Malubel Pty Ltd v Wendy Elder
[1997] FCA 1310
•27 November 1997
FEDERAL COURT OF AUSTRALIA
PRACTICE AND PROCEDURE - Joinder of the National Crime Authority to proceedings instituted against officers of the Australian Federal Police who were members of the staff of the Authority - whether joinder was for the purpose of avoiding the effect of secrecy provisions in the National Crime Authority Act 1984 - joinder refused
PRACTICE AND PROCEDURE - proper respondents in proceedings for judicial review
Administration Decisions (Judicial Review) Act 1977, s 12
National Crime Authority Act 1984, s 53
Federal Court Rules, O6 r2, O6 r8
Bishop v Bridges (1990) 25 FCR 311
Qantas Airways Limited v AF Little Pty Ltd (1981) 2 NSWLR 34
Friends of Hinchinbrook Society Inc v Minister for Environment & Ors (No. 1) (1996) 69 FCR 1
News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410
Flanagan v Commissioner of Australian Federal Police (1996) 134 ALR 495
Kelly v Coats (1981) 35 ALR 93
Australian Conservation Foundation v Forestry Commission (1988) 12 FCR 127
Vidler v Secretary, Department of Social Security (1995) 135 ALR 323
Salerno v National Crime Authority (1997) 144 ALR 709
Australian Building Construction Employees' and Builders Labourers' Federation v Master Builders' Association of New South Wales (1986) 18 FCR 18
MALUBEL PTY LTD & ANOR v WENDY ELDER & ORS
NG 898 OF 1997
MOORE J
SYDNEY
27 NOVEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 898 of 1997
BETWEEN:
MALUBEL PTY LTD & ANOR
APPLICANTAND:
WENDY ELDER & ORS
RESPONDENTJUDGE:
MOORE J
DATE OF ORDER:
27 NOVEMBER 1997
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application to join the National Crime Authority as a respondent is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 898 of 1997
BETWEEN:
MALUBEL PTY LTD & ANOR
APPLICANTAND:
WENDY ELDER & ORS
RESPONDENT
JUDGE:
MOORE J
DATE:
27 NOVEMBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
An issue has arisen in proceedings brought by Malubel Pty Ltd ("Malubel") and another concerning the joinder of the National Crime Authority ("the Authority") as a respondent. The proceedings presently seek to invoke the jurisdiction of the Court under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act'") and s 39B of the Judiciary Act 1903. The applicants seek to impugn a decision of Ms Wendy Elder to issue two search warrants under s 3E of the Crimes Act 1914, and decisions that led to their issue.
The warrants were executed on 28 October 1997. A search was then undertaken of the premises in which Malubel operates its business as a manufacturer and retailer of sheep skin products and also of the home of an accountant in the employ of Malubel. Documents were seized. On 31 October 1997 an urgent application was made to the Court seeking, inter alia, orders restraining the use that might be made of the seized documents. Leave was then given to the applicants to file their application in Court. Agreement was reached with a solicitor in the employ of the Authority about the retention of the seized documents on an interim basis that ensured they were secure and could not be read or otherwise used. An undertaking concerning their use was given, through the solicitor, by the second and third respondents.
The respondents in the proceedings were Ms Elder, who is the justice of the peace who had issued the warrants, and Mr Donald Whinfield and Mr Albert Gardner, both officers in the Australian Federal Police, who had each obtained one of the warrants and executed it. On 31 October 1997 I gave directions about the hearing of the matter and fixed the hearing for 11 November 1997. I did so on the basis that both the applicants and the second and third respondents appeared to view the matter as one of some urgency. The first respondent entered a submitting appearance.
On 11 November 1997 the first issue of substance that arose at the hearing was the production of documents by Mr Whinfield and Mr Gardner who had been served with notices to produce. The documents sought in the notice to Mr Whinfield were:
"1. All documentary information (or copies thereof) upon which you relied to form the view that there were reasonable grounds for suspecting that there was or would be any evidential material on the premises known as 49-51 Punchbowl Road, Belfield.
2. All information upon which you relied to make the decision to issue the Search Warrants, true copies of which are annexed "A" and "B" to this notice."
