
apply. But, in the case of DAVISON V REG, on the
trial of Mr Davison for offences under the

BANKRUPTCY ACT, the point was taken that he was not

a bankrupt because the sequestration order was

ultra vires Chapter III of th: CONSTITUTION. Now, in this case it would not be that sort

of collateral attack on constitutional grounds but

the point about collateral attack is that it can be
taken by any court in the course of proceedings

on the run, as it were.

BRENNAN J:  I would be grateful for any authority that bears

on that at some convenient time, Mr Handley.

MR HANDLEY:	Your Honour, I may have to give that in writing but, as I understand it, with respect, that is the
whole point about collateral attack.

BRENNAN J: Yes, I understand the submission.

MR HANDLEY:  The next matter, of course, is that if this is not

a judicial order then it is open to challenge by way

of judicial review in the supreme court by the prerogative writs or pursuant to the statutory provisions of the SUPREME COURT ACT which make formal

resort to the prerogative writs no longer necessary

at this stage in New South Wales. And there is

something perhaps very odd about seeking in the

supreme court before, in the first instance, either
the Court of Appeal or a single judge a prohibition
or certiorari to quash a warrant that has been

issued by the Supreme Court of New South Wales.

Now, if this is a judicial order, judicial

review by prerogative writ or modern equivalent is

excluded, but if it is not a judicial order then,

in our submission, there is nothing to exclude the

availability of prerogative relief and yet, stating

it in that way, one is immediately confronted with

the anomaly of the Supreme Court of New South Wales

prohibiting the Supreme Court of New South Wales

because there is no doubt that the judge who issues

the warrant exercises the jurisdiction of the court

under this statute. Now, in my submission, you

must be able to do either one or the other.

If this is not a judicial order we must be

entitled to attack the order by means of a prerogative
writ, action for declaration and the modern equivalents

but that, in our submission, puts the matter in a way

C2T32/l/DR	16	9/11/89
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stark form because, as we see it, the way in which

this jurisdiction has been conferred on the court

as such would exclude prerogative relief and yet

what is to happen in a case such as the present or

in other cases if one can either get prerogative

relief becauHe the jurisdiction is given to the

court but one cannot get judicial relief because it

is not a judicial order. In our submission, however

strange it may be, however anomalous it may be,

the fact is that in a constitution such as that of

the State which contains no restrictions on what may

be given to the court by way of power, when one

finds legislation in this form - the giving of
power to the court as such - the court will be driven
to the conclusion, unpalatable as it may be, that
the jurisdiction is given to the court as such and
with the incidents that follow, namely, that it is a

judicial order and susceptible of attack as such.

(Continued on page 18)

C2T32/2/DR	17	9/11/89
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MR HANDLEY (continuing):  Now, much of what follows is

predicated on that basis but, of course, as

Justice Gaudron has pointed out, we can, indeed,

attack these warrants as we do, or as we initially

attempted to do, in our process on judicial review

grounds and we will present our submissions in the

alternative but I will proceed for the moment,

unless the Court wishes to, as it were, decide at

the outset the nature of this power,before hearing

me develop my attack on these orders in the

alternative.

MASON CJ:  Well, we are not going to give a decision in

running, Mr Handley.

MR HANDLEY:  No, well I am not surprised, Your Honour, but I

thought I should not just launch into submissions

without doing so.

I would seek now, if I may, to develop our

submissions.	Can I ask Your Honours to look at some
of the warrants.	The first warrant in the series

appears at page 14. Perhaps just before I go into

that, Your Honours, another warrant that is issued

by the courts from time to time is a bench warrant

for the arrest of a witness who disregards a

subpoena for the purposes of bringing him to court:

The Court having been satisfied that there are

reasonable grounds for the belief of the

Commissioner of Police that the offences of -

five offences are set out in this warrant, Your Honours -

importation into Australia of a prohibited
import, heroin; conspiracy to import into

Australia a prohibited import, heroin;

being knowingly concerned in the

importation into Australia of a prohibited import, heroin; possession of a prohibited

import, heroin -

they are four offences under the CUSTOMS ACT under

federal law, and finally -

supply of a prohibited drug, heroin -

which is an offence under State law; four federal

offences and one State one. Paragraph 1:

Authorises the use by -

and the police officers mentioned there are State

police officers, and then page 2:

Australian Federal Police -

C2T33/l/JH	18	9/11/89
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and then down to line 12, the police officers

concerned are officers of the federal police;

and then, a listening device and an appropriate

definition is given of the conversations that may

be listened to and where and when. Paragraph 2

of the order:

Authorises the installation of a

listening device by Detective Constable

1st Class P.D. Scott and on his behalf - and again, there is a list of State police and

over the page a list of federal police and then

the other provisions follow as required by the

LISTENING DEVICES ACT.

(Continued on page 20)

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MR HANDLEY (continuing): Warrants are in the same form,

so far as material for present purposes until

page 20, where for the fir~t time in the series

a second State offence is:

supply and conspiracy to supply a prohibited

drug, heroin -

So from page 20 onwards the warrants cover four

federal offences and two State offences. I was

not proposing to take Your Honours in any detail

to the relevant provision of the CUSTOMS ACT.	They
are set out in the judgment, particularly of
Mr Justice McHugh in the Court of Appeal, and we

did succeed below unanimously on the inconsistency

point.

GAUDRON J:  Could you assist me just in one respect, without

necessarily going to the CUSTOMS ACT? Are the

State offences within the ambit of the expression
"narcotics inquiry" in the CUSTOMS ACT?

MR HANDLEY:  Yes, Your Honour.

GAUDRON J: Is that cotillllon ground? It does not appear to have

been decided.

:MR HANDLEY:  In my submission, it is clear,whether it is

cotillllon ground or not, because up until the supply

of a prohibited drug, which is forbidden by State

law, has taken place and possession has passed to

the recipient, the persons concerned would be in

possession of a prohibited import. So the federal

offences cover the whole area of the State offences

and of course they begin at an earlier point of time

and they cover acts of importation and the like,

which are not reached by the State law, but they keep

going after the point of import until the point

at which the State offence of supply is complete;

possession is delivered to the purchaser - - -

GAUDRON J: But possession might still be a Cotillllonwealth

offence if you can establish that it is still a

prohibited import?

MR HANDLEY: Yes, bearing in mind the onus, Your Honour. under

the CUSTOMS ACT ,it is a rE;Nerse on:us 0£ proving it is

not imported.

GAUDRON J:  Yes,I understand. But perhaps you do not need to

take that further.

MR HANDLEY: 

Yes. Unless the Court would - and I am sorry

to be asking questions - unless the Court wishes me
to I would not be going to the CUSTOMS ACT at this

point, because we succeeded below and there is no

cross appeal on that question. If we could then go to

C2T34/l/CM	20	9/11/89
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the formal orders at page 95 of the appeal book.

Now the Court is aware that.- it has already been mentioned this morning - the proceedings below

were conducted on the common assumption and mutual

concession that these warrants were judicial orders,

and having the usual incidence of judicial orders

and the Court of Appeal did not decline to act on

that concession although Mr Justice McHugh did, of

course, indicate some unease on the point. At

page 95 the declaration granted by the Court of Appeal

is, in our submission, a strange one in the light

of the prima facie acceptance of the concession.

(Continued on page 22)

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MR HANDLEY (continuing):

The Court:

1. Declares that the warrants, referred

to in each summons, were of no force and

effect in so far as they authorised members of the Australian Federal Police or persons acting by arrangement with them, to use

were being made by members of the Australian	for the purpose of narcotics inquiries that purpose of listening to or recording words while they were spoken by the persons
named in the warrants.

Now, such a declaration, Your Honours, would be

appropriate if they were not judicial orders, but

if they were judicial orders, such a declaration,

in our submission, is not appropriate because it

declares that the judicial orders were of no force

and effect, that is, ab initio, they were partially

void, the past tense is used, and there is no order

setting aside the warrants pro tanto, they are simply

declared void. In our submission, Your Honour, the

provisions of the CUSTOMS ACT, in this case, do not

cause section 109 of the CONSTITUTION to operate

directly on these orders. This is a matter which is

discussed in Mr Justice McHugh's judgment. There is

no command in the customs legislation directed to the

State court, and, if we are right, and if these are orders of a State superior court, then, in our

submission, those orders are not directly affected,
as orders, by the inconsistency found by the Court

of Appeal.

The sole effect of the CUSTOMS ACT and section 109

1n this case, in our submission, is to invalidate, or

deprive of legal effect, so much of the LISTENING

DEVICES ACT as would authorize warrants which members

of the federal police and persons acting by arrangement

with them could make use of for the purposes of

narcotics inquiries. This perhaps, to some extent,

may be thought to be against us, but it is a question

of really sorting out which way the case should be
approached, given the assumption, or the finding, or
the conclusion that these are judicial orders and, if
that is the case, in our submission, there can be no

question of the orders being partially void, ab initio,

such as the Court of Appeal declared, but the appropriate

course is to set them aside.

Section 109 in a case where the federal Act does

not contain any command addressed to the State court,

positive or negative, in our submission, does no more

than produce a legal vacuum in the State law. In

this case it restricts the true scope of the LISTENING

DEVICES ACT, so that the LISTENING DEVICES ACT as a

C2T35/l/HS	22	9/11/89
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matter of State statute la~ does not support the issue

of warrants in this form. If they were orders of a

superior court t:hey remained in force, notwithstanding

the jurisdictional difficulties which attended their

issue and, in our submission, with the usual legal

consequences unless and until set aside.

(Continued on page 24)

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MR HANDLEY (continuing):  The corrrrnon law rule relating to

the operation of orders of a superior court, in a case such as this, is not affected by section 109

but could only be affected by a Corrrrnonwealth

statute which contained a direct corrrrnand, positive or

negative, to the State court.

BRENNAN J:  You do not need to make that concession, do you?

I do not think it is material to the argument but it just seems to me that it is not necessary to your

argument.

MR HANDLEY: Well, Your Honour, if these are judicial orders,

in our submission, a declaration in the form made

is inap9ropriate and wrong and the reasoning which

lay behind it is wrong. And we were going to say

that the rule of law about the effect of orders of

a superior court seems to us to be a rule of the

corrrrnon law. There is no statutory provision in

New South Wales, except the provision which says

the supreme court shall be a superior court of record

or some equivalent of that, which says that its orders

even if made without jurisdiction stand unless and until

set aside on appeal or by the judge that issued them.

That seems to be a rule of the corrrrnon law and - - -

BRENNAN J:  And to be inherent in the nature of State judicial

power.

MR HANDLEY:  Yes, at the superior level.

BRENNAN J: Yes.

MR HANDLEY:  Yes, it is. But it is still, is it not, a rule

of the corrrrnon law?

(Continued on page 25)

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BRENNAN J:	I do not think we need delay over the point.
MR HANDLEY:	No.
GAUDRON J:	But if it is a rule of the common law, why is it

not cut down by section 109 of the CONSTITUTION?

MR HANDLEY:	Your Honour, section 109 is not needed, where the clash is between a valid federal statute and State
common law.

GAUDRON J: Well, I am not too sure if that really answers it.

The clash is between the CUSTOMS ACT and the

LISTENING DEVICES ACT.

MR HANDLEY:  Undoubtedly.

·GAUDRON J: Undoubtedly, but the effect of the rule of the common

law seems to be, to some extent, to stop the immediate

operation of section 109 - yes.

MR HANDLEY:  Yes, Your Honour, and - - -

GAUDRON J: And that raises a more difficult question, does it

not?

MR HANDLEY:  Yes, and the only statement directly on the point,

about a clash between the common law and a Commonwealth

statute not being a section 109 inconsistency, is a

statement by Mr Justice Walsh in the course of

argument in FELTON V MULLIGAN. His Honour just

says that - I realise being a statement arguendo,

and does not have authority - judicial authority, but

it is at 124 CLR, at page 370, and what His Honour

said was that a statute can always override the

common law if it is valid, and you do not need 109

for that, and 109 speaks - and there is reference to

a law of the Commonwealth - and a law of the State -

it is talking about statute law - sorry, that is

my submission, not what His Honour said.

(Continued on page 26)

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GAUDRON J:	section 109 itself modify that connnon law rule in Yes, well the real question is why does not
respect of Acts done by a superior court pursuant to legislation which is in conflict with some other
Connnonwealth Act?
MR HANDLEY:	Yes. well, Your Honours, of course, if that was

the correct view, it is not a view that we wish

to disclaim.

GAUDRON J:  It serves your purposes much better, I should

think.

MR HANDLEY:  It may do so; we just have some trouble embracing

it because we see difficulties in that being the

correct view. It would mean, of course, that

orders of State superior courts could be, as a

result, attacked collaterally at any time if the

power to grant them was withdrawn or diminished by

the operation of section 109 which we think is,
perhaps, a consequence which the Court might readily

embrace. In the end it comes to this, Your Honour, that does section 109 do any more than, as it were,

knock a hole in the State statute? It just says

the State law shall be invalid and if all that

section 109 does is to knock a hole in the State

statute, where is the basis for saying that that

section 109 hole is any different to any other hole

or any other gap in the supposed jurisdiction of the

State court?

(Continued on page 27)

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:MR HANDLEY (continuing): This does not represent an actual

case but one could imagine that, under TESTATORS

FAMILY MAINTENANCE legislation, 109 produced an

inconsistency through the FAMILY LAW ACT and there

was therefore a gap in the State FAMILY PROVISION ACT

because of that inconsistency. A judge might wrongly

construe the State Act, as a matter of State law,as giving

a wider jurisdiction than in truth its terms conferred

and this may not become known until an appeal in that

or some other case, immediately or some years later.

The true position is that His Honour would sunpose

that his powers cover the particular area, whereas··

as a matter of State law the appellate court would later declare that they only covered half the area.

Is there any difference between that situation and

the situation where 109 knocks out half the area

which the State law covers as a matter of its

correct interpretation?

GAUDRON J: There may be this difference. We know from

METWALLY's case that the Commonwealth cannot

retrospectively patch up the hole.

MR HANDLEY: 

Yes.

GAUDRON J: 

But is not the common law doc tr in e, on your submission, holding a patch over the hole at least

until such time as an order is made setting aside

- we will call it a setting aside orders._

MR HANDLEY: 

Your Honour, METWALLY's case, of course, as Your

Honour indicated, was about Commonwealth action and
I return to my original point which was that 109

does no more than knock a hole in State law.

