Elliott v Seymour [1993] HCA 70; (1993) 119 ALR 1 (23 December 1993)

HIGH COURT OF AUSTRALIA

JOHN DORMAN ELLIOTT (M160 of 1993); KENNETH CHARLES JARRETT (M158 of 1993) and PETER CAMM AND ORS (M159 of 1993) v. SERGEANT DOUGLAS SEYMOUR AND ORS
S. 93/018
Number of pages - 15

HIGH COURT OF AUSTRALIA
GAUDRON J

CATCHWORDS

HEARING

SYDNEY, 20 December 1993
23:12:1993

ORDER

Matters Nos. M160, M158 and M159 of 1993
Subject to any further order with respect to costs, the applications for interlocutory relief pending hearing of the applications for special leave to appeal is refused with costs.

DECISION

GAUDRON J The applicants were directors or officers of Elders IXL
Limited ("Elders") when that company entered into two transactions
which have since become known as the "foreign exchange matter".
Apparently, the third respondent, the National Crime Authority
("the NCA"), obtained evidence or information in the course of
carrying out an investigation under or purportedly under the National
Crime Authority Act 1984 (Cth) ("the Act") which, in the view of the
first respondent, Sergeant Douglas Seymour, is sufficient to justify
charging the applicants with criminal offences relating to those
transactions.

2. It is necessary to say something of Sergeant Seymour. He is a member of the Australian Federal Police seconded to the NCA and it
seems that, as such, he has had access to the evidence and information
obtained by it. In recent times, he has been sworn in as a Special
Constable of the Victoria Police Force.

3. It is common ground that the NCA has no express power to lay or prosecute criminal charges. Instead and so far as this matter is
concerned, its obligation under s.12(1) of the Act, if it obtains
evidence that is admissible in the prosecution of an offence, is to
"assemble (that) evidence and give it to:

(a) the Attorney-General of the Commonwealth or (of a)
State, as the case requires; or
(b) the relevant law enforcement agency; or
(c) any person or authority (other than a law enforcement
agency) who is authorised by or under a law of the
Commonwealth or of the State or Territory to prosecute
the offence."

4. It is not clear whether the NCA has assembled and given the evidence to any person pursuant to s.12(1) of the Act. However, it is
clear that, for two years or thereabouts, it has been receiving advice
in respect of the foreign exchange matter from the fourth respondent,
the Director of Public Prosecutions of Victoria ("the DPP"). Although
it would appear that the DPP has power to lay charges and is a
"relevant law enforcement agency" within s.12(1)(b) of the Act, he
has said that he does not intend to lay any charges against the
applicants. However, he has indicated that he will take over any
prosecution initiated by or on behalf of the NCA. Whether because
the DPP does not intend to lay charges or for some unrelated reason,
Sergeant Seymour took steps to become a Special Constable and he
intends, unless restrained, to lay criminal charges against the
applicants in his newly acquired capacity. The charges are for theft
from Elders and, as well, conspiracy to defraud.

5. The applicants are prominent in the community, particularly in the business community. The first applicant, Mr Elliott, is also a
prominent member of the Liberal Party of Australia. It goes without
saying that their standing in the community, business reputations
and, for those who have them, commercial interests will be seriously
damaged by the laying of criminal charges. They have brought
proceedings to stop that happening.

6. It is to be assumed (and there was no suggestion to the contrary) that Sergeant Seymour's decision to lay charges is based on the
evidence and information obtained by the NCA. The applicants claim
that that evidence and information, or at least some of it, was
obtained in breach of the limits of the NCA's statutory powers. In
this regard, it seems clear that some evidence or information was
obtained in reliance or in purported reliance on the coercive powers
conferred by ss.28 and 29 of the Act. Those powers can only be used
in connection with references under ss.13 and 14, being matters
referred to the NCA by the Commonwealth Minister responsible for the
administration of the Act ((1) s.13. See s.4(1).) or a responsible
State Minister ((2) s.14. See also s.4(1) and (3)(d).) after
consultation with the Inter-Governmental Committee ((3) See ss.8 and
9.).

