Smethurst & Anor v Commissioner of Police & Anor

[2019] HCATrans 223

[2019] HCATrans 223

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S196 of 2019

B e t w e e n -

ANNIKA SMETHURST

First Plaintiff

NATIONWIDE NEWS PTY LTD

Second Plaintiff

and

COMMISSIONER OF POLICE

First Defendant

JAMES LAWTON

Second Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 NOVEMBER 2019, AT 10.03 AM

(Continued from 12/11/19)

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Yes, Mr Lloyd.

MR LLOYD:   This morning I will address in‑chief the causes of action we rely upon in support of the injunctive relief.  After my friend, Dr Donoghue, has had an opportunity to respond to those submissions I will then reply in relation to questions (1) and (4).

GORDON J:   Could you speak up, please, Mr Lloyd, I cannot hear you.

MR LLOYD:   Sorry, your Honour, I will try.  In terms of injunctive relief we advance two bases for injunctive relief.  I should indicate that we provided a short note to address these topics.

KIEFEL CJ:   Yes, we have it, thank you.

MR LLOYD:   I will be speaking to that, and there is a bundle that has some materials I will be going to.  So we advance two bases for injunctive relief.  The first, we submit, is that my clients are entitled to relief to restore them to the status quo before the tortious conduct.  Secondly, we submit that my clients are entitled to relief to prevent the Commissioner from breaching his statutory duty not to use or disclose the seized material.  I will address both of those in turn.

Looking first at the tortious basis for the injunctive relief, we say that torts were committed.  First, we have contended that if the warrant was invalid, the entry on to Ms Smethurst’s property was a trespass.  That does not seem to be controversial and, in any event, Corbett at 81 supports that.  Further, the taking of the phone and the using it to copy its data is conversion, we would say.  Justice Dixon in Penfolds Wine Pty Ltd vElliott (1946) 74 CLR 204 said, at 229:

The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel.

We would say that the taking of the phone and the copying of it meets that description.  We would also say that the taking of the phone has also constituted a trespass to the goods which is made out by – a trespass to goods occurs when an intentional act of a person directly interferes with another person’s possession of a chattel. 

My citation for that is Slaveski v Victoria [2010] VSC 441 at paragraph 293. We say that both of the torts were committed when the police took Ms Smethurst’s phone and for the purpose of copying the data by relying upon an invalid warrant. We do not understand that the Commissioner seriously disputes either of those propositions.

Then coming to the relationship between torts and injunctions, we say that if the plaintiffs had been able to apply for an injunction prior to the trespass taking place injunctive relief would have been available in the auxiliary jurisdiction to restrain the torts.  This would have been obviously subject to discretionary considerations. 

We have provided an extract from Meagher, Gummow and Lehane at tab 1 in the material and on page 717 one sees, at the end of the first paragraph on the page after sort of a lengthy discussion of the history of the matter, it says:

There is now nothing novel or out of the ordinary in granting injunctions against trespass.

The next paragraph then discusses two lines of authorities, the first line prevailing.  It indicates that injunctive relief will be available where damages are not an adequate remedy and in that sense the injury is irreparable.  In paragraph [21-120] which is a couple of pages further on, there is a discussion about trespass to goods, detinue and conversion which shows again that when damages are not an adequate remedy injunctions also lie to protect or to prevent the tortious conduct. 

So, we say that where a tort is threatened it is not necessary for a plaintiff to assert an entitlement to an injunction in the exclusive jurisdiction in an inequitable claim for breach of confidence.  The threatened tort is itself sufficient to found an entitlement to injunction.  Equity acts in the auxiliary jurisdiction to better protect the plaintiff’s legal rights.

So we say that the court would have had jurisdiction based on the tort alone to grant an injunction to protect the plaintiffs’ rights if they could have got to the court before the torts were committed.  There would have been a basis to refuse relief if damages had not been - if damages would have been an adequate remedy.  We say that to the extent that the conduct was designed to collect data to assist in the prosecution of Ms Smethurst it was liable to expose her to costs and stress of prosecution, and that this is unlikely to be adequately compensated for damages.

It is also, putting that aside, a situation where people who are not invited come in and sift through your private materials, which will cause some measure of distress which cannot be adequately compensated by damages and, also, insofar as it is material which the AFP now have, if we are unsuccessful and the undertaking is removed, then more and more people will be able to look through my client’s private material, and that adds to greater stress.  We say all of that is an area where damages are not adequate compensation for the harm caused.  So in those circumstances, if we had come to the court, and it had been possible to come to the court in advance, we would have been able to get injunctive relief. 

EDELMAN J:   But that is injunctive relief to prevent a wrong being committed, if you would be able to come to court in advance of the taking, of the copying.

MR LLOYD:   That is so.

EDELMAN J:   If the taking were to continue, there would be a continuing wrong, or a continuing trespass, or a continuing conversion, and you would potentially still be able to get an injunction at that point in time.  The difference here, though, is there is no continuing wrong, nor any anticipated wrong of trespass or conversion merely by possession of the AFP’s own USB drive with copied material on it.

MR LLOYD:   There are two elements to that, I suppose.  The first is the notion that we would not accept as a proposition that equity could not provide protection absent a continuing wrong.  For example – and I accept this is not a tortious case – if there were a negative covenant in favour of one tenement not to build a road of a particular kind next door on the adjacent tenement that covenant could be of a kind where the mere building of the road amounted to a breach, not a continuing breach but a breach.

We would say that it may be that the person in whose favour the tenement was would at least be entitled – there might be discretionary considerations against doing it.  The damages may not be an adequate remedy and equity would extend to provide mandatory injunctive relief.

NETTLE J:   That is because you have a legal right under the covenant not to have a building on your land and it is in aid of that legal right that equity grants an injunction to tear down what should not be there.

MR LLOYD:   I am not talking about that situation; I am talking a situation where somebody has a negative covenant in relation to their adjoining - their neighbour’s land ‑ ‑ ‑

NETTLE J:   Wherever it might be – joining or on yours, it is all in aid of a legal right not to have the building constructed.  The difficulty here is, if I may say so with great respect, you have to identify a legal right or equitable right or statutory right in aid of which equity will grant relief in the auxiliary jurisdiction and thus far, as like yesterday, you have not done so.

MR LLOYD:   Well, I suppose, your Honour, we would say that if that is true there then is a significant gap - and if I can explain that gap. We would say that if we get to the point where the court accepts that in advance of the tortious conduct it could provide relief, then it becomes a question of whether or not equity will provide no relief after the tortious conduct is done and in effect abandon the person who has suffered the tortious conduct which has ongoing consequences of tortious conduct. 

KIEFEL CJ:   Do you need to expand the notion of property then? 

MR LLOYD:   In my submission no, your Honour. 

KIEFEL CJ:   Because the difficulty is the information on the mobile phone has been taken and placed on property of the AFP and it seems to have lost its identity.  In the olden days, back in the 1980s when search warrants were in vogue or became in vogue, we were only dealing with documents.  It was easy to identify the property and it did not change in its nature.  The difficulty is now technology and this has not really been addressed in the older search warrant cases because the question just did not arise. 

MR LLOYD:   I accept that that is so, but that is why we say that equity should be seen as able to give the relief we seek because otherwise you have a situation - one can posit a situation where there is a search warrant and the police take – half of the documents they take are originals and half the documents they do - they copy the documents. 

Insofar as they take the originals there would be no doubt that there would be an ongoing property right to get those original documents back again.  That is irrespective of confidentiality; just an ongoing right.  But because in the second scenario the other half they have taken as copies, there is not a property right in the copies.  We say in both cases equity can provide an injunctive relief to restore the person who has suffered the tort to the position they were in if damages is not an adequate remedy. 

KIEFEL CJ:   What would equity have done if the quia timet injunction had been breached and the information taken – in the way it was here – in breach of the injunction which was obtained supposedly or before the wrong was committed? 

MR LLOYD:   I suppose we would say that it would at least extend to remedying that and restoring the position that would have been the position ‑ ‑ ‑

KIEFEL CJ:   Only because equity acts in aid of its own orders, I suppose, though.

MR LLOYD:   Well, the fact that it could do that is, again, another reason to say that what we are asking for – we think there are already authorities.  There is a case in the bundle ‑ ‑ ‑

GORDON J:   Can I just ask one question?  There is an elephant in the room here.  This gap that you identify is really you seeking to have us create a new rule, a new legal right.  Is it any more than you seeking to have a new tort of privacy?  I mean, in a sense you want Lenah Meats extended a bit, do you not?  

EDELMAN J:   Just to add to that, it seems to me that the work that is being done by the word “private” that you mentioned earlier is to exclude cases where the document contained, for example, information that was completely public so that I think you are trying to exclude the circumstance where that completely public information is copied and need not be returned.

MR LLOYD:   Well, I am trying to say that, in the example I gave of the police taking half originals and half copies, we would say that equity should be able to and in fact can restore the person to the position they were in before the tort by returning both, whether or not there is property in the documents.

EDELMAN J:   But I think Justice Gordon’s question to you is that it is really the gap that you are talking about is really because the document contains private material, even if not confidential.

MR LLOYD:   In the example I have just said it has nothing to do with whether those documents had private material.  In both cases the documents are taken – tortiously taken – and that, we say, is enough.  If we came to the Court prior to the tort, we would not say some of the documents are private and they should not be able to commit a tort because some documents are private.  That would be irrelevant.  The tort is the tort.  We would get relief, irrespective of whether the documents were private or not.

EDELMAN J:   So if the document were a newspaper you would say that the newspaper that was owned by the person whose house had been searched and was taken, there would be a right to get that back.  But you would say that equity would also give a mandatory injunction to require copies that were taken of a public newspaper to be either destroyed or returned?

MR LLOYD:   There may be strong discretionary reasons why you would not do it in that case, but we would say that equity could do it in a case where there were not discretionary reasons against it.  The first point I have to get to is that equity at least has the ability to provide the relief.  That is what I am trying to get to.

KIEFEL CJ:   What is equity acting in aid of, though?  On your scenario it is acting in aid of the law, is it not, rather than a private right – some more general notion of acting in aid of the law which ‑ ‑ ‑

MR LLOYD:   To remedy the tortious conduct.

KIEFEL CJ:   To remedy tortious conduct.  It is providing an additional remedy.

MR LLOYD:   One of the cases we provide in the bundle is, I think, called Vavasseur.  It is in tab 5.  It is, admittedly, a somewhat unusual circumstance but provides something by way of analogy.  If the Court goes to page 360 – so the circumstances of this case were that somebody in the UK had a patent.  I think somebody had breached that patent, infringed the patent, in making a product which had then been sold to the Japanese Navy and, ultimately, relief was not given because it was the Japanese Navy.  But on the bottom of page 360 there is a discussion by Lord Cotton, if I just go through that.