BRENNAN J: If it does any more it completely undermines the

notion of the autochthonous expedient and makes

the judicial decision of State- courts which administer

fede-raJ. law, including the CONSTITUTION, subject to

overriding by the Federal Parliament, although section

109 refers only to inconsistency with State laws. (Continued on page 28)

C2T39/l/LR	27	9/11/89
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MR HANDLEY:	Yes, Your Honour.	As we grapple with this case,

it seemed to raise a very important question about

section 109 and that is why we thought it appropriate to bring it out into the open and we are offering our

preferred submission but, as I again say, if the

Court of Appeal is right and 109 operates directly

on a court order in a case where the federal statute

does not operate directly on the court, then, of

course, we do not disclaim that at all. Of course,

we put to one side entirely cases where the federal

statute operates directly on the court or the court

orde~ Tvpically, of course, in vesting or withdrawing

Federal jurisdiction, in that situation, if a State

court proceeded contrary to the JUDICIARY ACT to

exercise jurisdiction in a matter which was vested
exclusively in the High Court, it may well be that

that order would be void and, by virtue of the

operation of 109 and the federal statute which

contained the command, positive or negative, directed

to the State court.

GAUDRON J:  But is that not precisely what you are dealing

with? If you accept that the CUSTOMS ACT is a charter

of jurisdiction for the granting of warrants to

Australian Federal Police in relation to narcotics

inquiries, does that not pro tanto withdraw what

you call, because of your premise that it is a

judicial power, the jurisdiction of the supreme

court?

(Continued on page 29)

C2T40/1/SH	28	9/11/89
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MR	HANDLEY:	Well, undoubtedly it operates that way, Your Honour. That is the result - that is what the
Court of Appeal has held, but perhaps we should look
at the CUSTOMS ACT sections to see exactly how they
do operate in their terms. In section 219B on page 142 of the 1986 reprint of the CUSTOMS ACT, a command,
in subsection (1), is directed to the Australian police:

It is unlawful for a member of the

Australian Federal Police to use, for the purposes of narcotics inquiries that are

being made by members of the Australian the purpose of listening to or recording

words while they are being spoken by a

person unless -

and (a) and (b) can be passed over -

(c) he does so in accordance with a warrant issued under this Division.

And (2) is a command addressed to persons acting by

arrangement with the federal police, in this case the

State police:

It is unlawful for a person acting by
arrangement with a member of the Australian

Federal Police to use, for the purposes of

narcotics inquiries that are being made by

members of the Australian Federal Police,

a listening device for the purpose of

listening to -

et cetera, and (3):

It is the duty of the Commissioner of Police,

to take reasonable steps to ensure that

sub-sections (1) and (2) are not contravened. Subsection (4) indicates that federal police action

pursuant to federal law is not to collide with State

law, and then subsection (5) authorizes a judge,

and that includes a judge of the Federal Court and

judges of agreed State courts where appropriate

arrangements exist between the executive governments
of the Commonwealth and the State, a judge to issue
a federal warrant and then the consequences of that
federal warrant flow and I do not think I need to

trouble the Court with the details of that.

(Continued on page 30)

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MR HANDLEY (continuing): So, Your Honours, 219B does not,

in our submission, contain an express or implied

command to a State court. What it does is lay down

a regime for federal police and persons acting in

arrangement with them which channels this type of

surveillance activity to federal warrants issued

pursuant to the CUSTOMS ACT and impliedly forbids

them to either act unlawfully by the common law

or act pursuant to State law. But there is no

command there, as we read it and we would be happy

if there was, as we could see it, there is no

command there express	or implied directed to the
State court as such.

So what one has, in our submission, is no

more than an inconsistency under 109
which involves a withdrawal of State power

under the State statute to the extent of the

inconsistency.

BRENNAN J:  Mr Handley, before we adjourn I would just like

to come back to the question of collateral attack.

MR HANDLEY:	Yes, Your Honour.
BRENNAN J:	I have no difficulty with the notion of collateral

attack in the course of a trial when the question

is one of absence of any jurisdictions derived from

the statute. My concern was based upon the

citation of McARTHUR V WILLIAMS at the bottom

of page 427 of MURPHY V REG and it is only if that

happens to be relevant to your argument that I
need bother you about the possible further reference.

(Continued on page 31)

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MR HANDLEY (continuing):  Your Honour, McARTHUR V WILLIAMS

shows that you cannot have any attack on that

ground, collateral or otherwise.

BRENNAN J: Yes. Perhaps I had misdirected myself in asking

the questions.

MR HANDLEY:	I am obliged.
MASON CJ:	Mr Handley, it might be convenient if we

adjourn now. We will resume at 2 o'clock.

AT 12.50 PM LUNCHEON ADJOURNMENT

C2T43/l/JM	31	9/11/89
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UPON RESUMING AT 2.03 PM:

MASON CJ: 

Yes, Mr Handley?

MR HANDLEY: 

If the Court pleases, I propose at this point

to take the Court to particular passages in the
judgments in the Court of Appeal before coming

back and speaking to our outline,and going to the

judgment of Mr Justice Mahoney at page 102 at

line 10, His Honour concludes that:

the warrants, according to their terms,
purported to authorise the Australian

Federal police officers to do what, absent

a warrant under the CUSTOMS ACT, they could

not lawfully do.

And then, at the bottom of the page, he said:

To the extent that the LISTENING DEVICES ACT

would authorise a member of the Australian

Federal police to do what is forbidden by a

Federal Act, the LISTENING DEVICES ACT would

be inconsistent with the Federal Act

and ..... ineffective. By section 31 of the

INTERPRETATION ACT 1987 of New South Wales,

a New South Wales Act or instrument is to be

construed as operating to the full extent

of, but so as not to exceed, the

legislative power of the New South Wales

Parliament. The limitation which is imposed

by section 109 is, for the purposes of

section 31, a limitation upon the

legislative power of the New South Wales

Parliament.

We would respectfully submit that that is not correct and that section 109 does not liinit the

legislative powers of the State but produces an

inconsistency and that section 31 cannot produce (Continued on page 33)

a fluctuating construction of a State statute.

C2T44/l/JH	32	9/11/89
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MR HANDLEY (continuing):  It starts off in life when there

is no conflicting federal legislation with
meaning (x),a federal statute is passed which is
inconsistent with part of the State statute and
this means that as a matter of State law the

State statute is cut down on its true construction

so that 109 never works. In our submission,

section 31 is directed to a different situation

where there is actually some direct limit upon

the legislative powers of parliament, regardless

of any exercise of power by the Federal Parliament.

Otherwise, as I said, you would produce a fluctuating

construction of the State Ac~-depending on the

legislative activity of the Federal Parliament.

Consequently, the LISTENING DEVICES ACT is to

be construed as operating subject to the

qualification that it does not authorise what,

under the federal Act·, is proscribed.

In our submission that is the result of 109 and not the result of section 31.

The New South Wales Act was enacted prior to the

enactment of the relevant provisions of the

CUSTOMS ACT. Buts 31(1) is, in my opinion,

ambulatory, to the extent that its provisions

will apply to cause an existing State Act to be

"construed as operating" subject to the

limitation arising from the subsequent federal Act.

Our criticism of that has already been made.

It follows that, if the warrants purported to

authorise the Australian Federal police officers

to do what was proscribed bys 219B, it would

go beyond the authority given to issue warrants

under the LISTENING DEVICES ACT.

And we do not quarrel with that; in fact we adopt it.

Then His Honour goes on to say:

construed as, by their terms, authorising such	But I do not think that the warrants should be
a thing to be done.

(Continued on page 34)

C2T45/l/CM	33	9/11/89
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MR HANDLEY (continuing):  Your Honours, this is not a question

of construction of ambiguous provisions. I have read

the warrants to the Court.	They refer to police
officers, federal police officers, by name.	No

process truly of construction can obliterate the

express reference to members of the federal police.

His Honour goes on to say:

It is an ordinary principle of the construction of orders and documents that they are to be construed so as to authorise,

for example, the commission of a crime. I do not mean by this that, if an order

or document which in terms authorizises

something which is a crime, the effect of

it is to be be determined as if it did not

do so.	An order or document which does that
may be, because it does so, invalid.	But if an

order or document authorises acts in general

terms and an authority in such general terms

would authorise the commission of a crime,

the generality of the authority is ordinarily

to be read down.

We have no quarrel with the principle, Your Honours, but

the problem with this document is that it not only
authorizes acts in general terms, it authorizes people

in specific terms, and that brings it into collision

with 219B and the federal statute.	And then His Honour
goes on to say:

In addition, it is provided bys 32 of the INTERPRETATION ACT -

that is New South Wales -

that "an instrument shall be construed as

operating to the full extent of but so as

not to exceed the power conferred by the

Act under which it is made": s 32 (1).
A provision which, but for the sub-section,

would be in excess of the power conferred

by the Act is valid to the extent that

it is not in excess of that power: s 32(2).

(Continued on page 35)

C2T46/l/FK	34	9/11/89
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MR HANDLEY (continuing):

It is not necessary finally to determine

whether warrants of this kind are "instruments"

..... By virtue either of the general princi~les of

construction or of s 32, the warrants are,
in my opinion, to be construed as not authorisin~
the members of the Australian Federal nolice

in question to act contrary to s 219B.

We made our submission that no process of construction

can produce that result but, Your Honours, in due

course we will be making the submission that section

32 does not apply to judicial orders. One cannot

imagine - if this is an instrurr..ent, then every order

under the FAMILY PROVISION ACT is to be construed as

operating to the full extent of but so as not to exceed
the power conferred by the FAMILY PROVISION ACT under

which it is made. That approach to judicial orders

is so foreign to the ordinary understanding of

judicial orders, in our submission, as to require

a conclusion that judicial orders are not instruments

under section 32.

Then, of course, it goes on to say, in subsection 32(2) be in excess of the power conferred	section;. 32 (2) tr.at a nrovision "t-7ric!1 would, but for
by the Act is valid to the extent that it is not in
excess of that power. Now, if that applies to
judicial orders and someone picks up an order under the
FAMILY PROVISION ACT and perhaps for some reason or
other it can be seen that it is beyond the power
conferred by the FAMILY PROVISION ACT, then without
any appeal, without any application to set it aside,
the INTERPRETATION ACT would require the order to be read down so as not to exceed some view as to the
powers conferred by the statute on the court. That
again is such a foreign approach to anything in the nature of a judicial order, particularly of a sunerior
court, that it is clear, in our submission, that
judicial orders are not within section 32 of the
INTERPRETATION ACT. (Continued on page 36)

C2T47/l/LR	35	9/11/89
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MR HANDLEY (continuing): The remedy for any excess of power

in a judicial order is appeal or, in some special

cases, an application to revoke the order but a

process of construction which is open to any court

at any time, inferior or superior, without any

process of direct attack on the order, this, in our

submission, is not authorized by section 32(2) and

the conclusion is that those sections have got nothing
to say to warrants of this kind, if they are judicial

warrants, and nor does it have anything to say to

them, in our submission, if they are supreme court

warrants issued in the exercise of some anomalous

administrative jurisdiction.

Mr Justice Mahoney goes on, in the next

paragraph:·

The reasons to which I have referred, the

generality of the authority given by the

warrants is to be, as a matter of
construction, limited. They are therefore

not invalid.

We, respectfully, criticize that passage and I do

not need to develop it further.

However, if on the proper construction the

warrants did extend to authorise what

s 219B forbids, the warrants would, to that

extent, be inoperative.

The court, in other words, His Honour, is saying that

the effect of the CUSTOMS ACT and section 109 of the

CONSTITUTION is to produce a direct result from

the court warrants.

The court has heard argument as to whether, in such circumstances, the warrants would be

void ab initio or void only to the extent

that they were inconsistent with, for

example, s 219B.

His Honour takes the view he does not have to decide

those questions. In our submission, they have to

be decided.

(Continued on page 37)

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MR HANDLEY (continuing):  And then, at paragraph 4, he says:

the warrants are not invalid.

And, I do not think I need trouble Your Honours

with the rest of Mr Justice Mahoney's decision.

Mr Justice McHugh commences his judgment at

page 107. I think we can go to page 115 at the

top of the page:

In my opinion section 219B covers the
field in connection with the investigation

of federal narcotics offences by members

of the AFP. THE LISTENING DEVICES ACT

1984 (NSW) is invalid in so far as it purports

to authorise a member of the AFP or a person
acting by arrangement with him to obtain a

warrant.

The Attorney General ..... contended in

the alternative that -

there was an attack on validity which I need not
trouble Your Honours with. At the bottom of

page 116 - I do not think I need trouble

Your Honours with this either.	I can go to
page 118, line 6:

Severability

Both parties agreed that the acts of

the judges who issued the warrants were

judicial and not administrative acts. Both

parties sought to use this proposition as a

foundation for further arguments.	The
Attorney General ..... asserted that a
judicial order which breaches the

CONSTITUTION is nevertheless valid and

effective until set aside.

We are not concerned here with a judicial order

which breached section 92 or section 90 or one of

the other - section 117, perhaps, of the CONSTITUTION

in that sense:

What the police officers did was therefore lawful, and the warrants have been executed.

Consequently, he submitted that this Court can not make any order or give any

relief to the Claimants. The Claimants

contended that no question of severing the

warrants arose. They were ex parte orders

made without jurisdiction -

"made in excess of jurisdiction"would have been a more

accurate way of putting it -

C2T49/l/JH	37	9/11/89
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and should be set aside ex debito

justitiae. i

Mr Justice McHugh doubted that the issue of a

warrant was a judicial order but proceeded to

decide the case on that basis:

Nevertheless, I find it impossible to accept the contention of the Attorney

General that as these warrants were made

by judicial orders they are valid and

effective until the orders are set aside

even if the LISTENING DEVICES ACT is

pro tanto invalid. As will appear, I

think that an act done under State
legislation which is invalid by reason of
section 109 of the CONSTITUTION is in a

special position.

Then, His Honour goes on to deal with:

acts done under an unconstitutional

statute.

BRENNAN J:	But, how does section 109 make a judicial order invalid?
MR HANDLEY:	Well, Your Honour, in my submission, it is

capable of doing that if the federal statute has a

valid command to the State court typically

pursuant to the sections of Chapter III which

deal with the vesting or the withdrawal of federal

jurisdiction or the granting of exclusive

jurisdiction over particular matters. A valid

grant of exclusive jurisdiction to this Court or
to a federal court contains an implied prohibition
against a State court trespassing within the area

of exclusive jurisdiction.

