Samsonidis v Commissioner, Australian Federal Police [2007] FCAFC 159 (5 October 2007)

Last Updated: 5 October 2007

FEDERAL COURT OF AUSTRALIA

Samsonidis v Commissioner, Australian Federal Police [2007] FCAFC 159

STATUTES – Interpretation – Statutory prohibition on communication of information obtained as a result of lawful interception of telephone conversation – Exception to prohibition – Exception where communication for purpose "connected with" investigation etc – Connotation of "connected with" in this context – Whether a purpose to aid a different, but similar, investigation etc sufficient.

STATUTES – Interpretation – One statute prohibiting communication of information, another statute providing for Minister to authorise transmission of document – Whether authorisation under second statute overrides prohibition in first – Whether second statute implicitly permits contents of authorised document to be explained in later unauthorised document containing communication subject to prohibition by first statute.

EVIDENCE – Onus of proof – Statute containing general prohibition followed by exceptions – Locus of onus of proof with respect to applicability of exceptions.



Federal Court of Australia Act 1976 (Cth), s 21
Mutual Assistance in Criminal Matters Act 1987 (Cth), s 13
Telecommunications (Interception) Act 1979 (Cth), ss 5, 63, 67


Chugg v Pacific Dunlop Limited (1990) 95 ALR 481
Commissioner, Australian Federal Police v Samsonidis [2007] FCAFC 54; (2007) 158 FCR 276
Darling Island Stevedoring and Lighterage Co Limited v Jacobsen [1945] HCA 22; (1945) 70 CLR 635
Day v Commissioner, Australian Federal Police [2000] FCA 1272; (2000) 101 FCR 66
Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285
Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512




DIMITRIOUS SAMSONIDIS v THE COMMISSIONER, AUSTRALIAN
FEDERAL POLICE
VID873 OF 2007

GRAY ACJ, JESSUP & MIDDLETON JJ
5 OCTOBER 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID873 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DIMITRIOUS SAMSONIDIS Appellant
AND:	THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE Respondent

JUDGES:	GRAY ACJ, JESSUP & MIDDLETON JJ
DATE OF ORDER:	5 OCTOBER 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. There be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID873 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DIMITRIOUS SAMSONIDIS Appellant
AND:	THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE Respondent

JUDGES:	GRAY ACJ, JESSUP & MIDDLETON JJ
DATE:	5 OCTOBER 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1 Before the Court is an appeal, the hearing of which was expedited, from a judgment of the Court given on 7 September 2007, in which the appellant’s application for declarations, injunctions and administrative law remedies in relation to the provision by the respondent of certain materials to the criminal justice authorities of Greece was dismissed. As amended, the appellant’s notice of appeal takes issue with one aspect only of the decision of the trial judge, and in these reasons we shall advert only to so much of his Honour’s reasons for judgment as is necessary to deal with that aspect. As will appear, the appeal was heard, and we have been obliged to determine it, in circumstances of some urgency, which has made it necessary for us to confine our reasons to the minimum necessary adequately to dispose of the single ground relied upon by the appellant.

2 The appellant is in custody in Greece, awaiting trial on charges of importing a drug of dependence, trafficking in a drug of dependence, possessing a drug of dependence for the purpose of trafficking, attempting to possess a drug of dependence, money laundering, possessing a firearm and possessing the proceeds of crime. At the time of the hearing before the trial judge on 3 September 2007, the appellant’s criminal trial was listed to commence in Athens on 10 September 2007, but, for reasons unconnected with the present proceeding, the commencement of that trial was adjourned, and is now listed for 5 October 2007.

3 It seems that, in October and December 2006, the criminal justice authorities in Greece made a mutual assistance request – which activated the operation of the Mutual Assistance in Criminal Matters Act 1987 (Cth)("the MACM Act") – to the Australian Federal Police ("AFP"), of which the respondent is the Commissioner, in relation to the Greek investigation into the involvement of the appellant, and one other, in various activities said to be criminal, including drug trafficking and money laundering. As a result of that request, the AFP sent certain documents, and provided certain information, to the Greek authorities, including that set out in, and enclosed with, a letter dated 19 June 2007, to the terms of which we shall refer further. In the proceeding before the trial judge, the appellant contended that one of the enclosures to that letter contained information thereby communicated to the Greek authorities in breach of s 63(1)(a) of the Telecommunications (Interception and Access) Act 1979 (Cth) ("the TIA Act"). The respondent contended, both before the trial judge and on appeal, that there was no contravention of s 63(1)(a) because –

1. the communication fell within the exception for which s 67(1)(a) of the TIA Act provides; and/or

2. the communication constituted no more than a clarification or explanation of documents which had previously been lawfully transmitted to the Greek authorities pursuant to an authorisation under s 13(1) of the MACM Act, a procedure which is implicitly authorised by that section; and/or

3. the communication was no more than a reiteration of information which had previously been provided in documents lawfully transmitted under s 13(1) of the MACM Act, and in that sense did not involve the divulgement to the Greek authorities of any information not previously known to them.

4 As will be apparent from what we have said, the lawfulness of the communication constituted by the letter of 19 June 2007, and the enclosure, depends principally upon the operation of the TIA Act. Relevant provisions of that Act were referred to in Commissioner, Australian Federal Police v Samsonidis [2007] FCAFC 54; (2007) 158 FCR 276. For present purposes, it is sufficient to note that, under s 7 of the TIA Act, a person must not intercept a communication passing over a telecommunications system, but an exception is made in the case of "the interception of a communication under a warrant". The TIA Act provides for the issue of warrants authorising the interception of telephone communications in particular circumstances. In the present case, it is common ground that so much of the information contained in the enclosure to the letter of 19 June 2007 as is controversial was obtained by intercepting telephone communications pursuant to a warrant, or warrants, issued under the TIA Act. The information was, therefore, "lawfully intercepted information" within the meaning of that Act.

5 The circumstances to which we have just referred brought into operation the terms of s 63(1) of the TIA Act. That subsection provides as follows:

(1) Subject to this Part, a person shall not, after the commencement of this Part:

(a) communicate to another person, make use of, or make a record of; or

(b) give in evidence in a proceeding;

lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1).