The production of the documents was resisted on three grounds. The first was that Mr Whinfield and Mr Gardner could not be required to produce in Court the documents having regard to s 51(3) of the National Crime Authority Act 1984. The second was that the applicants did not have a legitimate forensic purpose for which the documents were sought and reference was made to R v Saleam (1989) 16 NSWLR 14 at 17 - 18. The third was that a claim for public interest immunity was made in relation to the documents. Counsel for the second and third respondents commenced to develop an argument that there could be no legitimate forensic purpose requiring the production of the documents. After I indicated that I thought the starting point in considering whether any documents should be produced was s 51, counsel for the second and third respondents led evidence to demonstrate that the statutory preconditions for the operation of s 51 were met. To that end Mr Whinfield was called to give evidence, as was Mr Garry Allen who is the regional director of the Sydney office of the Authority. Each was cross examined by counsel for the applicants.
It is convenient to set out the terms of s 51. It Provides:
"51(1) This section applies to:
(a) a member of the Authority; and
(b) a member of the staff of the Authority.(2)...
(3) A person to whom this section applies shall not be required to produce in any court any document that has come into his custody or control in the course of, or by reason of, the performance of his duties under this Act, or to divulge or communicate to a court a matter or thing that has come to his notice in the performance of his duties under this Act, except where the Authority, or a member or acting member in his official capacity, is a party to the relevant proceeding* or it is necessary to do so:
(a) for the purpose of carrying into effect the provisions of this Act; or
(b)for the purposes of a prosecution instituted as a result of an investigation carried out by the Authority in the performance of its functions.
(4) In this section:
"court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions;
"member of the staff of the Authority" means:(a)a person referred to in the definition of "member of the staff of the Authority" in subsection 4(1); or
(b) a person who assists, or performs services for or on behalf of, a legal practitioner appointed under section 50 in the performance of the legal practitioner's duties as counsel to the Authority;
"produce" includes permit access to, and "production" has a corresponding meaning."
*(Emphasis added)
It can be seen that s 51(3) has either no application or a qualified effect if the Authority is a party to the relevant proceedings.
I ultimately ruled that s 51(3) operated to absolve Mr Whinfield and Mr Gardner from any obligations that may otherwise have arisen to produce the documents and I made an order excusing them from producing documents in response to the notices to produce.
In order to understand the issue I am presently dealing with it is necessary to discuss the nature of the application as it was initially framed, the nature of the application the applicants now wish to pursue, and to refer in more detail to the course the proceedings took on 11 November 1997. The application filed on 31 October 1997 was singularly unilluminating as to the nature of the relief sought and the basis and grounds upon which it was sought. The application read:
" APPLICATION FOR AN ORDER OF REVIEW
APPLICATION UNDER SECTION 39B OF THE JUDICIARY ACT 1903
On the grounds appearing in the accompanying affidavit the applicant claims:-
1.An order quashing the decision of the first respondent to issue search warrants addressed to the second and third respondent.
2.An order to review the decision and conduct of the second and third respondents.
3.An order restraining the second and third respondents from examining, copying or removing documents purportedly seized under the warrants.
4.An order that the documents seized by the second and third respondents be delivered up to the applicants forthwith.
5.An order by way of interlocutory relief until further order requiring the second and third respondents to deliver up the seized documents in to the custody of the Court pending the determination of the applicant's claim for final relief.
6.A writ of prohibition and/or certiorari to bring up and quash the warrant(s) issued by the first respondent.
7.An injunction restraining the second and third respondents from enforcing or attempting to enforce the warrants.
8.Damages for trespass, detinue and conversion of the applicant's goods.
Grounds
9.The making of the decision to issue the warrants was an improper exercise of power.
10.The making of the decision to issue the warrants was invalid on the grounds of ulterior or collateral purpose.
11.The making of the decision was invalid because of the conduct of the persons who executed the warrants.
12.The warrants issued are bad on their face and beyond power."