BRENNAN J:  But, say there be a dispute then as to whether

it is within jurisdiction and the State court

hears the argument out and comes to an eroneous

conclusion and makes an order; is the order a

nullity?

(Continued on page 39)

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MR HANDLEY:  Your Honour, I am not saying positively that

in such a case as Your Honour has just put to me

the State order would be void. I am saying that that raises separate considerations which may or

may not have to be grappled with some day. But in

the absence of federal legislation which has a

command, positive or negative, addressed to the State court, it is my respectful submission, as a preferred oosition, that there is no way that a State court

~rder of a superior court is thereby invalidated.

The rest we just put to one side.

BRENNAN J: Yes, very well.

MR HANDLEY:  Your Honour, this case does not raise the effect

which we suggest of acts done under an unconstitutional

statute and so we then turn over, if we may, to

pa8e 123, line 9, and His Honour quotes the terms

of section 109:

However, the effect of s 109 is not to render the inconsistent part of the LISTENING DEVICES ACT null and void. The Act is merely inoperative

in part as long ass 219B remains in

force.

And he quotes authority for that, and indeed that is

the well"1:stablished position. But it does seem to

us, with respect, that flowing from that as a necessary

corollary is the further conclusion that the mere

fact that the State Act is inoperative does not have

any drastic consequences on State judicial orders, particularly by superior Courts which have ignored

the lack of operation, because of section 109,
of some part of State law.

Something more than merely inoperative State legislation would be required to vitiate the court

orders, the orders of a State superior court, it seems

to us. The bottom two lines:

While inconsistency continues, the LISTEtHNG	DEVICES ACT is ..... inoperative but it is not
void. It simply has no effect in respect of matters covered bys 219B.

And we would respectfully adopt that.

In the face of the,constitutional

directive that the Act is pro tanto inoperative, it is not possible for

this Court to say that, nevertheless,

it has sufficient effect to validate

the issue of warrants purporting to be

made under it.

Now, of course, Your Honour, what Mr Justice McHugh

said, with respect, is correct if the warrants are

not judicial orders. But if they are judicial orders,

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particularly orders, as they are, of a superior

court, they are not validated by the State statute;

they are validated by the rules which protect

orders of a superior court from challenge on the

grounds of lack of jurisdiction except by means of

an appeal or, in certain cases, by an application

to set aside the order.

(Continued on page 41)

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MR HANDLEY (continuing):  So we would respectfully embrace

what Mr Justice McHugh says if the orders are

administrative but, despite the obvious prima facie

attraction, we cannot embrace what he says if the

orders are treated as judicial. If they are judicial

they are validated by the established principle about

orders of a superior court.	Then His Honour goes on
to say that is not the case:

Nor do the warrants obtain any validity

because they were made by a judicial order.

As the Solicitor-General for the

Commonwealth, who intervened in the

argument, said, the stream cannot rise

higher than its source.

That is true, of course, of the national Parliament,

it is true of legislation or judicial or executive

action which depends upon the Commonwealth CONSTITUTION

but, with respect, it is not true of State judicial

action. A State judicial order of a superior court -

perhaps I should say an order of a State superior

court can rise higher than its source, unless, if it

is not challenged in an appropriate way by appeal

and the like, the order will stand and will not be

vulnerable to collateral attack and will not be liable

to be ignored merely because it can be seen at some later point of time that the order was made without

jurisdiction or in excess of jurisdiction.

Mr Justice McHugh acknowledges the general principle

but goes on to say that:

that doctrine has no application to

acts done under legislation which the

CONSTITUTION expressly declares to be

inoperative. The constitutional direction

would be empty of content if acts done under - I think His Honour probably means if -

ex parte judicial orders made under

same effect as if the legislation was	inoperative State legislation had the
operative. No question of res judicata

arises because there has been no contest, it being an

ex parte order, but, Your Honours, in our submission,

these ex parte judicial orders made under inoperative

State legislation do not have the same effect as if the legislation was operative because, in our

submission, they are liable to be set aside by the

court in the exercise of its inherent jurisdiction on

the principles discussed in KALIBIA and TANNOUS which

are referred to in paragraph 2 of our outline

submission. So there is a difference but

section 109 does not overthrow or bypass, we submit,

the established rule about orders of superior courts -

C2T51/l/HS	41	9/11/89
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judicial orders of a superior court, though, on the

other hand, as we have already said, if these are

not judicial orders, in our submission, the
consequences that Mr Justice McHugh refers to

inescapably follow.

Then His Honour notes that there is established

line of authority in the Federal Court that

administrative warrants are severable and the excess

can be severed and what remains can be held valid.

We do not challenge those principles with regard to

executive or administrative warrants. We say they

have no application whatever to warrants which are

orders of a superior court if that is their true

characterization.	At the very bottom of the page
His Honour says:

'

it is not possible to sever a warrant

where the invalid provision forms part

of an inseparable context or would

operate differently or produce a

different result from that which was

intended.

(Continued on page 43)

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MR HANDLEY (continuing): In our submission, Your Honours,

that sentence, which is established law in the

context of legislation, applies in this case if these are administrative warrants, but does not
apply directly if they are judicial warrants, because
of the superior court rule. There is no way that

the Supreme Court of New South Wales, or any other

court, can simply knock off parts of these

warrants on the ground of lack of State judicial

authority to issue them in collateral proceedings,

if these are judicial orders. So the whole approach of severence, in our submission, is not available if these are superior court orders. His Honour goes on to say:

A warrant is an instrument for the purposes of s 32.

We have made our submissions about that.

Accordingly, the warrants are to be read

and construed to the extent that they can

be read as valid instruments. In

ANDREWS V HCMELL Dixon J said that a provision

such ass 32 ..... "throws a burden upon those

attacking an entire regulation ..... of

establishing that if the regulation were

confined within the limits of the power the

result would be, not a partial application

of the law, but a different plea or

provision, or of establishing that an

intention is to be found in the regulation

that unless it receives its full intended

operation it shall not operate at all".

Mr Justice Dixon, of course, does refer there to an

onus, but in our submission, contrary to what

His Honour says in a few lines, it is not an

evidentiary onus; it is an onus of persuasion of

the judicial mind, but it does not involve evidence

at all. How could it, in the case of legislation of

the national Parliament, or delegated legislation,

which was, of course, the situation in ANDREWS V HOWELL?

Going on to line 18:

In the present case it is by no means

certain

and we do adopt what follows, although we use it

somewhat differently to the way His Honour used it -

In the present case it is by no means

certain that the warrants would have been

given the same operation with respect to the consider the matter without the allegations of federal offences. For example, - - -

C2T52/l/FK	43	9/11/89
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GAUDRON J:  And presumably without federal police, to be

strictly accurate?

MR HANDLEY: Well, yes. I think His Honour is taking that

for granted.

GAUDRON J: Yes.

MR HANDLEY:  Yes. I mean, there is nothing to stop the

State police investigating federal offences, as we

understand it. and we have never submitted there

was:

For example, the warrants specify the periods

in which they were to be in force. If federal

offences had not been alleged, the periods may

have been shorter. Likewise the names of the

persons whose conversations were to be

monitored may have been different. The

Claimants contended that a question also arises
as to whether the judges would have issued the

warrants at all without the existence of the

federal offences or the use of members of the

AFP.

In the present case, however, the question of onus is of decisive importance: there is no

evidence before the Court which would enable us

to form a conslusion as to wether or not the
warrants would have been issued without the

allegation of federal offences or the use of

members of the AFP -

et cetera. Of course, there is no evidence, Your Honours.

There is no default on the part of the appellants in

that, because public interest immunity was claimed when

it was sought to get at this material, and that

objection was upheld by the magistrate at the committal
proceedings; the objection was renewed in the supreme
court, and the claimants, the present appellants, did

not press the question, but it is hardly surprising that

there should be a claim of public interest immunity

in relation to the sort of evidence which the Act
requires to be brought before a supreme court judge in

order to get a warrant under the LISTENING DEVICES ACT.

(Continued on page 45)

C2T52/2/FK	44	9/11/89
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MR HANDLEY (continuing): But, Your Honours, in our submission,

our attack on these warrants as inseverable does not
require evidence. There is ample material on the

face of the warrants on which to base our submissions

and some of those matters are adverted to by

Mr Justice McHugh at the bottom of page 125.

In addition -

His Honour said at line 8 -

the form of the warrants presents no difficulty

in disregarding those parts of the warrant

which, by reason of the CONSTITUTION and its

effect on the LISTENING DEVICES ACT, were not

authorised.

Well, undoubtedly, one is able to blue pencil off parts of these warrants but, Your Honours,

that entirely bypasses the question of whether a

warrant so truncated - whether there could be any

satisfaction on the part of the court. that a

warrant so truncated would ever have been issued

if the judge had properly appreciated the limits

of the jurisdiction of the supreme court under the

State Act in the light of the federal Act. They

are the matters to which we wish to draw attention

on the face of the judgments of the Court of Appeal.

Going back to our outline, if we may,

Your Honours, I would not propose to take the Court

to KALIBIA V WILSON or COMMISSIONER OF POLICE V TANOS

unless there was some difficulty about it. In

KALIBIA V WILSON, the particular passage which

indicates that ex parte orders can be discharged or set aside on application to the court which granted

them is in the judgment of Sir Samuel Griffith at

page 694. In our submission, the Court of Appeal decision on inconsistency makes good our point in

paragraph 3.

Our point in paragraph 4, of course, is: if

the submission in paragraph 1 is accepted that

these are judicial orders then, Your Honours, I
take it that the Court would not need to be

troubled with being taken to the particular passages

to which we draw attention, in ISAACS V ROBERTSON

and CAMERON V COLE. No, I am sorry, perhaps I should

take Your Honours to them because they do state,

in this Court and in the Privy Councii that persons

prejudiced are entitled in such cases ex debito

justitiae to have these orders set aside.

ISAACS V ROBERTSON is a Privy Council decision in

(1985) AC. I do not think I need to trouble

Your Honours with the facts or the headnote or the

C2T53/l/DR	45	9/11/89
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judgment because the advice of Lord Diplock contains

a succinct statement of principle which does not

require any knowledge of the facts or the circumstances

which threw up the point. Page 102, at the bottom of

the page - the last paragraph:

Their Lordships would, however, take this opportunity to point out that in relation to orders of a court of unlimited jurisdiction -

Your Honours, because of federal law State supreme

courts are not courts of unlimited jurisdiction,

strictly speaking, but, of course, they are treated

as such and, in my submission, can be accepted as

such despite the fact that the FAMILY COURT ACT in

the period before cross-vesting there were various

grants of exclusive jurisdiction under federal law.

(Continued on page 47)

C2T53/2/DR	46	9/11/89
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MR HANDLEY (continuing): We would accept and, indeed, submit

that the supreme courts remain courts of unlimited

jurisdiction -

it is misleading to seek to draw distinctions

between orders that are "void" in the sense

that they can be ignored with impunity by those persons to whom they are addressed,

and orders that are "voidable" and may be

being such a distinction between orders to which the descriptions "void" and "voidable"

enforced unless and until they are set aside.

respectively have been applied can be found

in the opinions given by the Judicial Committee

of the Privy Council in the -

two cases -

but in neither of those appeals nor in any

other case to which counsel has been able to refer their Lordships has any order of

a court of unlimited jurisdiction been held

to fall into a category of court orders that

can simply be ignored because they are void

ipso facto without there being any need for

proceedings to have them set aside. The cases

that are referred to in these dicta do not

support the proposition that there is any

category of orders of a court of unlimited

jurisdiction of this kind; what they do support

is the quite different proposition that there

is a category of orders of such a court which

a person affected by the order is entitled

to apply to have set aside ex debito justitiae
in the exercise of the inherent jurisdiction
of the court without his needing to have recourse
to the rules that deal expressly with proceedings

to set aside orders for irregularity and give

to the judge a discretion as to the order

he will make.	The judges in the cases that
have drawn the distinction between the two
types of orders have cautiously refrained
from seeking to lay down a comprehensive definition
of defects that bring an order into the category
that attracts ex debito justitiae the right
to have it set aside, save that specifically
it includes orders that have been obtained
in breach of rules of natural justice.

But, of course, the absence of statutory jurisdiction, in our submission, would clearly be such a case

where an ex parte order has been made.

The contrasting legal concepts of voidness

and voidability form part of the English law

of contract. They are inapplicable to orders

made by a court of unlimited jurisdiction

C2T54/1/SH	47	9/11/89
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in the course of contentious litigation.

Such an order is either irregular or regular.

If tis irregular it can be set aside by

the court that made it upon application to
that court; if it is regular it can only be

set aside by an appellate court upon appeal

if there is one to which an appeal lies.

It is our submission, of course, Your Honours, that
these orders are orders which we were entitled to
have set aside ex debito justitiae because they

were made ex parte and they were vitiated by a

fundamental excessive jurisdiction.

CAMERON V COLE, (1943) 68 CLR 571, a decision

of this Court, deals with a sequestration order
made by the then Federal Court of Bankruptcy. There
was a difference of opinion among the Justices as

to whether the Federal Court of Bankruptcy was or

was not a superior court of record. At least,

Sir John Latham took the view that it was not a

superior court of record and I need not trouble

Your Honours consequently with his reasoning but

at least three Justices took the view that the

Federal Court or Bankruptcy was a superior court

and, consequently, they came to look at this question

of irregular orders.

In CAMERON V COLE, the order had been made

ex parte without service on the debtor and,

consequently, was vitiated for denial of natural

justice and that is how this point came to bP.

aeitated in this Court. At the bottom of page 590,

in the judgment of Mr Justice Rich, a couple of

lines above CRAIG V KANSSEN, His Honour says:

I am unable to feel any doubt that the Federal

Court of Bankruptcy is a superior court. The

language of Lord Green ..... where he says that "a

person who is affected by an order which can

properly be described as a nullity is entitled

ex debito justitiae to have it set aside," is

correct as an abstract proposition; but since

the order before his Lordship was one of a

superior court, the expression is somewhat
misleading, and his statement that the

distinction is "between proceedings or orders

which are nullities and those in respect of which

there has been nothing worse than an irregularity"
fails, I venture to think with all submission,

to meet the actual facts of the case.

