Day v Lynn

Federal Court of Australia (Full Court)|2004-03-29|Before: Lander JJ

REASONS FOR JUDGMENT THE COURT: 1 The appellant is an officer of the Australian Customs Service ('the ACS'). The Australian Federal Police ('the AFP') obtained information by the interception of the appellant's telephone calls ('the intercept information'). It is common ground that the intercept information was lawfully obtained by the AFP under a warrant issued under Part VI of the Telecommunications (Interception) Act 1979 (Cth) ('the TI Act'). Such a warrant may only be issued on the application of an agency, in connection with the investigation by the agency of a Class 1 or Class 2 offence. The only Commonwealth authorities which fall within the definition of agency are the AFP and the National Crime Authority. Only very serious offences fall within the definitions of Class 1 offences and Class 2 offences. 2 The AFP communicated the intercept information to the ACS, which commenced disciplinary proceedings against the appellant under the (then) provisions of the Public Service Act 1922 (Cth) ('the PSA'). In very general terms, Subdivision C of Division 6 of the PSA provides that an authorised officer may charge another officer with a failure to fulfil his duty as an officer. An inquiry is to be held into the charge by the relevant Secretary, or by an officer appointed for that purpose. Where the charge is made out the inquiry officer may direct that a variety of action be taken in respect of the guilty officer. An appeal against the inquiry officer's decision lies (s 63D) to a Disciplinary Appeal Committee established under the Merit Protection (Australian Government Employees) Act 1984 (Cth) ('the DAC'). Although the PSA has been repealed its provisions shall be referred to in the present tense.

The 1998 charges 5 The 1998 charges were laid by Ms Karen Williams by way of a Notice of Charge under s 61 of the PSA. Mr Doug Greaves was appointed as the inquiry officer under s 62(1) of the PSA. On 2 August 1999 Mr Greaves found that eleven of the twelve charges had been made out. He made directions under s 62(6) of the PSA concerning the action which should be taken against the appellant. Those directions were for the deduction of specified amounts from the appellant's salary, and for a reduction in the appellant's salary for a period of twelve months. 6 The appellant appealed to the DAC in respect of nine of the charges that were proven (apparently two of the eleven charges proved against the appellant were not appellable directions within the meaning of s 63D of the PSA). The DAC hearing on the appeal was deferred pending the appellant's challenge to the 1999 charges referred to hereunder. The DAC conducted a hearing in relation to the truth of the charges on 17 and 18 December 2001. In a written decision of 7 January 2002 the DAC published its findings that each of the charges had been proved. The DAC indicated an intention to reconvene on 1 February 2002 for the purpose of receiving and considering any evidence and submissions which the parties wished to place before it on the question of an appropriate disciplinary sanction for the conduct which it had found established. The DAC reconvened on 1 February 2002 as foreshadowed. In a decision dated 11 February 2002 the DAC varied the directions made by Mr Greaves and ordered that the appellant be demoted from 'Customs Officer, Level 3' to 'Customs Officer, Level 2' and that his pay be reduced to the top of the salary range for that level.