The operation of s 63(1) is subject to the Part of the TIA Act in which it appears, namely, Pt 2-6. Other provisions within that Part provide for exceptions to the broad prohibition contained in s 63(1), including s 67(1), in the following terms:

(1) An officer or staff member of an agency may, for a permitted purpose, or permitted purposes, in relation to the agency, and for no other purpose, communicate to another person, make use of, or make a record of the following:

(a) lawfully intercepted information other than foreign intelligence information;

(b) interception warrant information.

Section 67(1) refers to "a permitted purpose". That term is defined in s 5 of the TIA Act as follows:

permitted purpose, in relation to an interception agency, an eligible Commonwealth authority or an eligible authority of a State, means a purpose connected with:

(a) in any case:

(i) an investigation by the agency or eligible authority of a prescribed offence;

(ii) the making by an authority, body or person of a decision whether or not to begin a relevant proceeding in relation to the agency or eligible authority;

(iii) a relevant proceeding in relation to the agency or eligible authority;

(iv) the exercise by the chief officer of the agency or eligible authority of the powers conferred by section 68; or

(v) the keeping of records by the agency under Part 2-7, or by the eligible authority under provisions of a law of the State that impose on the chief officer of the authority requirements corresponding to those imposed on the chief officer of a Commonwealth agency by sections 80 and 81; or

(aa) in the case of the ACC:

(i) an ACC operation/investigation; or

(ii) a report to the Board of the ACC on the outcome of such an operation or investigation; or

(b) in the case of the Australian Federal Police:

(i) an investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth, being an investigation or inquiry under a law of the Commonwealth or by a person in the person’s capacity as an officer of the Commonwealth;

(ii) a report on such an investigation or inquiry;

(iia) the making by a person of a decision under the Australian Federal Police Act 1979 in relation to the engagement of an AFP employee, the retirement of an AFP employee or the termination of the employment of an AFP employee or in relation to the appointment or the termination of the appointment of a special member of the Australian Federal Police;

(iib) a review (whether by way of appeal or otherwise) of such a decision;

(iii) the tendering to the Governor-General of advice to terminate, because of misbehaviour or improper conduct, the appointment of an officer of the Commonwealth; or

(iv) deliberations of the Executive Council in connection with advice to the Governor-General to terminate, because of misbehaviour or improper conduct, the appointment of an officer of the Commonwealth; or

(baa) in the case of the Australian Commission for Law Enforcement Integrity:

(i) a corruption investigation (within the meaning of the Law Enforcement Integrity Commissioner Act 2006); or

(ii) a report on such an investigation; or

(ba) in the case of an eligible Commonwealth authority:

(i) an investigation that the Commonwealth Royal Commission concerned is conducting in the course of the inquiry it is commissioned to undertake; or

(ii) a report on such an investigation; or

(c) in the case of the Police Force of a State:

(i) an investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of an officer of that State, being an investigation or inquiry under a law of that State or by a person in the person’s capacity as an officer of that State;

(ii) a report on such an investigation or inquiry;

(iia) the making by a person of a decision in relation to the appointment, re-appointment, term of appointment, retirement or termination of appointment of an officer or member of staff of that Police Force;

(iib) a review (whether by way of appeal or otherwise) of such a decision;

(iii) the tendering to the Governor of that State of advice to terminate, because of misbehaviour or improper conduct, the appointment of an officer of that State; or

(iv) deliberations of the Executive Council of that State in connection with advice to the Governor of that State to terminate, because of misbehaviour or improper conduct, the appointment of an officer of that State; or

(d) in the case of an eligible authority of a State:

(i) an inspection of the authority’s records that is made under a requirement of the law of that State, being a requirement of the kind referred to in paragraph 35(1)(h); or

(ii) a report on such an inspection; or

(da) in the case of the Independent Commission Against Corruption:

(i) an investigation under the Independent Commission Against Corruption Act into whether corrupt conduct (within the meaning of that Act) may have occurred, may be occurring or may be about to occur; or

(ii) a report on such an investigation; or

(db) in the case of the Inspector of the Independent Commission Against Corruption:

(i) dealing with (by reports and recommendations) complaints of abuse of power, impropriety or other forms of misconduct (within the meaning of the Independent Commission Against Corruption Act) on the part of the Independent Commission Against Corruption or officers of that Commission; or

(ii) dealing with (by reports and recommendations) conduct amounting to maladministration (within the meaning of the Independent Commission Against Corruption Act) by the Independent Commission Against Corruption or officers of that Commission; or

(dc) in the case of the Inspector of the Police Integrity Commission--dealing with (by reports and recommendations) complaints of abuse of power, impropriety or other forms of misconduct (within the meaning of the Police Integrity Commission Act) on the part of the Police Integrity Commission or officers of that Commission; or

(e) in the case of the Police Integrity Commission:

(i) an investigation under the Police Integrity Commission Act of police misconduct of an officer of the New South Wales Police Service; or

(ii) a report on such an investigation; or

(iii) the tendering to the Governor of New South Wales of advice to terminate, because of misbehaviour or improper conduct, the appointment of the Commissioner of the New South Wales Police Service; or

(iv) deliberations of the Executive Council of New South Wales in connection with advice to the Governor of that State to terminate, because of misbehaviour or improper conduct, the appointment of the Commissioner of the New South Wales Police Service; or

(f) in the case of the Office of Police Integrity:

(i) an investigation by the Director, Police Integrity under the Police Regulation Act into the conduct of a member of the force (within the meaning of that Act); or

(ii) an investigation by the Director, Police Integrity under the Police Regulation Act or the Whistleblowers Protection Act, into serious misconduct (within the meaning of the Police Regulation Act); or

(iii) a report on an investigation covered by subparagraph (i) or (ii); or

(g) in the case of the Corruption and Crime Commission:

(i) an investigation under the Corruption and Crime Commission Act into whether misconduct (within the meaning of that Act) has or may have occurred, is or may be occurring, is or may be about to occur, or is likely to occur; or

(ii) a report on such an investigation; or

(ga) in the case of the Crime and Misconduct Commission:

(i) an investigation under the Crime and Misconduct Act into whether misconduct (within the meaning of that Act) may have occurred, may be occurring or may be about to occur; or

(ii) a report on such an investigation; or

(h) in the case of the Parliamentary Inspector of the Corruption and Crime Commission--dealing with a matter of misconduct (within the meaning of the Corruption and Crime Commission Act) on the part of the Corruption and Crime Commission, an officer of the Corruption and Crime Commission or an officer of the Parliamentary Inspector of the Corruption and Crime Commission.

