Saunders, Dr Brian v Commissioner of the Australian Federal Police

[1998] FCA 833

FEDERAL COURT OF AUSTRALIA

APPEAL - PRACTICE AND PROCEDURE - leave to appeal from interlocutory judgment - refusal of particular discovery - leave refused.

Federal Court of Australia Act 1976 (Cth), ss 24(1A), 28(4)

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
Kizon v Commissioner of Australian Federal Police (Federal Court of Australia, Northrop J, unreported, 24 October 1995, No VG 812 of 1995) distinguished

DR BRIAN SAUNDERS v COMMISSIONER OF AUSTRALIAN
FEDERAL POLICE

No. WAG 59 of 1997

CARR, BRANSON & R D NICHOLSON JJ
PERTH
25 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 59 of 1997

GENERAL DIVISION

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DR BRIAN SAUNDERS Applicant
AND:	COMMISSIONER OF AUSTRALIAN FEDERAL POLICE Respondent
JUDGES:	CARR, BRANSON & R D NICHOLSON JJ
DATE OF ORDER:	25 MARCH 1998
WHERE MADE:	PERTH

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. Applicant’s motions for leave to appeal filed, respectively, on 28 November 1997 and 24 December 1997 be dismissed.

1. Applicant pay the respondent’s costs in both motions.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 59 of 1997

GENERAL DIVISION

On appeal from a judge of the Federal Court of Australia

BETWEEN:	DR BRIAN SAUNDERS Applicant
AND:	COMMISSIONER OF AUSTRALIAN FEDERAL POLICE Respondent

JUDGES:	CARR, BRANSON & R D NICHOLSON JJ
DATE:	8 APRIL 1998
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

On 25 March 1998 the Court heard these two applications for leave to appeal.  The Court refused both applications, on the basis that reasons would be published in due course.  What follows are our reasons.

The applicant seeks leave to appeal against two interlocutory decisions of a judge of this Court.  The first decision, made on 20 November 1997, was to dismiss a motion brought by the applicant for discovery of a particular document.  The document is a 65 page Information sworn in support of applications for four search warrants issued with respect to the applicant’s documents located at four separate premises.  The second decision was the refusal, by the same judge, on 19 December 1997, of the applicant’s application for an adjournment of the trial of the major part of the principal application, pending the outcome of the application to this Court for leave to appeal against the order refusing particular discovery.  The learned primary judge proceeded to hear the principal application and, on 22 December 1997, reserved his judgment.

In the principal application, brought under s 39B of the Judiciary Act 1903 (Cth), the applicant challenges the warrants on two bases. The first basis is that the warrants are bad on their face. The second basis of challenge falls into two parts. The first part is a claim that the warrants were issued without the respondent having drawn to the attention of the Issuing Officer, or the Issuing Officer giving any attention to, the possibility that things otherwise falling within the ambit of the terms of the warrants would be subject to legal professional privilege. We understand that that complaint is no longer pressed. It is the next complaint which was central to the applicant’s motion for particular discovery. The applicant complained that the Information failed to disclose facts material to the decision whether or not to issue the search warrants. These facts were said to be material to two allegations made in the Information. One of those allegations related to four documents said by the respondent to have been fabricated by the applicant and submitted to the Australian Taxation Office. The other allegation was that the applicant had transferred, or caused certain companies to transfer, large sums of moneys overseas, either so that they would not be available to the Australian Taxation Office or his creditors, or by way of “money laundering”, or both. In his application, the applicant particularised certain information of an exculpatory or explanatory nature (“the Exculpatory or Explanatory Matters”) which he claimed the respondent had failed to disclose to the Issuing Officer. At the time when the motion was first before the learned primary judge, the respondent had not admitted that the Exculpatory or Explanatory Matters had not been placed before the Issuing Officer. Subsequently, the parties filed and served written outlines of submissions on the question of particular discovery of the Information. Furthermore, and this was central to the decision under challenge, on 29 October 1997 the respondent filed a “response” to the amended application. In summary, that response denied that the warrants were bad on their face and stated that the respondent had drawn the attention of the Issuing Officer to the possibility that the documents the subject of the warrant might be the subject of a claim to legal professional privilege. By an amended plea which was most relevant to the present issue, the respondent admitted that he did not disclose to the Issuing Officer in the Information any of the Exculpatory or Explanatory Matters. The respondent pleaded that he had no knowledge of those matters, and in any event denied that they were material. His Honour noted that the fact of the non-inclusion of the allegedly exculpatory material in the Information was properly before the Court in the amended application and the response to it, and was not disputed. As the balance of the application was concerned with the validity of the warrant on its face, his Honour said that he did not consider that there was any legitimate forensic purpose to be served by requiring production in full of the Information. Accordingly his Honour dismissed the motion seeking particular discovery of that document.

Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) confers an unfettered discretion on this Court to grant leave to appeal against an interlocutory decision. Nevertheless several cases have provided what has been described as “general guidance” which a Court should normally accept. In particular we refer to Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400. Decor Corporation is authority for the proposition that leave to appeal from an interlocutory decision will ordinarily be granted only if the decision is attended with sufficient doubt to warrant it being considered by a Full Court, and if substantial injustice would result if leave were refused, supposing the decision to be wrong.  This is only a general rule.  There will, on occasion, be special cases which must be determined on their particular facts.  The questions of sufficiency of doubt and substantial injustice do not have to be considered separately: Sharp v Federal Commissioner of Taxation (1988) 88 ATC 4184 at 4186. Another relevant factor is that an appellate court must exercise particular caution in reviewing a discretionary decision relating to practice and procedure: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177.

In our view leave to appeal should not be granted to the applicant in this matter. We shall deal only with the question of discovery because it was common ground that the question whether there should be leave to appeal against the refusal to adjourn the hearing depended upon the outcome of the application for leave to appeal against the decision in the discovery motion. First, we note that the interlocutory decision does not fall into the category of decisions which are, in effect, final but are only interlocutory in a technical sense. As we have mentioned, his Honour has reserved judgment in relation to the principal application. If, when judgment is delivered, the applicant is unsuccessful and considers that denial of discovery of the Information to him worked an injustice or otherwise constituted error of law then that matter may be included as part of the grounds of any appeal. It was contended on behalf of the applicant that, in effect, unless he sought leave to appeal against the primary judge’s decision, he would be shut out from raising the matter if he were unsuccessful in the principal application and appealed against any such judgment. We do not think that submission is correct. Section 28(4) of the Federal Court of Australia Act 1976 (Cth) provides:

“28(4)  An interlocutory judgment or order from which there has been no appeal does not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just.”

See the discussion of this sub-section in Cockerill v Westpac Banking Corporation (Federal Court of Australia, Drummond J, unreported, 7 April 1997, Judgment No 241 of 1997).

Secondly, the matter is clearly one of practice and procedure, albeit on a point of importance to the applicant.  Thirdly, we do not consider that the decision is attended with sufficient doubt.  The fact of non-disclosure was no longer in issue due to the response to which I have referred above.  The material facts which the applicant alleged had been omitted from the Information were quite extensively particularised.  They were, as we have mentioned, confined to the two sets of matters which we have described as the Exculpatory or Explanatory Matters.  The respondent has admitted those omissions from the Information.  The applicant submitted that the primary judge “went wrong” by regarding the application as being limited to the (pleaded) particulars.  In our opinion, his Honour would have been in error if he had proceeded on any other basis.  Having said that, we must acknowledge that nowadays it is relatively rare for a matter of pleading to stand in the way between a party and the attainment of justice.  It is hard to imagine that the applicant would have been refused leave to amend further (or even criticised for doing so if the substance of the amendments was later found to be baseless) if he had put forward the amendments on the following basis - “I suspected that the matters dealt with in the Exculpatory or Explanatory Material could not possibly have been before the Issuing Officer. I have, by the admissions, been proved correct.  For similar reasons, I think that it is highly unlikely that the Investigating Officer had this (additional) information before her, otherwise she would not, acting reasonably, have issued the warrants”. 