The 1999 charges 7 The 1999 charges were also laid by Ms Karen Williams. Mr Peter Thomson was appointed as inquiry officer. 8 On 24 August 1999 the appellant applied to the Federal Court for orders setting aside the 1999 charges, to have the inquiry into those charges aborted, and for a declaration that the communication of the intercept information by the AFP to the ACS was unlawful. The respondents to those proceedings were the Commissioner of the AFP, the Commonwealth, Ms Williams and Mr Thomson. The application was heard by Einfeld J: see Day v Commissioner of Australian Federal Police (2000) 96 IR 240; [2000] FCA 398. 9 Einfeld J identified the issue in those proceedings as follows (at 241): 'The fundamental question raised by these proceedings is whether the first respondent was entitled to release the information lawfully intercepted under the TI Act to the other respondents for their use in disciplinary proceedings against the applicant under the PS Act.' The first respondent was the AFP. 10 In those proceedings, the AFP relied upon s 67 of the TI Act (as to which see later) as the authority for the communication of the intercept information to ACS. The appellant contended that s 67 relates to intra-agency, not inter-agency, communications, and does not permit the disclosure by an intercepting agency of interception transcripts to ACS. 11 Einfeld J rejected the argument that s 67 was limited to intra-agency use. His Honour said (at 243): '… section 67 permits communication by an officer of 'an agency' to 'another person' for a 'permitted purpose … in relation to the agency'. In the case of the AFP, such a purpose includes, by paragraph (b)(i) of the s.5 definition, an investigation or inquiry under the PS Act into alleged misconduct of a Commonwealth officer. It is difficult to see what this definition covers if not an investigation into the activities of a Customs officer such as the applicant is facing. As such investigations will not, other than as involve the police themselves, normally be undertaken by the first respondent's officers, the communication will mostly be to officers of other agencies. The manifest purpose of this provision is to permit the AFP to communicate lawfully intercepted information to assist the purposes referred to. That this must be so can also be seen from the use in the 'permitted purpose' definition (s.5) of the words "by a person in the person's capacity as an officer of the Commonwealth", which includes by section 6G(1)(a) a person employed by or under Commonwealth law to conduct an investigation or inquiry of the kind entrusted to the fourth respondent.' 12 His Honour continued: 'The scheme of the Act also support this view. For example, the provision in section 74(1) that persons may disclose information from lawfully obtained interceptions in an exempt proceeding, defined in section 5B to include for example an appeal from the results of the proposed inquiry of the applicant by the fourth respondent, is particularly instructive. It is difficult to see how such evidence could be known unless there had been prior disclosure to the inquiry officer. So do its apparent legislative purposes. The parliamentary and other pre-legislative public considerations of this legislation show that its intention was to permit the use of lawfully obtained interceptions in a broad category of law enforcement, including inquiries of the kind required of the fourth respondent.' 13 The correctness of Einfeld J's rejection of the contention that s 67 of the TI Act relates only to intra-agency communications, and does not permit the disclosure by the AFP of intercept information to ACS, was not put in issue in the appeal from that decision: Day v Commissioner of Australian Federal Police (2000) 101 FCR 66 at 68. The argument which was put to the Full Court on appeal, and rejected by it, was that the communication was not authorised by s 67 of the TI Act, when read in the light of par (b)(i) of the definition of permitted purpose, since the investigation of, or an inquiry into, alleged improper conduct can only commence after charges have been laid under s 62 of the PSA. 14 The High Court refused special leave to appeal from the decision of the Full Court.

The present proceedings 15 On 11 March 2002 the appellant applied to this Court for an order of review under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). The first respondents to the application consist of the members of the DAC. The second respondent is the Commonwealth of Australia. The first respondents have filed a submitting appearance, and have not taken an active role in the proceedings, either at first instance, or on appeal. 16 The relief which the appellant claims includes orders under s 16(1) of the ADJR Act: (a) quashing or setting aside the DAC's decision from the date when the decision was made; (b) directing the respondents to refrain from implementing the decision; and (c) upholding the appellant's appeal to the DAC and dismissing the charges against the appellant. Orders if made in terms of (a) and (c) above would be made against the first respondent.

The proceedings at first instance 17 The appellant's case at first instance in relation to ACS's use of the intercept information was that: (a) as the intercept material was obtained by the AFP, under s 67 of the TI Act, the AFP was the only agency that was entitled to use it, and then only for a permitted purpose; (b) the charges against the appellant did not relate to alleged 'misbehaviour' or 'improper conduct' in terms of par (b)(i) of the definition of permitted purpose and therefore the investigation or inquiry into those charges was not for a permitted purpose; and hence (c) the DAC made an error of law in receiving the transcripts of intercepted phone calls into evidence. 18 The response to the appellant's case, as recorded by the primary judge, was that there is an issue estoppel arising 'between the parties' from the decision of Einfeld J in relation to the 1999 charges, and in any event the communication of the intercept information to Mr Greaves was authorised under the TI Act. 19 The primary judge found that: (a) there is an issue estoppel arising from the decision of Einfeld J which precludes the appellant from raising the issue referred to in par 17(a) above; (b) arguably, there is an issue estoppel arising from the decision of the Full Court which precludes the appellant from raising the issue referred to in par 17(b) above; but (c) in any event, an investigation or inquiry into alleged misconduct under s 56 of the PSA is a permitted purpose within the meaning of s 67 of the TI Act. The reference to 'investigation of, or inquiry into' in par (b)(i) of the definition of permitted purpose is sufficiently wide to include not only the authorised officer's consideration as to whether charges should be laid, and the inquiry officer's hearing of the charges, but also the DAC's review of the inquiry officer's decision.

