DPP v HATFIELD

• 19 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J Tuesday, 28 March 2006

11823/05 DPP v Shayne Desmond Fredrick HATFIELD, Virginia Barbara BROUN, Lindsay Maxwell RUTTER, Denise RUTTER, D & L SERVICES 7 PROMOTIONS PTY LTD JUDGMENT 1 HULME J: By Summons filed on 9 May 2005, the Director of Public Prosecutions, to whom I shall hereinafter refer as "the DPP", sought numerous orders under the Proceeds of Crime Act against the first four above-named Defendants and a number of other persons. Orders were made on that day including orders under Section 180 of the Act for the examination of those persons about the affairs (including the nature and location of any property) of the four Defendants. 2 On 9 June 2005 further orders were made for the examination of persons about the affairs (including the nature and location of any property) of the Defendants. 3 On various dates in May and June 2005, examinations were conducted before the Honourable DG Stewart in his capacity as an approved examiner. An electronic record was made of the proceedings and transcripts based on that record later produced. Some of the examinees produced documents. 4 During the course of the examinations, the examiner gave what are contended to be directions regarding the publication of the examination materials. What was said in this regard is set out in an annexure to the Notice of Motion which brought these proceedings before the Court and needs no repetition at this stage. 5 On 13 October 2005 the DPP had the matter listed before the examiner "in relation to the use of the examination materials" and on 26 October 2005, the examiner referred "the following questions of law… to the Court:- Question 1 Given the terms of the Act, can the DPP use the examination materials in the manner contemplated in the Guidelines and to enable him to fulfil his prosecutorial obligations?

Question 2 If the answer to question 1 is yes, would such use breach any of the non-publications directions?" 6 In the referral document the examiner remarked:- "I considered that the position taken by the DPP raised questions of law as to the entitlement of the DPP to use the examination materials in the manner contemplated in the Guidelines and to enable him to fulfil his prosecutorial obligations. In those circumstances, the DPP requested me to refer questions of law to the Court pursuant to Section 192 of the Act." 7 The referral was annexed to a Notice of Motion filed by the DPP on 3 November 2005 in which the Director urged that question 1 be answered "yes" and question 2 "no". 8 The "guidelines" referred to are set out in a document prepared by the Commonwealth Director of Public Prosecutions and entitled "Guidelines for the Conduct of Compulsory Examinations under the Proceeds of Crime Act 2002" a copy of which is apparently given to each examinee under the Act or to that person's legal representative. It is sufficient for present purposes to quote but parts of that lengthy document:-

2.1 Section 180 is designed to facilitate the enforcement of the Proceeds of Crime Act… it follows that Section 180 should not be used to obtain information about matters which have no relevance to confiscation action under the Proceeds of Crime Act. In particular, it would be an improper and unlawful use of Section 180 to use an examination for the purpose of obtaining information to advance a criminal investigation.

3. Legal Professional Privilege 3.1 … the effect of sections 196(1) and 197(2) is that a person is not entitled to refuse to answer a question or produce a document on grounds of legal professional privilege… 3.2 However, the examination provisions should only be used for the purpose for which they were enacted, which is to obtain information to support confiscation action under the Proceeds of Crime Act…

4. Conduct of the Examination 4.3 As far as possible, and subject to any directions by the approved examiner… · If the examination is conducted by a DPP officer it should be conducted by an officer who has no role in the prosecution or the potential prosecution; · If the examination is conducted by Counsel from the Private Bar, it should be conducted by Counsel who has no role in the prosecution…