I think one argument was very much this, that if the foreign sovereign had been a private individual he could have had no property in these goods, because they were violations of the Plaintiff’s patent, or rather I should say more correctly, because they were to violate the Plaintiff’s patent.  Now there, I venture to say, is a fallacy.  The property in articles which are made in violation of the patent -

So that is the civil wrong, the violation of the patent:

is, notwithstanding the privilege of the patentee, in the infringer -

So they still own the property, even though there has been an infringement of the patent:

if he would otherwise have the property in them.  The Court in a suit to restrain the infringement of a patent does not proceed on the footing that the Defendant proved to have infringed has no property in the articles; but, assuming the property to be in him, it prevents the use of those articles, either by removing that which constitutes the infringement, or by ordering, if necessary, a destruction of the articles so as to prevent them from being used in derogation of the Plaintiff’s rights, and does this as the most effectual mode of protecting the Plaintiff’s rights -

Now, those rights are the right against the infringing - making of the violation of the property.  That infringement has happened, it is in the past, but equity here is able to provide remedy in relation to the past wrong to restore the patent owner.  Now, it did not happen in this case because they did not want to make an order against the Japanese Government, but we say that is an example of ‑ ‑ ‑

GORDON J:   But there the plaintiff’s right continues.

NETTLE J:   That is to prevent infringing articles being used in derogation of the plaintiff’s legal rights, the consequence of the patent.  That is what it says:

so as to prevent them from being used in derogation of the Plaintiff’s rights ‑ ‑ ‑

scilicet, as the patentee.

MR LLOYD:   We say that the right which was breached, which was mentioned earlier, is that it was made in violation of the right.

NETTLE J:   Correct.

MR LLOYD:   So that infringement has happened, and that is seen as having a consequence of an infringement.  So to stop the ongoing consequences of the infringement you can get an injunction.  We just want to do the same in this case.  There is an ongoing consequence of the tort here, is that the police hold the copied data and my client says that equity is able to provide relief if damages is an inadequate remedy and we say, for the reasons I have already said, that damages is an inadequate remedy. 

I think I was also going to refer to another aspect of Meagher, Gummow, Lehane, which is also tab 1.  It is on page 718, the first full paragraph on that page, the learned authors say, at the end of the paragraph:

Thus, where trespassers intrude on one’s property and take films in the process, the jurisdiction extends‑

that is the jurisdiction to grant injunctive relief:

to restraining the publication of those films, whether or not they constitute a breach of any duty of confidence.

Then there are cases cited in footnote 178.  We say that provides other examples of where there are consequences, on‑stream consequences, for an earlier tortious or civil wrong, and equity is able to do it, even absent a breach of confidence.  We say that we fall comfortably inside a principle that exists that we can get injunctive relief. 

Now, obviously, I will deal later in my reply with my friend’s submissions as to the discretionary reasons why it should be refused but we say there is a cause of action in equity that supports that.  We have included in the bundle a passage from Young, Croft and Smith on equity.  It is in tab 2.  It also provides some support as well for this, so on page 1022 at the bottom of the page there is a discussion of mandatory injunctions:

Mandatory injunctions fall into two categories – restorative injunctions –

That is what we are saying we can get:

and enforcing injunctions.  A restorative injunction reverses an act done by the defendant which would have been prevented by a prohibitory injunction had it been sought in time.

So, that is the way I have tried to put our case.  Further down on that same page there is a numbered list and starting in the sentence immediately before that:

The authorities analysed by Spry show that, as a general rule, mandatory restorative injunctions are only granted where the following conditions exist -

I will not read them out but we say we fall into those circumstances.

EDELMAN J:   In the paragraph you quoted from a moment ago from Meagher, Gummow and Lehane that the injunction can be awarded whether or not the circumstances constitute a breach of duty of confidence, the first case referred to in support of that proposition is the decision in Lincoln Hunt Australia v Willesee which, I think, you relied upon in your submissions as well.

MR LLOYD:   Yes, your Honour.

EDELMAN J:   That is the decision of Justice Young which places quite some reliance upon the private nature of the communications in that case.  Do I understand your submissions to be that if the Court were not to accept your submissions that trespass or trespassed goods or conversion were sufficient to establish a private cause of action upon which to base an injunction you would not then seek to develop the law or to suggest that the law be developed in any way to recognise an independent ground based on infringement of privacy.

MR LLOYD:   We have not posited it in that way, no, your Honour. 

NETTLE J:   Mr Lloyd, those two authorities cited in footnote 178 precede Lenah Game Meats in which it was held that despite the fact that the film taken tortiously by the ABC of what was being done in the abattoirs in private was a breach of, in the loose sense, privacy, no injunctive relief would go because it was not confidential.

MR LLOYD:   But that was not a case where the ABC was the wrongdoer.

NETTLE J:   Yes, they were.  Well, whoever’s agent it was they went in to the abattoir as a trespasser and took photographs of what was being done inside. 

MR LLOYD:   I think there might be some discussion of that earlier in this extract – if I could just come back to that, your Honour.

NETTLE J:   Certainly.

MR LLOYD:   My junior will find an extract that I do not have.

KIEFEL CJ:   I think it is at paragraph [21-100] on page 716. 

MR LLOYD:   Yes, in paragraph 104 in Lenah Game Meats it says:

In the present case, as has been noted earlier in these reasons, it is not alleged that the ABC was implicated in or privy to the trespasses upon the premises and there is no allegation of the tort of conspiracy.

GORDON J:   I think we are at cross‑purposes, Mr Lloyd.  The Chief Justice took you to passage [21-100] of this extract from Meagher, Gummow and Lehane, which is, as I understand not – I just want to make sure I am clear about this.  This is what I was referring to earlier as the gap.   You do not seek to develop that aspect of the gap in that way.  Is that the position?

MR LLOYD:   We say we do not need to do that.  We are not asking the Court to find ‑ ‑ ‑

GORDON J:   So assuming that we are against you on the other materials, you do not seek to develop that gap.  I just want to make it abundantly clear what the position is.

MR LLOYD:   Perhaps I will seek some instructions on that before I commit my clients to the position but I would accept that we have not, to date, put it as there being a freestanding right to privacy.

EDELMAN J:   It may be that there are insufficient facts before this Court in order to be able to resolve that question now or at this stage, if it arose.  But that may not necessarily mean that remitter – or the matter might not be able to be dealt with in other ways.

MR LLOYD:   We would certainly embrace that.  We did have a discussion about whether or not we would seek to say that if the Court were against us on this basis and the next basis I will come to, whether or not there would be a confidence in our circumstances and whether or not we would preserve that position, and our position in relation to that was that we would want to preserve an ability to run such an argument but we accept that the special case has not been designed with that and the facts are not before the Court to make a ruling one way or another on that issue.  That is on the confidence issue - sorry.

KIEFEL CJ:   To an extent, of course, the conditions that have been developed by the common law around warrants which now find their place in statute which limit the issue of a warrant except on strict compliance with conditions is a recognition, it has been said on many occasions in the cases, of the modern view of a person’s right to privacy. 

Now, Lenah Game Meats did not establish that there was such a right, but to a limited extent it has always been accepted that search warrants are an exception to the notion that a person’s home at least is inviolable and that notions of privacy are swept up in that, but I recognise the difficulties that you might be under in relation to the facts and the way in which this has been structured.

MR LLOYD:   Certainly to that extent there are enough facts for that because there is evidence that it was Ms Smethurst’s property, both her personal phone and her personal home.  To that extent, that was an invasion of her privacy to that regard and we rely upon that, but what I cannot go further is to say that the data that was copied had any special duty of confidence.

KIEFEL CJ:   Can be characterised as private in nature.

MR LLOYD:   Exactly.  The Court does not have that material.

KIEFEL CJ:   No.

EDELMAN J:   What did you mean in your earlier answer where you said you want to preserve your client’s position in relation to confidence?

MR LLOYD:   Well, in the sense that if the Court were to determine that we were unsuccessful in the way that we have run this case now we have not run a case based upon confidence and whether my client has any ability to put a challenge based upon that could arise in a separate proceeding or upon remitter if there was an amendment or something along those lines.

GAGELER J:   How many goes do you get?

MR LLOYD:   Hopefully we only need one go, your Honour.  But there would be issues in establishing the confidence - the need to disclose the material that we seek to keep private.  So, that approach has not been taken at this juncture.

GAGELER J:   Call me old‑fashioned, but I thought that it is incumbent on the litigant to put all the eggs in the basket. 

MR LLOYD:   I suppose we would say that that question – we have not sought to agitate that question in these proceedings so the Court does not need to determine the question and whether it can properly be raised in a separate proceeding can be dealt with if we ever seek to do it after the outcome of this case.  We are not asking for the Court to indicate in advance that we can do it.  Nor do we say the Court should say, pre‑emptively, that we cannot do it.  It would depend upon what we sought to do if and when a situation arose.

KIEFEL CJ:   Your first argument focuses upon a wrong in the tortious sense.  Your second argument is based really on a lack of authority, is it not – lack of statutory authority?

MR LLOYD:   It is, your Honour.  I will be there soon.  There were a few things left I wanted to say about the tortious matter.  In the Young extract, I just note that there is a footnote 62 – sorry, footnote 57.

KIEFEL CJ:   Sorry, did you say 62?

MR LLOYD:   I did say 62 but I meant 57.  There are multiple examples there that we would rely upon in support of the notion of the ambit of restorative injunctions.

GORDON J:   Can I ask one more question, Mr Lloyd, and then I am going to be quiet?  In relation to each of those in that footnote, as I read them, each of them has an underlying legal right that give rise to equity acting in aid of.  Can you identify any authority where there is the absence of the right in the way in which you now put it in the sense of you explain that it is in the aid.  In a sense, as the Chief Justice put it, in aid of law – that is, you seek a restorative injunction in circumstances where the right is no longer continuing. 

MR LLOYD:   I think the one involving the demolition of columns – an injunction to demolish columns not built in accordance with the construction contract.  That was a breach of the contract.  Then, there was a requirement to demolish it.  That can be posited against us that was continuing breach.  But, we would say the contract was breached when it was constructed contrary to that.  Then the question was, was damages an adequate remedy or was injunction an appropriate thing to do and an injunction was granted in that case.

NETTLE J:   Really your best point is Lincoln Hunt, is it not – Justice Young’s judgment.

MR LLOYD:   We certainly rely upon that.  But can I give two other references which are not – I do not think are in that?  I will just note them to the Court.  One is Shepherd Homes Ltd v Sandham [1971] Ch 340. That was a case where a mandatory injunction was available to remove consequences of a breach of a negative covenant and then, in a negative restrictive covenant. Then Charrington v Simons & Co Ltd (1971) 1 WLR 598 and there, there was an injunction granted ordering a defendant to remove a tarmac farm road – the height of which had contravened a restrictive covenant.

Now, in those cases there was a breach of the restrictive covenant which had consequences – an issue arose whether or not an injunction was appropriate or whether damages would be an adequate alternative remedy.  We say that it shows that the relief is as broad as we say it is.

GAGELER J:   The Land and Environment Court New South Wales from time to time has granted injunctions to require the demolition of a structure built without planning approval.  Is that in the exercise of a particular statutory power? 

MR LLOYD:   I would apprehend so.  I mean there are many instances where maybe farmers do something in breach of an environmental standard or something and they are forced to remedy things.  My understanding of that, those – at least the examples I could think of were done under statutory powers. 

KIEFEL CJ:   Probably in the absence of approval.  It follows from the absence of approval as a condition.