C2T54/2/SH	48	9/11/89
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MR HANDLEY (continuing):

This is true enough in the case of an

inferior court; but in the case of a superior

court the distinction is between irregularities

so fundamental as to create an unconditional right,

ex debito justitiae, to have the judgment set

aside, and non-fundamental irregularities as

to which the court has a discretion.

Your Honours are seize.'1 of our submission based on

that about the nature of the orders in this case

being vitiated by a matter absolutely fundamental.

On page 596 Mr Justice Starke said in the last few lines of the first paragraph there:

A bankruptcy notice or a petition presented

contrary to the provision of the Regulations

is irregular, and a party is entitled ex debito

justitiae to have it set aside or treated as

ineffective -

and quotes authority. And then Mr Justice Williams

at 604, two lines from the bottom of the page:

Where service of a particular nature is

required to give an inferior court jurisdiction,

failure to effect such service will make all

the subsequent proceedings null and void. Referring to cases mentioned by Mr Justice Rich:

But the authorities to which my brother Rich

has referred show that an order made by a

superior court, however fundamentally

impeachable, is voidable and not void.

And I need not trouble Your Honours with the rest

of that judgment. And then, Your Honours,

paragraphs 5 through to 13 encapsulates·.

in written form our challenge to the warrants so

far as their form and content is concerned. There

is no need for me to - - -

GAUDRON J: You. would take paragraph 5 a little further now,

would you not?

MR HANDLEY:  I beg Your Honours pardon?

GAUDRON J: You would take paragraph 5 a little further?

MR HANDLEY:  I do indeed, Your Honour, yas , ·1::ecause although

some of the warrants only have five proscribed offences

and of course as the discussion this morning

demonstrated, the federal offences totally cover

the field, there being a partial overlap with one

or two State offences, as the case may be.

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BRENNAN J:  Mr Handley, I am having difficulty in coming

to grips with the nature of these warrants as

affecting the interests of your clients in a

way which entitles them to apply ex debito justitiae

to have them set aside. It is appreciated that they

do in a way, but the step which they take is to

permit something to be done. Why would that thing

not be ooen to be done, apart altogether from the

warrant?

MR HANDLEY:  Your Honour, the warrants authorize what would

otherwise be trespassers.

BRENNAN J:  By trespassers, yes. You rely then on the

common law?

MR HANDLEY:	Yes, Your Honour. And trespassers and invasions of privacy- my clients are named, of course, as
such in the warrants.  I have not taken Your Honours
to those parts, but the warrants have to define the
conversations which can be listened into and they
define such conversations by reference to the
parties to them, and my clients are named in the
warrants accordingly.

(Continued on page 51)

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BRENNAN J:	Is there a common law right to privacy?
MR HANDLEY:	No, Your Honour, there is a common law

liberty but not a right of privacy.

BRENNAN J:  I understand the trespass point but I am having

difficulty in understanding just what the warrants

do in point of legal operation, given the approach you are taking to the validity or the

effectiveness, rather, of the State statute.

MR HANDLEY:  Yes; Your Honour, in order to answer Your Honour's

question, I have to split it up into federal law

and State law.

BRENNAN J: 

Yes.

MR HANDLEY: 

So far as federal law is coacerned, these

warrants were ineffective to authorize the federal
police to do anything and, in fact, the federal
police committed offences under section 219B(l)

and the State police, in our submission, committed

offences under section 219B(2) because they made
use of these warrants in association with the
federal police. But, perhaps that does not really

answer Your Honour's question; the answer about

State law will do so.

The effect of the warrants was to render

lawful what would otherwise have been criminal

under the LISTENING DEVICES ACT itself which

contains a general prohibition on the use of

listening devices and then there is a power in the

supreme ~~urt to relax that prohibition in a

particular case by the grant of a warrant.

BRENNAN J:  Does section 109 strike down the prohibition as

well as the licensing provision?

MR HANDLEY:  Yes, Your Honour. If a federal warrant existed

under section 219B of the CUSTOMS ACT, what the

federal warrant and the CUSTOMS ACT specifically

sanctioned could not be penalized under State law

clearly, with respec½ but so far as State police

are concerned, the existence of a State warrant

would protect them against criminality which would

otherwise flow under State law from the use of a

listening device. It also authorizes entry on to

private property in order to attach:the:listening

device in the first place and thereafter further

entry on to private property in order to remove it.

BRENNAN J: 

Well now, if sectionl09 makes ineffective the

State prohibitio~ then the invalidity of the
warrants makes no material difference to the conduct

which would otherwise be proscribed under the State
law.

C2T56/l/JH	51	9/11/89
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MR HANDLEY:	Your Honour, I think it may be necessary to maintain the distinction between federal and
State. As far as the federal police are concerned,
the State warrants are waste paper.
BRENNAN J:	So far as the State police are concerned, the

hypothesis is, is it not, that section 219 contains

the code of the law?

(Continued on page 53)

C2T56/2/JH	52	9/11/89
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MR HANDLEY:  So far as the State police working in

conjunction with the federal police in relation to

narcotics inquiries, ie federal offences, what

Your Honour says is perfectly correct.

BRENNAN J:  So that there was no prohibition under State law

binding those State police?

MR HANDLEY: That is correct. There was a prohibition under

federal law binding those State police. BRENNAN J: Which was unaffected by the warrants?

MR HANDLEY: Whicri:•.:as•.1naffected by the warrants in fact, thoug-h

here we get into the question of whether persons who

act under a warrant of a superior court are orotected

even if the warrant is later set aside and, again,
there is the question of if they are acting under

administrative warrants they are not so protected.

BRENNAN J: Yes.

MR HANDLEY:  So the initial problem of paragraph 1 continues to flow right through this case. I have now got

to paragraph 14 of our outline and I want to take

the Court to BRINKS V ELCOMBE. It is introduced

by the initials "cf" and the analogy that we have sought in BRINKS V ELCOMBE relates to judicial orders which are

unquestionably judicial orders granted ex parte where

there is an allegation of some material non-disclosure

by the moving party to the judge who granted the

ex parte order and then this non-disclosure is made

the basis of an application to the judge or to another
judge at the same level in the judicial system to

discharge the ex parte order.

In BRINKS V ELCOMBE the ex Parte order was a

MA.REVA injunction. A number of these cases involve

ANTON PILLAR orders. This particular one does not

but, as Your Honours would be aware, ANTON PILLAR

orders are orders which are in effect ex parte injunctions which restrain the defendant,.his or its	servants and agents, from stoppin~ the plaintiff,	its servants and agents, from entering on to the
defendant's premises and pickine u~ doct:Jents an<l other forms of real evidence.

Now, I can go directly to the relevant parts

of the· judgment without troubling Your Honours about

the facts because all I want is a statement of principle

and that is in the iudgment of Lord Justice Ralph Gibson

at page 1356 F:

In considering whether there has been

relevant non-disclosure and what consequence
the court should attach to any failure to
comply with the duty to make full and frank
disclosure, the ?rinciples relevant to the

issues in these appeals appear to me to

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include the following. (1) The duty

of the aDolicant is to make "a full and

fair disclosure of all the material facts:"

and then the well-known case of the PRINCESS EDMOND

DE POLIGNAC.

(2) The material facts are those which it is
material for the judge to know in dealing with

the application as made: materiality is to

be decided by the court and not by the

assessment of the applicant or his legal

advisers.

(Continued on page 55)

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MR	HANDLEY	(continuing):

The applicant must make proper inquiries

before making the application ..... The duty

of disclosure therefore applies not only to

material facts known to the applicant but

also to any additional facts which he

would have known if he had made such . . .

1nqu1r1es.

I do not know that I need trouble Your Honours with

paragraph (4). Paragraph (5):

If material non-disclosure is established

the court will be "astute to ensure that a

plaintiff who obtains (an ex parte injunction)

without full disclosure ... is deprived of

any advantage he may have derived by that

breach of duty".

I hasten to add, Your Honours, that I am not suggesting

there was any non-disclosure in the warrants in this

case. There is no attack on the bona fides of the

person who approached the supreme court for these

warrants. We do not cite the case for that principle,

but for another principle, namely the point we are

making is that ex hypothesi if there has been a material

non-disclosure in an ex parte injunction case the

judicial decision was made on, shall we say, 75 per

cent of the facts. When the application is made to
discharge the ex parte order the court, for the first

time, is put in possession of 100 per cent of the

relevant facts at that stage of the litigation and,

prima facie, the effect of the non-disclosure, if it

is material, is that the ex parte order is discharged

and it may or may not be granted again but prima facie,

as I say, the ex parte order is discharged.

Here, we submit, the analogy is this, that

without any suggestion of non-disclosure the judicial

minds which were persuaded to issue these warrants,

we now know, were not in possession of all the material

facts, or all the material law. They made a decision,

which we seek to characterize as judicial, on the

basis of possessiong X per cent of the facts and the

relevant law. Now, on our application to discharge

those warrants, the Court, for the first time, is

appraised of all the facts. If what was not previously

known to the Court is material, then, in our submission,

the orders go. In other words, the judicial mind

which was persuaded to make the ex parte orders, if

it was persuaded on materially less than all the
relevant information, when the Court is appraised of

that fact it wipes the slate clean and may or may not

start again.

So here we point to this by way of contrast to

an approach of severance which picks off, knocks

C2T58/l/HS	55	9/11/89
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this part off the warrant and some other part

of the warrant, and some other part of the warrant,

as being bad on its face, and we seek to go to the

heart of the judicial decision, as we describe it,

which led to the issue of these warrants, and say,

"Well, look the judge only had possession of a

fraction, 50 per cent or whatever, of the relevant

matters that he should have been aware of. His

attention obviously was not drawn to the CUSTOMS

ACT and its consequences. Now that his attention

has been drawn to the CUSTOMS ACT and the consequences,

the court's attention has been drawn, there's only

one proper judicial approach. Cancel those orders,

we will set them aside", and because they are

fundamentally vitiated the judicial process was

activated on the basis of significantly incomplete

information, and that is the analogy we seek to draw

in this case.

We have cast our minds about for other matters

which would give some content to the general

statements of principle in CAMERON V COLE and

ISAACS V ROBERTSON and this, we thought, would be of

assistance to the Court. Now, having said that, can

I go back to paragraphs (5), (6) and (7) in the

judgment of Lord Justice Gibson - paragraph (6):

Whether the fact not disclosed is of sufficient materiality to justify or

require immediate discharge of the order

without examination of the merits depends
on the importance of the fact to the issues
which were to be decided by the judge on

the application.

There can be no doubt, Your Honours, that the existence of

the CUSTOMS ACT and its legal impact on the

LISTENING DEVICES ACT was of fundamental importance

to the issues to be decided by the judges who had

granted these warrants.

(Continued on page 57)

C2T58/2/HS	56	9/11/89
Love(2)

MR HANDLEY (continuing):

The answer to the question whether the
non-disclosure was innocent, in the sense
that the fact was not known to the applicant

or that its relevant was not perceived, is an

important consideration -

It is irrelevant here because we accept that it was

innocent -

but not decisive .....

Finally, it "is not for every omission

that the injunction will be automatically

discharged. A locus poenitentiae may

sometimes be afforded ..... The court has a

discretion, notwithstanding proof of material

non-disclosure which justified or requires the

immediate discharge of the ex parte order,

nevertheless to continue the order, or to

make a new order on terms.

"when the whole of the facts, including that
of the original non-disclosure, are before
(the court, it) may well grant ... a second

injunction if the original non-disclosure was

innocent and if an injunction would properly

be granted even had the facts been disclosed.

But if one looks at paragraph (7) in the context of

this case, there cannot be any question that orders

would not have been made in this form had the supreme

court judges known of the effect of the CUSTOMS ACT.

Lord Justice Balcombe, at page 1358, paragraph beginning just below letter C:

The rule that an ex parte injunction will

be discharged if it was obtained without full

disclosure has a two-fold purpose. It will

deprive the wrongdoer of an advantage improperly

obtained ..... But it also serves as a deterrent

to ensure that persons who make ex parte

applications realise that they have this duty of

disclosure and of the consequences ..... if they

fail in that duty. Nevertheless, this judge-made

rule cannot - - -

MASON CJ:  Mr Handley, I do not see the point of this. I mean,

this is a non-disclosure case. You are not saying

the current case was a non-disclosure case - - -

MR HANDLEY:  I am not, Your Honour.

MASON CJ: Well, why are we reading this?

C2T59/l/FK	57	9/11/89
Love(2)

MR HANDLEY:  Your Honour, because, in my submission, it is an

analogy of what a court will do when it made an

ex parte order and later discovers that it did not

have all the material before it which was then

appropriate for its ex parte decision.

MASON CJ: But, as the very passages that you refer to indicate,

it is the sanction for non-disclosure.	Now, how is
that appropriate in this case?

MR HANDLEY:  It is not, Your Honour, but what is, in our submission,

directly relevant in our case, is the fact that the

court may in the ex parte injunction cases, notwithstanding

a non-disclosure, nevertheless, as it were, excuse

the breach of duty involved, or the negligence involved

if, on an assessment of the whole case, it is satisfied

that it is proper either to continue the injunction orto

grant a new injunction instanter, perhaps in modified
terms, but it is at that point that the court looks at

the significance of the material that was not disclosed,

not so much at the point at which it decides to discharge

the order, but at the question of whether it will now,

as it were, excuse the breach of the duty, or

formally vacate the former order and grant a new one
in similar or the same terms, and it focuses on the
point that the judge did not have before him the

material he should have had before him, and the

materiality of the non-disclosure, as it were, making

the decision fundamentally flawed, and - - -

(Continued on page 59)

C2T59/2/FK	58	9/11/89
Love(2)

MASON CJ:  Again, you see, the analogy seems to me to be

a very imprecise and inexact one because here,

again, we are not concerned with whether or not

the judge had before him all the material that

he should have had; it is a different class of

case altogether.

MR HANDLEY:  Well, Your Honour, we are not talking about

evidentiary material in this case, clearly, but the

fact is that the judicial decision, in our

submission, which is essentially an inseverable -

it is a single decision to issue this warrant.

MASON CJ:  Well, that is a different point and you do not

need this case to demonstrate that point.

MR HANDLEY:  Your Honours, since, apart from denial of

natural justice because of failure to effect

proper service of process, since apart from that

case or those cases there has not been much
discussion of circumstances in which an ex parte

order can be set aside, we thought to present

that as an analogy but we do not wish to flog it

and we will now move on.