No grounds were identified in any accompanying affidavit. The second and third respondents sought particulars of the grounds upon which the application was made and these were provided, in a manner, in a letter dated 10 November 1997 from the applicant's solicitors Giles Payne & Co. The letter identified the following grounds upon which an order should be made quashing the warrants:
"(a)the first respondent took into account improper considerations in deciding to issue the warrant in that she acted on information supplied by the second and third respondents which was motivated by a desire to assist the taxation authorities rather than carry out a function of the National Crime Authority;
(b)the first respondent failed to take into account a relevant consideration to wit the fact that on several prior occasions the taxation authorities had attempted to gain access to the documents which were the subject of the warrant;
(c)the first respondent is not relevantly an issuing officer under the Crimes Act for the purpose of issuing a search warrant;
(d)in the alternative to (c), if the first respondent is relevantly an issuing officer under the Crimes Act for the purpose of issuing a search warrant, she was nonetheless not entitled to issue a warrant to assist the enforcement of an investigation by the National Crime Authority in the light of the special provisions for the obtaining of a warrant under the National Crime Authority Act;
(e)the first respondent purported to issue the warrant to a "federal agent" not being a member of the Australian Federal Police and which, as an office, does not exist as a matter of law to carry out any authorised activity;
(f)The warrants that were issued were so uncertain as to be unfair in their operation."
On 14 November 1997 counsel for the applicants identified with a little more precision the statutory foundation for the orders sought.
The applicants now seek to add the Authority as a respondent. No issue is taken about the description or identity of the proposed respondent notwithstanding that the Authority is not, itself, incorporated and appears to have an indeterminate legal status: see Arnold v Queensland ANPWS (1987) 73 ALR 607. It has, in many proceedings in this Court, been treated as an appropriate party: see eg National Crime Authority v Gould (1989) 23 FCR 191; MF1 v National Crime Authority (1991) 33 FCR 449 and Salerno v National Crime Authority (1997) 144 ALR 709, and s 51(3) of the National Crime Authority Act 1984 is drafted on the basis that it may be a party to proceedings: see Horne v Locke [1978] 2 NSWLR 88 at 90-91 per Sheppard J and also Hamblin v Duffy [No 2] (1981) 55 FLR 228 at 243-44, per Lockhart J; but see Westwood v Lightly (1984) 2 FCR 41 at 43, per Sheppard J. The applicants propose to amend the application by including the following paragraphs relating to the Authority which is referred to as the fourth respondent:
"9.An order to review the decision and conduct of the fourth respondent taken by its agents, the second and third respondents, to seek the issue of search warrants by the first and second respondents.
10.An order to review the decision of the fourth respondent as part of an investigation under the National Crime Authority Act to search the premises of the first and second applicants by utilising a Warrant under the Crimes Act 1914 as the basis of the power to enter, search and seize.
11.An order to review the decision of the fourth respondent as part of an investigation of matters relating to alleged relevant criminal activities under section 11(1)(b) of the National Crime Authority Act 1984, to cause the second respondent to apply for warrants under the Crimes Act 1914 without applying for and obtaining warrants pursuant to Section 22 of the National Crime Authority Act 1984.
12.An interlocutory and final order to restrain the fourth respondent, its employees, servants, agents and officers (howsoever described) from:
(a)taking any or any further action to examine, inspect or otherwise deal with the material seized under the warrants or any executed;
(b)seeking any further warrant, in the same or similar terms, as the warrants already executed;
(c) to deliver up forthwith the material seized under the warrants to the applicants.
13.An order that the fourth respondent pay to the applicants damages to be assessed for trespass and detinue and conversion of the applicants' goods.
...
18.The making of the decisions and conduct of the fourth respondent constituted an improper exercise of power."
While the application has not yet been amended, the matter proceeded on the basis that if the Authority was joined, the case against it was as identified in the amended application. The application to join the Authority is said by counsel for the applicants to be made under both O6 r2 and O6 r8 of the Federal Court Rules. No question of joinder arises under s 12 of the ADJR Act as the Authority makes no application itself to be made a party. Order 6 r2 provides:
"Two or more persons may be joined as applicants or respondents in any proceeding-
(a) where-
(i)if a separate proceeding were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and
(ii)all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transaction; or
(b) where the Court gives leave so to do."
Order 6 r8 provides:
"8(1) Where a person who is not a party -
(a) ought to have been joined as a party; or(b)is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon,
the Court on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceeding.
(2) A person shall not be added as an applicant without his consent."