Relevant statutory provisions 20 Part VII of the TI Act regulates dealing with intercepted information. Section 63(1) creates a general prohibition, which is lifted where a particular dealing with intercepted information is authorised by a subsequent section. 21 Section 63(1) provides: '(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 obtained information or information obtained by intercepting a communication in contravention of subsection 7(1).' 22 Lawfully obtained information is defined in s 6E of the Act as follows: '(1) Subject to subsection (2), a reference in this Act to lawfully obtained information is a reference to information obtained (whether before or after the commencement of this section) by intercepting, otherwise than in contravention of subsection 7(1), a communication passing over a telecommunications system. (2) A reference in this Act to lawfully obtained information that was originally obtained by an agency, or by an eligible authority of a State, is a reference to: (a) information obtained, whether before or after the commencement of this section, by intercepting a communication under a warrant issued to the agency or authority; or (b) information communicated to the agency or authority in accordance with section 65A.' 23 Section 67 of the Act relevantly provides: '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 obtained information …' 24 Section 5 of the TI Act contains a lengthy definition of permitted purpose. Some elements of the definition are expressed as applying 'in any case'; others are expressed to apply in the case of the AFP, others in the case of a Police Force of a State, others in the case of an eligible authority of a State, and others in the case of the Police Integrity Commission. 25 The definition includes the following: '"permitted purpose" in relation to an agency, or an eligible authority of a State, means a purpose connected with: (a) in any case; … (iii) a relevant proceeding in relation to the agency or eligible authority; … (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. …' 26 'Relevant proceeding' is defined in s 6L as follows: '(1) A reference in this Act, in relation to an agency or an eligible authority of a State, to a relevant proceeding is, in the case of the Australian Federal Police or a Police Force of a State, a reference to: … (f) any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth, or of that State, as the case may be.' 27 Section 73 provides: 'A person to whom information has, in accordance with section 63A, subsection 63B(2), section 67, subsection 73(3) or this section, been communicated for a purpose, or for 2 or more purposes, may, for that purpose, or for one or more of those purposes, and for no other purpose, communicate to another person, make use of, or make a record of, that information.' 28 Section 74 provides (insofar as is relevant): '(1) A person may give lawfully obtained information (other than section 11A information) in evidence in an exempt proceeding. (2) For the purposes of applying subsection (1) in relation to information, the question whether or not a communication was intercepted in contravention of subsection 7(1) may be determined on the balance of probabilities.' 29 A 'proceeding' is defined in s 5 as including a hearing before a body, authority or person in Australia having power to hear or examine evidence. 'Exempt' proceedings are defined in s 5B as including: '(f) any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State,' It is common ground that the proceedings before the DAC are exempt proceedings. 30 Section 77(1) of the TI Act provides: '(1) Where a communication passing over a telecommunications system has been intercepted, whether or not in contravention of subsection 7(1), then: (a) subject to paragraph (b), neither information, nor a record, obtained by the interception is admissible in evidence in a proceeding except in so far as section 63A, 74, 75, 76 or 76A permits a person to give in evidence in that proceeding information so obtained; and (b) for the purpose of determining the extent (if any) to which section 63A, 74, 76 or 76A permits a person to give in evidence in a proceeding information obtained by the interception: (i) a person may communicate to another person, make use of, make a record of, or give in evidence in the last-mentioned proceeding, information so obtained; and (ii) information, or a record, so obtained is admissible in evidence in the last-mentioned proceeding.' 31 Section 78 of the TI Act provides: 'Nothing in Part IIA or in this Part renders information, or a restricted record, admissible in evidence in a proceeding to a greater extent than it would have been admissible in evidence in that proceeding if this Part had not been enacted.' 32 'Restricted record' means a record obtained by means of an interception, whether or not in contravention of subsection 7(1), of a communication passing over a telecommunications system. Section 79(1) of the TI Act provides: '(1) Where: (a) a restricted record (whether made before or after the commencement of this section) is in the possession of an agency (other than an eligible authority of a State in relation to which a declaration is in force under section 34); and (b) the chief officer of the agency is satisfied that the restricted record is not likely to be required for a permitted purpose in relation to the agency; the chief officer shall cause the restricted record to be destroyed forthwith.'