MR LLOYD:    I think in our bundle we also have the decision in Redland Bricks, which is tab 4.  The only part of this we would draw attention to is on page 665.  At the end of the paragraph it says: 

Thus, to take the simplest example, if the defendant, the owner of land, including a metalled road over which the plaintiff has a right of way, ploughs up that land so that it is no longer usable, no doubt a mandatory injunction will go to restore it; damages are not a sufficient remedy, for the plaintiff has no right to go upon the defendant’s land to remake his right of way. 

Now, I am not saying that is an example of correcting a tort where there is not an ongoing aspect, but it is an example of where a mandatory injunction can lie to restore a position prior to a breach and we rely upon it as yet a further example of that. 

So, if injunctive relief is available to restore a person who has suffered a tort, if damages is not an adequate remedy – sorry, we say that it is – if it were otherwise that would lead to, we say, a gap in the ability of a wronged person to get relief and one sees that gap in the search warrants example from the example that we have already given to the Court about the person coming and taking some documents and copying other documents.  There would be injunctive relief available to get back the documents that were taken, whether they were confidential or not, and because there would be property in them. 

But we say that the relief would be available simply because the injunction allows for the restoration of the tort, or to help remedy the tort where damages is not an adequate remedy.  In relation to the copying example, we say that again the relief should not distinguish whether between copying or the taking of the original.  In both cases there is a need to restore the person who has suffered the tort. 

That is all the more important as my friend, the learned Solicitor‑General, indicated yesterday, that there is some sort of statutory indication in favour of copying rather than seizing original things and so that makes the need for that kind of relief more appropriate.  We say that the cases we have taken the Court to support it, but we would say that even if it were a development it is a development the Court should take. 

Another example to test the principle as to why we say the relief should be appropriate – if I were to dig up in my backyard an ancient manuscript that was unknown to the world and of great value to me and I started to make a living out of publishing it page by page, it would be valuable and unique.  If somebody trespassed on my property and took the book, then I would have property in the book and I could certainly, on any view, get the book back.

But if they did not take the book, they just photographed the book – and every page of the book – or, alternatively, they took the book and copied the book, then I could get the book back but they could still get all the copies and they could still publish it at their will, we would say equity should be able to – and we say is able to – provide relief in that kind of case.  There is no confidence there.  There is no property in the copies there, but equity would act, we would say, in its auxiliary jurisdiction to restore me to my rightful ownership of the book and prevent other people from publishing the unlawfully obtained copies.

In answer to your Honour Justice Gageler’s question I am told that section 9.46 is the statutory power under the Environmental Planning and Assessment Act.

NETTLE J:   Mr Lloyd, do you put it on the basis that damages for the torts that have been committed would not be an adequate remedy?

MR LLOYD:   I do, for the reasons I have said before.  There are two ways of looking at it.  I mean, we rely on both ways – they are cumulative ways.  One is that my client and, indeed, anyone who suffers somebody coming and looking through their material, their things, would be exposed to the stress and upset by that.  Damages is not an appropriate or adequate remedy to that, as compared with stopping that from happening. 

That has a future element to it.  I do not say that it is a future that are each individual future tortious conduct.  But insofar as the AFP have my client’s data, to the extent that it is seen by others and expanded to others, that has a future aspect that could be stopped by an injunction.  So that is one way we say damages is not an adequate remedy.

The other way is, to the extent that that material might be relevant in the consideration of whether or not to prosecute her, it is something which damages could not provide an adequate remedy to the stresses and costs involved in defending criminal proceedings.

NETTLE J:   As to the former aspect of that matter, would we not have to see the material to make a judgment as to whether damages would be an inadequate remedy?

MR LLOYD:   In my submission, no.  It is enough that one knows that it was material taken off a phone that was a locked phone.  So it is, in that sense, information belonging to my client ‑ ‑ ‑

EDELMAN J:   Even if it were entirely innocuous?

MR LLOYD:   Well, there is still the unlawful conduct in taking it, and perusing it.  So we would say it can still cause distress that somebody is going through your materials.  Now, if somebody came into my office and went through my desk and said, “Well, there are only Commonwealth Law Reports in it”, I would still be concerned, irrespective of the fact that they might have only seen a Commonwealth Law Report.  It is still ‑ ‑ ‑

NETTLE J:   For which you would get very large damages to compensate you for the distress imposed on you.

MR LLOYD:   But we would say, if I wanted to stop somebody from doing it in the first place I might have got an injunction and an injunction would go because damages is not an adequate remedy in advance, it should be the same after the event as well.  It still is not an adequate remedy, we would say.  That is a bad example because there is nothing to be restored at the end.

Our answer is that on either or both of those grounds the Court knows, at least on the material, that what was taken was something on my client’s private phone, her own personal phone, that was presumably, an inference can be drawn, somehow perceived as potentially being relevant to an offence under section 79 and that is enough to provide an indication as to the nature of the material that it could be.

It would not be like a Commonwealth law report.  For it to be able to be evidential material and taken, it must have had some character pertaining to some of the people in condition 2 and the matters in condition 3.  Otherwise ‑ ‑ ‑

GAGELER J:   Mr Lloyd, am I correct in understanding that the consequence of the undertaking that has been given is that the police have not looked at the material that has been copied?

MR LLOYD:   That is my understanding.

GAGELER J:   So part of the stress to your client flowing from the trespass that has occurred on the hypothesis that we are now adopting is yet to occur.

MR LLOYD:   That is so.

GAGELER J:   So you are seeking an injunction in effect to stop further damage from occurring from a past trespass.

MR LLOYD:   That is putting it much better than what I tried to put obviously inadequately earlier.

BELL J:   The second basis on which you assert damages is not an adequate remedy is because your client has an interest in the prevention of an investigation into suggested criminality with the costs associated with that.  Is that the way it is put?

MR LLOYD:    I think so, yes, your Honour.  Costs and the stress of being involved ‑ ‑ ‑

BELL J:   The stress of exposure, if it be the case, to criminal prosecution.

MR LLOYD:   That is so.  If I can move onto our second ground, which is the notion that my client is entitled to an injunction to restrain the use of the data copied from Ms Smethurst’s phone in a manner not authorised by the Crimes Act.  The way we put this argument is that where a statute confers a power to obtain information for a purpose it impliedly prohibits the disclosure of use of that information for any other purpose. 

The decision of this Court in Johns, which is at tab 3, at page 423, explains the rationale and the reason for how that – page 424.  I apologise to the Court.  Below the quote - I will not read it out but I will note the second paragraph – the second sentence of the paragraph below the quote:

The statute imposes on the person who obtains information in exercise of the power a duty not to disclose the information obtained except for that purpose.

So, you have a power to obtain information, in effect, by force - that is proposition number 1; information or other things, I suppose, that is proposition number 1.  Proposition number 2 is that power is subject to the uses identified expressly, impliedly, in the statute.  So, that gives rise to an implied prohibition for using it for any other purpose.  That is said by Justice Brennan in Johns and it is also said in Katsuno.  I will not take the Court to it but it is easier for your Honours than - in Katsuno in paragraph 24 it actually quotes this same passage in Johns and Katsuno is in tab 6. 

Then, the next point is that an implied prohibition may be enforced by an injunction.  Justice Brennan notes that at page 427 of Johns.  Towards the bottom of the page, the last full paragraph starting with Justice Deane, his Honour makes that clear and that is also stated in Katsuno in paragraph 25.  So, we say that an injunction can be sought by a person with a sufficient interest in enforcement of an implied prohibition and our client has such an interest. 

Turning then to this case, we say the Crimes Act confers a power to obtain information and other things pursuant to search warrants.  The Act identifies a range of purposes for which the obtained information may be used in section 3ZQU.  Applying Johns and Katsuno with the Crimes Act we say impliedly prohibits the use of such information for any purposes other than those which the Act itself authorises. 

Now, we say, this implied prohibition must – the ambit of the implied prohibition must be understood as applying not only to information seized pursuant to the valid warrant but also to information seized during – pursuant to an invalid warrant.  So, the implication is if you are going to use the statutory power or try and use a statutory power to acquire information it can only be used for the purposes ‑ ‑ ‑

KIEFEL CJ:   But are we really in the realms of use for – which is authorised for one purpose and it is used for another or are we simply in the area of whether or not any use is authorised unless it has been lawfully obtained?  Is that the basis of section 3ZQU(1)?

MR LLOYD:   Well, 3ZQU(1) lifts a whole series of different uses - relevantly, (1)(a), I think, has the uses we immediately care about.

KIEFEL CJ:   But it authorises use – it authorises use, so you have the authority to enter, search and seizure - that is the end of those powers.  This provision then authorises the use of the materials so seized.

MR LLOYD:   Exactly.  So, one starts with when you engage the powers of the Act, that gives rise to a prohibition that it can only be used in the way that the Act indicates.  One of those ways to use it is if it is done under the - if it is seized under the part then it can be used to investigate or prosecute, amongst all the other uses.  If it is not done under the part then‑ ‑ ‑

KIEFEL CJ:   It is not authorised.

MR LLOYD:   ‑ ‑ ‑it cannot be used at all.  The prohibition ‑ ‑ ‑

KIEFEL CJ:   But here what is the ulterior or extraneous purpose?  The use sought to be made of it is the use which was contemplated by the search warrant, namely the investigation of offences.

MR LLOYD:   Perhaps I have not explained myself clearly enough.  So I accept that in Johns there was a notion that an implied restraint on use is that when you seize materials it can only be used for one of the authorised purposes and not for any unauthorised purpose.

KIEFEL CJ:   Yes.

MR LLOYD:   But what we are saying is that the proper way of conceiving that is that there is a prohibition on any use, save for an authorised use.  If that is how the prohibition is understood, then that prohibition also applies to material which is done purportedly under the Act but in fact not under the Act.

KIEFEL CJ:   You say that this is not authorised by section 3ZQU and that is the only - that is the only source of authority for use, and that this is not, whatever is sought to be done now, authorised under that provision.  Is that what you say?

MR LLOYD:   That is what we say.

KIEFEL CJ:   Why is that so - because it is unlawfully obtained?

MR LLOYD:   Exactly, because under the terms of 3ZQU, it has to be seized under this part and then just applying the same kind of logic as in S157, if it is under the part means validly seized, so the only way, when you purport to use the Act to get information, that you can use the Act, is if it was validly seized.  If it is not validly seized, you do not have the right or the power to use the material for any of those purposes, or any other purpose.

EDELMAN J:   That is the extension of Johns that you seek, is you seek an extension to also imply a limitation where the obtaining of information is purportedly, but invalidly, in exercise of the power.

MR LLOYD:   That is so, and we say ‑ ‑ ‑

EDELMAN J:   Is that how you would express the implication - purportedly but invalidly, or would you express it in different terms?

MR LLOYD:   We would say that the implication is that where material is in fact obtained pursuant to the processes of the Act, it can only be used in accordance with the Act.  So, it has in fact been obtained pursuant to the processes of the Act, and it can only be used pursuant - in accordance with the Act if it is done in fact - if at law it is done under the Act, so under the part.

KIEFEL CJ:   So when you say the requirement in subsection (1), seized under this part, are you saying that is a condition to the authority, to the power?

MR LLOYD:   That is so.  So they can only use - they can use it for any of those purposes when it is seized lawfully.  If it is seized lawfully it cannot be used for any other purpose, and if it is seized unlawfully it cannot be used for any purpose.