It is convenient to first consider the source of the Court's power to join the Authority. The scope of the relevant rules is somewhat obscure, though in the present case that obscurity is exacerbated by the lack of clarity concerning of the case sought to be made out against the Authority. Order 6 r2 is in two parts. The first is para (a). The history of a rule of the same character as that paragraph was discussed by Mason J in Payne v Young (1980) 145 CLR 609 at 618 though the rule discussed by his Honour permitted only the joinder of persons as plaintiffs. It is apparent it was intended to permit the joinder of separate causes of action which had accrued to different plaintiffs. Order 6 r2(a) is wider in scope in that it permits the joinder of both applicants and respondents and, by parity of reasoning, O6 r2(a) should be approached on the same basis. That is, it permits the joinder of different applicants to whom have accrued separate but related causes of action, or the joinder of respondents against whom different but related causes of action have arisen. However O6 r2(b) appears to be of a different character. It was described by Wilcox J in Bishop v Bridgelands Securities (1990) 25 FCR 311 as conferring a general discretion on the Court to permit joinder in any appropriate case without any of the limitations found in O6 r2(a). However O6 r2(b), as evident from its application is Bishop, is a rule designed to deal with the addition of parties when there is the addition of separate causes of action: see Qantas Airways Limited v A F Little Pty Ltd [1981] 2 NSWLR 34 at 50. Order 6 r8, on the other hand, is a rule concerning the addition of a party to a claim or cause of action already formulated: see Little (supra) at 50-53; see also Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496 and Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 at 738.
Ultimately, however, these issues have no material bearing on the result. I am prepared to assume that the addition of the Authority would not be precluded by the terms of O6 r8(1)(b): cf. Friends of Hinchinbrook Society Inc v Minister for Environment & Ors (No. 1) (1996) 69 FCR 1, and to proceed on the basis that I am exercising the broad discretionary power conferred by O6 r2(b) or the discretionary power conferred by the concluding words of O6 r8(1) to be applied liberally so as to ensure that justice is done: see News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 at 523-524 (referring to O6 r8).
In my opinion, the issue of whether the Authority should be joined can be approached on the following basis. I should consider the nature of the proceedings sought to be maintained against the Authority and the extent to which, if at all, they are repetitive of the proceedings against the second and third respondents. I should also consider whether, independently of the proceedings presently brought against the second and third respondents, effective relief can be given against the Authority that either cannot be given against the second and third respondents or ought, if a case is made out against the Authority, be given to supplement relief against the second and third respondents. I also should consider the relevance of s 51 and the effect of the ruling I earlier made.
It is convenient to first deal with the matter raised in paragraph 11 of the amended application set out earlier. It provides no basis for joining the Authority. That is because it was conceded by counsel for the applicants that having regard to the decision of Toohey J in Ryder v Morley (1986) 12 FCR 438, affirmed on appeal (1987) 16 FCR 257, it was not open to him to challenge the warrants on the basis that they were obtained under the Crimes Act 1914, notwithstanding the existence of a special provision for the issue of warrants found in s 22 of the National Crime Authority Act 1984: See also Harts Australia Ltd & Harts Pty Ltd v Commissioner, Australian Federal Police (1997) 36 ATR 215.
Little attention was paid in the submissions on 14 November 1997 to the claim in paragraph 13 in which the applicants seek damages against the Authority founded on the torts of trespass, detinue and conversion. I do not presently see how the Authority could be liable unless it was as a result of vicarious liability for the conduct of the second and third respondents. It was submitted on behalf of the second and third respondents that they executed the warrants in their capacity as members of the Australian Federal Police and that they were not acting as agents for anybody including the Authority. It may be accepted that the scheme of Division 2 of Part 1AA of the Crimes Act 1914 contemplates that when a warrant issues under s 3E it will be executed by a constable. "Constable" is defined in s 3 as, inter alia, a member of the Australian Federal Police. As noted by the Full Court in Flanagan v Commissioner of Australian Federal Police (1996) 134 ALR 495 at 530:
"What emerges from the foregoing outline is that ... a "member" of the AFP is recognised as having an independent status not explicable by reference to the concept of an employee or agent of either the Crown or any body corporate: cf Enever v R (1906) 3 CLR 969."
At common law the state cannot be held liable for the tortious acts of a public officer exercising a discretionary power in execution of an independent legal duty: see Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626, Grimwade v The State of Victoria (1997) AustTortsR 81-422 and Farah v Commissioner of Police of the Metropolis [1997] 2 WLR 824. The effect of this common law principle has, in relation to members of the Australian Federal Police, been ameliorated by s 64B of the Australian Federal Police Act 1979. However that section operates to render the Commonwealth liable in respect of a tort committed by a member of the Australian Federal Police. There is no corresponding provision in the National Crime Authority Act 1984 rendering the Authority or its members vicariously liable for the acts of members of the staff of the Authority. My present view is that if the second and third respondents have engaged in tortious conduct, as alleged by the applicants, the only person or body that might be liable for any damages flowing from that conduct is, apart from the second and third respondents themselves, the Commonwealth by operation of s 64B. Accordingly, the matter raised in paragraph 13 does not, in my opinion, warrant the joinder of the Authority.