6 The first basis upon which the respondent sought, and seeks, to escape the prohibition in s 63(1) of the TIA Act is that the letter of 19 June 2007, and its enclosure, were a communication for the purpose identified in par (a)(i) definition of "permitted purpose", namely, a purpose connected with an investigation by the AFP of a prescribed offence. The starting point for any consideration of the purpose of the sending of that letter must be the terms of the letter itself. It was signed by an agent in the employ of the AFP holding the rank of Detective Constable. We shall refer to him as the author of the letter, but, save for his name and signature at the foot of the letter, there is no evidence as to the circumstances in which the letter was written or by which it was physically sent to Greece.

7 The letter was in the following presently relevant terms:

SUBJECT: REQUEST FOR JUDICIAL ASSISTANCE OF THE PUBLIC PROSECUTOR, COURT OF APPEALS, ATHENS TO THE AUTHORITIES OF AUSTRALIA (CASE: CONSTANTINE OR KONSTANTINOS SKOURAS AND DIMITRIOS SAMSONIDIS)

The Australian Federal Police received a mutual assistance request from the Hellenic Republic (Greece) in the matter of Dimitrios SAMSONIDIS ... dated 2 October 2006 and an amended request in the same matter dated 8 December 2006. The request was made on behalf of your office in Athens.

The request arises from the Greek authorities’ investigation into the activities of SAMSONIDIS ... for [his] involvement in organised criminal activities including drug trafficking and money laundering.

The request sought assistance from the Australian authorities to obtain:

- Income tax returns and declarations made to the Australian Taxation Office by SAMSONIDIS ... for the financial years from 1 July 2000 to 30 June 2006

- Records held by the Australian Securities and Investment Commission (ASIC) showing all companies which have SAMSONIDIS ... as their director, secretary, for the period from 1 July 2000 to 15 November 2006

- Official copies of detailed criminal records of SAMSONIDIS ... and

- Copies of documents and other evidence obtained by the AFP in the Australian investigation relating to allegations of money laundering, structuring of financial transactions to avoid reporting cash transactions of more than $10,000, and conspiracy to import a controlled substance into Australia. Material sought by the Greek authorities under this category includes telephone records, audio recording and transcripts, bank records, witness statements and documents authorising the interception and recording of telephone conversations.

On 13 June 2007, in response to your request for mutual assistance, Ms Zhen Ye of the Attorney-General’s Department, International Crime Co-operation Division, forwarded to you a package containing the following material:-

a) a compact disk labelled ‘TI product for requested M.A.R. to Greece – Samsonidis containing audio records of intercepted telephone calls;

b) transcripts of audio recordings contained on the compact disk;

c) relevant Telecommunications Interception Evidentiary Certificates;

d) a transcript of the proceeding where material listed in a) to c) was produced in front of a Magistrate in Victoria, Australia;

e) a Certificate issued by the Magistrate listing the material produced; and

f) authorisation signed by the Australian Minister for Justice and Customs authorising the material listed in a) to c) to be produced and transmitted to Greece.

I enclose a copy of a letter from Ms Zhen Ye dated 13 June 2007.

Please find enclosed a signed witness statement from Federal Agent Mark Creighton, relating to the monitoring and translation of the following telephone calls:-

There followed a table setting out the dates, and certain other details, of six telephone calls made between 13 November 2005 and 3 March 2006. The letter concluded as follows:

Importantly, the penal procedure against SAMSONIDIS ... commenced on 16 May 2006. [He] will stand trial on 16 July 2007 before the 6^th Athens Thee-Member Appeals Court for felonies (Criminal High Court of Justice). Consequently, the forwarding of this material to Greek Authorities is extremely urgent.

Please contact me if you have any further enquiries or if I can be of further assistance.

8 The letter was accompanied by two enclosures, only one of which is presently relevant. It was a "statement" by the author of the letter setting out some details of an investigation being conducted by the AFP into various criminal activities in which the appellant and others were considered to be involved. Much, but not all, of the statement related to telephone intercepts, lawfully done pursuant to the TIA Act, which were relevant to that investigation. The statement set out a modified, or edited, transcript of certain telephone conversations recorded as a result of those intercepts. It is apparent that the author had listened to the recordings.

9 From the terms of the letter and the subject-matter of the enclosure, it seems tolerably clear that the purpose of the letter – and therefore of the communication to Greece of what was "lawfully intercepted information" under the TIA Act – was to place the Greek authorities in possession of material which they might use to advantage in their criminal proceedings against the appellant, and thereby to assist those authorities (as they had requested). However, the existence of such a purpose does not conclude the question arising under par (a) of the definition of "permitted purpose" in the TIA Act in the circumstances of the present case, since that purpose might at the same time be "connected with" an investigation of the kind referred to in the paragraph.

10 Indeed, the trial judge so held. His Honour held it to be clear from the evidence before him that (at [35]) -

... prior to May 2006 the AFP was carrying out an investigation of the applicant and others in relation to allegations of money laundering, structuring financial transactions to avoid reporting cash transactions of more than $10,000 and conspiracy to import a controlled substance into Australia.