5. Use of Material 5.2 There is only one provision in the Proceeds of Crime Act which expressly limits the use which can be made of information obtained from a compulsory examination. That is Section 198… There is no provision for derivative use protection under Section 198. 5.3 However, it is a general principle that material which has been obtained through the use of a compulsory power can only be used for the purpose for which the power was enacted and for purposes reasonably connected to it (see: Johns v ASC (1993) 116 ALR 567, Marcel v Commissioner of Police (1992) 1 All ER 72). 5.4 In addition, any material obtained from a compulsory examination which is "personal information" within the meaning of the Privacy Act 1988 will be protected by the Privacy Act and should be dealt with in accordance with the restrictions set out in that Act… 5.5 Under the Privacy Act personal information held by an agency can be… · Used or disclosed if it is reasonably necessary for the enforcement of the criminal law… 5.6 It follows that, if it is otherwise appropriate in the circumstances of the case… material obtained from examination can be used and/or disclosed for the following purposes. · Proceeds of Crime proceedings · Use in connection with a current criminal investigation If the material is relevant to matters which are the subject of a current criminal investigation or prosecution, the material can be provided to the investigators who are conducting the investigation or the prosecutors who are conducting the prosecution to determine whether the material has identified additional matters that should be investigated. · Offences not currently under investigation If the material shows that serious criminal conduct has occurred which is not the subject of a current investigation the material can be provided to an appropriate agency for investigation with a view to possible prosecution… · Provision to professional associations or regulatory agencies If the material shows that serious professional misconduct has occurred the material can be provided to an appropriate professional association or regulatory agency… · Provision to prosecutors Material can be provided to officers conducting criminal proceedings if the person who was examined is going to give evidence in the proceedings which may conflict with answers given at the examination and there is reasons to believe that the material may assist prosecuting officers to prepare cross examination. (Note that material obtained from a person cannot be tendered at a trial of that person even if the person gives evidence at the trial which conflicts with answers given at the compulsory examination). · Use in Dietrich application and bail proceedings · Disclosure of information to legal aid commissions Section 294 of the Proceeds of Crime Act provides that the DPP or the Official Trustee may disclose to a legal aid commission information obtained… · Summonses and other compulsory process Material obtained from a compulsory examination may have to be produced if the DPP is under a legal compulsion to produce it and there are no grounds for objecting to production 5.7 Material obtained from a compulsory examination should not be used by the DPP for any other purpose without written approval from the Director or the First Deputy Director. Any such approval should be given on a case by case basis and, if the material is personal information within the meaning of the Privacy Act, the approval should comply with the requirements of that act.

6. Copy of guidelines to be given to examinee A copy of these guidelines should be given to the examinee before the person is examined to ensure that the person is aware of the conditions under which the examination will be conducted and the use which may be made of material obtained from the examination." 9 With written submissions made on behalf of the Plaintiff I was also provided with another set of guidelines published by the Office of the Plaintiff entitled "Prosecution Policy of the Commonwealth" and apparently intended to provided guidance of the making of decisions in the prosecution process. I do not find it necessary to refer to the contents of that document in these Reasons. 10 The First Defendant has been charged with a number of offences including conspiracy to import into Australia prohibited imports, said to be cocaine, and with dealing in the proceeds of crime, being moneys in excess of $1M contrary to Section 400.3(1) of the Criminal Code Act 1995 (C'th) and the Third Defendant has been charged with dealing in the proceeds of crime, money or property worth $100,000 or more contrary to Section 400.4 of that Act. Something over a dozen others have also been charged with those or connected offences. Committal proceedings are underway or imminent. 11 A Senior Assistant Director in the Prosecutions Branch of the Plaintiff has deposed to being aware that proceedings under the Proceeds of Crime Act 2002 have been commenced against a number of the persons charged and that some of those persons including the First and Third Defendants have been examined. She deposes that she anticipates that because of relationship between a number of persons, including the First and Third Defendants, "the evidence of some of the persons examined there does or may be information which must be disclosed to the defence, and in particular, information relative to RI 719 (an informant), whose credit is likely to be an issue in the criminal proceedings". 12 It should perhaps be noted that, except for the DPP, none of those potentially affected by a decision in this application appeared on the hearing of the Notice of Motion although the solicitor for the Second Defendant filed written submissions on her behalf which submissions had been prepared by Mr Broun QC. After the matter was reserved Mr Broun forwarded further submissions to my chambers. Affidavit evidence before me, including the affidavits of Catherine Jane Deacon of 9 December 2005 and of Robert Peter Jenner sworn 7 December 2005, satisfies me that service was effected on the 5 Defendants and the 5 other respondents to the Notice of Motion.