KIEFEL CJ:   Now, the discussion yesterday focused also on the Evidence Act provisions of section 138 and the notion that if documents are seized and might be relevant in criminal proceedings, section 138 of the Evidence Act might contemplate that they remain available for that use.  The area that you are discussing in relation to statutory authority does - is it dealing with a period between seizure and admission into evidence where there is, not an hiatus, but where only statutory authority can explain the use of material so that we are in two different areas in relation to the admissibility of evidence and ‑ ‑ ‑

MR LLOYD:   We would say if our argument is accepted and the police cannot lawfully use it then they are at least subject to being enjoined from doing anything with it if they are not lawfully using know but they do not know.  So, if someone has ever challenged the warrant and they do not know and they are acting continuously, they will get to the Bunning v Cross‑type discretion.  If, however, the warrant is challenged ‑ ‑ ‑

KIEFEL CJ:   It may not arise.

MR LLOYD:   ‑ ‑ ‑ they just do not get there.  But the existence of the Bunning v Cross discretion does not mean you always have to reach the Bunning v Cross discretion which seems to be the implication of the Commissioner.

KIEFEL CJ:   It may or may not arise in the sense that if they have sufficient to bring a charge – if what relief the plaintiffs have received is a negative injunction the evidence remains available for section 138 but the AFP, in the meantime, cannot themselves use it.  They either can charge now or they do not. 

MR LLOYD:   That is so, although we would say that if there was an injunction granted to prevent them from using it they would never get to a point of being able to decide whether or not to deploy it in a hearing.  That would itself be ‑ ‑ ‑

KIEFEL CJ:   On the assumption they have not looked at it so far.

MR LLOYD:   Yes, because one of the permitted uses is investigation and prosecuting and they would not be able to use it for those purposes.

BELL J:   That illustrates the breadth of the consequences of this argument, if it be right, since no question arises of the discretionary considerations which might weigh against the grant of an injunction based on established principle concerning the desirability of not protecting a person against exposure of criminality.  If your argument is right, the effect of the legislation embodied in Division 4C respecting the lawful use that might be made of material that is seized is that any material which is seized in circumstances attended by any form of illegality cannot be used and there is no discretion.

MR LLOYD:   We are not putting it that highly.  There might be all kinds of circumstances where there is illegality where there is no purported reliance upon a search warrant under the Crimes Act.  So it is not every ‑ ‑ ‑

BELL J:   But any failure to comply with the scheme under the Crimes Act respecting the seizure of goods results in a consequence that the material seized cannot be used and there is no discretion in the court.

MR LLOYD:   I am not saying there is no discretion in the court.  I only use this for the purpose of getting to the point that the court has a discretion – that there is a cause of action which allows the grant of an injunction – a negative injunction in this case – against the use and disclosure of the material.  But then all of the same factors that – if I go back a step – my friend, the learned Solicitor‑General, said yesterday that he does not really care what cause of action there is because he has discretionary arguments that apply to every possible cause of action.

We accept that his arguments that he would run there would apply as a potential answer to our case but that gets us then into the world of discretion.  We have, at least, got over the hurdle that the court has the power to grant the injunction and then we will deal with his arguments on whether or not the discretion should be exercised in reply.

BELL J:   Section 3ZQU gives rise to a private right on the part of the person whose goods are the subject of seizure. 

MR LLOYD:   It is a public law right so you have to have standing and we would have - you would have to have a sufficient interest in the matter.  It is not ‑ that puts it as a private right.  I am nervous to embrace that.  It is no different to any other right that somebody has to seek judicial review of illegality. 

KIEFEL CJ:   Is your argument with respect to section 3ZQU premised on the invalidity of the warrant rather than any potential breach founding it? 

MR LLOYD:   Indeed.  So it is enough that if the warrant was unlawful, then everything which was done under it is ‑ means that the seized material, in this case the copied data, is not under the part which then means that it is not authorised to be used and the underlying prohibition stays in place.  That is what we are seeking to enforce subject to any exercise of discretion. 

NETTLE J:   Could I just ask you one thing?  In subsection (1) the permitted uses apply where “a thing is seized under this Part”. 

MR LLOYD:   Yes, so we say “under this Part” has the same kind of meaning as in S157 “under the Act”.  It means validly seized under the part. 

NETTLE J:   Which is the Solicitor’s argument and he says, well, I did not seize under this because I accept, for argument’s sake, that the warrant was invalid. 

MR LLOYD:   Yes, the difference between our positions is that the Solicitor says that he did not ‑ if it be right that he did not seize under the part, then that has nothing to do it.  The bit where we differ is we say, properly construed, the implication, the sort of so‑called Johns implication, is not just limited to an implication of what you can do if you have seized it under the part, the implication applies to any seized material purportedly under the ‑ ‑ ‑ 

EDELMAN J:  So “under this Part” becomes under this part or not under this part. 

MR LLOYD:   No, certainly not.  In the implication, the implication applies where the search warrant processes are in fact relied upon, whether lawfully relied upon or not.  So it is the implication applies, because it would be curious if unlawfully obtained material could be used more freely than lawfully obtained material.  That would be a very strange implication to have, we would say.  So we say that the implication applies but in section 3ZQU it only applies to lawfully obtained so ‑ ‑ ‑ 

KIEFEL CJ:   Mr Lloyd, just taking that up.  As I understand your argument, the use of the material is either authorised under section 3ZQU or not.

MR LLOYD:   That is so. 

KIEFEL CJ:   So to an extent discussions of implied prohibitions, whilst pointing out a want of authority, could actually detract from your argument - the simple argument of authority or not. 

MR LLOYD:   Yes, perhaps we need the prohibition in order to get to the thing that we are enforcing the prohibition on ‑ ‑ ‑ 

KIEFEL CJ:   It is just that in Johns and in Katsuno it is easier to understand the reference to an actual implied prohibition because you are talking about different purposes, but here I thought you were really saying it is either authorised – a use is either authorised or it is not because without statutory authority there can be no use.  The Australian Federal Police as an authority act under statute.  The common law does not give them the right to use – I thought that was the area that we were in. 

MR LLOYD:   That may also be true but the way I – and I do not want to say that I do not embrace that, although I apprehend that my friend will try to find some authority which gives him some general power to do whatever he wants.  But we do say that when Justice Brennan in Johns says “a duty not to use or to disclose information obtained in the exercise of a statutory power” ‑ so it is the exercise and we think that includes the purported exercise of the statutory power ‑ “except for a purpose authorised by the statute, is a duty imposed by statute”.

So you have a duty which says if you try and engage the provisions of this Act through a search warrant, whether it be valid or not, you can only use the obtained materials in accordance with 3ZQU.  Then you say okay, in relation to everything I ever get pursuant to a search warrant I can only use it pursuant to 3ZQU.  Then you go to 3ZQU and it says you can use it for these purposes but only if it is validly obtained.

NETTLE J:   What if a policeman thought he had a right to go on the property because he apprehended there was a crime that had been committed but in fact he did not have that and there seized material which he copied?  Would this 3ZQU still apply?

MR LLOYD:   If it was not done pursuant to a search warrant, then this must be some other power to do what he has done and that would not apply.

NETTLE J:   So it must be in pretended performance of the duty or the rights which are given by 3ZQU of the Act?

MR LLOYD:   Yes.  It is in the exercise or we would say purported exercise of the statutory power.  If you are doing it under some other power, under some other head, we are not saying that it extends to that.  That is not how Johns can be read as extending beyond the scope of – it has created a special compulsory power and it has said if you are going to use this compulsory power, you can only obtain things if you do it validly and only for these purposes.

NETTLE J:   Yes.

GAGELER J:   You only need an implied prohibition if there is a capacity to do the thing that you say is impliedly prohibited, do you not?

MR LLOYD:   Sorry ‑ you only need?

GAGELER J:   You only need to argue for an implied prohibition if there is first a capacity to do the thing.

MR LLOYD:   That is so.  If there is no lawful capacity at all, which I think is the point the Chief Justice is putting to me, then you do not even need that, and that would be enough for us.

GAGELER J:    It might be a very large small “c” constitutional question here about whether a public officer needs to point to some source of authority for taking certain sorts of actions.

GORDON J:   That is why I raised yesterday the AFP Act and whether there was anything in there that directed it.

MR LLOYD:   That is why we say that the prohibition approach, which we say is a sensible reading of Johns or if it is an expansion it is a logical expansion because it is only saying to the extent that Johns says you can only use things you legally get for certain purposes, it would be weird if you could use things that you illegally got for the purposes you could not even use the things you legally got for.  So the implication, we say, should just extend to any exercise of a statutory power, lawful or purported exercise.

BELL J:   But, Mr Lloyd, here the purported exercise does not carry with it the suggestion of a proposed use that would not be a permitted use under 3ZQU.  Your point is that the material was not obtained in conformity with the part and, as I understood part of your argument, it was therefore you go to 3ZQU to tell you what you can do with material seized lawfully and it necessarily follows that you cannot do any of these things if the material is not seized lawfully.

MR LLOYD:   That is so.

BELL J:   That being the case, it is not clear to me on what basis the court would exercise a discretion to taking into account the desirability of preserving evidence of criminality even if obtained unlawfully.

MR LLOYD:   It may depend upon the circumstances but if it had, for example - it was discovered late in the piece and the person who could have complained about it had not complained or had not taken any effort to enjoin them, knew that the search was unlawful and had delayed in taking it that might be statutory discretion, they would say well ‑ ‑ ‑

EDELMAN J:   Where do we find that in 3ZQU?

MR LLOYD:   It is not in 3ZQU.  It is just because the relief that we are after is injunctive relief and that is discretionary and it is built into something which - a delay in seeking a remedy is always something the court can take into account and ‑ ‑ ‑

EDELMAN J:   But maybe I misunderstood your argument but I had understood you to be saying, effectively, that 3ZQU is effectively extended to actions that are purportedly or attempted to be taken under the part even if they are not legally taken under the part.  It is an argument that in the 18th century might be called the equity of the statute, extending the statute to circumstances where, in its terms, it does not strictly apply.

MR LLOYD:   I am not saying that 3ZQU are the only uses that can be made whether it is lawfully or unlawfully obtained because the use they want to make of it is a 3ZQU use.  That would not get me anywhere.  My point is that you can only use any of those uses if it has been lawfully obtained.  If it is not lawfully obtained, you are not even in 3ZQU and you have just not lawfully obtained it. 

If you try or if you obtain the material by reference to the force of the Act and then you can only do it under 3ZQU - but if it is not lawfully obtained then you cannot use it for anything.  We are seeking to enforce the fact that there is a prohibition against them using it for anything and to go to the court and ask for an injunction to enforce that is a discretionary remedy and the matters which can ever inform an exercise of a discretionary remedy are available to the court. 

So, it is not part of my case that any of my friend’s arguments yesterday could not run in this context.  We are just saying that is enough for us to get an injunction to prevent use of the material.  That is a second basis separate to the tort basis by which we could get an injunction of the kind we seek.

KIEFEL CJ:   That might be a convenient time for the morning break, Mr Lloyd. 

MR LLOYD:   Thank you, your Honour.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

KIEFEL CJ:   Mr Lloyd, if the Solicitor was to point to discretionary considerations which would weigh against the grant of an injunction, what course would you be proposing – that the Court make some declaration as to the operation of section 3ZQU in this case and then remit for consideration of an injunction, or not?  I take from what you said yesterday there was not a large appetite for remitter.