Specifically in relation to the letter of 19 June 2007, his Honour reiterated his conclusion that the AFP had been conducting an investigation into the appellant and one other "in relation to a number of alleged offences including money laundering and drug-related offences since 2005, which investigation was continuing." His Honour noted that the Greek criminal proceeding "related to offences of drug trafficking, money laundering and unlawful possession of firearms". His Honour then held that the communication contained in the letter of 19 June 2007, and its enclosure, was made for a purpose connected with the AFP’s investigation of prescribed offences within the terms of par (a) of the definition of "permitted purpose" in s 5 of the TIA Act. Explaining that holding, his Honour continued (at [37]):

The purpose of the communication of the lawfully intercepted information contained in [the enclosure to the letter] ... was to assist the Greek authorities in relation to offences with which the applicant had been charged in Greece which were similar to the offences alleged against the applicant in relation to contraventions of Australian law. The purpose of communicating [the enclosure] ... had a direct relationship with the Australian investigation of the applicant because the proceeding in Greece related to the same type of offences which the AFP were investigating in Australia.

11 On appeal, it was submitted on behalf of the appellant that the evidence before the trial judge did not establish that the purpose of the letter of 19 June 2007 was connected with the AFP investigation. The submission relied on two propositions. First, it was said that it was clear from the terms of the letter itself that the predominant purpose thereof was to assist the criminal justice authorities in Greece in their own investigations, specifically with respect to the forthcoming commencement of the "penal procedure" against the appellant. It was pointed out that the letter did not disclose any purpose having an apparent connection with the AFP investigation. Secondly, it was submitted that, as a matter of construction, the requirement of connection contained in the definition of "permitted purpose" in the TIA Act was not satisfied by the facts found to exist by his Honour, namely, the similarity of the offences in relation to which the appellant was being investigated in Australia and had been charged in Greece.

12 The respondent supported his Honour’s construction of the definition of "permitted purpose" and added that, in addition to the facts found by his Honour, the evidence before him would sustain the conclusion that the Australian investigation, and the Greek charges, arose out of the same "substratum of facts" involving the appellant and others. It was said that the alleged, or possible, offences in each case were transnational ones, involving substantially the same persons, including the appellant, in activities, transactions etc across several countries, including Australia and Greece.

13 In his consideration of the construction of the term "connected with" in the definition of "permitted purpose", the trial judge referred to Brown v Rezitis [1970] HCA 56; (1970) 127 CLR 157, to Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 and to Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285. Each of these authorities dealt with the construction of the expression "in connection with" or "connected with" in the particular statutory context with which it was concerned. Only the judgment of Sackville J in Taciak dealt with the definition of "permitted purpose" in the TIA Act. In that case, the question was whether the respondent Commissioner could use information lawfully obtained under the TIA Act (then called the Telecommunications (Interception) Act 1979 (Cth)) for the purpose of deciding not to reappoint the applicant as an officer of the AFP. Sackville J said (59 FCR at 294):

An authorisation or direction to conduct an inquiry or investigation into the conduct of a person would not, without more, ordinarily carry with it the authority or duty to decide whether the person's employment should be terminated, nor whether the person should be offered an appointment or reappointment to a position. A searching inquiry to ascertain the facts is one thing; a decision as to the action to be taken on the basis of the facts so ascertained is another.

Of course, the language employed in legislation must take its meaning from the context. In my view the distinction to which I have referred is reinforced by the definition of "permitted purpose". That definition clearly distinguishes two cases. The first is where information is used for a purpose connected with an investigation or inquiry. The second is where it is used for a purpose connected with a decision affecting the interests of a person who is the subject of the investigation or inquiry. As has been seen, para (b)(i) of the definition, when taken in conjunction with s 67, authorises the AFP to use intercept information for a purpose connected with an investigation of, or an inquiry into, alleged misbehaviour or improper conduct of an officer of the Commonwealth. Likewise, para (a)(i) of the definition authorises the use by an agency or eligible authority (including the AFP) of intercept information for a purpose connected with an investigation by the agency or eligible authority of a "prescribed offence", a term defined by s 5 to mean certain kinds of serious criminal offences.

But para (a)(ii), again read in conjunction with s 67, specifically authorises the use by an agency or eligible authority of intercept information for a purpose connected with the making by an "authority, body or person of a decision whether or not to begin a relevant proceeding in relation to the agency or eligible authority". A "relevant proceeding" includes a police disciplinary proceeding against a member of the AFP, as well as a prosecution for a prescribed offence: s 6L(1)(a), (e).

In other words, the legislation is framed on the basis that authorising the use of intercept information for a purpose connected with an investigation or inquiry into alleged misbehaviour or alleged improper conduct is insufficient, of itself, to authorise the use of that information for a purpose connected with the making of a decision whether or not to begin a police disciplinary proceeding or other "relevant proceeding".

Sackville J concluded his consideration of the construction of the definition in the following terms (at 296):

But even though the introductory words of the definition of "permitted purpose" expand its scope, I do not think that the use of intercept material in making a decision not to reappoint an officer is "a purpose connected with" an investigation of, or an inquiry into, alleged misbehaviour or improper conduct. The fact remains that the subparagraphs of the definition of "permitted purpose" clearly distinguish between an inquiry or investigation and a decision to take proceedings against an individual in consequence of such an inquiry or investigation. The opening words of the definition, in my opinion, cannot expand the scope of individual subparagraphs to the point where they render redundant other subparagraphs specifically authorising the use of intercept information. A fortiori the words cannot expand para (b)(i) to the point where it authorises the use of intercept material for a purpose quite distinct from the investigation or inquiry. In particular they cannot authorise the use of intercept material for the purpose of deciding to act on the results of an investigation or inquiry by deciding not to reappoint a member of the AFP for a further term.

14 In statutory formulae which use the word "connect", or cognate words or expressions, exactly what is intended will almost invariably depend on context. Little is to be gained, in our view, by observing the way other courts have resolved issues of construction involving different legislation in different contexts. In the present case, the putative connection is between a purpose on the one hand and an investigation on the other hand. The question is not whether there is a connection between separate investigations being conducted contemporaneously by different authorities, or between an investigation being conducted by one authority and court proceedings being prosecuted by another authority. The connection posited by the definition is that between the purpose for which a specific authority acts and an investigation being conducted by that authority.