7. The claim that the NCA exceeded its powers was put in several ways. Mr Elliott claims that, although references were purportedly
made under ss.13 and 14 of the Act, there never was any consultation
with the Inter-Governmental Committee ((4) It may be that this claim
was made or adopted by the other applicants. The original applications
and transcripts were not provided to the Court and this aspect cannot
be checked. It is convenient to proceed on the basis that the claim
was made only by Mr Elliott.). As well, he claims that
the NCA or its officers conspired with others to act in excess of the
NCA's powers with the object of charging him with a criminal offence
and, thus, destroying his standing in the community and harming his
business interests. The conspiracy, he claims, was entered into by
the NCA for political purposes associated with his presidency of the
Liberal Party of Australia or for the purpose of establishing the
NCA's effectiveness as an investigative body. Alternatively (or,
perhaps as an aspect of that same claim), it is said that the NCA used
its coercive powers under ss.28 and 29 of the Act on behalf of the
DPP who would otherwise have to depend on evidence obtained in the
ordinary course of investigation by members of the Victoria Police
Force.

8. The other applicants claim (as does Mr Elliott by way of an alternative to his other claims) that the references given to the NCA
under ss.13 and 14 do not extend to the foreign exchange matter. And
they claim, as does Mr Elliott, that s.12 impliedly prohibits the
laying of charges by the NCA and that the laying of charges by
Sergeant Seymour in his capacity as a Special Constable of the
Victoria Police Force is a mere device to avoid that prohibition.

9. The claims which I have outlined formed the basis of applications to the Federal Court of Australia for interlocutory and final orders
preventing Sergeant Seymour, the NCA and the second respondent, NCA
Chairman Mr Thomas Sherman, from charging the applicants with offences
relating to the foreign exchange matter. The applications were later
amended to claim, as well, orders preventing the NCA from passing
evidence or information to any other person. The purpose of the
amended claim was to prevent the NCA from making the evidence
available to someone else so that that person could lay charges
instead of Sergeant Seymour.

10. Initially, the applicants obtained interlocutory relief as claimed from Olney J It was subsequently decided by Foster J,
following a 16 day hearing on applications for the continuation of
the orders made by Olney J, that those orders should be vacated.
Applications for leave to appeal to the Full Court from the decision
of Foster J were dismissed after a two day hearing, the applications
for leave, it seems, being argued as though they were appeals. The
orders made by Olney J have been extended by orders staying or
deferring subsequent orders, with the consequence that they were still
in effect when applications were made to this Court for interlocutory
relief in the same or substantially the same terms as initially
granted by his Honour. The applications to this Court are for relief
pending the hearing of applications for special leave to appeal.

11. It is clear that entitlement to interlocutory relief depends on there being a probability of obtaining final relief ((5) Beecham
Group Ltd. v. Bristol Laboratories Pty. Ltd. [1968] HCA 1; (1968) 118 CLR 618, at
p.622; Administrative and Clerical Officers Association v. The
Commonwealth (1979) 53 ALJR 588, at p.591; 26 ALR 497, at
p.502.). Given the issues in this case, the assertions of fact and
the nature of the claims made with respect to the powers of the NCA, it
can, I think, be taken that if those facts and claims, or any of them,
raise a seriously arguable case which, leaving aside discretionary
considerations, would justify final relief as claimed, then the
applicants were entitled to succeed in their claim for interlocutory
relief in the Federal Court. Put another way, this is not a case
which turns on the usual discretionary considerations. I put the
matter this way because, as the applicants concede, an order
preventing the institution of criminal proceedings would only be made
in an exceptional case and, as will later appear, the matters which
would make a case exceptional would, almost inevitably, outweigh
considerations of convenience. I should add in this context that the
respondents raise laches and delay, but, for much the same reason,
the matters relied upon would not, in my view, constitute a bar to
interlocutory relief if it should otherwise be granted.

12. It was argued for the applicants that, given the nature of the case, the only question relevant to the grant of interlocutory relief
is whether there is a prospect that special leave will be granted.
That can be taken as correct, particularly in so far as the relief
claimed is essential to the preservation of the subject-matter of the
proposed appeal. However, something should be said as to the prospect
that special leave will be granted. It was put for the applicants
that the case involves the liberty of the subject and that, in
accordance with Narain v. Director of Public Prosecutions ((6)
(1987) 61 ALJR 317; 71 ALR 248.), all that is required is that
that prospect should not be insubstantial, rather than that there
should be a "substantial prospect" as required in Jennings Construction
Ltd. v. Burgundy Royale Investment Pty. Ltd. (No.1) ((7) [1986] HCA 84; (1986) 161
CLR 681, at p.685.).