MR LLOYD:   We had apprehended – I mean, the submissions were designed to get to the point of saying the Court has power to give the relief we seek.  If, after our reply, the Court is inclined not to grant injunctive relief and only to grant certiorari we were apprehending that would mean that we had lost that aspect of the case.

KIEFEL CJ:   I see.

MR LLOYD:   We would still have, assuming we win the question (1) aspect of the case, some form of relief in relation to the unlawfulness of the warrants and the consequences of that would flow.  I suppose it depended – if the Court said, for example, that it accepted that there was a duty for them not to use but there is a discretionary reason not to grant us the relief, it is not clear that there is anything further we could usefully do.

KIEFEL CJ:   Depending upon the discretionary consideration, I am not sure that the Court is in a position to deal with questions of discretion in any event.

MR LLOYD:   That may be so, in which case I suppose that might have to be – if the Court felt that – then that might have to be remitted.  I do not ‑ ‑ ‑

KIEFEL CJ:   But the question is what are the plaintiffs seeking?  We cannot keep tossing around ideas of what relief might be possible.  We want to know what the plaintiffs are seeking.

MR LLOYD:   So the answer we have to question (4) is an answer that we seek in our submissions, which ‑ ‑ ‑

KIEFEL CJ:   Certiorari or injunction or nothing.  Is that it?

MR LLOYD:   No, we would say, assuming that the warrant is invalid, we should certainly get a certiorari in relation to the warrant.

KIEFEL CJ:   Yes.

MR LLOYD:   But the question is whether we also get some form of injunctive relief.  If the Court is with us on the tortious basis for injunction for relief, that would support the primary relief we seek, which is to say, an order that the copied material be destroyed.  It would also, I should say, support a negative injunction as well, as an alternative.  We would say that the Court can and should do that and the discretionary basis for refusal should not be accepted.

If the Court is against us on the tortious basis of giving relief, then we would say that administrative law, the section 3ZQU related basis, would support the negative injunction that I have posited, which is in terms of – I think we have put a formulation of it in the note we handed up, but it is an order that it not be used for the purposes of investigating or prosecuting the plaintiffs – prosecuting an offence in relation to the plaintiffs.

NETTLE J:   Because it would disclose criminality?  Is that the essence of the basis on which it is said that damages would not be an adequate remedy?

MR LLOYD:   Well, I have addressed that in two ways.  One way is in relation to the fact that it potentially exposes my client, not that it exposes criminality but it exposes my clients to prosecution and the costs and stress of being prosecuted, and then the second basis is just in relation to the ongoing - the risk of ongoing future harm in relation to people having access to the material that has been unlawfully copied.

GORDON J:   Sorry, what was that last aspect again?  Could you say - ongoing future harm to what?

MR LLOYD:   The consequence of the tort was the taking of the material.  At the moment very few people in the AFP have had access to that material.  If we are unsuccessful and the undertaking is going then everyone in the AFP who has a requisite interest presumably gets to look through my client’s - the material unlawfully taken and so that adds further to the stress of the unlawful conduct in taking it and perusing it in the first place.

NETTLE J:   Mr Lloyd, if as the Solicitor suggested yesterday, he either undertook or was enjoined to use it only as if it were in compliance with 3ZQU, the emotional distress aspect of that would go and one would be left only with the fact that it would expose your client to the possibility of investigation and charge with criminal offences.

MR LLOYD:   Well, that would be then to undo the illegality in the first place. 

NETTLE J:   No, no, it would just be grant partial equitable relief to allow you not to be exposed to the improper use of material, but at the same time, to allow the investigation of potential criminality to continue.

MR LLOYD:   We would say that is improper use of the material because they did not do it lawfully, that the purpose of the Act is to ensure that they do it lawfully and not ‑ ‑ ‑

NETTLE J:   I do follow that, but when it comes to the question of equitable relief, if the consequence of equitable relief is to supress the investigation of criminality, which it is in the interest of society to have investigated and prosecuted, then it is a powerful discretionary consideration for refusing the relief, is it not?

MR LLOYD:   Well, bearing in mind they could just issue another search warrant if they wanted to.  They could do it lawfully.  The Court should not facilitate them to do something unlawfully if they could just do it lawfully, so that would be a consideration against equity ‑ ‑ ‑

NETTLE J:   What, in the sense that the status quo could be preserved pending the issue of a further warrant, that is to say, no destruction of information that has been taken?

MR LLOYD:   Well, it could be destroyed, and we say that is the relief that should be given.  If the police want to do their job properly they could just issue a search warrant lawfully.

NETTLE J:   But if you are suggesting that they destroy the evidence which would potentially be relevant, and then seek around for fresh evidence, it may be that their position in relation to the investigation and prosecution of an offence would be compromised, might it not?

MR LLOYD:   I cannot say for sure that it would not be, but I do not think that the Court can assume that it would be.  It depends what has happened to the phone, or the Cloud, or whatever happens in the universe.  I do not think - we would say that we are not asking too much to say that they should have done the warrant lawfully and that that - assuming that we do not ever get to the constitutional issue, then the infringements to the warrant we have identified so far would be correctible if they just did another warrant and we would say that that would be the appropriate remedy for them. 

The remedy is in their own hands and that is not a reason to give some lesser form of relief which basically gives them what they wanted in the first place, which is to have the material and to be able to use it.  It just sort of sanctifies their unlawful conduct.

The Court will answer the questions, or some of the questions at least, and then the matter will go back before a single judge and orders will be made at that point.  It may be that things have changed between when the Court hands down its reasons.  So, it may be that the ultimate orders take into account other considerations.  I cannot foreclose the possibility that that might happen.  But we are addressing it on the assumption that nothing will happen between now and then that makes it go away.  But, obviously, if the police decided that they did not want to press on with the case that might affect what relief would be appropriate, for example. 

That is all I really wanted to say about question (4) in‑chief.  We have not been invited to address question (5).  I am not asking, in particular, to address the cost issue.  But if the Court wanted to hear, I could do so or I can finish until I ‑ ‑ ‑

KIEFEL CJ:   We will certainly hear any argument that you wish to put in relation to it, Mr Lloyd.

MR LLOYD:   I can be very simple.  Our situation is that we say we sought three forms of relief which are to some extent interrelated.  We sought certiorari in relation to the warrants.  We sought relief in relation to

the 3LA order of a similar kind.  We sought injunctive relief and we sought declaratory relief in relation to the constitutional provision. 

We would say if we are successful in achieving any of those forms of relief, which is to say, establishing some illegality on the part of the Commissioner, that would be enough to mean that the costs should follow the event and my client should get costs associated with the special case and then any costs associated with the proceedings subsequently before the single judge would be dealt with then.  May it please the Court.

KIEFEL CJ:   Thank you, Mr Lloyd.  Yes, Mr Solicitor.

MR DONAGHUE:   Your Honours, can I start with two short factual points so they do not get lost before I come to the more substantive matters?  Could your Honours turn to page 5 of the special case book in paragraph 20.3 just to make clear what the facts reveal about what is known about the material that was seized.

GORDON J:   Sorry, Mr Solicitor, could you give me the page again, please?

MR DONAGHUE:   Yes, page 5 of the special case book. 

GORDON J:   Thank you.

MR DONAGHUE:   In paragraph – and, particularly, what was seen by the AFP.  Paragraph 20 is the paragraph that recounts what occurred on the execution of the warrant and 20.3 recounts that, the phone having been unlocked, it was copied on to an AFP computer.  Keyword searches were conducted on that copy so as to identify documents that may have fallen within the conditions of the warrant. 

What then happened was that the documents were reviewed by the executing officer, document by document, in order to satisfy himself that the documents fell within the terms of the second warrant and were relevant to the investigation.  That then having occurred, the relevant documents were copied on to the USB that the AFP had brought to the premises and before the AFP left, the image of the whole phone was deleted.

So, the executing officer has satisfied himself as to the relevance of the documents that were sought, document by document, to the investigation.  To that extent, the AFP has seen the material, but since then there has been the undertaking in place that no reference or use be made of that material.

KIEFEL CJ:   When was the undertaking put in place, Mr Solicitor?

MR DONAGHUE:  I do not know the answer to that but I will find out.  That was the first point.  The second point was that your Honours will appreciate that all of this occurred on 4 June this year.  When my friend suggests no harm will be done if you just send the AFP away and they can execute another warrant, that assumes that Ms Smethurst still has the same phone and that the data on the phone is relevantly the same as it was on 4 June and there is nothing to suggest that either of those assumptions are soundly based.  So, your Honours should not, in our submission, grant relief on the basis that no harm would be done to the interests of the administration of justice if the AFP is sent back.  There is no basis to assume that that is so.

As to the first of the two legal points that the plaintiff addressed this morning, the question of equity acting in aid of some legal or equitable or statutory right, your Honours will recall that you were taken to a passage in Meagher, Gummow and Lehane on page 718, which then directed attention to footnote 178, which cited a few cases, including Lincoln Hunt.  Your Honour Justice Nettle put it to my friend that Lincoln Hunt was probably the high point for him.

Lincoln Hunt I think is not in the materials that your Honours have been given but can I read you one passage from Lincoln Hunt at the bottom of page 463.  Lincoln Hunt 4 NSWLR 457 is a 1986 decision and the relevant passage is at the bottom of 463, where Justice Young said this:

I am of the view that the Court has power to grant an injunction in the appropriate case to prevent publication of a videotape or photograph taken by a trespasser even though no confidentiality is involved.

That is the bit our friends are relying on:

However, the Court will only intervene if the circumstances are such to make publication unconscionable.

That limit, that unconscionability idea, as the foundation for the further relief was discussed in a number of judgments in this Court in Lenah Game Meats, which again your Honours do not have and I will not read it out to you, but particularly Chief Justice Gleeson at paragraph 51 and Justices Gummow and Hayne, with whom Justice Gaudron relevantly agreed at paragraph 100, referred in terms to that unconscionability limit with apparent approval.

So, in our submission, the idea underlying many of your Honours’ questions to our friends that there needed to be, on this equity acting in aid of a common law right or equitable right, some underpinning cause of action is not in any way displaced by Lincoln Hunt.  Lincoln Hunt says it does not have to be confidential but the extension was where publication would be unconscionable and ‑ ‑ ‑

EDELMAN J:   Although there are also a number of statements in this Court, including in Tanwar v Cauchi and Garcia v National Australia Bank that the expression “unconscionable” is sometimes - to describe a result rather than a process of reasoning.

MR DONAGHUE:   Yes. I accept that that is so.  It does appear that the way that Justice Young was using that phrase back in 1986 was to describe that this was a case where people were invading a private space, trespassing, recording what was happening in a way that was humiliating to the person concerned, I think he was ‑ ‑ ‑

GORDON J:   He makes that clear in the middle of 463, does he not, when he himself identifies this idea of unconscionable behaviour is itself open to debate and depends upon the circumstances and the time and people may take a different view, even on these facts.

MR DONAGHUE:   Indeed, but on the facts of the present case, in my submission, it being agreed that the AFP officers thought that they were acting in lawful execution of a lawful warrant and the only intended use of the material being to prosecute an ongoing investigation and if appropriate to be used in future criminal proceedings.  It would be difficult, in our submission, for our friends to get to any unconscionability notion that would support the relief that they seek. 