15 We accept, as his Honour below pointed out, that the definition does not require that the purpose be that of the investigation in question. A connection between the purpose and the investigation is sufficient. However, when considering the connotation of "connected with" in the context of the definition, we consider that it is necessary to commence with the nature of the matters proposed to be connected. It is also necessary to take into account the compartmentalised structure of the definition of "permitted purpose" as evincing a legislative intention to emphasise that the investigation with which the posited connection must exist should be that of the agency which has the purpose. In other words, it must be that agency’s, not somebody else’s, investigation.

16 The trial judge held that the connotation of the term "connected with" was not confined to circumstances in which the purpose was to advance, help or aid the progression of the putative investigation. While we would accept that so far as it goes, we consider that such circumstances would, perhaps, provide the most obvious example of the kind of connection which the legislature had in mind. An investigation, in the sense made relevant by par (a)(i) of the definition, is a process, normally carried out over a period of time, which has the objective of discovering, collecting, organising and analysing (against specific criteria) information about facts and circumstances, or the relationship between them, not previously known or sufficiently understood. Although there is a danger in viewing the intended meaning of a statutory term through the prism of a particular controversy, we consider that the purpose of some communication or other action would have a connection with such an investigation normally, and certainly most obviously, if the communication or action was intended, or calculated, to affect or influence the investigation, considered as such a process.

17 However, because of the circumstances under which the present appeal has been conducted and the fairly limited nature of the submissions made to us, we do not propose to attempt a precise exposition of the outer limits of the connotation of the term. It is sufficient for us to say that we are unable to agree with the trial judge that the mere fact that the Greek charges against the appellant related to offences which were similar to, or of the same type as, those which the AFP were investigating provided a sufficient connection for the purposes of the definition of "permitted purpose" in s 5 of the TIA Act. If his Honour’s discremen were to be adopted, it would mean that information lawfully obtained by the AFP as a result of intercepts under the TIA Act might be made freely available to any other law enforcement authority in the world, provided only that that authority was engaged in an investigation, or in the prosecution of charges, in relation to similar, or the same type of, offences said to be committed by the same person or group at about the same time. We consider that so to construe the definition would be inconsistent with the otherwise tightly guarded and compartmentalised structure of the definition itself, and of the exceptions (of which s 67 is one) to the operation of s 63 contained in Pt 2-6 of the TIA Act.

18 It is possible that, in formulating the proposition for which his Honour’s judgment stands in the way we have, we have done both his Honour and the respondent an injustice. In the appeal, it was submitted on behalf of the respondent that the facts of the present case disclosed not merely a similarity of offences, but also the existence of what was in effect a coordinated transnational pattern of criminal behaviour, out of which both the Greek charges and the AFP investigation arose. The difficulty with this submission is that his Honour made no such finding. Neither did the respondent provide any evidence to that effect at the trial.

19 It was submitted on behalf of the respondent however, that, as the moving party, the appellant carried the onus of proof that the AFP letter of 19 June 2007 was not sent for permitted purposes only. It was submitted, in effect, that, once the respondent had asserted that the purpose of the letter was connected to the AFP investigation, it lay upon the appellant to prove otherwise. There are, we consider, two difficulties with the respondent’s position in this regard. First, and perhaps most obviously, the case was not resolved below on the basis of his Honour making findings of fact to the extent now urged upon us by the respondent, either on the basis that he was satisfied on the evidence that such findings should be made or on the basis that the appellant had not discharged the onus which the respondent submits he bore. His Honour made only the findings to which we have referred and, in the absence of some additional finding being clearly open on the evidence before him, such that we could make it as a court of appeal, the case must be determined in the context of those findings. Secondly, even if the appellant might have borne the legal onus of making good the proposition that the letter of 19 June 2007 had been sent in contravention of s 63(1) of the TIA Act, the question whether he also bore the evidentiary onus in relation to so much of the respondent’s case as involved reliance on s 67(1) of that Act is another matter altogether. For reasons which follow, we consider that he did not.

20 Section 63(1) of the TIA Act sets up a broad prohibition which is "subject to this Part". There follows a series of provisions, including s 67(1), which contain exceptions to the prohibition, each expressed in terms that a particular person "may" act in a certain way. The question whether the appellant or the respondent bore the onus of establishing facts necessary to deal with the issues arising under s 67(1) is to be resolved, in our view, in accordance with a line of jurisprudence which includes the following authorities. In Darling Island Stevedoring and Lighterage Co Limited v Jacobsen [1945] HCA 22; (1945) 70 CLR 635, legislation provided an entitlement to workers’ compensation payments where a worker was injured "without his own default or wilful act". Dealing with the question whether it was for the worker, or for the employer, to lead evidence as to the absence of default or wilful act, Dixon J said (70 CLR at 643):

The answer depends upon the interpretation of the provision. For the burden of proof is a legal consequence of the nature of the qualification placed by the words "without his default or wilful act" upon the general conditions of liability stated in the clause. If these words are but part of the legislative attempt to define the conditions upon which the worker's right to compensation arises, then, like all other ingredients or elements in a cause of action or title to claim, proof of the fulfilment of the conditions they describe must lie with the claimant. But if the true nature of the qualification is to introduce new matter, not as part of the primary grounds of liability, but as a special exception or condition defeating or answering liability otherwise existing, then the onus of proof lies with the party setting up default or wilful act by way of answer.

In Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, legislation entitled a person injured as a result of a motor accident to take proceedings against the nominal defendant where the identity of the motor car out of the use of which the injury arose could not be established. The question was whether it was the injured person who carried the onus of establishing that the identity of the car could not be established. The High Court said (91 CLR at 519):

When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter ...

In Chugg v Pacific Dunlop Limited (1990) 95 ALR 481, legislation required employers to provide and maintain "so far as is practicable" a working environment for employees that was safe and without risks to health. The question was whether the matter of practicability was for the employer, or for the injured employee, to prove. In giving what was effectively the judgment of the court, Dawson, Toohey and Gaudron JJ said (95 ALR at 486):

For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an "exception"), which serves to take a person outside the operation of a general rule. See Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at 519–20. The distinction does not depend on the rules of formal logic: Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136 at 147. Rather, the categorisation of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention "to impose upon the accused the ultimate burden of bringing himself within it": Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 64 ALJR 181 at 183; 91 ALR 1 at 6. The intention may be discerned from express words or by implication. See R v Edwards [1975] QB 27 and R v Hunt [1960] UKHL 1; [1987] AC 352.