The applicant does not need to see the Information for the purposes of listing the material matters which he considers must have been omitted from it.  He has (belatedly perhaps) listed those matters in his affidavit sworn in support of the motion for leave to appeal.  Mr I Gzell QC who (with Mr P Fletcher) appeared for the applicant, argued that a respondent should not be allowed, by making admissions, to thwart an applicant who seeks access to an Information which formed the basis for the issuing of a warrant.  He acknowledged that this would be a matter of degree and that the question was whether the primary judge erred in refusing particular discovery on the basis of two admitted omissions having been identified.  We do not think that his Honour erred. 

The applicant contended that there might be other matters not disclosed in the Information upon which he wished to rely.  In our view, in those circumstances, it was open to the applicant to apply to amend the application and then renew an application for particular discovery on that basis.  It is not, in our opinion, appropriate to seek to set aside the interlocutory order on the basis of a hypothetical amendment.  The applicant listed in his affidavit a considerable amount of information which he swore was “highly likely” to have been omitted from the Information.  But these matters were not before his Honour when he made the decision now sought to be challenged.  In oral argument before us, Mr Gzell contended that the applicant had established a prima facie entitlement to see the Information because he had established a reasonable suspicion that there is material in that document which assists his case.  Having established that there were two matters omitted from the Information, it was, so it was put, “on the cards” that there were other matters in the document which would aid his case.  It would appear from the further material in the applicant’s affidavit and his draft grounds of appeal against the refusal of the adjournment, that the applicant seeks access to the Information because that might give him the opportunity to seek amendments to Ground 1.6 of his application and/or make additional submissions with respect to that ground.  Ground 1.6 asserts that the decision of the Issuing Officer to issue the warrants was unauthorised.  But the application for particular discovery was simply not put to his Honour on that basis.  It would seem that the loss of such an opportunity (an opportunity to be obtained from a successful appeal) was, much later, advanced as one of the reasons why the hearing of the principal application should have been adjourned. 

We do not think that the applicant has demonstrated anything sufficiently out of the ordinary in the circumstances of this matter to justify us in not applying the general rule to which we have referred earlier.  It emerged in oral argument that the applicant wished to have access to the Information to see whether it might be possible to allege fraud.  This was put on the basis that if two long letters, written by the applicant and his solicitors respectively, had been received by the Australian Taxation Office at a time after the Information had been prepared, but before the warrants were executed, then a duty might have been cast upon the Australian Taxation Office to cause the execution of the warrants to be stayed pending an investigation of the matters raised in the Information.  Mr Gzell relied upon an ex tempore decision of Northrop J in the matter of Kizon v Commissioner of Australian Federal Police (unreported, VG 812 of 1995, 24 October 1995).  The basis upon which Northrop J granted discovery in that matter is not entirely clear.  However, it would appear that his Honour was satisfied:

“... that there was some reasonable ground for belief ... that the claim [was] a bona fide claim and not being brought purely for the sake of fishing without any indication at all that there is some substance in what ... might be sought.”

[See p 2 of Beaumont J’s reasons in Kizon v Palmer, Butterworths unreported judgments, No BC 9703085, 13 June 1997].

Kizon can be distinguished from the present matter, because here there is simply no pleading which raises an issue giving rise to any need for discovery.  If, and to the extent that Kizon stands as authority that a mere challenge to a warrant, in circumstances where evidence obtained pursuant to the warrant is to be used in criminal proceedings, justifies discovery of the material placed before the officer issuing the warrant, then in our respectful view that would be inconsistent with the decision of the Full Court of this Court in Bannerman vW.A. Pines Pty Ltd (1980) 30 ALR 559.

To sum up, we do not think that sufficient doubt has been raised about the correctness of the decision.  If the decision is wrong, there will be no substantial injustice because it can be the subject of appeal.  Furthermore, the matter is one of practice and procedure.  For those reasons we refused the application for leave.  For essentially the same reasons we did not grant leave to appeal against his Honour’s decision to refuse an adjournment of the hearing of the principal application.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of the Court

Associate:

Dated:             8 April 1998

Counsel for the Applicant:	Mr I Gzell QC (with Mr P Fletcher)
Solicitors for the Applicant:	Solomon Brothers
Counsel for the Respondent:	Mr S Owen-Conway QC (with Ms L Ward)
Solicitors for the Respondent:	Commonwealth Director of Public Prosecutions
Date of Hearing:	25 March 1998
Date of Judgment:	25 March 1998