The cases that I took your Honours to yesterday in the Caratti line of authority, if I can call it that, are, in my submission, all premised on the idea that there is a cause of action of some kind that would otherwise have entitled a person to the return of the unlawfully seized material, whether it be an equitable claim, a common law claim or a statutory limit.  I think it is often assumed that it was a statutory limit of a Johns‑type kind. 

That line of authority we can take you back before Puglisi but Puglisi discussed some earlier cases, one of the most famous of which is Ghani v Jones.  I am not going to take your Honours to the case but in the course of formulating the idea Lord Denning, giving the judgment of the Court of Appeal, gave two examples of why there needed to be some limit on the capacity of people to exercise their rights to recover their property in the interests of law enforcement. 

The first example that Lord Denning gave was a case where bank robbers steal a private person’s car, use it to drive to the location of the bank robbery, commit the robbery, use it to escape from the scene of the crime and then abandon it by the roadside.  The police find the car but before they get an opportunity to examine it for forensics or anything of the kind, the owner of the car shows up and says “I want my car”. 

Now, in that situation, there cannot be any question that there was a right in the driver of the car to take the car.  There is no cause of action question but Lord Denning says, well, it would be absurd in that scenario to suggest that the private law capacity to take the property overrode the interests of police in the law enforcement purposes and so he suggests the property – the right to claim the property would be deferred pending the kinds of considerations that I discussed in the case yesterday. 

The other example, perhaps slightly more outlandish, was Lord Justice Edmund‑Davies, the other member of the Court of Appeal, drew the attention of counsel in the case to the fact that the Great Train Robbers, when they were escaping, hid in a farm, used a saucer to give milk to the cat and then the police, when caught, wanted to examine the saucer for fingerprints. 

Again, it is the same idea.  The farmer says, well, it is my property.  The law enforcement authorities say this is evidence of the commission of a serious crime and because it is evidence of the commission of a serious crime, your proprietary rights to recover your property take second order preferences. 

It would, in our submission, make no sense at all to refuse in the exercise of the Court’s discretion an application for return of unlawfully seized material and then to say “But you cannot use it” because the whole point of the discretionary balancing is to balance the right of a person to the return of their own property with the interests in the administration of criminal justice being advanced by an investigation and prosecution if appropriate.

If you cannot use it for the second public interest there is nothing to outweigh the first public interest, then it would not be sensible to refuse the order for return.  So, in our submission, it necessarily follows from that whole line of cases that the court was contemplating, and in some cases I think expressly so, that the material that the police were permitted to retain would be able to be used by them for the purposes of a criminal prosecution.

We have given your Honours, I think, a short unreported judgment, of which I confess I was not aware yesterday afternoon, which is a further instalment in the Caratti line of authority where, after Justice Wigney gave the judgment I took your Honours to yesterday but before his Honour’s judgment was appealed to the Court of Appeal - this is Caratti v Commissioner of the AFP(No 3) [2016] FCA 1407 - there was some debate about the orders that should be made, and one of the arguments that was run was the very argument that has come up about, well, what is the source of authority to use the material that I have just ordered should not be returned to you?

It was said, well, there is no authority to do that and - in fact the argument that was advanced was a little more modest than that there is no capacity.  It was said you can use it only for the purposes of the offence identified in the actual warrant and not for any other offences.  His Honour grapples with that at paragraphs 7 and following in Caratti, recounts the argument at paragraph 7. He has set out earlier in this short judgment the whole of section 3ZQU, to which your Honours have been taken at some length, and his Honour concludes - in paragraph 9:

the preferable course is to exercise the Court’s discretion in such a way as to permit the Commissioner to retain and use the copied data in accordance with the statutory scheme in ss 3ZQU and 3ZQX of the Crimes Act.  There is no reason in principle why the permitted use and retention of the copied data should be on different and narrower terms than that which the statutory regime envisages.

He refers to Puglisi again.  In paragraph 10:

It is also correct that the Court’s reasons for permitting the Commissioner to interrogate the unlawfully seized devices and copy the data, before returning the devices to Mr Caratti, focused on the public interest in allowing the police to investigate and prosecute serious criminal offences, balanced against the private interest of a citizen not being unlawfully deprived of goods.

His Honour mentions 3L(1A).  At the end of that paragraph:

It would . . . be appropriate to treat the copied data in effect as if it had been copied pursuant to s 3L(1A).  A rational corollary of that is that the balance of the statutory scheme, including ss 3ZQU and 3ZQX, should also apply as if the data had been copied pursuant to s 3L(1A).

His Honour then, if you go to the orders that he made at the start of the extract, on page iii, paragraph 4, made an order of the kind that I proposed yesterday, and that your Honour Justice Nettle mentioned in an exchange with Mr Lloyd this morning:

is satisfied that the data retained . . . is not required (or is no longer required) for a purpose mentioned in section 3ZQU -

then it has to be dealt with in the way identified, and we would submit an order of the same kind would be appropriate here.  That order was one of the orders that was then subject of the appeal to the Full Federal Court that I took your Honours to yesterday and nothing was done to disturb it. 

Now, it is true that there is no express discussion of the question of statutory authority to use the material there.  It is, in my submission, inherent in that whole line of cases that there is capacity to use the material, but I accept that the source of that authority is not expressly identified.  To the extent that it is necessary to point to a particular statute we pursued your Honour Justice Gordon’s question yesterday about the AFP Act, which again, unfortunately, is not before your Honours, but the relevant provisions are short. 

The functions of the AFP are set out in section 8 of the AFP Act. Section 8(1)(b) provides that the function of the AFP include the provision of police services in relation to laws of the Commonwealth, “police services” being given an inclusive definition.  Section 8(1)(c) provides that the functions include to do anything incidental or conducive to the performance of the foregoing functions. 

So, in our submission, where the Court is dealing with the situation where – assume for the moment no statutory prohibition – I know I need to deal with that, but if there is no statutory prohibition the position is that members of the AFP have in their possession seized material that they wish to use in the discharge of their functions investigating and if appropriate referring matters to the DPP.  That, in our submission, is to use property in the discharge of their functions in a way that the AFP Act sufficiently authorises, subject to the question of whether there is an overriding prohibition that would otherwise limit that exercise of power. 

If I were to be wrong about that then, taking up your Honour Justice Gageler’s point about a small “c” constitutional case but perhaps elevating it to a large “C” constitutional case, there would, in our submission, be a real question as to whether section 61 of the Constitution itself in providing – and I pause to note there is no 78B in relation to this – but this is a point that has not really emerged until the hearing.

I say I do not need to get there, but if we did need to get there we would wish to be heard on whether the question of a Commonwealth officer acting in execution and maintenance of Commonwealth criminal law obtains, again subject to the question of any overriding statutory prohibition, sufficient capacity to use property in an investigation and prosecution of an offence. 

Obviously Williams does not rule out the idea that there are some exercises of executive power that do not require a statutory underpinning where what is occurring is non‑coercive, which is what I am talking about, and avowedly connected to the execution and maintenance of Commonwealth criminal law, it may well be that section 61 provides that capacity.

We have not issued a 78B.  That argument is an alternative and contingent argument and I say is not reached but in the event that the Court thinks it appropriate we can issue a 78B and would be – would wish to provide further written submissions in support of the point if the Court - we get to that stage. 

All of that was subject to the question of a prohibition and the asserted source of the prohibition appears to be 3ZQU.  This intersects to a significant extent with what I will call the Johns argument, which in my submission does not assist our friends.  The reason it does not assist our friends is that Johns is about the use of material obtained by an exercise of coercive powers for unauthorised purposes. 

But, as a number of your Honours put to my friends – and as indeed Mr Lloyd conceded near the end of his submissions – the use that the first defendant seeks to make of the material seized is the very use that is contemplated and authorised by ZQU(1)(a) and (k) or would be if ZQU(1)(a) and (k) applied.

Now, we have construed the scheme in such a way that that provision only deals with the use of material that is lawfully seized under the part.  If the material is lawfully seized under the part, then we have no problem because the use is clearly authorised by those two paragraphs.  If the use is not lawfully seized under the part, then we are not within ZQU at all, in our submission.  It has not been seized under the part. 

So it is difficult to see how that provision could then provide a statutory foundation for the statutory cause of action that our friends assert.  They want it to apply for some purposes but not others.  They suggest that it applies so as to limit the use of material that was not seized under the part, but then does not give us authority to use it for the identified purposes.

GAGELER J:   Mr Solicitor, one understanding of the argument that was put is a little wider than that and it would be to the effect that Part 1AA, subject to the application of other laws that it acknowledges in section 3D, is to be read in effect as a code governing search and then use of material obtained in a search, which is either complied with or not complied with, but in the absence of compliance you would not read that more general powers, to which you have referred us in the AFP Act, as allowing to be done that which is not permitted under this code, sort of an Anthony Hordern analysis.  He did not quite put it in those terms ‑ ‑ ‑

MR DONAGHUE:   No, no.

GAGELER J:   That might be the best way of putting it.

MR DONAGHUE:   Indeed.  So the prohibition is wider.  Two things I would say – well, the main answer I would make in response to that is to direct your Honours to subsection (4) of ZQU because, to the extent that ZQU(1) defines the boundaries of the kinds – or is said to define the boundaries of permitted use, Parliament in subsection (4) has rather denied that the provision should be read in that way.  So having cut down the AFP capacity one would collide, in my submission, with what Parliament said in subsection (4).

GAGELER J:   Do you point to a law?

MR DONAGHUE:   I can only point expressly to the AFP provisions that I mentioned earlier.  They are the ones I had in mind.  But more generally, in our submission, and I touched on this briefly yesterday, the purpose served by 3ZQU, in our submission, should not be overstated.  As your Honours would know, if one looks at the current Part 1AA, which is an extremely detailed and prescriptive regime extending over dozens, I think it may have even have reached 100 pages, and compares it to what came before in section 10 of the Crimes Act, which was quite similar to 3E in many respects but did not have any of the surrounding apparatus and had no equivalent to this provision, it cannot be right that when people seized information under a search warrant under section 10 of the old Act they could not use the material that they had seized for want of an express grant of statutory authority of the kind one finds in 3ZQU. 

So, it would be surprising if a more comprehensive regime having been enacted, a capacity that was there before has vanished.  It may be that the capacity is being regulated but, in my submission, the primary purpose of 3ZQU is to assist in answering the Johns analysis.  Johns says, well, if you get things pursuant to a coercive – exercise of coercive powers, you can only use them for particular purposes.  What purposes are those? 

You might easily arrive at (a) without much assistance from Parliament but what ZQU is doing is indicating that the purposes authorised with material obtained by coercive process go beyond (a) and include all of the other things that are there in - so that one cannot – it answers the kind of argument that Justice Brennan identified in Johns and the Court subsequently picked up by setting out quite clearly what it is that Parliament contemplated could be done but it does not, as subsection (4) makes clear, purport to subtract from other capacities that would otherwise have existed. 