Their Honours continued (at 487):

One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. See Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635, per Dixon J at 644. Such is ordinarily the case where, in the terms used in R v Edwards, at 40, there is a prohibition on the doing of an act "save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities". See R v Hunt, at 375, where Lord Griffiths considered the statement from R v Edwards "an excellent guide to construction". If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.

21 In accordance with the authorities to which we have referred, it seems to us quite clear that at least the evidentiary onus of bringing forward facts necessary to establish the exception for which s 67(1) of the TIA Act provides lay, and continues to lie, upon the respondent. The only authority to which the respondent referred which would suggest otherwise was the judgment of the Full Court in Day v Commissioner, Australian Federal Police [2000] FCA 1272; (2000) 101 FCR 66. That case concerned the TIA Act itself, and a question very similar to that which is presently under consideration. Lawfully intercepted information had been provided by the AFP to another agency, and it was said that the communication was justified pursuant to a "permitted purpose" arising under par (b) of the definition in the Act. In upholding the respondent Commissioner’s reliance upon that paragraph, the Full Court said (at [15]; 101 FCR at 69):

The appellant did not establish that the TI product was communicated to Ms Williams for a purpose other than one connected with an investigation or inquiry being undertaken by her in her capacity as an officer of the Commonwealth, as part of the process of determining whether charges under the 1922 Act should be laid against the appellant. The onus of establishing that the power was improperly exercised was, of course, on the appellant. On that basis the appellant's claim must fail.

It is apparent that, in Day, the Full Court was not given the benefit of the authorities to which we have referred in connection with the question of the locus of the onus of proof where legislation sets up an exception to a general rule. However, it is sufficient for present purposes for us to observe, as we do, that there is nothing to suggest that the Full Court, in the relevant passage upon which the respondent relies, was dealing with anything other that the legal onus. We do not construe their Honours’ words as either stating or implying that a person otherwise in breach of the prohibition in s 63(1) of the TIA Act might successfully defend proceedings by taking no step other than asserting that there was a lack of evidence to the effect that he or she was not protected by one or more of the many exceptions for which Pt 2-6 of that Act provides.

22 As we have said, the actual findings made by the trial judge in the present case did not take the respondent far enough to make good its defence under s 67(1) of the TIA Act. The respondent, as was his entitlement, drew our attention to all of the evidence that was before his Honour, with a view to persuading us that the findings could, and should, be expressed more broadly, and more favourably to him, than his Honour did. Although the evidence leaves open the prospect, perhaps even the realistic prospect, that there was a more specific connection between the purpose of the letter of 19 June 2007 and the AFP investigation, we are not satisfied, on the balance of probabilities, that we should go beyond the findings made by his Honour in this regard. The question of purpose was one substantially within the respondent’s capacity to prove by direct evidence, yet he chose to conduct the proceedings before his Honour without calling any evidence, and, at least on the matter of purpose, made no application to supplement his evidence on appeal. In those circumstances, we do not consider it appropriate to make findings by way of inference more favourable to the respondent than those contained in his Honour’s reasons.

23 For the above reasons, we take the view that the trial judge erred in concluding that the purpose of the communication constituted by the AFP letter of 19 June 2007, and its enclosure, was connected with the AFP investigation in relation to the appellant. It follows that it had not, and has not, been established that the communication was permitted by s 67(1) of the TIA Act.

24 Consideration of the respondent’s second point requires reference to s 13 of the MACM Act, subs (1), (2) and (6) whereof are as follows:

(1) Where a request is made by a foreign country (requesting country) that:

(a) evidence be taken in Australia; or

(b) documents or other articles in Australia be produced;

for the purposes of a proceeding in relation to a criminal matter in the requesting country or another foreign country, the Attorney-General may, in his or her discretion, by writing in accordance with the approved form, authorise the taking of the evidence or the production of the documents or other articles, and the transmission of the evidence, documents or other articles to the requesting country.

(2) Where the Attorney-General authorises the taking of evidence or the production of documents or other articles under subsection (1):

(a) in the case of the taking of evidence--a Magistrate may take the evidence on oath of each witness appearing before the Magistrate to give evidence in relation to the matter, and a Magistrate who takes any such evidence shall:

(i) cause the evidence to be put in writing and certify that the evidence was taken by the Magistrate; and

(ii) cause the writing so certified to be sent to the Attorney-General; or

(b) in the case of the production of documents or other articles--a Magistrate may, subject to subsection (6), require the production of the documents or other articles and, where the documents or other articles are produced, the Magistrate shall send the documents, or copies of the documents certified by the Magistrate to be true copies, or the other articles, to the Attorney-General.

(6) Subject to subsections (7) and (8), the laws of each State or Territory with respect to the compelling of persons to attend before a Magistrate, and to give evidence, answer questions and produce documents or other articles, upon the hearing of a charge against a person for an offence against the law of that State or Territory apply, so far as they are capable of application, with respect to the compelling of persons to attend before a Magistrate, and to give evidence, answer questions and produce documents or other articles, for the purposes of this section.

The remaining subsections within s 13 do not need to be considered for present purposes.

25 According to the findings made by the trial judge, on 2 October 2006, the Greek authorities made a request for mutual assistance under the MACM Act. That request was clarified on 8 December 2006. On 21 May 2007, the Minister for Justice and Customs ("the Minister") signed two authorisations, one of which was pursuant to s 13(1) of the MACM Act. On or about 31 May 2007, a magistrate made orders pursuant to s 13(2) of the MACM Act, including orders for the production of documents. According to his Honour, those documents were produced, sent to the Minister and subsequently transmitted to the Greek authorities. On appeal, no issue was taken about these steps under the MACM Act. Those steps, however, preceded the writing and sending of the letter of 19 June 2007. That letter and the statement attached to it were not produced before the magistrate and, consequently, the transmission of them to Greece was not authorised under s 13(1).