Question 1 Given the terms of the Act, can the DPP use the examination materials in the manner contemplated in the Guidelines and to enable him to fulfil his prosecutorial obligations? 13 Consideration of the issues that arise make necessary an appreciation of the Proceeds of Crime Act 2002 (C'th). Sections 5 and 6 provide:- 5. The principal objects of this Act are: (a) to deprive persons of the proceedings of offences, the instruments of offences and benefits derived from offences against the laws of the Commonwealth or the non-governing Territories; and (b) to deprive persons of literary proceeds derived from the commercial exploitation of their notoriety from having committed offences; and (c) to punish and deter persons from breaching laws of the Commonwealth or the non-governing Territories; and (d) to prevent the reinvestment of proceeds, instruments, benefits and literary proceeds in further criminal activities; and (e) to enable law enforcement authorities effectively to trace proceeds, instruments, benefits and literary proceeds; and (f) to give effect to Australia's obligations under the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, and other international agreements, relating to proceeds of crime; and (g) to provide for confiscation orders and restraining orders made in respect of offences against the laws of the Stats or the self-governing Territories to be enforced in the other Territories. 6. This Act establishes a scheme to confiscate the proceeds of crime. It does this by: (a) setting out in Chapter 2 processes by which confiscation can occur; and (b) setting out in Chapter 3 ways in which Commonwealth law enforcement agencies can obtain information relevant to these processes; and (c) setting out in Chapter 4 related administrative matters. It concludes with miscellaneous provisions and with definitions and other interpretive material. 14 Section 180 is the first section in Chapter 3. It provides that if a restraining order is in force, the Court may make an order for the examination of someone about the affairs of persons described in that section. Section 182 provides that an examination order can only be made on application by the DPP. 15 Section 183 provides that an "approved examiner" may give to a person who is the subject of an examination order a notice for that person's examination. Section 186 deals with the time and place of examination and Section 187 with requirements that may be imposed on the person being examined. Section 188 provides:- (1) The examination is to take place in private.

(2) The approved examiner may give directions about who may be present during the examination, or during a part of it.

