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

](/cgi-bin/viewdoc/au/legis/cth/num_act/ncaa1984270/)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

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

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

(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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"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

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