Re Wayne Ryder; Evelyn Amy Ryder; W Ryder & Co; Thor Nickel Exploration Pty Ltd; Franco Austral Exploration Pty Ltd; Raffindale Pty Ltd and Taksan Pty Ltd v Theodore Richard Morley; James Kenneth Mclaren and National Crime Authority [1987] FCA 5 (19 January 1987)

FEDERAL COURT OF AUSTRALIA

Re: WAYNE RYDER; EVELYN AMY RYDER; W. RYDER & CO.; THOR NICKEL EXPLORATION
PTY. LTD.; FRANCO AUSTRAL EXPLORATION PTY. LTD.; RAFFINDALE PTY. LTD. and
TAKSAN PTY. LTD.
And: THEODORE RICHARD MORLEY; JAMES KENNETH McLAREN and NATIONAL CRIME
AUTHORITY
No. WA G78 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Administrative Law - judicial review - motion seeking discovery and interrogatories of an information used to obtain a search warrant - whether the issue of the warrant was a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies - use of interlocutory procedures under the Judicial Review Act - s.13 statements - challenge of warrant valid on its face - "fishing" interrogatories and discovery - public interest privilege

Administrative Decisions (Judicial Review) Act 1977 ss.5, 13 and Schedule 2

Crimes Act 1914 s.10

HEARING

PERTH
19:1:1987

Counsel for the applicants: Mr. D.H. Solomon instructed by Messrs. Phillips Fox.

Counsel for the respondents: Mr. E.M. Heenan, Q.C. abd Mr. P. Macliver instructed by Australian Government Solicitor.

ORDER

The applicants' notice of motion filed 17 December 1986 is dismissed with costs.

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

DECISION

On 12 December 1986 I delivered reasons for judgment in respect of a number of challenges made by the applicants under the provisions of the Administrative Decisions (Judicial Review) Act 1977 to a search warrant issued by the first respondent to the second respondent. I rejected those challenges and as a result the only ground of application remaining to be argued was as follows:

"5. There was no evidence or other material to justify

the making of the decision."

2. As a prelude to the hearing of that ground the applicants filed a motion seeking discovery from the respondents of all documents relevant to issues arising under para.5 of the application and also seeking leave to interrogate the first respondent and the second respondent regarding questions asked by the former and answers given by the latter at the time of the issue of the search warrant. It is this motion which is now before the Court.

3. The respondents object to giving discovery or to answering interrogatories. I shall deal with the various grounds of their objection but underlying them is a contention that the decision of a justice of a peace to issue a search warrant pursuant to s.10 of the Crimes Act 1914 is not a decision to which the Judicial Review Act applies. In view of the number of occasions on which the Federal Court has reviewed decisions to issue search warrants, counsel for the respondents acknowledged that the present weight of authority in this Court was against the contention. In consequence the matter was not debated, the respondents simply seeking to keep their argument alive in case the matter should go further.

4. The respondents' submissions against orders for discovery or interrogatories may be summarised in this way:

1. The Court having determined that the search warrant is valid

on its face, there is no basis for challenging the validity
or propriety of the warrant, at any rate in the absence of
any allegation of dishonesty or bad faith.

2. Paragraph 5 of the application is based on para.5(1)(h) of

the Judicial Review Act. When the application was lodged,
there was nothing known to the applicants to support para.5,
hence discovery and interrogatories can only be regarded as
"fishing" by the applicants for information to support a
ground of application that is otherwise insupportable.

3. The evidence and material sought to be obtained by discovery

and interrogatories necessarily relate to investigations
carried out by the second and third respondents into possible
offences committed by the firstnamed applicant and another.
As such it is protected by the public interest immunity
covering investigations into possible criminal offences and,
so long as those investigations are continuing, the Court
should withhold access to that evidence and that material.