BRENNAN J:  And, have any orders ever been set aside

retrospectively?

MR HANDLEY:  Your Honour, they are set aside retrospectively,

if that is what happens. I am sorry; if an ex parte

order is set aside, it is set aside retrospectively.

BRENNAN J:  So that all that is done under the order is not

done under the protection of the order?

MR HANDLEY:  No, that is not the case, Your Honour. This

matter is discussed in COH1ISSICNER FOR RAILWAYS V CAV.AIDUGH;

the case is listed in paragraph 16 of our outline and

we will take the Court to that. It is also discussed

in some extent in WILSON and· -	_
DOE D.-WHITTINGTON,	but I think it is sufficiently
picked up in COMMISSIONER FOR RAILWAYS V CAVANOUGH.

Your Honours, if this is a judicial order, persons

who acted upon it - these being superior court

orders - are protected; that is, the police will not

have been guilty of criminal offences - - -

GAUDRON J:	That is not right; they will, on any view - - -
MR HANDLEY:	On federal offences.
GAUDRON J:	- - - havebeen guilty of federal offences, I mean,

absent a- Commonwealth warrant.

MR HANDLEY:  I am obliged to Your Honour; I should have said

they will not be guilty of State offences.

C2T60/l/JH	59	9/11/89
Love(2)

Obviously, a valid federal statute creating a

criminal offence cannot be defeated by a State

warrant especially if a State warrant is granted

pursuant to legislation which is invalid under

section 109.

GAUDRON J:  So, what is the effect of setting them aside then?

I mean, the issue would never be, is there a State offence, would it?

MR HANDLEY:  There will never be an issue - in my submission,

the State police involved in this case could never

be prosecuted for breach of the LISTENING DEVICES ACT

whether or not these warrants are set aside; in
fact, they could not be prosecuted if they were set

aside and whether or not the warrants are set aside,

they are exposed to criminal proceedings under the

federal Act.

(Continued on page 61)

C2T60/2/JH	60	9/11/89
Love(2)

BRENNAN J:	Can they be sued for tort?
MR HANDLEY:	I beg Your Honour's pardon?

BRENNAN J: Could they be sued in tort for trespass?

MR HANDLEY:  They could not be sued in tort for trespass,

Your Honour, if these warrants are set aside, if

they acted on them. I think it probably would

be appropriate if I did take Your Honours to

COMMISSIONER FOR RAILWAYS V CAVANOUGH. I have

to answer a question I think from Justice Gaudron

about what would be the effect of setting these warrants aside. We do not think we are here on

an academic exercise so we will answer that question

in a moment, but it is appropriate to look at

CAVANOUGH's case first.	CAVANOUGH's case is in
53 CLR 220.	I will take Your Honours to the headnote

before going to the judgments:

The respondent was an officer in the employ

of the Cormnissioner for Railways of New South

Wales and, as such, received a certain salary.

He was summarily convicted under sec.501 of
the CRIMES ACT 1900 ..... of stealing ..... The

conviction was set aside by a Court of Quarter

Sessions on appeal. The respondent then sued

the Cormnissioner for salary for the period between the date of his conviction, when he was suspended, and the date of the setting aside of the

conviction, when he was reinstated. The

Cormnissioner relied upon sec.80 of the GOVERNMENT

RAILWAYS ACT 1912 (N.S.W.), which provides that

an officer convicted of felony shall be deemed

to have vacated his office.

Held that upon the setting aside of the

conviction it was avoided ab initio; therefore the
respondent could not be deemed to have vacated

his office and he was entitled to the salary

claimed.

In the judgment of four Justices of the court at

page 225, Their Honours said:

An appeal is not a cormnon law proceeding. It is

a remedy given by statute.

The scope and effect of an appeal must

in the end be governed by the terms of the
enactment creating it. But the power given to

the Quarter Sessions includes authority to

quash and set aside convictions. These are

familiar expressions and describe a jurisdiction

exercisable at cormnon law by Courts of error.

The effect of the reversal of a conviction by

proceedings in error has long been settled, and

C2T61/l/CM	. 6-l -	HR ·F..ANDLEY, QC	9/11/89
Love(2)

the same effect is produced by quashing it,

or setting it aside upon a statutory appeal.

The conviction is avoided ab initio. "The

judgment reversed is the same as no judgment".

If the conviction were alleged in a

pleading, it would be a good answer that there

was no such record. It is "utterly defeated

and annulled". Acts done according to the

exigency of a judicial order afterwards
reversed are protected: they are "acts done in

the execution of justice, which are compulsive".

And again, Your Honours, if these are judicial orders,

acts done according to the exigency of these warrants,

are protected under State law, ~of course they cannot

be protected under federal law -

And proceedings which, although based upon a

judgment, are brought to completion before its

reversal are not avoided. For "collateral acts

executory are barred, but not collateral acts

executed". But "upon the reversal of a judgment

against any person convicted of any offence,

the judgment, execution and all former proceedings

become thereby absolutely null and void. If

living, he (or if dead, his heir or personal

representative, as the case may be) will be

entitled to be restored to all things which he

may have lost by such erroneous judgment and

proceedings, and shall stand in every respect as

if he had never been charged with the offence in

respect of which judgment was pronounced against him".

Now Your Honours, one of the lines on which we are

pursuing is to seek -

to be restored to all things which -

we -

have lost -

as a result of these erroneous warrants and one of

the things we have lost is our privacy and we wish

to have that restored to us by delivery up or

destruction of the tapes and any transcripts. The

tension there, of course, is between the persons
acting. on the exigency of judicial orders are

protected, even if the order is later set aside - we

accept that if these are judicial orders. If they

are not judicial orders, of course, the position is

quite different and they are not protected.

C2T61/2/CM	62	9/11/89
Love(2)

MR HANDLEY (continuing):  Going to the judgment of

Mr Justice Starke, His Honour said at the bottom

of page 227, five lines from the bottom:

It is true that anyone who acts in execution

of a judgment may justify under it, notwithstanding

its removal, reversal or annulment, for it was

good when given. But the consequence of the

reversal of a judgment or conviction is that

it is annulled and held for nothing, and the

party is restored to all things which by reason

of the judgment he has lost.

Now, I think it was Your Honour Justice Gaudron who

asked me what we were seeking to achieve. We seek

to achieve two things: as a preliminary, we wish

to have these warrants totally set aside on principles
that we have already mentioned, that the judicial

decisions were vitiated because the judges were

under a fundamental misconception as to the jurisdiction

they had to grant these warrants.

If they are set aside, in our submission,

that will be important at the trial in any event

when the court comes to consider whether evidence

should be received from federal police officers

which was obtained pursuant to warrants granted

contrary to the CUSTOMS ACT and Your Honours will

recall that in 219B(3):

It is the duty of the Commissioner of Police

to take reasonable steps to ensure that

sub-sections (1) and (2) are not contravened.

In our submission, by by-passing federal law and

seeking to take advantage of State law, the federal

police have committed deliberately or recklessly -

we do not know which until we investigate the facts

in further detail - they have committed a reckless

or deliberate breach of section 219B and this will

be a most material matter when the trial judge comes

to exercise his discretion as to whether or not

evidence by federal police officers obtained as a

result of unlawful conduct contrary to prohibitions

in the CUSTOMS ACT is to be received into evidence

as part of the case against the appellant and

Your Honours are aware of BUNNING V CROSS - I

could not remember BUNNING V CROSS for a moment -

where there W:JS a discussion in the judgment of this

Court as to the importance of finding that there has

been a reckless or deliberate disregard of safeguards

laid down by Parliament governing the conduct of

police officers in criminal investigations. I think

it is probably a fairly well-known passage and I think

Mr Horler is probably going to say more about it and

I intend to leave it m:stlyto him but, in our submission,

it will be of advantage to the appellants if, when the

trial judge comes to consider the exercise of that

C2T62/1 /SH	63	9/11/89
Love(2)

discretion, the appellants have available to them

orders in the result of this Court setting aside

the warrants under which the evidence was obtained.

GAUDRON J:  I do not see how the two issues touch, Mr Handley.

If the question is the breach of the CUSTOMS ACT,

I do not see what the setting aside of the warrants

under the LISTENING DEVICES ACT have got to do with

i t .

MR HANDLEY: What we are redlly after, of course, is the

tapes. Your Honours appreciate that.

GAUDRON J:	I can understand that.
MR HANDLEY:	But, at the moment, rightly or wrongly, the

view is taken that if these warrants were to be

totally set aside, as a result of these proceedings,

this would be of advantage to us in seeking to have

the trial judge throw out this evidence even if

we do not get the tapes back.

(Continued on page 65)

C2T62/2/SH	64	9/11/89
Love(2)

MR HANDLEY (continuing):  Now, I really was not seeking to

do other than to indicate a belief on our Dart

that the appellants have a chance in this regard

which cannot be dismissed and the view is taken

that that chance would be improved if these

warrants were to be set aside. But of course what

we are really after, as I indicated a moment ago,

is if we are in a position to get these warrants set

aside, and if they are judicial orders, we then seek
to invoke the principle of restoration.

If I may now proceed: paragraph 15 says the

warrants have or may have continuing legal effect.
They of course have expired.- they were only granted

for short periods - but are not spent so far as

their legal effect is concerned, we submit, and for
this reason, if we are right, must be set aside. And we

draw attention by way of analogy, hopefully a bit better

than our last one, to the view that this Court has

taken about prohibition: even if the tribunal making

a federal award for example is functus officio,

prohibition will still go if the award has continuing

legal effects on creating or modifying legal ri12:'b.ts
and duties.

And we cannot, of course, get to the springboard

for our restoration argument unless we get these

warrants totally set aside or declared totally

void. On the assumption that they are judicial orders

and that we succeed in setting them aside, we then

seek to invoke the principle of restoration to which

some reference has already been made in CAVANOUGH's case, and I would seek to take the Court briefly to the principles dealing with this jurisdiction as they

have been established by this and other courts of

authority.

HEAVENER V LOOMES,34 CLR, the discussion was only in the dissenting judgment of Justices Isaacs

and Rich. There was no difference between the majority

and minority on this question.

MASON CJ: Before you come to that, Mr Handley: why are these

warrants not spent?

MR HANDLEY:  Your Honour, I have got two submissions about

that. One is that the continued existence of the

warrants may give a colour of legality which will

impact on the exercise of the trial judge's discretion,

that if the Court is satisfied that we are right on

the merits then it ought to say so and it ought to

say so in a decisive way by avoiding these warrants.

MASON CJ:  I can understand that, but that does not seem to me

to deny the proposition that the	warrants are snent.
They have served their purpose.	They no longer
have any continuing operation in	terms of authorizing
something.

C2T63/l/LR	65	9/11/89
Love(2)

MR HANDLEY: That is true, Your Honour. That is why I said

they have expired but are not spent. I am

distinguishing between the warrants as a source

of authority for any further acts, Positive acts;

but, Your Honour, at the moment, while the warrants

stand, as the Court of Appeal judgment demonstrates,

we cannot get to the springboard for our restoration

argument. So the warrants are there, as it were,,

standing in the way of our attempt to get our privacy

back by having the tapes and transcripts delivered

up or destroyed. In that sense, it is like a judgment

that is standing in the way of our rights and we

are entitled, in our submission, to have the judgment,

as it were, swept aside and then have our rights

investigated.

(Continued on page 67)

C2T63/2/LR	66	9/11/89
Love(2)

MR HANDLEY (continuing):  I accept that if the Court took the

view that we did not have any rights even if the

judgment was set aside, or even if these warrants

were set aside, that might obviously throw light

on whether the warrants ought to be set aside. If

these warrants stand as an obstacle to us getting

restoration of our privacy through the destruction

of these tapes then, in our submission, that

continuing legal effect of those warrants is

sufficient basis for having them set aside.	I
really cannot add to that, I am afraid.

Well, Your Honour, my learned-junior suggests

that if the warrants are not set aside no question

of admissibility arises except relevance. I am

not sure that that is corr.e.ct because I do not see

how the warrants stand in the path of federal law

and I think we can point to 219B(l) and (2) even

if the warrants stand. But, of course, we still

see it as highly advantageous as a practical matter

to have these warrants set aside when it comes to
dealing with this matter in the course of a
criminal trial when we are seeking to have the

discretion exercised favourably to the accused and

a judge, needless to say, does not want to spend

all the time being got up to speed on constitutional

law and the interaction of these two statutes and an

order setting aside the warrants would be a very

plain declaration that they should never have been

granted and that, as it were, the conduct in

question stands naked and exposed calling for, we

hope, in a persuasive way, the exercise of the

discretion against the reception of the illegally

obtained evidence.

The sort of considerations in CAVANOUGH's

case which say that once the judgment is set aside

it is no judgment, ~eople are protected in the

mean time but afterwards it is null and void, no

judgment, and a person is to be treated as if the

judgment had never been given. Your Honour, that

all, in our submission, underpins, in our submission,that

the setting aside of these warrants would have a

material impact on the argument for the exercise
of the discretion favourably to the accused.

Going now to HEAVENER V LOOMES, 34 CLR, the

relevant passage in the joint judgment of
Justices Isaccs and Rich is at page 323 - the

last paragraph:

On the facts before the Court on this

interlocutory application, the appellants

were, at the time the motion was dealt with,

entitled to an injunction to restrain the

respondent from receiving the money sued for.

C2T64/l/DR	67	9/11/89
Love(2)

She has, it appears, since received it, and the

protection should be moulded accordingly, for -

acts of the court will do no one an injury, I think,

is my poor Latin translation.

This maxim is no mere form of words. Nor is

it limited in its application to the primary

tribunal. Twice have the Privy Council

emphasized the importance of observing it.

In JAI BERHAM V KEDAR NATH MARWARI Lord Carson,

for the Judicial Committee, speaking of the

duty of an appellate Court, when varying or

reversing a decree -

and this is the language that appeals to us -

to place the parties in the position they

would have occupied but for the decree or

the part varied.

(Continued on page 69)

C2T64/2/DR	68	9/11/89
Love(2)

MR HANDLEY (continuing): Then, over the page His Lordship

talks about it being:

inherent in the general jurisdiction of

the Court to act rightly and fairly according

to the circumstances towards all parties

involved.