13. It is to be remembered that this is an application for an interlocutory injunction, not for the stay of a final judgment.
Interlocutory relief always depends on there being a probability that
final relief will be obtained. Inevitably, the question whether
there is a prospect of special leave being granted in a case involving
the refusal of interlocutory relief depends on whether there is a
probability of ultimate success. Thus, whether the matter is
approached on the basis of a not insubstantial prospect or a
substantial prospect (assuming there is a shade of difference between
the two), the present applications must pass a threshold point which
involves some consideration of the prospects of final success. That
is only to give more particular content to the rubric that it is only
in exceptional cases that there will be a grant of special leave from
a decision involving the refusal of interlocutory relief ((8) See
Paringa Mining and Exploration Co. Plc. v. North Flinders Mines Ltd.
[1988] HCA 53; (1988) 165 CLR 452; Cohen v. Peko-Wallsend Ltd. [1986] HCA 70; (1986) 61 ALJR
57, at p.59; [1986] HCA 70; 68 ALR 394, at p.397. See also Queensland v.
Commonwealth [1988] HCA 1; (1988) 62 ALJR 143, at p.145; [1988] HCA 1; 77 ALR 291, at
p.295.).

14. It is convenient to first consider the claims made by Mr Elliott, which can be referred to as the "mala fides claims". Those claims
featured prominently in the argument in this Court, although they do
not have quite the same prominence in the draft grounds of appeal.
The mala fides claims all involve contested issues of fact. The
applicants claim that, in so far as it was held at first instance and
in the Full Court that they did not give rise to a serious issue to be
tried, insufficient regard was had to the failure of the respondents
to call answering evidence. In this regard, they rely on Jones v.
Dunkel ((9) [1959] HCA 8; (1959) 101 CLR 298. See also The Insurance
Commissioner v. Joyce [1948] HCA 17; (1948) 77 CLR 39.).

15. The first mala fides claim is that there was no consultation with the Inter-Governmental Committee and, thus, no valid reference under
either s.13 or s.14 of the Act. The sole basis for that claim was a
statement in an affidavit sworn and filed by Mr Crabb, in defamation
proceedings in the Supreme Court of Victoria. Mr Crabb was at
relevant times the Victorian Minister responsible for the NCA Act and
a member of the Inter-Governmental Committee. A Commonwealth
reference was issued or purportedly issued under s.13 on 21 December
1989. The statement in the affidavit was that Mr Crabb "became aware
in early 1990 that the (NCA) had commenced an investigation into the
(matter referred)".

16. At first instance, Foster J declined to find that the statement in Mr Crabb's affidavit gave rise to a serious issue as to whether the
Inter-Governmental Committee had been consulted. That ruling was
challenged in the Full Court, but was not specifically dealt with in
the judgments. That does not matter. What is important is that the
ruling was open and, despite what was said by reference to Jones v.
Dunkel as to the drawing of inferences when there is no evidence from
a party who is in a position to call evidence bearing on the matter in
issue, there is nothing to indicate any error in the approach taken
by Foster J His Honour noted that the NCA might have given better
evidence, but expressed the view that the evidence which it did
lead was "more than adequate to outweigh any inference that might
conceivably have been drawn from the material (on which Mr Elliott
relied)". It does not seem to me that there is any prospect of
special leave being granted for the purpose of reviewing that finding
or the ultimate finding based on it, namely, that that particular
claim did not warrant the grant of interlocutory relief.

17. The other mala fides claims (conspiracy and improper purposes) were dealt with by Foster J on the basis that, assuming the Federal
Court had jurisdiction to prevent the laying of criminal charges, it
would only be exercised "in most exceptional circumstances such as
where to permit the prosecution to be launched would be to bring the
administration of justice into disrepute". His Honour went on to
say that "for this result to occur the behaviour of the intending
prosecutor or those behind him would have to be extraordinarily
reprehensible, heinous in the extreme". The applicants did not
challenge these statements but they did challenge his Honour's finding
that "(t)he material in the present proceedings ... does not raise
factual issues of this extreme kind."