(3) These people are entitled to be present at the examination: (a) the approved examiner; (b) the person being examined, and the person's lawyer; (c) The DPP; (d) Any person who is entitled to be present because of a direction under sub-section (2). 16 Section 191 deals with the making of a record of statements made at the examination, the reduction of that record to writing if the DPP or the examinee so requests and, in subsection 2(b), the provision to the examinee of a copy of the written record if the examinee so requests. Neither s191 nor any other section of the Act makes provides for the DPP to be entitled to a written record of the examination although that may be implicit. Section 191(3) provides:- "The approved examiner may, in complying with the request under paragraph (2)(b), impose on the person being examined such conditions (if any) as the approved examiner reasonably considers to be necessary to prevent improper disclosure of the record." 17 Section 192 provides for the examiner to refer a question of law to the Court. Section 193 is in the following terms:- (1) The approved examiner may: (a) on his or her own initiative; or (b) at the request of the person being examined, or the DPP; give directions preventing or restricting disclosure to the public of matters contained in answers given or documents produced in the course of the examination. (2) In deciding whether or not to give a direction, the approved examiner is to have regard to: (a) whether: (i) an answer that has been or may be given; or (ii) a document that has been or may be produced; or (iii) a matter that has arisen or may arise; during the examination is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence against a law of the Commonwealth or a State or Territory; and (b) any unfair prejudice to a person's reputation that would be likely to be caused unless the approved examiner gives the direction; and (c) whether giving the direction is in the public interest; and (d) any other relevant matters. 18 Sub-sections 194(1) and (2) provide for protection and immunity of the approved examiner and of any lawyer appearing. Sub-section 3 provides:- (3) Subject to this Act, the person being examined:- (a) has the same protection; and (b) in addition to the penalties provided by this Act, is subject to the same liabilities; as a witness in proceedings in the High Court. 19 So far as is presently relevant, Sections 196 to 198, 200 and 201 provide:- 196 (1) A person attending an examination to answer questions or produce documents must not: (a) refuse or fail to be sworn or to make an affirmation; or (b) refuse or fail to answer a question that the approved examiner requires the person to answer; or (c) refuse or fail to produce at the examination a document specified in the examination notice that required the person's attendance; or (d) leave the examination before being excused by the approved examiner. (2) Paragraph (1)(c) does not apply if the person complied with the notice in relation to production of the document to the extent that it was practicable to do so. 197 (1) Paragraph 196(1)(b) or (c) does not apply if under: (a) a law of the Commonwealth; or (b) a law of the State or Territory in which the examination takes place; the person could not, in proceedings before a court, be compelled to answer the question or produce the document. (2) However, paragraph 196(1)(b) or (c) applies if the only reason or reasons why the person could not be so compelled are one or more of the following:- (a) answering the question or producing the document would tend to incriminate the person or to expose the person to a penalty; (b) the answer would be privileged from being disclosed, or the document would be privileged from being produced, in legal proceedings on the ground of legal professional privilege; (c) the answer or document would, under a law of the Commonwealth, a State or a Territory relating to the law of evidence, be inadmissible in legal proceedings for a reason other than because: (i) the answer would be privileged from being disclosed; or (ii) the document would be privileged from being produced. (3) To avoid doubt, the following are not reasons why a person cannot, in proceedings before a court, be compelled to answer a question or produce a document: (a) the person is contractually obliged not to disclose information, and answering the question or producing the document would disclose that information; (b) the person is obliged under a law of a foreign country not to disclose information, and answering the question or producing the document would disclose that information. 198 An answer given or document produced in an examination is not admissible in evidence in civil or criminal proceedings against the person who gave the answer or produced the document except: (a) in criminal proceedings for giving false or misleading information; or (b) in proceedings on an application under this Act; or (c) in proceedings ancillary to an application under this Act; or (d) in proceedings for enforcement of a confiscation order; or (e) in the case of a document - in civil proceedings for or in respect of a right or liability it confers or imposes. 200 A person is guilty of an offence if the person breaches a condition imposed under subsection 191(3) relating to a record giving to the person under that subsection. 201 (1) A person is guilty of an offence if: (a) the person publishes a matter contained in answers given or documents produced in the course of an examination; and (b) the publication is in contravention of a direction given under section 193 by the approved examiner who conducted the examination. (2) This section does not apply to disclosure of a matter: (a) to obtain legal advice or legal representation in relation to the order; or (b) for the purposes of, or in the course of, legal proceedings. 