A2 v Australian Crime Commission

REASONS FOR JUDGMENT 1 I have before me two applications by way of motion. There has been no notice of motion filed. That was because I either expressly or impliedly dispensed with the need for that at an earlier directions hearing. The documents sought to be produced are described in the first set of written submissions of the applicant in paragraphs 1.1 and 1.2. As: 1. the production by the ACC of copies of the affidavits or other documents constituting the information on oath referred to in the search warrants issued on 8 June 2005 by Magistrate Ian Peebles of the Local Court of New South Wales in search warrant applications, numbers 794 and 795 of 2005; 2. the production of the original version of each of those affidavits or other documents from the Registrar of the Local Court of New South Wales pursuant to the procedure specified in Order 27 rule 13 of the Federal Court rules. 2 Before dealing with the matter by its substance, Order 27 rule 13 provides for a procedure for the request of documents by this Court from another Court. It is not clear from the papers in the file whether the request that has apparently been made by the solicitors for the applicant has resulted in any steps being taken by the Court or, if it has, the production of the documents by the Local Court. I should also add that in November 2005 leave was sought for the issuance of subpoenas to Messrs Fleischer, Haas and Prosser and I refused that leave and dealt with the matter at the directions hearing. That is how the matter has come before me today. 3 In substance the application is for the production of the material that was placed before the Magistrate for the issue of the warrants in this matter. The attack on the warrants is contained in an application together with an amended statement of claim. The substance of the pleading, which is, if I may respectfully say so, very clear on its face is that the issue of the warrants under the Crimes Act 1914 was not permitted in circumstances where the provisions of the Australian Crime Commission Act 2002 provided for the issue of warrants in this case. The matter on the pleadings is one largely, if not wholly, of statutory construction based upon facts which are not in dispute. 4 The parties have provided helpful submissions. Mr Graham has not only provided submissions for today but also for the substantive application for the dismissal and the setting aside of the search warrants together with ancillary relief. That application will be heard next week. Having heard the parties I am not persuaded at all that there is any real issue by way of factual debate or dispute which has been identified which would justify the step of the production of the documents before the issuing officer. To that extent, if I may say so, my reasons would largely accord with the helpful submissions that Mr Donaghue has filed in preparation for this application. My reasons do not need to deal with that matter extensively. The first respondent has admitted that the sole purpose of the warrants was the ACC special investigation. Whether the challenge to that purpose succeeds or fails depends not at all upon the documents now sought to be produced. 5 A further issue was raised today concerning what appeared to be a possible withdrawal of an admission in relation to the pleading to the now paragraph 14 of the amended statement of claim. Matters had been previously admitted in relation to paragraph 11 of the original statement of claim. I have heard the parties today on the nature of the issue arising from the denial in paragraph 4 of the amended defence and further amended defence of the factual allegations in sub-paragraph (c) of paragraph 14. As explained by Mr Donaghue and with the addition of a slightly wider narrative admission as presently advised I do not consider that there is any substantive factual issue which will be thrown up by that denial in paragraph 4(b). 6 The issue appears to be about the correct way of expressing what occurred by reason of the status of the men in question as police officers from federal and State police forces, from their being staff of the ACC for the purposes of so-called Operation Wickenby and from the naming of those men in the warrants. I have suggested a wider admission that could be made by the ACC. That can be taken up by the ACC for next Monday. If there remains an issue during the course of the argument next week it may be that the final argument needs to be adjourned for another interlocutory skirmish about documents, although at the moment I doubt whether that will be necessary. 7 For these reasons I see no basis for any order of the kind sought for the production of documents that were before the issuing Magistrate. In my view it would be an order in the nature of a preliminary discovery for other issues in the proceedings which are yet not even hinted at because they are unknown. In those circumstances, to use the old expression, the application in my view is one of fishing. 8 I make the following orders: 1. The filing of any notice of motion for the production of documents be dispensed with. 2. Paragraph 1 of the outline submissions of the applicant stand as the identification of the subject matter of the motion. 3. The motion be dismissed. 4. The question of costs of today and the motions be reserved to the disposition of the final hearing of the matter. 5. Time for the Respondent to file submissions be extended to 4 pm Wednesday. 6. There be no access to the court file to any party or person, other than to the statement of claim or amended statement of claim and any defence or amended defence thereto, without the prior leave of a Judge of this Court. 9 I make order 4 because of the consideration I referred to a moment ago, that it is possible that this factual issue may arise. In those circumstances it may be appropriate to consider today's applications in the context of the whole case. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.