To suggest otherwise would be to cut rather dramatically across the Bunning v Cross‑kind of issue.  I will back up and start that again because I have not been clear.  If it be said that there is no capacity for AFP officers to use seized material unless – in the way identified in 3ZQU then it is hard to see how you could ever get a Bunning v Cross issue arising in relation to unlawfully seized material at the Commonwealth level because once material was unlawfully seized that would be it.  The police could not do anything with it as a matter of capacity.  It is not then a question of discretionary refusal or of relief or otherwise. 

Your Honours would be saying you just cannot use it because you do not have the inherent capacity to do so and that would have the result of entirely sidelining the Court’s recognition in that line of authorities in 138 that there are competing public interests at play where material has been unlawfully obtained through the use of coercive powers.  I respectfully submit I cannot do better than the way your Honour Justice Bell identified some of these issues in an exchange with Mr Lloyd.

Once one recognises that unlawful obtaining of material has not for 50 years been treated as decisive of the question of what can be done with it, in my submission your Honours should not readily accede to the idea that the proper construction of Part 1A is to foreclose the use of this material separately from a 138 exercise or, indeed, that it is to cut down the functions of the AFP in such a way as to prevent them from using material in a non‑coercive fashion that they had otherwise obtained.

GAGELER J:   There is nothing in the extrinsic material relating to the introduction of Part 1AA that assists, is there?

MR DONAGHUE:   Your Honours, I have not looked at it since the issues have evolved and so I cannot give your Honour a confident answer to that conclusion.

KIEFEL CJ:   Mr Solicitor, do we take it from these submissions that you are saying that, given section 10 of the old Act and an absence of express authority, that one assumes there is authority in some other legislation?

MR DONAGHUE:   Well, supportive of my submission about the AFP Act – yes, that one has ‑ ‑ ‑ 

KIEFEL CJ:   Is that the way one approaches it or does one approach it on the basis that the 50 years of dicta about the use of unlawfully obtained material would always give rise to the denial of the refusal of an injunction, therefore, questions do not arise, or is it a combination of both?

MR DONAGHUE:   I think it is a combination, your Honour, because ‑ ‑ ‑

KIEFEL CJ:   So you have to have authority anyway?

MR DONAGHUE:   That seems to me to be the way the argument has been developed.  So it would seem to be a possibility from the capacity limb of the case that your Honours could, before the plaintiffs on the invalidity of the warrant could, before the Commonwealth on the discretionary refusal of relief and that nevertheless, having left the material in the hands of the police, they could not do anything with it.

That would be a strange outcome, in my submission more than strange, because really without holding that all of the cases I took your Honours through on question (4) yesterday are wrong per incuriam, adding that those cases do not make sense if there is no capacity to advance the public interest that the Court held should prevail, but in my submission, they are not per incuriam because while they have not dealt expressly with the question of capacity the AFP Act sufficiently provides it or, if I need to go there, section 61 would do so.

BELL J:   But without going to section 61, your contention with respect to the operation of 3ZQU is that prior to its enactment an officer of the AFP, having seized material pursuant to a warrant lawfully obtained under the Crimes Act in the ordinary discharge of the officer’s functions under the AFP Act was able to use it for the purposes of the investigation and transmission to the DPP and the like.

MR DONAGHUE:  Yes.

BELL J:   And that the enactment of 3ZQU did not cut down the powers that a police officer exercised under the AFP Act in relation to the seizure of material.

MR DONAGHUE:   That is my submission, supported strongly by subsection (4).

BELL J:   Yes.

MR DONAGHUE:   But what 3ZQU might have done is expand it – what the officer could do with that material by allowing it to be given to other people and used in other ways.  That is how we put it.  I think,

your Honours, that is all I would seek to say in response to the submissions Mr Lloyd has made this morning, save to note that on the issue of costs – pardon me for a moment, your Honours.  In our submission, the first point is that the Attorney‑General, as an intervener, would not ordinarily be subject to adverse costs orders and, in our submission, any costs order should be made only with respect to the first defendant rather than the Attorney intervening.

The second point is that, advancing this submission only on behalf of the first defendant, there were, as your Honours know, a lot of issues in play in this litigation.  It may be that the Court will find that many of them were unnecessary to decide.  The validity of the warrant and associated relief has, plainly, been fully ventilated and costs should follow the event.  In relation to that topic, on the question of the wider challenge to section 79, some of the exchanges yesterday would suggest at least a question as to the extent to which that issue was right.  If the Court concludes that it is not appropriate to answer that question on that basis, that it is not apparent why the first defendant should pay the plaintiff’s costs in those circumstances, in my submission, it would be so. 

GAGELER J:   You did not raise any argument against the Court entertaining the argument.

MR DONAGHUE:   No, that is so.  I accept that to be true.  But there are, as your Honours know, cases where the Court will decide it is appropriate to apportion depending on the resolution of issues.  Here, as the last day and a half’s argument has demonstrated, it has been perfectly possible to argue about a large part of the case without entering into the difficult questions of construction and validity that otherwise arise.  But, that is all I seek to say on that topic.  If the Court pleases.

KIEFEL CJ:   Thank you, Mr Solicitor.  Yes, Mr Lloyd.

MR LLOYD:   Can I start by saying a couple of things about what my friend has just said and then I will address some things that arise from yesterday?  My friend noted a couple of examples – and I could well have not appreciated – I think my friend did not answer this or I may have missed it – the undertaking was made from 18 June.  Your Honour asked for that.  The current undertaking was made on 18 June.  There may have been an earlier form of it on 4 June.  My friend gave the Great Train Robbers example and the car thief example.  We would say, yes, the owner of the car and the owner of the dish obviously have property rights in them but there is no reason the police, in those examples, could not get a warrant to take those properties.  That is what is meant to happen and we do not see where that leads anywhere. 

Then there is the complex and kind of grey question as to what happens – what is the status of things that are unlawful but a court will not grant an injunction to stop it happening.  It is not only in this area that it happens, it happens quite a lot in the migration area where relief is refused – maybe someone is being removed and they ask for an injunction to prevent their removal but there are strong discretionary reasons why relief should be refused.  And if the relief to prevent the removal is declined then a person can be removed.  I mean, it is lawful? That is a kind of chicken and the egg type question, but if a court will not prevent it then it happens and there is nothing different here.

So we would say on our view – on our ‑ this is the Part 1AA basis for an injunction – if we are right that there is an implied prohibition or absence of power that we are trying to enforce, and the court says, no, there is a basis to exercise a discretion not to prevent that, that is the court not sanctifying the continued use but it would mean that the attempt to stop the use has not be successful and then the police would in fact be able to continue to use it and potentially deploy it in proceedings.  And at that point the Bunning v Cross discretion could then be engaged in the circumstances of the case. 

We accept that that is what would happen here if the Court refused relief.  It does not mean ‑ so, if the Court accepts an implied prohibition but thinks there is a reason for refusing relief nonetheless, then we accept that that would mean that, although it would be unlawful to use it, we would be unable to prevent them from using it for whatever the reasons are that justify the non‑granting of the injunction.  So that is just the same as every other area, whenever a ground is made out but relief is refused in a discretionary case, that means, at least in an administrative law context, the thing is unlawful but it is going to happen anyway.  And we say there is nothing surprising or difficult about that; at Caratti (No 3) it is just Justice Wigney acknowledging that if he does not grant relief, then it will not be able to be used.

In terms of section 3ZQU, obviously my attempts this morning were not as successful as I wanted to when explaining our position, but I tried to say that we did not say the implied prohibition came from 3ZQU, we said 3ZQU was what you could do.  It came from the entire scheme, from having a scheme which involves the granting of a statutory power with limited uses.

Now, my friend says it cannot be understood as a code, or that implication should not be drawn because of 3ZQU(4), but we actually say that 3ZQU(4) is rather supportive, rather than damaging, of the proposition.  It does not, for example, say, well of course if you can do this thing under common law you can keep doing it.  Unless laws of the Commonwealth is going to be unusually construed to include the common law, it does not embrace any possibility.  It talks about other uses which are authorised.

An example of another use which is authorised is section – I will just refer the Court to it, section 488AA of the Migration Act which says this is another use that you can use things for that have been acquired under Part 1AA.  We say that is the function of 3ZQU, it does not otherwise present a difficulty at all for our argument that that is a basis for relief.

Now, in relation to the matters that arose yesterday, and I will address first the question of the warrant invalidity arguments, we say that it is not clear to us how big the gap is between the client’s view of the law – my client’s view of the law and the Commissioner’s view as to a matter of principle.  The Solicitor‑General seemed to say that the particularity of the statement of offence for an indictment was different from and more detailed than when it is for a search warrant.  We agree that there is a difference between what you do in an indictment and what you would put in a search warrant.

He said ‑ and we said that already ‑ he said that the statement of offence played a role in determining the scope of the search.  We also agree with that.  He noted that there have been cases where search warrants with fairly short statements like murder or possession of firearms have been found to be valid statements of offences at least when combined with the numbers of sections.  We do not deny that.  We do not say that that is against that.  That is because those offences are offences of the kind where one can tell the kind of offence involved by a very short statement.

Our invalidity case relies upon two features.  Both section 79(3) in conjunction with 79(1) gives rise, we say, to many different iterations of offences.  In particular there are many ways in which information may be prescribed and these are all imported into 79(3) by the use of the word prescribed.  We say that the warrant in this case did not provide sufficient particulars to indicate the asserted route or routes accepted by the magistrate.

So if the magistrate is satisfied under section 3E(1) for an offence – sorry, of an offence – by say one of 20 possibilities, or 20 alternative permutations that are available, then the magistrate should state the offence in a manner which identifies that one.  He should not state an offence that in effect embraces every possible permutation of section 79(3) because that means he has been satisfied of a relatively narrow kind of offence – could be suspected – but then expresses it in much broader terms, and we say that that is the exact kind of thing that cannot be done, and in this case was done by inadequate statement of the offence. 

Now, one point around transcript line 2636, the Solicitor‑General looked like he was going to agree that the statement of offence in 3E(5)(a) should match the offence that satisfied the magistrate under 3E(1) but he at that point pivoted to say that it was really 3E(5)(c) and not (5)(a) that really constrained the scope of the search. 

We say that both provisions have an important role in that respect.  The magistrate should identify the kinds of evidence accepted as likely to be present as evidence in the particular offence that is suspected of having been committed.  This does not require the warrant to reflect everything that went to the formation but it should be narrowed to the offence that the magistrate accepted. 

Secondly, and in any event we had a second way of saying that the warrant did not state the offence which was that the reference to “not in the interests of the Commonwealth” was posited in a way that is not consistent with the offence, it could then mislead the executing officer and Ms Smethurst for the reasons given it and none of the ‑ the notion of surplusage that is referred to in Corbett at 107 ‑ and I refer the Court to the second sentence there ‑ we say that that is inapposite here, or rather is apposite because it is not surplusage, it is something which tends to make the offence not intelligible or ambiguous.  That is how we put that.

Now, my friend said that accepting our position would involve overturning a long line of cases.  We say complicit in what we have submitted that we contest that submission.  Certainly the argument that the statement of the offence was flawed because of the misleading element is untouched by any of the cases the Commissioner took the Court to.

As to the level of particularity issue, we accept that it depends on the nature of the offence involved.  We gave emphasis to Cloran because it emphasised similar circumstances and a similar complex provision.  We do not accept that Beneficial Finance or the cases cited in it are inconsistent with the cases we cite or we advanced or would lead to a different result in Cloran.