And then he quotes Lord Cairns in RODGER's case, to which

we will be referring in any event, and which was cited

by this Court in McCORMACK, so we do not read that,

but the principle that we seek to deduce is that at

the bottom of page 323, that if we can persuade this

Court to set aside these orders as judicial orders,
this Court, standing in the place, ought to make the
order which the supreme court ought to have made when
setting aside the orders - these warrants - and then

it becomes the duty of the supreme court, or this

Court on appeal, to place the appellants in the

position they would have occupied but for these warrants.

COMMONWEALTH V McCORMACK was a case about orders

for the repayment of money and interest, but the

principle is stated by this Court, and we seek to

take the Court to it, 155 CLR 273, I need not trouble

Your Honours with the facts, but can go straight to

a statement of principle on page 276, about point 5

on the page, Your Honours, five Justices of this

Court commenced by saying:

"Restitutio in integrum is the right of

every successful appellant".

Elsewhere we seek to show that it is the right of

every person who succeeds in having a judgment against

him set aside:

An appellant who has satisfied a judgment

for the payment of money is entitled, on
the reversal of the judgment, to repayment

of the money paid by him with interest:

RODGER V THE COMPTOIR D'ESCOMPTE DE PARIS;

MARCHANT BANKING CO. V MAUD. In the former

case, Lord Cairns said:

" ... one of the first and highest duties of

all Courts is to take care that the act of
the Court does no injury to any of the Suitors,
and when the expression 'the act of the Court'
is used, it does not mean merely the act of

the Primary Court, or of any intermediate

Court of appeal, but the act of the Court as

a whole, from the lowest Court which entertains

jurisdiction over the matter to the highest

Court which finally disposes of the case."

C2T65/l/FK	69	9/11/89
Love(2)

Isaacs and Rich JJ. espoused the principle

in HEAVENER V LOOMS.

Now, Your Honours, restitution is not to be construed

narrowly in this context, because it is one thing to

order repayment of the verdict moneys, or the

judgment moneys, because that is to restore the

successful party to the position he would have been

in - to restore to the successful party what he has
parted with to the initially successful, but later

unsuccessful party. That is, in a strict sense

restitutio in integrum. But the successful party has

never directly lost the interest and it may be that

the party who received the judgment moneys pending the final appeal has not actually earned interest, but nevertheless, as a means of ensuring that no

injury is done to the successful party who has been

out of his money for some period because he, or she, or

it has paid the judgment, the court orders restoration

of the judgment moneys with interest, and the interest

is something to which the successful party had no

legal right at that time; there was no section 94 of

the SUPREME COURT ACT or anything of that nature in

1871, what the Court was doing was seeking to undo,

as far as it could, the injury that had been done to a

litigant by a judicial error at a lower court, and that

involved an element of walking the second mile by

ordering repayment of interest: repayment of interest

as well as repayment of the principle. And so, the

fact that we have no legal property in these tapes,

or in these transcripts, is not itself an answer to

our request for their delivery up or their destruction

on oath.

(Continued on page 71)

C2T65/2/FK	70	9/11/89
Love(Z)

BRENNAN J:  But the question will still remain whether you

have suffered a legal injury.

MR HANDLEY:  Your Honour, in my submission, so far as the

interest is concerned in RODGER's case, no legal

injury had been suffered.

BRENNAN J:	Then, deprivation of money for a time.
MR HANDLEY:	Well, Your Honour, the common law gave no general legal remedy in 1871 for such a loss and statute law
gave very narrow remedies and the Privy Council was not exercising a statutory jurisdiction but exercising the jurisdiction of a court to restore a litigant to the position he would have been in but for the
judgment set aside and, in our submission, one is not
looking for a legal injury; one is looking for injury,
the sort of injury which a court can redress by making
an appropriate order and the statement in HEAVENER V
LOOMES does not put it in terms of legal injury nor, in our submission, does the statement of Lord Cairns
as adopted by this Court in McCORMACK's case.

If I could go to RODGER V COMPTOIR D'ESCOMPTE,

LR 3 PC 465. The judgment of Lord Cairns commences at page 475 but I just wish to pick up a short passage in

the argument of Sir Randall Palmer at the bottom of

page 470 and the top of 471 because I will be taking

Your Honours to this case in Croke Reports in the

time of James I. The last two lines of 470:

In SYMPSON V JUXON, it was held, that if

judgment be reversed on error, a writ of

restitution will be awarded to inquire

what profits the party has taken, colore

judicii praedicti. And the Court there

expressly declares that "the Plaintiff in

the Writ of error, after reversal, is to be

restored to all he lost."

Now, Your Honours, the point that I am trying to bring

out there at this stage is that the measure of the

restoration are the profits which the successful

party received not the profits or the rents which

the temporarily unsuccessful party has lost. The inquiry was what profits the initially successful

party has taken under colour of the judgment and

then that is treated as the measure of restoration

to the ultimately successful party and, in our

submission, that is not without its importance in

this case.

Going to page 475, in the advice of Lord Cairns -

paragraph on that page has already been read to the

some of this involves a moment of - the middle that the last sentence of that paragraph I do not

think was quoted in McCORMACK~s~~as~:

C2T66/l /SH	71	9/11/89
Love(2)

It is the duty of the aggregate of those

Tribunals, if I may use the expression, to

take care that no act of the Court in the
course of the whole of the proceedings does

an injury to the suitors in the Court.

(Continued on page 73)

C2T66/2/SH	72	9/11/89
Love(2)

MR HANDLEY (continuing): Again, that statement is put in a

very broad and comprehensive way and is not to be

confined to what would otherwise be an infringement

of a legal right of the ultimately successful party:

It is contended, on the part of the

Respondents here, that the principal

sum being restored to the present

Petitioners, they have no right to

recover from them any interest. It

is obvious that, if that is so, injury,

and very grave injury, will be done to

the Petitioners. They will by reason

of an act of the Court have paid a sum
of money which it is now ascertained was
ordered to be paid by mistake and wrongfully.

They will recover that sum after the lapse

of a considerable time, but they will
recover it without the ordinary fruits
which are derived from the enjoyment of

money. On the other hand, those fruits will

have been enjoyed, or may have been enjoyed,

by the person who by mistake and by wrong

obtained possession of the money under a

judgment which has been reversed.	So far,
therefore, as principle is concerned,

their Lordships have no doubt or hesitation

in saying that injustice will be done to

the Petitioners, and that the perfect

judicial determination which it must be the

object of all Courts to arrive at, will not

have been arrived at unless the person who

have had their money improperly taken from them have.the money restored to them, with

interest, during the time that the money has

been withheld.

Then if I can ask Your Honours to look at SYMPSON V

JUXON, (1624) 69 ER 607, the headnote is:

If judgment be reversed on error, a writ

of restitution shall be awarded to

enquire what profits the party hath taken	colore judicci proedicti; and the enquiry
shall be from the time the erroneous
judgment was obtained.

I mention that, Your Honour, because under the judgment

the initially successful party was able to peacefully

re-enter, without execution, some of the land in

question and only needed to obtain execution for

possession of the balance and the dispute was whether

he had to account for main profits taken as a result

of possession derived from the execution or main profits for the whole period after the judgment:

Error of a judgment in Durham for the

plaintiff. The judgment being reversed

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in the King's Bench, a writ of restitution

was awarded, and to enquire what were the

profits of the land recovered -

from the time of the judicial decision -

which was 7th August, 19 Jae. I.

whereupon the inquisition was returned,

that they amounted to ten pounds.

Exception was taken to the writ; for

it ought not to have been what the profits

of the land amounted to from the judgment:
for the plaintiff is not to answer the

profits longer than from the time of the

execution sued, which was long after. And

so held all the Court; wherefore the writ -

that is of restitution -

was ruled to be ill.

The plaintiff in the writ of error had

a new writ of restitution, which was to

enquire what profits of the land the plaintiff

who recovered had taken colore judicii

proedicti, which was 7th August, 19 Jae. I.

and after the reversal thereof; which being

returned, that he took the profits of the land colore judicii proedicti, before the

reversal thereof, to the value of ten pounds.

An exception was taken thereto by

Sjr Henry Yelverton and Serjeant Damport

that this writ was not good; for it ought to

have been what profits he took after the

execution sued, for that appears of record

to be long after the judgment.

But all the Court held, that the writ

was good enough; for the plaintiff in the

writ of error, after the reversal, is to be

restored to all that he lost, and what the

plaintiff in the judgment by colour thereof

had taken after the judgment: and that may

well be by entry after the judgment (as in

truth the case was affirmed to be) in part,

and yet after sue execution of the remainder;

wherefore the writ was well made.

Now, Your Honours, we are seeking to apply the

principles of those cases, old and not so old, to a
novel situation but, in our submission, the principle
covers us, even though we do not have a precise
precedent and, as we say -we make the submission

in paragraph 17.

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GAUDRON J: This claimed right depends entirely on

the warrant being seen as a judicial order?

MR HANDLEY:  Yes, Your Honour.

GAUDRON J: Yes.

MR HANDLEY: Paragraph 18: this principle of restoration

applies not only to reversal of judgments on appeal

but in any case where a judp:.ment is set aside -

and some of the other cases, of course, involve

writs of error which was not an aupeal strictu

sensu, and there is an example om· certiorari and there

is an example for irregularity and the case in point

here is of course an irregularity case, albeit

a fundamental one, and I think therefore I should

take the Court to DOE D. WHITTINGTON V HARDS in 1851

at page 406. I need not trouhle Your Honours with

the headnote but the facts:

I_n this case an order had been made, by

Maule Jon the 17th of August 1950, for

the issuing of a writ of restitution to the

sheriff of Gloucestershire commanding him

to restore possession of the premises

recovered in the action to the defendant Hards,

the landlord thereof -

and further down in that colunm- the words "June 1850" stana out -

from the affidavits in support of the

rule it appeared that judgment had been

obtained in the action as uDon a vacant possession,

in June 1850, and thereupon the defendant
had been dispossessed under a writ of possession.

An order was-afterwards made for setting aside the judgment as irregular, and for restoring possession to the defendant, and admitting him to defend as landlord.

And further down, just before the counsel's argument commences:

The possession not being restored, the

defendant obtained the order in question.

That is the order, the writ of restitution, which

Mr Justice Maule issued to the sheriff of

Gloucestershire. The judgment of Lord Campbell:

We think the,rule in this case ought to be

discharged. ·

Though the plaintiff who obtained the judgment later

set aside as irregular, of course, was moving to have

the writ of restitution set aside.

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The established oractice has been

that when a judgment in ejectment has

been irregularly obtained, and possession

has been delivered under it to the lessor

of the plaintiff, the Court will, in the
first instance, grant a rule requiring him

to restore the possession; but if that rule

becomes ineffectual by reason of the lessor

having absconded, a writ of restitution is

awarded.

And then over at the end of the judgment, the last

few lines:

We are, therefore, of opinion t~~t the

order of the learned Judge was authorized by

the established practice, and that this

practice is not contrary to any principle o

law, and enables the Court to redress a wron1

which could not otherwise be redressed without

the delay and expense of an action of ejectment.

The point being that this principle of restitution applies where judgments are set aside for irregularity at the same level in the judicial hierarchy as granted

them. Now, Your Honours, if these orders are held not

to be judicial orders, it is our submission that the

warrants were void ab initio and that they were not
severable for the reasons. which have already been
adverted to, and this Court should declare that the
warrants are void ab initio and, in the circumstances,
no court has yet looked at the question of whether

the tapes ought to be - consider the question of

restoring the tapes in the context of non-judicial

warrants.

(Continued on page 77)

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MR HANDLEY (continuing):  Your Honours, it is clear that

there is Federal Court authority for the proposition
that there is no automatic right to restitution of
material seized under invalid warrants or partially

invalid warrants. Those cases are noted at the

bottom of page 124.	PARKER V CHURCHILL, 9 FCR, and
RE ARNO; EX PARTE FORSYTH.	That is the same

Forsyth who had a warrant for a search of his

chambers in Melbourne set aside and questions

were discussed consequently upon that.	I do not
wish to debate those cases here.	I would seek that,

if these are not judicial warrants, that the Court

would declare them void ab initio, as incapable

of severance and would leave it to the parties,

if so advised, to commence other proceedings by

way of getting these tapes back. The matter has

not been considered in the Court of Appeal and the

only case that was argued there or considered was

this question of whether restoration should be

granted on the basis that they are judicial orders.

If the Court pleases.

MASON CJ:  Thank you, Mr Handley. Mr Horler.

MR HORLER:  If the Court pleases, we adopt, with some

supplementary submissions, those submissions put

by Mr Handley on behalf of his client. That means

that the outline of argument,which I now hand up

to the Court in a number of copies and a copy for

our friends, contains a number of matters which have

been touched upon and dealt with by Mr Handley, which

I do not need to go to. But those are the copies.

MASON CJ:	Thank you.
MR HORLER:	Your Honours, there is one matter of revision that

I would like to direct the Court's attention to.

That is on page 4, if the Court pleases. The

second paragraph from the top, 6.Z where there is

a reference to the case of TRIMBOLI V GOVERNOR OF

MOUNTJOY PRISON, ,;.re do not rely upon that. That

could be dealt with by putting a pencil through it.

Your Honours, I propose, in the time available to

me for the rest of this afternoon, before developing

the matters that I want to supplement or complement

Mr Handley's submissions, to touch upon a number of

discrete and boxed-in matters which have formed

questions from the bench, while they are reasonably
fresh in mind. Nevertheless might I just say that

for a short time tomorrow morning, I want to say

something more about the proposition that a warrant,

as a judicial order, and I adopt what Mr Handley has

said there, is not an instrument, and following upon

those submissions I want to say something about

severance, or the inapplicability of the notion of

severance or divisibility in this case. And those

will be the areas to which I will just hope to add

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something useful to that which has already been

developed by my friend.

A question was put this morning in the relation

to the real world of the administration of the

criminal justice system by Mr Justice Brennan, I

think it was, in the context of the report of the

recent decision of May of this year in MURPHY or

MURDOCH as to what remedies, if any, were available

to counsel at that trial when the evidence relied

upon by the prosecution as the result of the wiring

up of Miss X was led against one of the accused at

that trial.