26 It was submitted on behalf of the respondent that the letter of 19 June 2007, and the enclosure to which we have referred, did no more than to explain or clarify documents which had previously been sent to the Greek authorities pursuant to the Minister’s authorisation under s 13(1) of the MACM Act. It was said that, of necessity, s 13(1) carries with it by implication the authority to take whatever further step may be incidental to the transmission of the document authorised by the Attorney-General, including the provision of an explanation or clarification necessary to make that document intelligible. Such a submission was made before the trial judge but, because he upheld the respondent’s point under s 67(1) of the TIA Act, his Honour was not required to deal with it. Under cover of a notice of contention, the respondent submitted that the order made by his Honour could and should be upheld upon this ground.

27 It is implicit in the position adopted by the respondent that the existence of an authorisation under s 13(1) of the MACM Act renders lawful the inclusion in the document concerned of information, the communication of which would otherwise be unlawful pursuant to s 63(1) of the TIA Act. We do not regard any such proposition as self-evident. Section 13 of the MACM Act is concerned with the procedure by which evidence is taken, or documents or other articles are produced, when the evidence, documents or articles would not otherwise be within the knowledge, possession or control of the Attorney-General. It is concerned also to provide authority for the evidence, documents or articles to be sent overseas, a step which might not otherwise be within the proper scope of the Attorney-General’s power or responsibilities. That the Attorney-General might engage in, or authorise, conduct otherwise contrary to a specific statutory prohibition simply by reason of the very general, procedural, provisions of s 13(1) is, we consider, unlikely to have been intended by the legislature. Ironically, perhaps, the MACM Act, and the amendments to the TIA Act which inserted the provisions with which we are presently concerned, were enacted at about the same time. Indeed, both Bills were read a second time in the House of Representatives, by the same Minister, on the same day. The respective Second Reading Speeches contain no cross-references to each other. It looks very much as though each piece of legislation was to be given effect according to its terms, neither qualifying the other.

28 These are difficult, and important, questions upon which we have not heard full argument. Since the communication to Greece with which we are presently concerned was not contained in a document which was itself the subject of an authorisation under s 13(1) of the MACM Act, we do not propose to resolve them on this occasion. It is sufficient to note that s 13(1) requires the exercise of a discretion by the Attorney-General before making an authorisation thereunder. The fact that documents within a class so authorised did or might contain information, the communication of which would or might be prohibited by statute, would have to be, on any view, a matter most relevant for the Attorney-General’s consideration. Such a fact would also, we consider, normally be a relevant matter for the magistrate to take into account under subs (2) of the section. In those circumstances, it seems most unlikely that the legistlature might have silently intended that a document that had not itself been through the process for which s 13 provides, and which, ex hypothesi, does contain a communication of a kind prohibited by a provision such as s 63(1) of the TIA Act, could lawfully be transmitted notwithstanding the existence of that prohibition.

29 There is also the question whether the contentious passages in the AFP letter of 19 June 2007 in fact went no further than to provide explanations or clarifications of what had previously been contained in documents authorised under s 13(1) of the MACM Act. Those passages are edited transcripts of telephone conversations which had been intercepted pursuant to the TIA Act. The respondent submitted that we should find, as a fact, that documents containing those transcripts had previously been sent to the Greek authorities pursuant to the authorisation under s 13 of the MACM Act. On the material before us, we could not make such a finding, but it was forcefully submitted on behalf of the respondent that evidence to that effect could readily be called, would be called if need be, and would have been called before the trial judge had the appellant’s reliance upon the letter of 19 June 2006 not arisen only shortly before the commencement of the hearing. It was put that the submission made on behalf of the respondent before his Honour was based upon the assumption that the enclosure to the letter of 19 June 2007 did not make reference to any transcript of a telephone conversation which had not already been the subject of an authorised transmission pursuant to s 13(1), and that the appellant conducted his case before his Honour in a way which took no issue with that assumption.

30 We are prepared to decide this point upon the basis of the assumption which was pressed upon us by the respondent. However, the material which was before his Honour, and which is before us, contains photocopies of some of the documents that were apparently transmitted to the Greek authorities pursuant to the s 13 authorisation. To the extent that they constitute transcripts of the telephone conversations which are presently controversial, the participants in the conversations are referred to merely as "callers", each individual being designated by an alphabetical letter; in the case of one conversation, the participants are identified as "Caller A" and "Caller B". In the enclosure to the letter of 19 June 2007, by contrast, the author purports to identify those persons by name, and in the transcript which is part of the enclosure substitutes the names, or abbreviated names, of real persons for the anonymous designations in the original transcript. Additionally, the enclosure contains an interpretation of what are said to be code words used in the conversation. These interpretations, and the identification of the individuals to which we have referred, were based upon the author’s broad understanding of the nature of the investigation in which the AFP was involved, and of the content and context of the matters being discussed on the telephone, as derived from his having listened to the tapes made as a result of the telephone intercepts under the TIA Act.

31 In the circumstances to which we have referred, we consider that the conclusion that the letter of 19 June 2007 contained information additional to that which had previously been the subject of documents authorised under s 13(1) of the MACM Act is inescapable. Assuming, without deciding, that the transmission of a specific document which has been authorised under s 13, and produced to the magistrate, would not constitute a breach of s 63(1) of the TIA Act (notwithstanding that the document contained lawfully intercepted information within the meaning of that Act), manifestly the same cannot be said of a different document containing information additional to that set out in the authorised document, and which has not itself been the subject of any authorisation or production before the magistrate. Assuming also, without deciding, that s 13(1) of the MACM Act carries with it the implied authority to explain or clarify for which the respondent contended, we could not accept that any such authority would extend to the provision of additional substantive information not previously the subject of the document itself.

32 For the above reasons, in the circumstances of the present case we do not consider that the prohibition otherwise imposed by s 63(1) of the TIA Act in relation to the AFP letter of 19 June 2007, and its enclosure, was avoided by reason of the earlier authorisation given by the Minister pursuant to s 13(1) of the MACM Act.