Beneficial Finance was considered in Corbett, which provided the statement of principles we relied upon.  We also relied upon in our written submissions a judgment of Justice Hely in a case called Williams v Keelty, which is at tab 66, volume 7 of the joint book, at page 2557 ‑ 67.  So from paragraph 135 and following there is a discussion of the cases, including Beneficial Finance.  Then at 140 his Honour looks at the search warrant in that case.  In that case the particularisation was in the terms of:

an offence against s 184(1) ‑

And certainly one of the points of concern seemed to be that it did not even mention the law.  But his Honour did not say that that is all it needed.

KIEFEL CJ:   You mean it did not state the Corporations Act?

MR LLOYD:   It did not state the Corporations Law, yes, your Honour.  His Honour says in 140:

That requirement is not satisfied by the provision of information falling short of such a statement, but which might enable a person reading the warrant to deduce or infer what offence is intended.  The statement “an offence against s 184(1)” is simply meaningless.  But if the warrant clearly sets out in terms the substance of the offence to which the warrant relates then s 3E(5)(a) will have been complied with even if the name of the Act and the section number by which the offence is created is not disclosed in the warrant.

So, it is the substance of it.  Then, he goes on to identify that there was another offence which had multiple different kinds of elements and could be established in different ways.  The substance of the offence, we say, is understood as identifying how the offence pertained in that case.  We say that that is a case which is post‑Beneficial Finance which is entirely consistent with our case.

My friend took the Court to other cases.  If I just mention a few things about them.  The Court does not have a copy of it but there is a case of Lee v Commissioner of Taxation [2017] NSWSC 1594. My referred to a passage in paragraph 110 which started saying something like:

Here, at a minimum, what was required was for a short description in plain words of the substantive offence.

The court found that the warrant was invalid because it did not even have that.  So, it did not even say the section number.  It was not stating a principle about what would have been sufficient.  It was saying it did not even have something which one might have expected in every case as a minimum to even start the analysis.  What it says in the immediate preceding paragraph is ‑ this is to quote:

Clearly what is required is for a searchable offence to be nominated with sufficient description or particularity to enable the person in receipt of the Occupiers Notice, and/or the warrant, to understand what is being searched for and to understand the limits of the search.

That is entirely consistent with the matter we have advanced.  My friend referred to a case called Majzoub (2009) 195 A Crim R 63. He referred the Court to paragraphs 54 and 55 which indicated that an expression in the words “supply prohibited drug” or “possess prohibited drug” might be sufficient. All I note is that in the very next paragraph, the Court said:

No argument has been raised in these proceedings that those particulars in the warrant were ambiguous, vague or obscure.

So, it just was not a case about the question of particularity in that sense.

Similarly, my friend took the Court to a case called Gassy (No 3).  We would just say that if the Court looks at paragraph 53 as to what were the grounds in that case, one sees that it too was not a case focused on this same point.  My friend took the Court to a High Court decision in Gollan, which is in tab 28 at pages 43 to 44 of that work, there is a sort of a brief obiter mention of the point, and it refers to another case called Malone.  So what is said there, I think the Court says something like, there is no suggestion that there is going to be a prosecution in this case, and then in the next sentence says, where there is a prosecution that can be an important basis for refusing relief, that is the effect of it, and refers to Malone.

Well, in Malone there was a prosecution.  We accept that if there is a prosecution on foot commenced, as there was in Malone, that is important.  It does not follow that the mere existence of the possibility of a prosecution is to be equated the same weight as an existing prosecution.  That is what I wanted to say in reply to question (1).  Now, in relation to question (4), the exercise of the discretion point rather than the existence of the power point, I would say that the Commissioner seemed to characterise our position as being that there is a discretion to refuse relief if criminal proceedings are pending but otherwise there is no discretion.  That was, we say, never our submission.

We indicate that injunctive relief we seek is discretionary, that has nothing to do with the relief we seek being a destruction or non‑use of data.  Even if the unlawfully seized document was physical, an order to return the document would also be discretionary.  The Commissioner accepts this and argues for an outcome whereby the Bunning v Cross‑type consideration is an important consideration in every case; that is as we apprehend how they put it.

Our case or our argument started with the proposition that the prima facie position is that if the warrant is invalid there is an entitlement to relief.  That is said in Puglisi which is at tab 61, page 2397 of the book which is page 403 under the heading “Discretion”:

Prima facie the applicants are entitled to have the items seized pursuant to an invalid warrant returned to them.

So that is, we say, at least, the starting point in each case.  Now, from that starting point, we acknowledge that the court has a discretion to refuse relief.  We impliedly acknowledge that considerations favour of removal are greater – sorry, of refusal of relief are greater when there are pending proceedings and as much is said in Puglisi on page 405 of the report which was a case where there was a proceeding pending.

We also acknowledge that even when criminal proceedings were not pending, in an exceptional case, relief might also be refused and, in our submissions, in footnote 19 of our reply we identify two cases where there were exceptional matters and we explain why we say they were exceptional.  They are certainly not like this case.  One of them was Caratti.  Even then in Caratti, that was a lawful warrant case, it was not an unlawful warrant case, it was an unlawful execution of the warrant case, there was actually a return of the material but after it was allowed to be copied as it would have been if the execution had have been done lawfully.

The learned Solicitor‑General has at least hinted that a referral to the DPP is proximate.  He seemed to go so far as to ask the Court to infer that the only reason a brief has not been referred to the Commonwealth DPP is the inability of the police to review the seized material. 

We say that the Court should not make that inference.  There is no agreed fact to that effect.  It does not arise, we say, from an available inference from the facts in the special case.  The facts suggest that an investigation has commenced – that is at paragraph 14 of the special case.  We know that there is not yet a decision whether or not to refer a brief of evidence to the DPP.  We know consideration is being given to that but we do not know what, if any, significance seized information has to that decision.

In any event, we say that a referral of a brief of evidence is still short of the commencement of criminal proceedings.  This is especially so where, as in a case of this provision, the Attorney‑General personally has to decide whether or not to allow charges to be laid under section 79(3).  This omission it seems is said to add weight to the contention that injunctive relief should be refused – that is, the proximate possibility of criminal proceedings.  We submit that it is not enough that there might be a prosecution in the future. 

If that were sufficient, it would be asserted to be an answer in effect to every delivery up case, every unlawful search warrant case, because virtually all of them are going to have the possibility of a prosecution in the future.  The mere existence of a Bunning v Cross discretion down the track, if required, we say is not enough and has not been held to be enough in itself.

The discretionary factors which the Commonwealth ultimately relies upon, as we understood them, are that the offence being investigated and considered by the AFP is serious.  We accept that it falls within the definition of “serious” under the Act, albeit at the very bottom end of the range of serious offences.  They rely upon the fact that the police acted in good faith when undertaking research.

We accept that, that is an agreed fact, but it was nonetheless an unlawful search.  We would say that if there was bad faith ‑ so a knowing disregard of the law ‑ that would be something that positively suggested that relief should not be refused.  We do not say that the absence of bad faith, in the context of an unlawful search, is something in favour of refusal of injunctive relief.

The third factor is while criminal charges are not pending they may not be far away.  We say that that is another iteration of the same notion as the Bunning v Cross‑type iteration, that because it is a possibility it should be allowed for that court to determine the uses of the material.  And then, the “c” starter is potentially very significant, it is said or suggested, to the charges, and we say that there is no basis for those matters.

Another point is that almost all of those matters would apply – certainly in any serious offence case ‑ would apply in those cases.  That there would be an ability, especially if the content of the data is not known, to say it might be very important.  There might be a criminal prosecution.  There might be an opportunity for Bunning v Cross, and there was not actual bad faith.  That would make the starting position essentially that relief should be refused, but we say the starting position is the opposite:  that something to justify the refusal of relief should be identified and we say that the Court should be satisfied on the material before it that nothing has been advanced or identified that justifies the refusal of the relief we seek. 

Another way of seeing how this matter could be seen as being a sort of a “stalking horse” for the ability of the police to in essentially every case to retain the benefits of any sloppiness or unlawfulness in acquiring lawful authority to get a search warrant was when your Honour Justice Nettle at line 3187 put to my friend:

if it is to be dealt with at all it would be when it is sought to be tendered ‑

The Solicitor‑General was happy to adopt that proposition but that proposition is one which would be available in any case where prosecution was a possibility.  We say that the Court should not accept that that is an appropriate basis to refuse relief.

The Court was referred to some US authorities.  We say that your Honours will see the starting point and the end point as very different in those cases.  The Court was referred to a New Zealand case which does not seem to identify, or at least pay any significance to the fact that the invalidity of the warrant means that the underlying conduct was unlawful.  That is all I wanted to say about that which then leaves me with the question of the relevance of the constitutional challenge to the relief flowing from the warrant invalidity.  I have addressed the Court on that topic and I do not propose to repeat any of what I have said.

We say that in the circumstances where no reading down at all has been posited by the Commonwealth, we could challenge the whole provision, but if it was to be posited, as it could well be, that section 79(1)(c) in combination with section 79(3) was sufficiently targeted not to infringe the freedom of political communication ‑ now they have not suggested that but if they were to suggest that then that would not make the question of constitutional invalidity a problem because we unambiguously do not fall within the 79(1)(c) limb and the Commonwealth explanation of how the provision could apply to my clients does not rely upon the section 79(1)(c) limb.

If it were posited that there was a reading down available that all political communications were excluded, first of all, it would then basically gut the entire provision and there would be nothing left.  But even if we were wrong about that and that reading down is possible, then we would say that the effect of the agreed facts is that our communication was within the concept of political communication.  So we would be outside of that, which means that we should be entitled to argue for the invalidity of it even on that reading down.

I have already addressed why my client has sufficient standing.  I will not repeat that.  I have said why a declaration of invalidity would have foreseeable consequences.  We say that that is at least so if the Commissioner is entitled to retain and use the seized data.

There is one further point that I would add to my other submissions about that which is that, if the Court considers that injunctive relief should be declined in whole or in part on the basis of the Commonwealth’s submission that the material copied from Ms Smethurst’s phone may be tendered in a future prosecution of the plaintiffs for a breach under section 79(3), which is one of their main discretionary points, then our constitutional argument would attack the weight of that consideration because, if section 79(3) was invalid in any possible application to my

client, that submission would be given no weight.  We would say that is another basis upon which we should be allowed to advance that constitutional argument.

Finally I would say, if the Court does not want to hear us on question (3), and also if the Court were to decide question (1) adversely to us, which is to say upholds ‑ does not give us even the certiorari, finds that the warrant was lawful, then question (2) which deals with the 3LA order or something which has not been addressed, then it would come into play.  We accept that if the warrant is invalid, the invalidity of the 3LA order does not give us any better discretionary argument or any better case for relief.  But if the Court found against us on the warrant, then we would say we are entitled to be heard in relation to the section 3LA matter. 

May it please the Court.  On the matters we were allowed to address, they are our submissions. 

KIEFEL CJ:   Thank you.  The Court adjourns to a date to be fixed to consider and determine the arguments thus far presented.  The Court will now adjourn until 9.45 am tomorrow. 

AT 12.43 PM THE MATTER WAS ADJOURNED