Submissions 33 On the hearing of the appeal, the appellant advanced three arguments based upon the construction of the TI Act. Counsel for the appellant frankly conceded that the arguments did not bear a 'great similarity' to the arguments which had been put on the appellant's behalf to the primary judge. The three arguments put to this Court may be summarised as follows: (i) whilst the proceedings before the DAC were a relevant proceeding, they were not a relevant proceeding in relation to the AFP, as the AFP had no role to play in relation to those proceedings. Paragraph (a)(iii) of the definition of permitted purpose was thus not attracted, and neither s 67 nor s 73 of the TI Act was enlivened. Paragraph (b)(i) of the definition of permitted purpose cannot be relied upon, because there was a communication of the intercept information for use in connection with the DAC proceeding. Limitations flowing from paragraph (a)(iii) on the nature of the proceedings in relation to which disclosure is authorised cannot be circumvented by reliance upon the general provisions of par (b)(i) of the definition: Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7; (ii) even if the proceeding before the DAC was a permitted purpose, it was not the same purpose as that for which the AFP or Mr Greaves used the material. Mr Greaves did so for the purpose of an inquiry or investigation of the kind referred to in par (b)(i) of the definition of permitted purpose. Since the DAC used the information for a different purpose, viz, a proceeding its use cannot be justified by s 73 of the TI Act; and (iii) the use of the phrase 'in relation to the agency' in s 67 further qualifies what is encompassed by the phrase 'permitted purpose'. The phrase where used in s 67 of the TI Act requires that the relevant investigation, report, proceeding etc is one that is by the AFP, or in which the AFP has a role, or for some other reason could be said to be 'in relation to the AFP'. What is not contemplated is what occurred in the present case, namely that the intercept information be handed over by the AFP to ACS for use by ACS completely independently of the AFP, in relation to an investigation by ACS of employee 'misbehaviour' whether trivial or serious. 34 The appellant's written submissions were directed towards establishing that neither s 67 nor s 73 of the TI Act authorised the communication of the intercept information to the DAC. The second respondent's primary submission was that the relevant authority flows from s 74 of the TI Act, and that neither s 67 nor s 73 of the TI Act has anything to say about the introduction of the intercept information as evidence in the proceedings before the DAC. This is not an issue which was put to the primary judge for decision. Rather, the submission put to the primary judge, and rejected by her, was that referred to in par 17(b) above. The appellant did not rely upon that submission in this Court. 35 The parties were also at issue as to whether, and if so, to what extent, any issue estoppel arose in relation to these issues of construction from the decisions of the Court in the 1999 proceedings.

Consideration 36 The intercept information was made available by the AFP to Ms Williams in connection with the investigation of whether charges should be laid against the appellant under the PSA. Ms Williams in turn communicated that information to Mr Greaves as the officer appointed to inquire into the charges which Ms Williams laid against the appellant. When the appellant appealed from the directions given by Mr Greaves, the information was made available to the solicitor for the ACS, Mr Begbie. Mr Begbie in turn caused that information to be tendered in evidence before the DAC. The appellant's case is that the DAC acted unlawfully in receiving that information into evidence. 37 It is unclear whether, and if so, to what extent the DAC relied upon the intercept information in coming to its conclusions. In its reasons for decision, the DAC refers to that information as having been tendered in the proceedings by the second respondent, and there is a specific reference in the DAC's reasons for decision in relation to at least one of the charges to evidence obtained by way of telephone interception, although this evidence does not appear to have been controverted by the appellant. Nonetheless, it is clear that the information in question was placed before the DAC by the solicitor for the ACS, and in the absence of any submission by counsel for the second respondent to the contrary, we should proceed upon the basis that the DAC took that information into account when coming to its decision.