18. The finding that the evidence did not raise extraordinarily reprehensible or heinous conduct is to be understood in the context
that there was clear evidence of references to the NCA relating to an
aspect of the affairs of Elders and any question of consultation with
the Inter-Governmental Committee had, by then, been determined against
the applicants. Thus, the claims of conspiracy and improper purpose
were to be viewed as if centred on or growing out of the NCA's
investigation of a matter which, although it related to the affairs of
Elders, was not covered by the references given to it.

19. In reaching his conclusion that the evidence did not raise extraordinarily reprehensible or heinous conduct, Foster J noted
the submissions made with respect to the failure of the NCA to give
evidence of matters within its knowledge. In these circumstances,
there does not seem to be any error of approach as claimed by the
applicants. And given that the mala fides claims had, for practical
purposes, disappeared from the case, the finding was one that was
clearly open.

20. On the approach taken by Lockhart and Beaumont JJ in the Full Court, it was not necessary for their Honours to deal specifically
with the findings of Foster J relating to the mala fides claims of
conspiracy and improper purpose. However, the conspiracy claim was
considered by Sheppard J His Honour said that, in his opinion,
the matters relied upon to displace the conclusions of Foster J
in that regard "(did) not tip the scales in favour of the grant of
interlocutory relief".

21. As already indicated, the ruling by Foster J that the evidence did not raise extraordinarily reprehensible or heinous conduct was
open. It was not dissented from by the Full Court. It is my view
that, in these circumstances, there is no prospect of the grant of
special leave to review that ruling or the ultimate ruling based on
it, namely, that the mala fides claims of conspiracy and improper
purpose did not warrant interlocutory relief.

22. It is appropriate to note, in the context of the mala fides claims, that the draft grounds of appeal ((10) Draft grounds have been
filed only in the application by Mr Elliott.) complain that neither
Foster J nor the Full Court considered the complaint that the NCA
acted with the improper purpose of establishing its reputation as an
investigative body. However, the finding that the evidence did not
raise extraordinarily reprehensible or heinous conduct necessarily
extends to that claim and, thus, for the reasons given in relation to
the mala fides claims of conspiracy and improper purpose generally,
there is, in my view, no prospect of special leave being granted to
ventilate this particular claim.

23. The claims which are common to all the applicants, namely, that the foreign exchange matter is outside the terms of the references
given to the NCA and that the laying of charges by Sergeant Seymour,
in his capacity as a Special Constable for Victoria, is a mere device
designed to avoid the implied prohibition in s.12, are in a somewhat
different category from the mala fides claims. In the Full Court,
Lockhart and Beaumont JJ indicated that, in their view, it could not
be said that the first claim was not seriously arguable. They also
indicated that there was a question to be tried as to "whether it is
competent for the NCA to assist the DPP in the latter's conduct of
prosecutions in respect of the foreign exchange matter". The last
question would seem to be different from whether s.12 impliedly
forbids the laying of charges by the NCA for their Honours agreed
with the remarks of Sheppard J who, in turn, agreed with their
Honours' judgment but made some additional observations. In those
observations, Sheppard J indicated that s.12 is concerned only with
the prosecution of offences and not the laying of charges.

24. The Full Court dismissed the appeal notwithstanding its view that the question whether the NCA's authority extended to an investigation
of the foreign exchange matter was fairly arguable. It did so because
of its view that the case was not exceptional and because of its
assessment of the balance of convenience. These issues were not
entirely separate. The Full Court seems to have approached the matter
on the basis that a case would not be exceptional if the only matters
relied upon to establish an exceptional case were matters which could
be accommodated or, perhaps, could more conveniently be accommodated,
in a criminal trial. Clearly, these matters also go to the balance of
convenience.

25. Some of the draft grounds of appeal are directed to findings of the Full Court which go to the balance of convenience and its
relationship with the notion of "exceptional case". Thus, it is
complained, amongst other grounds, that:

"The Full Court erred in holding that a civil court
will not restrain the commencement of criminal proceedings
(e.g. as an abuse) in a case where the evidence upon which
the application is based is substantial or controversial."