(Continued on page 79)

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MR HORLER (continuing):  Now, the answer to that question

and, with respect to my friend, I do not think it
for good reasons was answered, has some bearing
upon matters raised in this trial and other
questions that have fallen from the bench. It

seems to me that the only course open to the

accused appearing for the person against whom that

intercepted conversation was tendered, was to

argue that on the face of the warrant it was bad and the evidence should not be received and that forms part of the judgment of this Court. It was

not open, and I do not now say or submit, that it

would have been open to have gone behind the
warrant - and I use the language that is sometimes

used in these cases - to say, that the supreme court

judge or the magistrate who had issued the warrant

did so on imperfect or inappropriate evidence.

However, there are a couple of other options or

possibilities.

It is more probable than not that in New South

Wales where there are, for the moment, full

commital proceedings, that that evidence would have

been adduced in much the same way it was adduced

at the trial at the committal; sometimes not, and

I will deal with that situation.

Now, had it been that that same evidence from

that woman who had been wired up, Miss X, and

from whom the evidence of the conversation with the

accused, had that evidence been called at committal,
then counsel appearing for that defendant at
committal against whom that evidence was tendered,

as I understand the authorities, could have done no

more on a voir dire, perhaps, than to explore the

limited matters to which this Court has confined

that exercise. However, it would have been open in

proceedings before trial and, perhaps, with the leave of the magistrate at connnittal during the

pendency of that connnittal, to have taken separate
proceedings in the supreme court to quash the warrant

so that there had been a resolution of the question

of the validity of that warrant before trial

recognizing always that the mere fact that evidence

has been illegally obtained and suffers from that

taint does not by itself make the evidence inadmissible.

Another possibility occurs to me, and I want to

answer Mr Justice Brennan's question in full, it may

be for some reason, that that evidence had not been

called at connnittal; it sometimes happens. So that,

the only other option open to counsel appearing for
that accused taken by surprise by that evidence or

the service upon him late in the day during the
pendency of the trial before the jury of that

material would be to say, "Well, we are taken by

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surprise; we have to have an opport ity to

consider it and, perhaps, to take :  h an

application to test the warrant, or . .:1r Crown

Prosecutor, you just cannot rely upon that

evidence". Now, I think, Your Honours, I have

touched upon, in the practice of the criminal

justice system in New South Wales, and I do not understand it to be much different elsewhere in

the Cotmnonwealth, those options which then became

available.

Now, that causes me to go to the question

which, while it is fresh at least in my mind, the

question Your Honour the Chief Justice put to

Mr Handley, which was on the other half of the yellow

note that moved along the bar table and the question

put by the Chief Justice was this, as I understand

it, and I do not wish to diminish it but, "What is the point of the relief you seek here" - and there

is an identity of interest between my client and

Mr Handley's client - "What is the point of seeking

us now, leaving aside the pro tanto and the
section 109 point, getting us to do something in

relation to these warrants because they are spent?".

Well, by definition, all warrants, being since the

18th century and the expression "opinion against

general warrants", of the kind we are concerned

here are directed to particular persons and often

confined to particular premises and have a particular

finite and discrete period of time.

(Continued on page 81)

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MR HORLER (continuing):  Now, as I understand the authorities,

there is not a prohibition against an attack upon a

warrant,whether it be collateral or direct - that

distinction does not matter for the purposes of

this submission - merely because it is spent. Now,

to go to that conclusion would be to say, because

the warrant is executed - as it has to be before

it can come under challenge - that that somehow

prevents,debars or prohibits the aggrieved party,

who has suffered as a result of the warrant; from

having recourse to the courts. To illustrate

that proposition - it is on our list of authorities,

but it is a case well known and well knoi;,m in this

Court - in the case that Mr Justice Fox had to

consider when there was a Commonwealth warrant under
section 10 of the Cot:!!.Tiortwealt'b. CRIMES ACT directed

to the premises of Mr Maxwell Newton, the journalist.

When that came to be reviewed by Mr Justice Fox
the warrant was spent. It was a section 10

Corn:iom.;real tti CRIMES ACT warrant.

That, however, when His Honour granted the

relief which was not prohibition but by way of
certiorari,was not said to be any obstacle or

direct attack upon the warrant, as to

impediment to the challenge to the warrant. Your which was a

whether the issue of the warrant by a justice of
the peace, who was a bank manager next door to the

police station, was a sufficient protection and safeguard for the citizen. So that I use that

case only by illustration of the number of cases

and I can, if required in the morning, in the context

of that PARKER V CHURCHILL litigation in the

Federal Court, go to a number of others. But the

point is that there is nothing more that can be

done under the warrant does not preclude, in

proceedings outside the pendency of the criminal
trial, there being a challenge to the warrant, and

there are a number of cases in that regard.

BRENNAN J: Does not a warrant of search and seizure

authorize the retention of that which is obtained?

MR HORLER:  I am sorry, Your Honour?

BRENNAN J: Does not a warrant of search and seizure authorize

the retention of that which is seized?

MR HORLER:  Can I give a qualified assent, a "Yes, but", to that

and there are a number of cases in which - often

under the GAMING AND BETTING ACT, for example,

in New South Wales, there are a number and in other

jurisdictions where the aggrieved party, whose

property has been taken pursuant to a warrant, in

separate proceedings, has gone to the court to seek

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the recovery of that property which, the plaintiff

says - the claimant says - was improperly taken from

him, to be met with the answer that even if it be

proved, as in a number of the reported cases it has,

that the warrant, either through its collateral

attack or the direct attack, was invalid - evidence

illegally obtained not being per se inadmissible -

the defendant - usually the police officer or the

informant who has obtained the warrant - has said

that this is material required for the purposes of

being used as evidence in a criminal prosecution.

So, the proviso to my assent, Your Honour, was,

where a case of reasonable requirement for the

purpose of giving evidence can be made out as

opposed to the drag-net taking of everything in the
betting shop or in the premises, then the keeping

of that material until a resolution of the criminal

proceedings - and we have conceded that in our

submissions. Might I refer to one of the cases
on our list and it is in our submissions in

New South Wales which highlights what Your Honour

is putting to me, it is the decision in the

equitys division of Mr Justice Young in

ROWELL V LARTER.

While, on its face, this may be seen to be a

case against us, it just does point up very neatly

what Your Honour has put to us. I only just need

to give you the citation really:  (1986) 6 NSWLR 21.

Very shortly, that was a case where the plaintiff,

during part-heard committal proceedings in

New South Wales sought the recovery and return to

him, in proceedings in the equity jurisdiction by

way of injunction, of a document which, in fact,

was a diary which was taken by the police without

a warrant and was sought to be used as evidence

during those proceedings.

(Continued on page 83)

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MR HORLER (continuing):  I think Your Honours will find

that recourse to the headnote will sufficiently

illustrate what I am saying and, in particular,

the answer to Mr Justice Brennan's question. In

that case, counsel for the plaintiff also argued
that the action of the police during the part-heard

committal in seizing the diary was contempt of court

and that argument was also rejected.

Your Honours will see there in the cases

authorities listed on page 22, a number of cases

referred to a number of the cases such as GARNEY V

which, if required in the morning, I would go to just

to complete the submission that in separate proceedings
the defence is sometimes raised, as Your Honour has

telegraphed to me, that the material is reasonably

required for the purposes of the criminal prosecution

and that is the only reason I refer to ROWELL V LARTER.

Now, Your Honours, I want to just - before we

adjourn - touch upon in a general way the sort of

submissions we seek to make in relation to the

proposition that whether you accept in its entirety

the submissions contended for by Mr Handley that a

warrant is a judicial order, that in any event it
is not an instrument, and we say with respect to

him that the approach, submissions and the process

of argument of Mr Justice McHugh is in error in that

regard.

Now, we have not been able to find a clear and

useful statement that would assist this Court which

would answer the question what is an instrument?

We have been able to find; and it is less than

satisfactor~ statutory definition by way of example.

Might I say this: in attempting to extrapolate some

general principle as to what might an instrument be

so that one could see as to whether a warrant was an

instrument, we have been able - I do not put this

dogmatically - to discern the notion that an instrument

is something of general application and delegated

legislation, regulations, by-laws, that sort of thing

which are often instanced as being instruments, are

of general application where that which is important
about the protection of the citizen in relation to

a warrqnt is that it is and must be specific in that

it is directed to or it authorizes a particular

individual or individuals to do that which would be

otherwise illegal, often directed to particular

premises, invariably contains reference to "that

which may be seized" and also contains some finite
time limit during which that which is illegal may
be done.

Now, all of those characteristics which are

appropriate to most or all warrants do not seem to
comfortably permit the notion of a warrant as an

C2R72/l/SH	83	9/11/89
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instrument to fit within the notion of a warrant

as an instrument and might I say that the case

referred to by Mr Justice McHugh - it is really

only a reference by use of the cf against it - does

not seem to support the proposition which he relied

upon it for. It is the decision of LAWLOR and I

think there is a decision of Your Honour

Mr Justice Brennan under the CUSTOMS ACT, RE BRIAN

LAWLOR AUTOMOTIVE PTY LIMITED V COLLECTOR OF CUSTOMS

FOR NEW SOUTH WALES, (1978) 1 ALD 167, a decision in

the Administrative Appeals Tribunal; Mr Justice Brennan

presiding, July 1978. That is referred to when

Mr Justice McHugh, with respect to him, fallaciously

asserted without more that a warrant was an instrument

and I would refer the Court in the appeal book to that

part of His Honour's judgment where he deals with that

part of it.

(Continued on page 85)

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MR HORLER (continuing):  At the bottom of page 124,

His Honour deals briefly with the notion of

severance and at the top of page 125, about three

lines from the top, His Honour asserts:

A warrant is an instrument for the

purposes of section 32 of the

INTERPRETATION ACT -

there is a reference there to LAWLER, which I have

already taken the Court to and then His Honour goes

on to say -

Accordingly, the warrants are to be read

and construed to the extent that they can

be read as valid instruments.

BRENNAN J:	Was LAWLER not taken on appeal?
MR HORLER:	Your Honour, I am in error, I am told it was taken

on appeal but not on this point but we will answer

that more fully in the morning.

BRENNAN J:	Yes.
MASON CJ:	Well, the appeal is reported in 2 ALD 1.
BRENNAN J:	Yes, I am indebted to Your Honours for that and

we shall look at that overnight. Your Honours,

might I just close, so far as what I want to say

this afternoon, by saying that when His Honour

refers to what Sir Owen Dixon had said in

ANDREWS V HOWELL, and you will see that is referred

to at about line 7 on page 125, like Mr Handley, we

have no argument with that proposition and agree
with his submission that the burden there referred

to is one of persuasion rather than evidentiary

burden but what we do say at the outset is that

the ratio that you get from ANDREWS V HOWELL just

does not arise in this case, in this appeal, and is

inappropriate. (Continued on page 86)

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MR HORLER (continuing): What I would propose to move to in

the morning is a fairly brief review of the

development, by way of the INTERPRETATION ACT in

New South Wales, in support of that submission.

Your Honours, we have put the various amendments

to the New South Wales INTERPRETATION ACT on the

list. Could I invite Your Honours please to have

that perhaps near to hand, beginning with the

INTERPRETATION ACT 1897. I will, fairly briefly I hope, go through the successive amendments to the

limited purpose of dealing with what is an instrument

and how that has been regarded in the legislation.

MASON CJ:  But is the leeislative history going to helD us,

Mr Horler?

MR HORLER: Well, to this extent - could I go ahead a bit,

Your Honour. I thought I had to put it in its more

complete context. There was a decision of this Court,

a section 92 point. Your Honour the Chief Justice

was concerned in that case and sat on that case.

That is the MILK case across the Victorian/New South

Wales border and pasteurisation. The citation is

NORTF. EASTERJ\T DAIP.Y cm,p ANY LTD V THE DAIRY INDUSTRY

AUTHORITY OF NEW SOUTH WALES. That was decided in

1975. It is to be found in volume 50 of the Australian

Law Journal Reports commencing at 121. The section 92 point and the facts of it do not need to concern

us but following upon certain remarks and dicta

in that case, in relation to statutes and regulations,

for once there was a reaction legislatively and the

New South Wales INTERPRETATION ACT was amended. That is

what I was ultimately going to come to.

(Continued on page 87)

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MR HORLER (continuing): Could I take the Court briefly to those

parts of the MILK case, 50 ALJR, that are relevant

to what I want to submit:  50 ALJR, commencing at 121.

MASON CJ: This has been reported in the Commonwealth Law Reports,

Mr Horler.

MR HORLER:  I am sorry. I should have known that and I did not

know it, Your Honour.

MASON CJ: Well, it is a leading case on section 92 - - -

MR HORLER:	Indeed.
MASON CJ:	- - - it would be rather remarkable if it were not reported
in the Commonwealth Law Reports, but still, refer us
to the passage that you say is relevant.

MR HORLER:  Yes, thank you. I am sorry that we did not give you

the appropriate reference. Your Honours. Could I

ask the Court in the ALJR's report of the case to go please to page 135, the column on the left-hand side

at about between pointsB and C - this is Mr Justice

Gibbs' judgment, the paragraph beginning:

I accordingly consider that any one of the statutory provisions now under consideration

would, if it operated on any of the three courses

of dealing to which I have referred, contravene

s.92 of the CONSTITUTION. However, s.14A of the

INTERPRETATION ACT, as amended, requires ss 23

and 33 of the Act to be read and construed so

as not to exceed the legislative powers of the

State, so that a provision which would otherwise

have been construed as being in excess of those

powers is to be valid to the extent to which it

is not in excess of those powers. Those sections,

therefore, on the construction which s.14A

requires to be given to them, are not applicable
to the courses of dealing in question in these
cases. Section 14A does not apply to the

construction of regulations, but it was contended

on behalf of the Authority that -

such and such a regulation -

should be given a limited construction

that would render it valid, in accordance with

the principle -

in the case there cited.

I think it unnecessary to decide whether

that contention is correct; if the regulation -

and so on.

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In the judgment which follows of Your Honour

the Chief Justice, beginning just a little further

on in that colunm, could I invite the Court, please, to
go to _pagel38 in the left-hand colunm, and, at about
between points A and B, about six or seven lines

from the top, Your Honour the Chief Justice observed:

The regulation is not saved from

invalidity by s.14A of the INTERPRETATION ACT .....

which applies only to statutes.

And, if I might just drop down some three or four lines,

to the sentence beginning:

The extent of the invalidity which thereby

results depends upon severability, and in

the absence of a provision such as s.14A

the presumption is that the provision was

intended to take effect in its entirety.