Different consideration arise in relation to paragraphs 9, 10 and 18. Paragraph 9 is, in substance, directed to the decision and conduct of the second and third respondents which was raised by paragraph 2 of the application filed on 31 October 1997. Paragraph 9 is, by use of the words "order of review", clothed in the language of the ADJR Act: see ss 3, 5 and 6. The second and third respondents argue, with some force, that it is not conduct or a decision amenable to judicial review but I need not decide that point now. Unlike s 30(1)(b) of the Administrative Appeals TribunalAct 1975, the ADJR Act does not expressly identify who should be parties to proceedings instituted under it, save to the extent that the applicant must be a person aggrieved: see s 5(1) and s 6(1), and that a person interested may, upon application by that person, be joined as a party: see s 12. An application under s 12 is approached on the footing that the power to add a party should be applied liberally and not narrowly: see United States Tobacco Co v The Minister for Consumer Affairs (1988) 20 FCR 520. However, in the absence of an application under s 12, prima facie, the proper respondent is the decision maker or the person who engaged in the impugned conduct if that person is different: see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 386 per Mason CJ. As Toohey J said in Kelly v Coats (1981) 35 ALR 93: "Generally the decision maker will be the only person with an interest adverse, if I may use that term, to the applicant".Sections 5, 6, 7, 13 and 16 of the ADJR Act appear to me to be framed in terms that indicate, prima facie, the appropriate respondent is the decision maker. Special circumstances might warrant the joinder of another person other than under s12: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 130 in which this may have occurred though it is not entirely clear, see also Vidler v Secretary, Department of Social Security (1995) 135 ALR 323 at 336. In a case such as the present, insofar as it seeks prerogative relief concerning the issuing and execution of a warrant, the appropriate respondent will depend on the relief sought, though it remains, at least prima facie, the relevant decision maker: see Coward v Allen (1984) 52 ALR 320 at 324-325.
In the present case I can discern no proper grounds, having regard to paragraph 9, for joining the Authority as a respondent. As I earlier noted, the decision and conduct sought to be impugned is, in substance, that of the second and third respondents. No additional or supplementary remedy of substance is sought that might justify joinder of the Authority. The relief sought against the second and third respondents, apart from the effective quashing of the warrants, is to restrain them from examining or copying the documents and requiring the delivery of the documents to the applicants. This order is sought in circumstances where, as a matter of fact, the documents are secure and are presently the subject of an undertaking from the second and third respondents which will ensure that they will not be seen or otherwise used. The scheme of Part 1AA of the Crimes Act 1914 is that documents seized in execution of a warrant issued under that Part, remain in the possession and control of the police officer who executed the warrant: see ss 3N and 3ZV, though subject to the power to make the documents available in the manner and for the purposes identified in s 3F(5). That the documents are in the possession and control of the police officer who effected the seizure when executing the warrant appears to accord with the general law: see Golan v Nugent (1988) 166 CLR 18.
The documents in this case remain in the possession and control of the second and third respondents with an obligation to return them to the applicants in specified circumstances: see s 3ZV of the Crimes Act 1914, though that obligation may be a qualified one: see Puglisi v Australian Fisheries Management Authority (unreported Federal Court of Australia, 28 August 1997, Hill J). In my opinion, a point has not yet been reached where s 12 of the National Crime Authority Act 1984 might operate so as to qualify or limit the possession and control of the documents in the hands of the second and third respondents. If the applicants establish that orders should be made concerning the possession or use of the documents, they can effectively be made against the second and third respondents. There is no apparent need, in my opinion, to join the Authority in order to make effective and complete any relief to which the applicants might be entitled.