Section 74 38 Section 74 has nothing to say about the admissibility in evidence of the intercept material (see s 78). If s 74 is enlivened, then the s 63 prohibition is lifted to that extent. 39 The prohibition in s 63(1) has two limbs. The first consists of communicating, or making use of, or making a record of, intercept information, whether that information is lawfully obtained or otherwise. The second consists of giving that information as evidence in a proceeding. Sections 67(a) and 73 are, in their terms, exceptions to the first limb of the s 63(1) prohibition although the exception is confined to lawfully obtained information. Section 74 is, in its terms, an exception to the second limb of the s 63 prohibition, but the exception is again confined to lawfully obtained information. 40 As the conduct of which the appellant complains is the giving in evidence of the intercept information before the DAC, the primary question is whether that conduct is authorised by s 74 of the TI Act. Unless s 74 permits a person to give the information in evidence before the DAC then, by virtue of s 77 of the TI Act, the information is not admissible in those proceedings, and it would be an error of law for the DAC to receive that information in evidence. 41 The issue, then, is whether the intercept information was lawfully obtained information. In the appellant's submission lawfully obtained information is a defined term which has the meaning ascribed to it in s 6E, which is not necessarily synonymous with information which has been obtained lawfully. 42 In the appellant's submission lawfully obtained information for the purposes of s 6E(1) is confined to information obtained by interception, as opposed to information obtained by communication. The appellant calls in aid s 6E(2) in support of that submission. The appellant contends that in the hands of Mr Begbie or the DAC, the intercept information no longer possessed the character of lawfully obtained information because the information was communicated to them, rather than intercepted by them. A consequence of this submission, if accepted, would be that it is only the interceptor of lawfully obtained information who may give the information in evidence in exempt proceedings, as opposed to some other person (such as a lawyer for a party) into whose hands the information has come, even if the communication of the information to that person was authorised by the TI Act. 43 In our view, s 6E(2) is of no assistance in the resolution of the present problem. Section 6E is simply a definitional section which provides content to expressions used elsewhere in the Act. Subsections 6E(1) and 6E(2) give different content to different expressions. Section 6E(1) gives content to the expression lawfully obtained information where it is used elsewhere in the Act, as, for example in s 67. Section 6E(2) gives content to a different expression, namely lawfully obtained information that was originally obtained by an agency, where that expression is used elsewhere in the Act, as, for example, in s 68. 44 Whether intercept information is within the definition of lawfully obtained information depends upon whether the interception of that information was in contravention of s 7(1) of the TI Act. That issue is one which is necessarily to be determined at the point of interception of the information in question. If at that point the information satisfies the statutory description, it does not lose its character as lawfully obtained information no matter how many hands it may later pass through. 45 As it is conceded that the intercept information was lawfully obtained information at the point of its interception, and as it is conceded that the proceeding before the DAC was an exempt proceeding, it follows that the introduction of the intercept information into evidence in those proceedings was authorised by s 74. There is no room for an implication into s 74 of an unexpressed qualification that the person giving lawfully obtained information into evidence must either be the interceptor of the information, or a person to whom the communication of that information was authorised by some other provision of the TI Act. It is the character of the proceedings as exempt proceedings which provides the rationale for lifting what would otherwise be the s 63 prohibition on the use of the intercept information in connection with those proceedings. If the path by which the information was conveyed to 'the person' referred to in s 74 involved a contravention of s 63, the contraveners would by virtue of s 105 of the TI Act be guilty of an indictable offence, punishable by two years imprisonment. 46 The DAC made no error of law by allowing the intercept information to be introduced into evidence. 47 This conclusion is not dependent on the rejection of the appellant's three arguments earlier referred to, which have as their focus s 67 and s 73 of the TI Act, rather than s 74. Nonetheless, we should address those arguments, albeit briefly.

First argument 48 The appellant's first argument is based upon a false dichotomy. The various paragraphs in the definition of permitted purpose should not be read as establishing mutually exclusive categories. The fact that the proceeding before the DAC was not a proceeding in relation to an agency within par (a)(iii) of the definition does not provide any basis for excluding the proceeding before the DAC from par (b)(i) of the definition. The right of appeal under s 63D of the PSA is the final step in the inquiry process into alleged improper conduct on the part of a Commonwealth officer which commenced with the decision to charge the officer under s 61 of the PSA. 49 In any event, whilst s 67 of the TI Act is clearly relevant to the communication of the intercept information from the AFP to Ms Williams, it has nothing to say about the reception of that information into evidence before the DAC. 50 No issue estoppel arises in relation to this argument, as there was no issue in the 1999 proceedings about reception of intercept information into evidence before the DAC.

Second argument 51 The appellant's second argument should also be rejected as it involves too narrow a description of the purpose for which the intercept information was conveyed by Ms Williams to Mr Greaves, by Mr Greaves to Mr Begbie, and by Mr Begbie to the DAC. At each of those points, the information was conveyed for the same purpose, namely for use in connection with the disciplinary action taken against the appellant pursuant to subdivision C of Division 6 of the PSA. 52 In any event, s 73 has nothing to say about the reception of that information into evidence before the DAC. That is a matter regulated by s 74. 53 No issue estoppel arises in relation to the second argument as there was no issue in the 1999 proceedings with respect to the operation of s 73 of the TI Act.