33 The respondent’s final point was linked to his second one. It involved the proposition that, because the Greek authorities already had the information in question (ie pursuant to the earlier transmission of material under the s 13 authorisation), the letter of 19 June 2007 did not communicate to those authorities anything which was not already known to them and was not, therefore, contrary to s 63(1) of the TIA Act. It will be apparent from the way in which we have dealt with the respondent’s second point that we take the view that there is no substance in his third. So far as appears from the evidence before the Court, the letter of 19 June 2007 went further than merely informing the Greek authorities of things which they already knew. On matters which could only be regarded as significant in the context of imminent criminal proceedings, that letter provided information which was additional to anything previously sent.

34 For the above reasons, and subject to an important reservation to which we shall turn presently, we take the view that the trial judge ought to have found, on the evidence before him, that the AFP letter of 19 June 2007 was sent to the Greek authorities in contravention of s 63(1)(a) of the TIA Act. The general applicability of the prohibition in that provision was common ground before his Honour, and, for the reasons we have set out above, the respondent had not made good his case that the prohibition was inapplicable in the circumstances, either by reason of s 67(1) of the TIA Act, or otherwise. If the case is an appropriate one for the making of a declaration, as sought by the appellant, the Court has jurisdiction so to proceed: see s 21 Federal Court of Australia Act 1976 (Cth); Transport Workers Union v Lee (1998) 84 FCR 60.

35 It was submitted on behalf of the respondent that the Court should not make the declarations sought by the appellant, since to do so would be of no utility. We agree that a declaration should not be made in the absence of utility, but it is clear from the material before the Court generally, from the way in which the parties conducted their cases before the trial judge, and from the terms of the letter of 19 June 2007 itself, that an object, to say the least, of the Greek authorities is to secure evidence which might be used against the appellant in the prosecution with which they are concerned. The appellant placed before his Honour an opinion by his Greek lawyer to the effect that it would be useful for him to have a declaration or other indication by this Court that the communication of so much of the enclosure to the letter of 19 June 2007 as derived from telephone intercepts under the TIA Act was unlawful. No view to the contrary was put to us on behalf of the respondent, and the view expressed by the lawyer is, in our opinion, unsurprising. How useful such a declaration or indication may be is, of course, another matter, but we consider that the respondent’s bald proposition that a declaration would be of no utility at all is, in the circumstances, quite improbable.

36 The respondent also submitted that, if the Greek authorities attempted to use the intercepted information against the appellant, it would be open to the appellant to submit at that stage that information had come into the hand of those authorities by means which were unlawful under Australian law. It was said that, in the circumstances, there was no need for this Court to take any further step. However, while the respondent’s proposition is theoretically correct so far as it goes, it takes no account of the practical difficulties which would confront the appellant in dealing with questions of Australian law before the criminal court in Athens. While we have not received submissions upon how such questions would be approached in such a court, we are inclined to think that the Greek court would be much assisted by the knowledge that the Court, having direct jurisdiction in relation to matters arising under the TIA Act, had heard and determined a proceeding concerned directly with the lawfulness of the communication in question.

37 Of more concern to us is the omission of the appellant to join the author of the letter of 19 June 2007 as a respondent to the proceeding. He was also the author of the contentious enclosure to that letter. We infer that he has taken the oath of a member of the AFP prescribed by the Australian Federal Police Regulations 1979 (Cth). The prohibition in s 63(1) of the TIA Act is upon "a person". The case has been conducted on the basis that the respondent Commissioner, under whose authority the letter of 19 June 2007 was sent, is a "person" for the purposes of s 63(1). We accept that assumption, but it does not follow that the author of the letter and of the enclosure is not also a "person" in the relevant sense. It is true that, if we make a declaration in the terms sought by the appellant, that will be binding only upon the respondent himself, and not upon the author of the letter. We are also prepared to assume that it would be an abuse of process for the appellant subsequently to take proceedings against the author, having chosen not to join him to this proceeding. Notwithstanding these considerations, as a matter of discretion, we are concerned that a declaration of contravention of s 63(1) constituted by the sending of the letter of 19 June 2007, and its enclosure, would inevitably reflect adversely, to say the least, upon the author of the letter.

38 It is true that the Court knows nothing about the particular circumstances in which the letter came to be written, or sent to the Greek authorities. It may be that every step which the author took was taken under direct instruction and that, loosely speaking, he was wholly blameless in relation to the matter. On the other hand, the only evidence which we have is of a letter over the name of the author, enclosing a statement by the author. Even if he were doing the bidding of his superiors in the AFP in relevant respects, we should not assume that the doing of an unlawful act – even a purely instrumental act – by a person in the position of the author should be regarded as relatively inconsequential. It is sufficient for us to observe, as we do, that the prospect that the author of the letter might have desired to be heard on the appellant’s application for a declaration, and might have raised defences not adverted to by the respondent, cannot be excluded.

39 Because of the appellant’s omission to join the author of the letter of 19 June 2007, we are not disposed to make a declaration that the sending of that letter to the Greek authorities was an unlawful act pursuant to s 63(1)(a) of the TIA Act. We decline the relief sought by the appellant not in the view (which would be a mistaken view) that the author of the letter would be bound by any such declaration, but, for the reasons which we have attempted to explain, in the exercise of our discretion.

40 Although we have substantially upheld the appellant’s case with respect to s 63(1) of the TIA Act, because we do not propose to make the declaration which he seeks, the appropriate order is that the appeal be dismissed. However, in the circumstances, we consider that it would be inappropriate to order the appellant to pay the respondent’s costs. The problem arising from the absence of the author was raised by the Court, not the respondent. The respondent sought to uphold the judgment of the trial judge upon grounds which we have rejected. On the other hand, because the appeal has been dismissed, it would be inappropriate to require the respondent to pay the appellant’s costs. In the circumstances, we propose to make no order as to costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray, Jessup & Middleton.

Associate:

Dated: 5 October 2007

Counsel for the Appellant:	Mr B Walters SC & Mr G Livermore
Solicitor for the Appellant:	Haines & Polites
Counsel for the Respondent:	Mr T Ginnane SC, Mr R Niall & Ms R Doyle
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 October 2007
Date of Judgment:	5 October 2007