I turn to consider paragraph 10 which should also probably be considered with paragraph 18. Like paragraph 9, it is clothed in the language of the ADJR Act. However it was accepted by counsel for the applicants that any decision that might have been made of the type referred to in paragraph 10 was not amenable to review under the ADJR Act: see Salerno v National Crime Authority (1997) 144 ALR 709. However the applicants say they seek to invoke, by reference to paragraph 10, the Court's jurisdiction conferred by s 39B of the Judiciary Act 1903 including sub-section (1A) even though the pleadings do not point directly to those provisions. Indeed what relief is sought and on what basis is entirely unclear. Whether the conduct of the Authority is amenable to review under s 39B of the JudiciaryAct 1903 is a moot point. The Authority, apart from its members, is not an officer of the Commonwealth for the purposes of s 39B(1) of the Judiciary Act 1903. However no point was taken by counsel for the second and third respondents that it was the Authority and not its members that was sought to be joined and he appeared to disavow any argument that might be based on this distinction.
Putting aside issues sought to be raised about the validity of the warrants having regard to their terms: as to such issues arising under s 39B: see Brewer v Castles [No 2] (1984) 1 FCR 55, Arno v Forsyth (1986) 9 FCR 576 and Prossler v Holzberger (1989) 44 ACrimR 261, the gravamen of the case of the applicants is that the warrants were obtained and executed for an improper or ulterior purpose. The documents were seized, it is contended, not because of any suspicion of a criminal offence having been committed but rather as part of an attempt by the Australian Taxation Office to secure further payments of tax from Malubel. It seems to me that paragraph 10, together with paragraph 18, is intended to raise this issue as it concerns any conduct or decision of the Authority (in a general sense and not limited to notions embodied in the ADJR Act) and apart from any conduct or decision of the second and third respondents.
If the issue of the warrants and/or the subsequent execution of them was for an improper or ulterior purpose, then the participation of the members of the Authority in any conduct or decision that led to their issue and execution may, if likewise tainted, be amenable to review in proceedings for prerogative or injunctive relief in this Court in exercise of the jurisdiction conferred by s 39B(1) of the Judiciary Act 1903. Section 39B(1A) may conceivably also be enlivened. However these are matters I need not consider in any detail. This case does not involve issues about the proper respondents which arise in proceedings for prerogative relief involving s 75(iii) of the Constitution: see R v Murray; Ex parte the Commonwealth (1916) 22 CLR 437. The Commonwealth v Bogle, Boreham & Clark (1953) 89 CLR 229 at 268, and R v The District Court of Sydney; Ex parte White (1966) 116 CLR 644 at 647, 655.
Assuming jurisdiction was clear, it would be open to me to adopt the approach of simply assuming there had been participation by the Authority (or its members) in impeachable conduct or in an impeachable decision. I could then permit the applicants to put whatever material they wished in support of their case that such conduct or such a decision had in fact been engaged in or made and that relief should be granted. In due course the applicants could be given a full opportunity to identify what relief is sought and the basis upon which it was sought. Approached that way, the Authority (or its members) would be joined.
The issue is whether I should, in this case, make assumptions of this type having regard to the circumstances in which the application to join the Authority was made. Some support for such an approach is found in Salerno (supra). The Full Court had to consider whether a decision of the Authority to authorise the entry and search of premises was a decision amenable to review in an application under the ADJR Act. The issue arose because an objection had been taken to the competency of the application. As is apparent from the joint judgment of the Full Court, the conduct of the Authority that was said to constitute the decision was expressed in a number of ways. The Full Court made clear that it felt it should proceed on the assumption that a decision of the type in issue had, in fact, been made. Such an assumption permitted consideration of the scope of the ADJR Act and its applicability to that assumed decision.
However in the present case there has been some evidence led, albeit for a different purpose, concerning the circumstances in which the warrants were obtained and executed. Nowhere in the evidence of Mr Whinfield is it suggested that the decision to obtain the warrants was the result of some anterior decision of the Authority (or members of it) that the warrants should be sought or an anterior decision was made that a course of conduct should be followed which would be likely to result in them being sought. The evidence, and it was of Mr Allen, only went so far as to show that in July 1997 the Authority established a task force to investigate organised fraud on the Commonwealth and related criminal activity. There is no basis presently apparent for concluding, even on an arguable basis, that the Authority (or its members) were involved in a decision or conduct, in the general sense, that led to the issue and execution of the warrants apart from establishing the task force.