5. There is no bar in the Judicial Review Act, express or implied, to the use of interlocutory procedures. Certainly discovery has been ordered in such applications. For a recent illustration, see the decision of Wilcox J. in Nestle Australia Ltd. v. Federal Commissioner of Taxation (1986) 67 ALR 128, affirmed by a Full Court on 5 November 1986 - Commissioner of Taxation v. Nestle Australia Limited. There are however some features of the Judicial Review Act that tend to place interlocutory procedures in a somewhat special category. In part this springs from the requirement in s.13 of the Act that, where a person makes a decision to which the section applies, that person may be required to furnish a statement in writing setting out findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. Where a statement has been furnished (and in the ordinary course relevant documents will be referred to and sometimes attached), it may be apparent that discovery and interrogatories will serve no useful purpose. That is not to say that a s.13 statement is a substitute for interlocutory procedures. As is mentioned later in these reasons, each serves a different end. It is simply that in particular circumstances it may be apparent that the issues before the Court may fairly be determined without discovery or interrogatories. The s.13 statement may be sufficient for this purpose.

6. Furthermore, because s.5 spells out the grounds upon which the Court may review a decision, this Court has declined to allow an applicant, in the absence of some evidence to support a ground, to obtain discovery in circumstances that may truly be described as fishing. See for instance W.A. Pines Pty. Ltd. v. Bannerman (1980) 30 ALR 559.

7. Schedule 2 to the Judicial Review Act identifies the classes of decisions that are not decisions to which s.13 applies and that are therefore not decisions in respect of which a statement in writing may be required. The classes of decisions include:

"(e) decisions relating to the administration of
criminal justice, and, in particular -

(i) decisions in connection with the
investigation or prosecution of persons
for any offences against a law of the
Commonwealth or of a Territory;

...

(iii) decisions in connection with the issue
of search warrants under a law of the
Commonwealth or of a Territory".

Counsel for the respondents argued that the exclusion from s.13 of the types of decisions mentioned in class (e) was a clear indication of the intention of Parliament that material relating to those decisions was not available to anyone challenging such a decision. Counsel for the applicants argued that, on the contrary, discovery and interrogatories were all the more necessary when a person wishing to challenge a decision could not require from the decision-maker a statement of his reasons. I do not infer from s.13 and Schedule 2 some clear legislative policy in regard to the use of interlocutory procedures, whether by way of countenancing or precluding them. As the Full Court pointed out in Commissioner of Taxation v. Nestle Australia Limited at 16, discovery and inspection of documents fulfil a quite different role to that of a s.13 statement.

"They are processes of the Courts by which a party may
obtain from the opposite party documents relating to
issues between them for the purpose of preparing for
the trial of the action. A s.13 statement and the
Court's powers in relation to discovery and inspection
are of a basically different nature and different time
scales apply to them."

The same may be said of interrogatories.

8. In my view the applicants' motion falls to be determined, not in accordance with some inflexible or overriding principle, but rather in accordance with the circumstances of the particular case. It is apparent from the affidavit of the second respondent sworn 9 September 1986 that he presented the first respondent with an information and a search warrant which had not then been issued or signed. It is also apparent from the affidavit that the first respondent swore the information before the second respondent and that he (the second respondent) answered a number of questions asked of him by the first respondent relating to the information. There is also evidence from the first respondent, in an affidavit sworn 9 September 1986, that he was satisfied that there were reasonable grounds for issuing the warrant.

9. There are two grounds upon which the applicants' motion should be denied. The first is that on the material available to the Court there is no suggestion of any dishonesty or bad faith on the part of either of the first or second respondents. The search warrant has been held to be valid on its face and, in these circumstances, to permit the applicants to seek discovery and administer interrogatories must necessarily permit them to embark on a fishing expedition. Counsel for the applicants did not offer, by way of evidence or argument, any justification for the proposition that there was no evidence to support the issue of a warrant. Secondly, the only document to which any express reference has been made is the information which, I am told, contains details of the investigations being carried out by the second and third respondents. If there are other relevant documents in existence, it seems inevitable that they too must relate to those investigations. Equally, interrogatories directed to conversations between the first and second respondents at the time of the issue of the warrant must bear on the investigations being conducted.

10. Counsel for the applicants argued that questions of privilege do not arise at this stage. In his submission, the applicants should be permitted to seek discovery and administer interrogatories, at which time it would be appropriate for the respondents to take objections on the ground of privilege. In some situations this submission would have much force but in the circumstances of the present case it has none. The reasons why it has none are that the motion is fishing in its nature and that, on the face of it, any documents discoverable and any interrogatories likely to be administered would bear on the course of police investigations. It is, I think, inappropriate in those circumstances that there be any order for discovery or for leave to administer interrogatories.

11. The motion will be dismissed.