206 (1) A person is not excused from producing a document or making a document available under a production order on the ground that: (a) To do so would tend to incriminate the person or expose the person to a penalty; or (b) … (c) Producing the document or making it available would disclose information that is the subject of legal professional privilege. (2) However, in the case of a natural person the document is not admissible in evidence in a criminal proceeding against the person, except in proceedings under, or arising out of Section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to producing the document or making it available. 294 The DPP or the Official Trustee may for the purpose of a legal aid commission determining whether a person should receive legal assistance under this Part, disclose to the commission information obtained under this Act that is relevant to making that determination. 20 In the course of the written submissions advanced on behalf of the Director of Public Prosecutions, much was made of the Director of Public Prosecutions' obligations to ensure that an accused person has a fair trial - see Mallard v R [2005] HCA 68, of the possibility that the information available from an examination might throw doubt on evidence that might otherwise have been called at a trial, possibly leading the DPP to abandon proceedings and that in any event the obligation required disclosure by the DPP of material that might assist an accused. In court it was said that within the office of the DPP, "Chinese walls" had been created between those conducting examinations under the Act and those prosecuting. 21 However, other submissions made on behalf of the DPP made it clear that the DPP's contention was that, while any questioning had to be for a proper purpose, once answers were obtained, the Act imposed no restraint on what the Director could do with them, save and except for the direct tender prohibited by s198 and possibly in consequence of any non-publication orders that may have been made under s193. Attention was drawn to passages in a report of the Senate Legal and Constitutional Legislation Committee consequent on consideration of the Proceeds of Crime Bill 2002 which indicated that the Committee had before it a copy of the some guidelines and the observation in the report:- "3.57 The third reason is the protections afforded in the legislation to the people being examined. While they are not protected by derivative use immunity the lesser protection of use immunity applies. Further protection is provided through the DPP's guidelines" 22 In its submissions that DPP said that the guidelines which were before the Committee included a passage:- "… the examinee has not derivative use protection under the Act and that the answers and documents can be used as a base for conducting further inquiries." 23 It followed, according to the submission, that that it was Parliament's intention that answers given and documents produced during a compulsory examination might be provided to other persons and might result in further investigations being undertaken. 24 In Johns v Australian Securities Commission (1992-1993) 178 CLR 408 Brennan J said (at p 423-4):- "… when a power to require disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself be limited by the purpose for which the power was conferred. In other words, the purpose for which a power to require disclosure of information is conferred limits the purpose for which the information disclosed can lawfully be disseminated or used. … A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed. The statute imposes on the person who obtains information in exercise of the power a duty not to disclose the information obtained except for that purpose. If it were otherwise, the definition of the particular purpose would impose no limit on the use or disclosure of the information. The person obtaining information in exercise of such a statutory power must therefore treat the information obtained as confidential whether or not the information is otherwise of a confidential nature." 25 Dawson J said that he agreed generally with Brennan J but adds some further comments, including (at p 435-6):- "It is, I think, apparent that information given by a person in the course of an examination under Part 3 of the Australian Securities Commission Act 1989 (C'th) ("the Act") must be treated by the Australian Securities Commission ("the A.S.C.") as confidential information. That would probably be the case even apart from specific statutory provision, but it also flows from the requirement that the examination take place in private (s.22(1)), the restriction placed upon the provision of a transcript of the examination to a person's lawyer (s.25(1)), the use of the transcript when so provided (s.25(2)) and the conditions which may be imposed when any person is given a copy of the transcript (s.25(3)). Most significantly it flows from the express provision in s127(1)… The Act prescribes not only the confidentiality of the transcript, but the means by which and the purpose for which the A.S.C. may disclose that transcript without breach of the duty imposed upon it. There is also a general rule that where a body has statutory powers to compel the provision of information to it, it should not disclose the information except for the purposes for which the powers were conferred…" 26 McHugh J said (at p 467):- "A statute conferring compulsory powers of examination is strictly construed. It is construed as authorising only those actions which are necessary to give effect to the purpose for which the power is conferred and whatever is reasonably incidental to that purpose. Section 19 defines the purpose for which persons are made the subject of examination under that Section. It is to obtain information that is relevant to a matter that the A.S.C. is investigating or is to investigate an A.S.C. member who obtains information under s19 has now power to use the information for any purpose other than that purpose or such other purposes as the legislation authorises. Thus, the examiner, upon receiving the information, becomes subject to an obligation to keep the information confidential unless it is necessary to use the information for the purposes of the Act."