"Having found that there were serious questions to be
tried, when assessing the balance of convenience the Full
Court's discretion miscarried when it held that the case was
not 'exceptional'."

"The Full Court erred in holding that the power of the
criminal courts to stay proceedings for abuse of process
afforded the Appellant an adequate protection."

"The Full Court erred in treating the principal issue
as one concerning the admissibility of the evidence obtained
by the NCA. In fact the principal issue was whether the
courts would intervene to ensure that unlawful executive
action which involved an abuse of the criminal process did
not receive curial approval."

26. It is by no means clear that civil proceedings will lie to prevent the laying of criminal charges. But, if they do, it will only
be because it would be an affront to justice if the proceedings were
to be instituted or, and this may be an aspect of the same thing,
because the safeguards available in criminal proceedings are clearly
inadequate to protect against the injustice involved. As earlier
indicated, if that could be said of a case, it would be an exceptional
case and no question of the balance of convenience could sensibly
arise.

27. For the moment, the first two grounds of appeal set out above can be put to one side. The findings to which the third and fourth of
those grounds are directed go to showing that the criminal process is
adequate to deal with at least some matters which, according to the
applicants, will result from the laying of charges. The third and
fourth grounds, if they are to be given any real significance, must be
treated as an elaboration of a complaint that the Full Court erred in
failing to find that the case was exceptional. And, it is clear that
the first two of the grounds set out above and the remaining draft
grounds must be treated in the same way. The remaining grounds are:

"The Full Court erred when construing the provisions of
the National Crime Authority Act 1984 (NCA Act) in failing
to give any or any sufficient weight to the necessity to
strictly construe the Act so as to ensure that citizen's
civil liberties were not infringed".

"The Full Court erred in failing to take into account
the effect upon the civil liberties of a subject caused by:
(a) an abuse of power by the National Crime Authority (NCA)
in the use of the coercive powers with which it was
invested by the NCA Act; and
(b) the effect upon a citizen of a charge laid in
furtherance of such an abuse of power".

"The Full Court erred in regarding as a relevant matter
in deciding if leave to appeal should be granted that:
(a) there was some other reason than the existence of
the interim injunction why charges had not yet been
laid ...;
(b) on a prosecution ... the prosecutor may not use the
evidence obtained by the NCA; and
(c) the Court did not know the precise nature of the
charges that may be brought".

28. I have earlier indicated that, in my view, there is no prospect of special leave being granted to ventilate the mala fides claims.
Thus, it is necessary to approach the question whether the Full Court
erred in not finding that the case was exceptional by reference to two
claims only. Those claims are that the NCA used its coercive powers
with respect to the foreign exchange matter when the terms of its
references did not cover that matter and that the laying of charges by
Sergeant Seymour as a Special Constable of the Victoria Police Force
is a mere device to avoid the implied prohibition in s.12 of the Act.

29. It is essential that bodies such as the NCA and the DPP are scrupulous in observing the limits of their powers, in paying proper
regard to the civil liberties of those whom they investigate and
prosecute and in ensuring that they and their officers and employees
exercise and are seen to exercise their powers bona fide and only for
the purposes for which they are intended. Otherwise and as this case
demonstrates, public confidence in the prosecution process will be
eroded. That notwithstanding, it does not seem to me that it is
fairly arguable in the circumstances of this case that the failure
of the NCA to act within the limits of its powers makes the case
exceptional in the sense indicated or in any other sense that might
justify an order preventing charges being laid. As earlier noted,
that failure is confined to the exercise of coercive powers in
relation to a matter which was not within the terms of references
given to the NCA (if that should prove to be the case) and
acquiescence in Sergeant Seymour's becoming a Special Constable to
avoid the implied prohibition in s.12 of the Act (again, if that
should prove to be the case). I am of the view that there is no
prospect of special leave being granted to enable the applicants to
argue that those matters make the case exceptional.

30. It follows from what I have said with respect to the prospect of special leave being granted to argue the matters raised by the
draft grounds of appeal or to argue any of the other matters raised
in oral argument that the applicants have not made out a case for
interlocutory relief.