Might I just come down the colunm some four or five

lines, to the sentence that begins:

But this rule of construction must take

account of the presumption against divisibility.

This is particularly so in the case of a prohibition expressed in absolute terms where

the context suggests, as here, that it was

intended that interstate transactions should

fall within its embrace.

Now, following upon that case, there was, within a

year or so, an amendment to the INTERPRETATION ACT

in New South Wales, that was the INTERPRETATION

AMENDMENT ACT of 1977, a very short Act, entitled
An Act To Extend To Instrument The Operation Of

Section 14A, and that was assented to in April 1977.

(Continued on page 89)

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MR HORLER (continuing):  The Act which now obtains in

New South Wales, that is the INTERPRETATION ACT

1987, further dealt with the problem which had been touched upon in the MILK case, and I

just refer the Court,without reading it, to

section 32 in that Act. This Act repealed the

earlier Act and there is an identity, for the

purposes of this case, between the earlier section 14A,

following upon the MILK case and section 32. In

his reasoning Mr Justice McHugh alluded to section 32

at that page to which I have already taken the

Court, 125, and that is the reason why I have gone

back to the legislative history of the

INTERPRETATION ACT, particularly following the

MILK case. If I may go then back to page 125.

His Honour asserts that:

A warrant is an instrument for the purposes

of s 32 of the INTERPRETATION ACT.

Having reached that conclusion which, with respect, we say is wrong, His Honour, having called in

aid,as it were, LAWLER, His Honour then went to

ANDREWS V HOWELL, as to which we have no

disagreement, but in the application of the principle

in ANDREWS V HOWELL and then importing the notion
of a burden or an onus, we say the flaw in the

argument is, at the very threshold, in the assertion

that a warrant is an instrument and our general

submission is that on a consideration of the

INTERPRETATION ACT and of the special nature of

warrants, with respect to His Honour, that assertion

is not correct and whatever else this Court decides

a warrant is, it is not an instrument, so that those

other arguments which follow thereafter over_

page 125~ dealing with onus on 126, just do not arise.

(Continued on page 90)

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MASON CJ:  Mr Handley made that point, Mr Horler.

MR HORLER: If Your Honour please.

DAWSON J:  What do you say an instrument is, just while you

are there? I know there is a definition, but that

is not very helpful.

MR HORLER:  Your Honour, there is no statutory definition,

other than saying it includes (a), (b) and (c).

The best - and I am going to fall into the same

trap if it is a fallacious approach, by way of

example, delegated legislation. That is unsatisfactory,

but it is no worse than what you get from the

statute and the cases, and I cannot find a clear and

rigorous principle which would do better than that, and

knowing that that was a proper question to be asked,

we have struggled with that, but I cannot do much

better than that as to what is an instrument, and I

know that it is less than satisfactory for me to

argue that a warrant having those essential

characteristics that I ..... at the moment is no

instrument because it has to be measured up against
what an instrument is; but when one looks at
the examples of what are said to be instruments, and
bearing in mind the danger of that sort of argument,

then - - -

GAUDRON J: It is something that is normally to be interpreted,

which is not what you would think is the task that

would confront you when looking at a court order.

MR HORLER:	A judicial order.
GAUDRON J:	A judicial order, yes.
MR HORlER:	For which we are contending. Yes, I see the logical

difficulty in that. I do not know whether ultimately -

I suppose I am arguing in part against that which I

have made common cause with Mr Handley - that it is

not something sui generis that does not comfortably fit with administrative or judicial orders. I have

some difficulty, because of the special nature of it,

and the purposes it mostly fulfils in the criminal

law - the other examples have been given - that that

is a satisfactory answer, to duck the question by

saying, "If it's not judicial, not administrative,

that it is sui generis". Could I return to

that vexed question in the morning?

(Continued on page 91)

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MASON CJ:  Well, Mr Horler, we can sit for another 15 minutes

and, after all, we have another case that is listed

tomorrow so it is a matter of taking such advantages .....

MR HORLER:	Yes, I am sorry, Your Honour, I did not realize that that invitation would be extended.
Your Honours, I want to say something in support
of, and I hope in a little amplification, what
Mr Handley was saying in relation to the remedy of
restoration.

MASON CJ:  Yes. You seem a little reluctant to actually

develop the submission which is the ltnchpin

of your argument, as I understand it. I thought

you were going to address us on BUNNING V CROSS.

MR HORLER:	I am now.
MASON CJ:	I see.

MR HORLER:  I am sorry if I had not made that clear. I was

coming at it from the point of view of what had

already been put to the Court in relation to the

remedy. Now, Your Honours, BUNNING V CROSS - and that is on our list - is in 141 CLR commencing at

page 55. Might I take the Court to the often-quoted

portion of the judgment in the judgment of

Justices Stephen and Aickin at page 75.

MASON CJ:  Now, how are you using BUNNING V CROSS here? What

way is this contributing to the general case put

forward by the appellants?

MR HORLER:  Let me go back a step~ It has been put to counsel,

Mr Handley, 'What damage, what right do you say, has

been :ing;-in~d andthatl.you are asking to have restored

to you, even on the analogy of the judgment which is

set aside and that is a nullity?". Now, I share the

same difficulty as Mr Handley in pointing to a

legal right of privacy as opposed to the liberty of the citizen to not have his privacy interfered with.

So, to develop the argument, I am going to that

general expression in BUNNING V CROSS at page 75

in relation to the supervisory role of the court in

relation to what is sometimes described as the

over-zealous actions of police officers, there being

no mala fides urged by us as against the police

officers in this particular case.

(Continued on page 92)

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DAWSON J: That is the answer to it, is it not? It can

hardly be over-zealous to go to a court and get

a warrant and then execute the warrant, can it?

MR HORLER:  I was not using that as an example, and I have obviously been less than clear about that. But

what I want to remind the Court of: at Page 75

at about point 6 - and it is a fairly brief passage

and I know the Court is familiar with it, but it

is important.

There is no initial presumption

that the State by its law enforcement

agencies, will in the use of such measures

of crime detection observe some given

code of good sportsmanship or of-chivalry.

It is not fair play that is called in

question in such cases but rather society's

right to insist that those who enforce the

law themselves respect it, so that a citizen's

precious right to innnunity from arbitrary

and unlawful intrusion into the daily affairs

of private life may remain unimpaired. A

discretion exercisable according to the
principles in IRELAND'S case serves this end

whereas one concerned with fairness may often

have little relevance to the question.

DAWSON J:  Well, who would the exclusion of the evidence

be discouraging here, the police or the court who

gave the warrant?

MR HORLER: It might, in human terms, discourage the police

officer who had obtained a warrant to intercent

conversations as a result of a State Act, under

the LISTENING DEVICES ACT, and in respect of a warrant
which was invalid. It might mean that next time

it might be done in the proper way, as should have been done under 219B of the CUSTOMS ACT.

BRENNAN J:  Mr Horler, are you sure that you want an obiter

observation on BUNNING V CROSS from this Court? (Continued on page 93)

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MR HORLER:  I am not sure about that, Your Honour.

GAUDRON J: The problem, though, in this case is a little

different from the BUNNING V CROSS problem, is it

not? What you find when you look at the matter,

it seems to me; is there is a breach of the Commonwealth law to which a State court has

unwittingly lent its authority. Question: what

should be done as a matter of policy by the State

court in those circumstances?

MR HORLER: First of all, let me say I accept everything - - -

GAUDRON J: And that seems to me, perhaps to take the

restitutionary point,somewhat further than

Mr Handley took it.

MR HORLER:  Your Honour, let me say I accept without

reservation' everything Your Honour has just put to

me up to the question. Let me try and answer the

question. Part of the answer has already l:::een achieved

sometimes by a form, a road of reasoning that we say

is incorrect but there has been a finding in relation

to the validity or otherwise of the warrants with the limitation and proviso that is set out in the judgment of the Court. Now, that no doubt causes the Justices here to properly press us to say, "Well,

what more do you want and how are you entitled to
have it?" Now, if the Court accepts the submissions

that we both make in relation to the warrant being equated with a judicial order, then we say that we
are entitled to have that remedy by way of declaration

which was left open and nothing happened in relation

to it in the Court of Appeal in New South Wales

on the basis that our privacy, that is, the appellants'

privacy, having been interfered with by the unwitting

illegality which the New South Wales' Supreme Court

lend itself to, nevertheless, the fact of the

unwittingness does not disentitle the appellants

here from saying that we want to be put back in

terms of the integrity of the privacy of our

conversations to the position that we would have

been but for the unwitting action of well-intentioned
justices in the Supreme Court of New South Wales

and that it is an empty exercise, the Court of Appeal

having gone so far, to leave it where it is without

the necessary remedy and declaration which we sought

below and which we continue to seek.

(Continued on page 94)

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MR HORLER (continuing):  Now the question of unwittingness

or not, that is true, but that should not be

a disqualification to prevent - - -

GAUDRON J:  I was suggesting to you that there might be really

a more fundamental principle at stake. If you take

the passage which Mr Handley read in the Latin and
take it in the subjunctive, rather than in the

present tense, it would read "A court must not lend
itself to the injury of someone". That is to say

as though there were an underlying principle that a court just simply must not be party to a wrong.

MR HORLER: Well, picking up on what Your Honour has said to

me, if that proposition is sustainable, then it
logically follows that we are entitled to the relief,

rather than the finding at large, without the relief,

as to the invalidity, unwitting or otherwise.

DAWSON J:  On the other hand, if you have been engaging in

criminal activities, why should the court lend its

protection to those?

MR HORLER:  Because, as the courts have said in IRELAND and

BUNNING V CROSS, that the community or society as

it is expressed here, expects the police and those

whose function it is to investigate crime, to

observe the law and that the court should be strict

in the supervision of the means by which evidence

is garnered.

DAWSON J:  It does not seem to me that BUNNING V CROSS has

anything to do with it, but there may be a more

fundamental question as Justice Gaudron put to you.

I am just putting the other side.

MR HORLER:  Your Honour, I am happy to put that to one side

and come to what is the more general issue. And

sometimes in the cases before BUNNING V CROSS the

question, and indeed in those unjust detention

cases that this Court has deliberated on recently,

the question of the balancing interest, the

policy requirement of wrong doers being brought

to justice, as balanced against the equal need,
to use the image of the balance of society requiring
that those who enforced the laws, those who gather

the evidence to prosecute these people who may or

may not have committed criminal offence, that they

themselves should observe the law and that this Court

should be strict in relation to the control and

supervision - - -

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DAWSON J: They did observe the law - they went to get a

warrant.

MR HORLER:  They went to get the wrong warrant and got the

wrong warrant and what they did - I am not

suggesting any bad faith - was to proceed on an

erroneous and illegal basis.

DAWSON J: They did not deceive the court.

MR HORLER:  I never suggested for a moment that they did,

Your Honour. That is quite right, they never did.

DAWSON J:  I mean, really, it is the court that is at fault.

is it not?

MR HORLER:	Yes, but, with respect - might I answer the question - it is not in point, with respect, as to
whose fault it was as to whether the applicant or
his counsel failed to look at the CUSTOMS ACT or
the judge at 4.30 on a Friday afternoon, being
asked for a warrant in a hurry, did not have his attention drawn to it. It is, with respect, beside the point that the error was created unwittingly,
as Justice Gaudron has put. The result in terms
of the legitimate interest of the appellants was
that their rights were over-borne; the integrity
of their private conversations was intruded upon
in an improper and, more importantly, in an illegal way and that the federal police and those
prosecuting them should not now have the benefit of that evidence obtained in this fashion.

Your Honour is right. The question of

BUNNING V CROSS is of marginal importance other

than the notion of the traditional role of the

courts to stand against and that is why I use

that word "overzealous" to stand against those

who, with good intentions, may unconsciously

take short cuts.

DAWSON J: The law was clear that it did not matter that

evidence was illegally obtained. It was
admissible in evidence.	BUNNING V CROSS was a

qualification to that and the qualification was

introduced because it was desirable to discourage

third persons from using improper methods to

obtain·evidence. But it does not seem to me there

are any improper methods here that you used so you

are left with the ordinary principle - I am not

saying this is right but this is the proposition

I am putting to you - that evidence illegally

obtained is, none the less, admissible.

MR HORLER:  May in the exercise of the court's discretion be - - -

DAWSON J: Well, putting BUNNING V CROSS to one side if it

is not applicable.

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MR HORLER: Yes. But, Your Honour, what Your Honour, with the

greatest of respec½ unconsciously is bringing back

into the IRELAND, BUNNING~ CROSS discretion is

that it is only when that which is done illegally

is also tainted with some aspect of culpability

or improptiety that the discretion would be exercised.

DAWSON J:	I thought that was what BUNNING V CROSS said.
MR HORLER:	But, Your Honour, what I am saying is that when you look at IRELAND, when you look at BUNNING V CROSS, and then when you look at the more recent
decisions of this Court in the unjust attention cases, CLELLAND and WILLIAMS, that the legitimate
interest of the citizen to be protected against arbitrary and illegal intrusions,that that interest -
I am not saying it is the only interest - cannot
be made dependent upon the proof of some superadded
impropriety or corrupt aspect in terms of those
who have broken the law.

The fact is that with the best will in the

world - and we have made this plain - there was
an error made and the actions of the police in

getting a State Act when it should have been under

219B led to the result as :to which there is no

dispute. But we say they should not now have

the benefit of that and the fact that it was done
in an honest belief in a state of affairs which
does not now exist is beside the point, we say,
because of the notion that informs what is said

in BUNNING V CROSS and the idea of the Court being

a bulwark against police officers, for whatever

motive, having the benefit of evidence obtained

in that fashion.

I do not think I can add more to that proposition,

Your Honour. Subject to anything that might arise

in reply, those are the submission we rely upon, adopting as I have indicated, the submissions of

Mr Handley.

MASON CJ:  Thank you, Mr Horler. Mr Solicitor, I was going

to say we will adjourn until 9.45 but we might

have the benefit of your outline of argument in

the meantime.

MR MASON:	I will hand up eight copies of the outline of our
submissions.
MASON CJ:	Thank you. Hand it in, I think, at this stage,
Mr Solicitor, and then we will adjourn after it
has been handed in.  The Court will adjourn until
9.45 tomorrow morning.

AT 4.33 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 10 NOVEMBER 1989

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