27 To some degree undoubtedly these comments and others to which it is unnecessary to refer were made in the context of the terms of the Act then under consideration. Those terms were stronger in their demands for confidentiality or narrowness of dissemination then those in the Proceeds of Crime Act. However it is clear that the general principle espoused by each of the 3 judges did not depend on those particular statutory provisions but on the purposes for which the power of examination was conferred. Earlier decisions of Marcel v Commissioner of Police of the Metropolis (1992) Ch 225 and Morris v Director of the Serious Fraud Office (1993) Ch 372 to which one or more of their Honours referred demonstrate that they were stating no new doctrine. 28 The objects of the Proceeds of Crime Act, as expressed in s5 and as apparent from a consideration of the Act's substantive provisions make it clear that its purposes are limited and may be summarised to be to deprive those who would otherwise enjoy the proceeds or benefits of criminal activity or those proceeds or benefits. It is true that paragraph (c) of s5 refers to "punish and deter" but it is equally clear that to the extent to which the Act seeks to do this, it is by deprivation of such proceeds and benefits. 29 The terms of s188 requiring that the examination take place in private operates so as to strengthen the implication of confidentiality to which Brennan, Dawson and McHugh JJ referred. 30 It is true that the examiner may permit persons other than those identified in s188 to be present but there is nothing in the existence of what is obviously an ancillary power to suggest that the purpose of the Act is not as I have indicated. Indeed the power in s188 would have to be exercised conformably with the purposes of the Act and not so as to ignore them. 31 It is, of course, necessary to take account of the fact that, although there is the requirement that the examination take place in private, there is no blanket prohibition, or prohibition subject to expressed exceptions, on publication of what occurs at any such examination and of the terms of ss191(3) and 193. However such absence cannot reasonably be construed as a demonstration of an intention on the part of Parliament to depart from the principle firmly stated by the High Court 10 years earlier. Indeed, given the existence of the principle and the clear intent of the Act, no prohibition on publication or dissemination except for the purposes of the Act was necessary. 32 The Act does not define what constitutes "improper disclosure of the record" to which s191(3) refers. There is nothing in the Act to lead to the conclusion that information possessed by an examinee and disclosed during the course of an examination becomes subject to any greater degree of confidentiality in the examinee's hands as a result of the examination than that information was subject to previously. One may therefore infer that the object of the provision is along the lines of preventing access by others to one or more of the convenience of the document, details of the questioning and details of what answers or information which was in fact given. 33 In that s193(1) empowers an examiner to "give directions preventing or restricting disclosure to the public of matters contained in answers given or documents produced in the course of the examination", and requires him to have regard to the matters specified in sub-section (2), the sub-section seems to assume that otherwise the matters or documents would be, or but for an order could become, public. To this extent it may be thought that the section argues against the confidentiality to which I have referred. However, the obligation of confidentiality to which the High Court referred is not absolute. The information or documents gained may be used for the purposes of the Act and that may involve public disclosure, for example in the course of court proceedings designed to further the actual obtaining of property liable to confiscation. Thus within the confines within which the Act is intended to operate, there is scope for the exercise of the power in s193(1). 34 Thus neither of its own, nor considered in conjunction with the other provisions to which I have just referred, does s191(3) provide grounds for concluding that the principles stated in Johns v Australian Securities Commission do not apply. 35 The DPP Guidelines cover a multitude of matters, some of which are accurate summaries of provisions of the Proceeds of Crime Act 2002. However almost all of the contents of paragraph 5.6 thereof is directly contrary to the law as stated in the passages I have cited from Johns v Australian Securities Commission. Indeed, so opposed are the two, that one wonders how anyone who wrote paragraph 5.3 of the Guidelines and who was thus aware of the High Court's decision, could conceivably have said what is stated in paragraph 5.6 (other than most or all - I need not decide - of that under the headings, "Proceeds of Crime Proceedings", "Disclosure of information to legal aid commissions", and "Summonses and other compulsory process"). 36 The inclusion in the words of the question "and to fulfil his prosecutorial obligations" make no difference. Fulfilment of those obligations are not within the purposes of the Proceeds of Crime Act pursuant to the compulsion in which the DPP acquired knowledge of what was revealed in the examinations. 37 The answer to the first question posed in the referral must be "No". 38 During the course of the submissions there was also a deal of debate on the issue of whether s198 of the Act extended so as to confer or impose derivative use immunity on an examinee so that not only were the answers given and documents produced under compulsion inadmissible against the person concerned but so was any information obtained as a result of their use, perhaps by further investigation. On behalf of the Director, emphasis was placed on what was said to be a contrast between the terms of that section and the terms of Section 48(6) of the Proceeds of Crime Act 1987. That Act is still in force but does not events of more recent times, these being the province of the 2002 Act. It is unnecessary for present purposes to define more precisely the relative operation of the 2 Acts. That definition is to be found in the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002. 39 The section of the 1987 Act which "corresponds" with s198 of the 2002 Act is s48(6). It is in terms:- "Where a person is examined before a Court or a the Registrar of a Court pursuant to an order under sub-section (1), a statement or disclosure made by the person in answer to a question put in the course of the examination, and any information, document or thing, obtained as a direct or indirect consequence of the statement or disclosure, is not admissible against the person in any criminal proceedings except a proceeding for giving false testimony in the course of the examination." 40 According to the submissions made on behalf of the Plaintiff, the omission from the 2002 Act of words corresponding with "and any information, document or thing, obtained as a direct or indirect consequence of the statement or disclosure", was a clear indication that the protection afforded by the 2002 Act did not extend beyond the answer given or document produced. 41 Reliance was also placed by the DPP on the Explanatory Notes to the Act, recommendations from the Senate, Legal and Constitutional Legislation Committee to which I have referred, and remarks made by the Minister for Justice and Customs during Parliamentary debate in relation to the Act. (This was not the second reading speech of the Minister who introduced the Bill.) Each of these 3 sources of information contains remarks to the effect that the 2002 Act does not confer derivative use immunity. 42 However in light of the conclusion I have reached in respect to the first question posed, it does not seem to me necessary or desirable that I pursue this issue between the parties. Given that conclusion, it is not apparent that this further issue is a live one and it is not the Court's function to provide advisory opinions.

Question 2 If the answer to question 1 is Yes, would such use breach any of the non-publication directions. 43 This question does not arise. That said, at least some of the directions of the examiner - and at times he seems to have given advice or made requests rather than directions - were general and not confined to any one individual. 44 Accordingly the order of the Court in respect of the questions raised by the examiner are:- Question 1 - No. Question 2 - Does not arise.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.