Third argument 54 The appellant's third argument again focuses on s 67 of the TI Act and on par (b)(i) of the definition of permitted purpose. Whilst, as earlier noted, s 67 has nothing to say about the tender of intercept information in evidence before the DAC, the appellant contends that because of the combined operation of s 67 of the TI Act and par (b)(i) of the definition of permitted purpose, the intercept information could not be used by the ACS for the purpose of its internal investigation of the alleged improper conduct on the part of the appellant. 55 Even is this contention were accepted, it would not impact upon the operation of s 74 unless the permission given by s 74 to 'a person' is read as subject to an unexpressed qualification that the person must either have been the interceptor of the information, or the information must have been conveyed to him in circumstances authorised by s 67 and s 73 of the TI Act. We have already declined to read into s 74 an implication to that effect. 56 The Explanatory Memorandum to the Telecommunications (Interception) Amendment Bill 1987 (Cth)contains a statement that the proposed s 68 of the Bill (the precursor to s 67 of the Act): 'Makes provision for lawfully obtained information to be dealt with within the agency which obtained the warrant under which the interception was intercepted.' 57 The appellant did not go so far as to submit to us that s 67 was confined to intra-agency communications. Rather, the submission was that the words 'in relation to the agency' in s 67 of the TI Act require, in the present context, that the AFP has a sufficient role in relation to the investigation or inquiry such that it can be characterised as being in relation to the AFP. The alternative view is that the words 'in relation to the agency' are intended merely to emphasise that permitted purposes are defined so that they may differ from one body to another. The provisions of s 79 of the TI Act were called in aid of the appellant's submission, and against the alternative view. 58 In our view, a permitted purpose in relation to the AFP includes an investigation of, or an inquiry into, alleged improper conduct of an officer of the Commonwealth. Nothing in the words or scheme of the TI Act requires that the AFP should conduct the investigation or inquiry, or have any particular role to play in relation to the conduct of the investigation or inquiry before communication of lawfully obtained intercept information is authorised. 59 That is also the conclusion to which Einfeld J came, a conclusion which was reinforced by the provisions of s 74, and par (f) of the definition of exempt proceedings in s 5B. 60 The primary judge found that there was an issue estoppel in relation to this point, and that Einfeld J's decision that the AFP was entitled to release lawfully obtained information to the ACS officers for their use in disciplinary proceedings against the appellant under the PSA Act is decisive as between the appellant and the other parties to the decision. 61 We find it unnecessary and unprofitable to pursue the question of issue estoppel. It is unnecessary because whether the DAC committed an error of law in receiving the intercept information into evidence ultimately depends upon the application of s 74 of the TI Act. On no view was that question an issue which was determined in the 1999 proceedings. It is unprofitable to pursue the issue estoppel question because we agree with the conclusions reached by Einfeld J in relation to the issue which he did determine. The reasons given above substantially accord with the reasons given by his Honour.

Natural justice 62 A subsidiary argument mounted by the appellant was that there was a denial of procedural fairness in the proceedings before the DAC because the DAC refused a request made on behalf of the appellant for an adjournment of the proceedings. 63 The circumstances surrounding that refusal may be summarised as follows: - on 11 December 2001 the appellant's solicitor (Mr Hasson) received a bundle of documents (805 pages in all) which the second respondent proposed to tender to the DAC. The documents included statements from two of the appellant's superior officers, Messrs Pass and Kirkpatrick.

There was some discussion between Mr Hasson and Mr Begbie on 11 December 2001 about the possibility of Messrs Pass and Kirkpatrick appearing at the hearing. The primary judge did not make a specific finding as to what was said in that discussion, but her Honour recounts evidence from Mr Begbie to the effect that he had said that these were the only witnesses likely to be called, but the second respondent would still need to finalise the decision whether or not to call them. Mr Hasson did not recall, but nor did he deny Mr Begbie's statement.

By letter dated 14 December 2001 the second respondent informed Mr Hasson that neither Mr Pass nor Mr Kirkpatrick would be present at the hearing, and that it would not be calling them to give evidence.

By fax of 14 December 2001, Mr Hasson advised the second respondent that the appellant did not object to any of the documents in the bundle, but had a difficulty with the unavailability of Mr Pass and Mr Kirkpatrick to give evidence, as the appellant's case had been prepared on the basis that they would be called. An adjournment application was foreshadowed in order to have both available 'for cross examination'.