Moreover the reason for the joinder is plainly to enliven those parts of s 51(3) that remove or modify the immunity the section otherwise confers by making the Authority or members "a party to the relevant proceedings". When it became apparent that s 51(3) was to be relied upon by the second and third respondents, counsel for the applicants said:
"Mr McGOVERN [counsel for the applicants]: Perhaps I can just indicate this, your Honour. In the event that the court was satisfied that section 51, subsection (iii) was able to be invoked, I would make an application under order 6, rule 8, that the National Crime Authority be joined as a party to the proceedings. That will expose for debate the same issue that has occupied my friend's submissions at the present time simply because the context is that he is representing the NCA to make these applications for public interest immunity.
It transpires that in the context of the search warrant being executed if it be right that these officers were engaged or somehow performing a duty or a function on behalf of the National Crime Authority that my complaint would be with the National Crime Authority as well as with the other respondents and I would simply move that they be joined as a party.
HIS HONOUR: Unless it presents some difficulty to you in following this course, Mr McGovern, I think what I would prefer to do is hear from Mr Fagan on the operation of what he describes as the statutory secrecy provisions and then we will come back to that point.
MR McGOVERN: Of course, but I wish to raise the matter at this stage lest there be any suggestion later that we waived our rights or that we have not anticipated having to propound an alternative claim but I accept what your Honour has put. They have also been on notice of the fact, you Honour.
MR FAGAN [counsel for the second and third respondents]: I have been on notice that there would be such an application to join the Authority and I can say to your Honour that that would be opposed. There would be absolutely no basis for it; there is no relief sought against the Authority. The warrant was issued by an issuing officer, it was applied for by a police officer, there is an administrative act there which is sought to be reviewed and it involves those parties.
HIS HONOUR: You, like Mr McGovern, have mapped out in brief form the territory where you will take me in due course. Let us deal with the sections themselves and see if we get to that territory."
Counsel for the second and third respondents, and later counsel for the applicants, then put submissions and led evidence concerning the operation of s 51(3). I then made a ruling on that issue as it concerned the production of documents by the second and third respondents. Counsel for the applicants then made the joinder application. The following appears in the transcript after the ruling was made:
MR McGOVERN: Your Honour, I now make application to join the National Crime Authority as a party to these proceedings.
HIS HONOUR: I should add, if the need arises, I may expand upon those reasons.
MR McGOVERN: The reason we wish to join the National Crime Authority is to review the decision of the National Crime Authority and that is personified by Messrs Broome and Mellick to arrange for the establishment of the task force to investigate the activities of Malubel Proprietary Limited, and secondly the decision of the National Crime Authority to require Messrs Whinfield and Gardner to investigate the activities of Malubel Proprietary Limited in the context of the task force to investigate the activities of Malubel Proprietary Limited..."
It is to be noted that the decision of the Authority then identified by counsel is not the decision referred to in paragraph 10 or any of the other paragraphs of the amended application.
Thus the application for the joinder of the Authority was made for a particular purpose. I do not accept, as was submitted by counsel for the second and third respondents, that the joinder is sought to circumvent s 51 at least in this sense. If there was a legitimate basis for joining the Authority and s 51 did not preclude the production of documents once the Authority was joined, then all that would demonstrate was that the operation of s 51 was limited. So much is apparent from its terms. However, in the present case, no foundation has been established by the applicants for the joinder of the Authority and the simple amelioration of the effect of s 51 in relation to the production of documents by the second and third respondents does not provide a ground for the joinder. Joinder only for that lastmentioned purpose would permit a result to be achieved indirectly which the statute prohibits directly: see Australian Building Construction Employees' and Builders Labourers' Federation v Master Builders' Association of New South Wales (1986) 18 FCR 18 at 27, per Beaumont J. Joinder of the Authority will, at the very least, give rise to further debate about the operation of s 51 and, potentially, give rise to questions of public interest immunity and whether documents are sought for a legitimate forensic purpose. The proceedings would have thereby been rendered more complex and would have taken longer to dispose of for no discernible proper purpose. I refuse the application.
I certify that the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.
Associate:
Dated: 27 November 1997
Counsel for the Applicant: Mr D B McGovern with Mr L J Aitken Solicitor for the Applicant: Giles Payne & Co Counsel for the Respondent: Mr D J Fagan SC & Mr M A Wigney Solicitor for the Respondent: Australian Government Solicitor Dates of Hearing: 14 November 1997 Date of Judgment: 27 November 1997
.
0
0