At the hearing on 17 December 2001 Mr Hasson applied for the hearing to be adjourned.

In an affidavit read before the primary judge, Mr Hasson said:

'The reason I made the application for adjournment was that in the normal course of events the Second Respondent had the onus of proving its case before the Applicant was required to give evidence. I was concerned that should the Applicant give evidence and then Messrs Pass and/or Kirkpatrick were called following the Applicant's evidence it may arise where they could give more specific evidence than that already in their statements. At the end of the Applicant's evidence, there did not appear to be any real dispute between the statement of Pass or Kirkpatrick to that of the Applicant's evidence.'

In an affidavit read before the primary judge Mr Begbie said: '15. The circumstances of Mr Hasson's application for an adjournment were as follows: (a) Mr Hasson said words to the effect: "If Mr Day does give evidence we want an assurance that Mr Pass and Mr Kirkpatrick won't be recalled"; (b) the DAC's Convenor, Mr John Lynn, clarified Mr Hasson's application stating words to the effect: "That would be evidence in reply"; (c) I then stated words to the effect: "We cannot give any assurance that we will not later make an application to seek evidence in reply from Mr Kirkpatrick or Mr Pass without having heard Mr Day's evidence. Whether or not such an application would be made depends upon what Mr Day says in evidence"; (d) the Convenor then said words to the effect: "The DAC cannot make a ruling at this stage that Mr Begbie would not be permitted to call any evidence in reply. All you could do is seek an adjournment"; (e) Mr Hasson then said words to the effect: "Then I make an application for an adjournment to call Mr Pass and Mr Kirkpatrick". 16. To the best of my recollection, at no stage did Mr Hasson submit to the DAC that an adjournment was sought in order to challenge any of the account of Mr Pass or Mr Kirkpatrick.' 64 The primary judge found: - that nothing in the evidence indicated that the DAC placed any reliance on the statements of either Mr Pass or Mr Kirkpatrick;

it was open to the appellant to take statements from Mr Pass and Mr Kirkpatrick and ensure they were available to give evidence if the appellant thought they would assist his case; and

that neither Mr Pass nor Mr Kirkpatrick could have given evidence that would have influenced the DAC decision either way.

65 Counsel for the appellant accepted in argument before us that the appellant did not cavil with the contents of the statements of Mr Pass and Mr Kirkpatrick which were placed before the DAC, nor was the DAC told by the appellant's solicitor what information Mr Pass and Mr Kirkpatrick could give (if any) in addition to what was included in their statements. The adjournment application was put on the basis of a fear that the second respondent might seek to call these witnesses in reply after the appellant had given his evidence. That fear did not materialise. 66 Whether or not Messrs Pass and Kirkpatrick, as the appellant's superiors, had authorised his absence from work was irrelevant to the charges before the DAC. The adverse findings made by the DAC were based upon the appellant's own evidence as to where he was and what he was doing at the times which he recorded on his time sheet. The charges which were laid against him were not in relation to his being absent from his workplace, but certifying an incorrect record of his attendance for work. 67 The appellant did not ask the DAC to issue summonses for Mr Pass and Mr Kirkpatrick to give evidence, nor did he make his own arrangements for them to attend to give evidence. There was no indication before the DAC that these gentlemen could have given evidence which was germane to the DAC's inquiry. It was suggested before us that they could have given evidence on the issue of penalty, which might have been favourable to the appellant. But penalty was the subject of a subsequent hearing at which neither Mr Pass nor Mr Kirkpatrick was called. Nor was any evidentiary foundation laid for a finding that the appellant was denied the opportunity of calling them if he wished on that occasion. 68 For these reasons the suggestion that the appellant was deprived of a fair hearing by the refusal of the DAC to grant the adjournment application is unsustainable.

Conclusion 69 The appeal should be dismissed with costs. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Appellant: J Sheahan SC, R Wilson

Solicitor for the Appellant: Leitch Hasson Dent

Counsel for the Second Respondent: P Hanks QC, J Jagot

Solicitor for the Second Respondent: Australian Government Solicitor

Date of Hearing: 26 February 2004

Date of Judgment: 29 March 2004

Telecommunications (Interception) Act 1979(Cth)s 5, 5B, 6E, 6L, 63, 7(1), 63, 67, 68, 73, 74, 77, 79, 105

Public Service Act 1922(Cth)s 56, 61, 62, 63D

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