Elliott v Seymour

THE STRUCTURE OF THE PROPOSED NEW STATEMENT OF CLAIM 5 The introductory paragraphs of the statement of claim identify Elliott and the various respondents and describe the composition of the Inter-Governmental Committee ("IGC") established pursuant to s 8 of the National Crime Authority Act 1984 ("the NCA Act"). Paragraphs 10 to 151 comprise largely a narrative recital commencing with a request by the NCA for a reference to it for investigation of a matter relating to alleged criminal activity. The reference was granted by a notice (in the pleading called "the Bowen Notice") which, according to para 14 of the statement of claim: "described the general nature of the alleged relevant criminal activity as the activity of a group or groups of persons, members of whom were identified to Bowen by the NCA in writing on 19 December 1989, including the Applicant (the list) and associated persons and companies." 6 It is then alleged that Mr Bowen, as the responsible Commonwealth Minister, was required before referring a matter to the NCA, to consult the Inter-Governmental Committee ("IGC") established pursuant to s 8 of the NCA Act and that, in breach of that requirement, the Bowen Notice had been issued without the requisite consultation. The IGC comprised the Attorney-General for the Commonwealth (at first the Honourable Lionel Bowen who was succeeded by the Honourable Michael Duffy) and a Minister of the Crown for each of the States of Victoria and South Australia. The Victorian Minister was initially Crabb and the South Australian Minister was at all relevant times the Attorney-General for that State, the Honourable Christopher Sumner. Reference is then made to other requests by the NCA and references to it embodied in subsequent notices by Crabb ("the Crabb Notice") and Mr Sumner ("the First Sumner Notice"). That narrative is by way of introduction to para 24 of the statement of claim which is in these terms: "Each of the Bowen, Crabb and First Sumner Notices was made for a purpose other than the purpose for which the power to make a Notice was conferred, being one or more of the following purposes: (a) discrediting the Applicant; (b) causing electoral disadvantage to the Liberal Party in the 1990 Federal election; (c) giving an electoral advantage to the Australian Labor Party in the 1990 Federal election. PARTICULARS The purpose is to be inferred from the facts and matters contained in Schedule A and from the matters deposed to in paragraphs 12 to 18 of the Applicant's affidavit sworn 30 September 1993. Further particulars will be provided after discovery." 7 In para 27 of the statement of claim the foreign exchange transactions in relation to which Elliott and others were charged are described as follows: "In about January and September 1988 EXL made payments to the Bank of New Zealand Ltd (BNZ) purportedly in settlement of foreign exchange transactions (the Forex Transactions). PARTICULARS (a) On about 11 January 1988 a payment was made by EXL to BNZ and a subsequent payment was made by BNZ to a company or companies associated with Allan Robert Hawkins (Hawkins) and/or Equiticorp Tasman Ltd (ETL) in the sum of about $39.5 million; and (b) On about 7 September 1988 a payment was made by EXL to BNZ and a subsequent payment was made by BNZ to a company or companies associated with Hawkins and/or ETL of about $27 million." 8 Reference is then made to the issue on 12 July 1990 of another notice ("the First Sandon Notice") by Mr Malcolm Sandon who, by then, had succeeded Crabb as the Victorian Minister on the IGC. It is alleged in para 31 of the statement of claim that the subject matter of the First Sandon Notice was the same as that of the Bowen Notice. The next three paragraphs then allege that the First Sandon Notice was issued without requesting or obtaining the approval of the IGC. The pleading narrative continues in paras 35 to 37 to instance the issue of further references to the NCA embodied in a "Second Sandon Notice", a "Duffy Notice" and a "Second Sumner Notice" which are said to have described in the same terms the general nature of the alleged criminal activity which the NCA was to investigate. Each of the three last mentioned notices was said to have been issued without consultation with, or obtaining the approval of, the IGC and the Ministers respectively issuing them are alleged to have purported to "reissue" the Crabb, Bowen and First Sumner Notices respectively. 9 In an echo of para 24, para 45 imputes improper or ulterior purposes for the issue of the First and Second Sandon Notices, the Duffy Notice and the Second Sumner Notice by alleging: "Each of the First Sandon, Second Sandon Duffy and Second Sumner Notices was procured by the NCA for one or more of the following purposes: (a) discrediting the Applicant; (b) obtaining evidence for use by the New Zealand Securities Commission (NZSC); (c) obtaining evidence for use by the New Zealand Serious Fraud Office (NZSFO); (d) obtaining evidence for use by the Statutory Managers of ETL (SMETL). PARTICULARS The purpose is to be inferred from the facts and matters set out in Schedule B hereto. Further particulars will be provided after discovery." 10 It is then alleged in paras 46 and 47 that the subject matter of the Second Sandon, the Duffy and the Second Sumner Notices was the same as that of the Bowen Notice so that the matter referred by all six notices for investigation by the NCA was the same. Paras 48 to 50 inclusive then allege that any request by the NCA for a reference or for the IGC to approve a reference, or any consultation with, or approval by, the IGC, or the references themselves did not comprehend the Forex Transactions. Finally, under the Heading "Scope of the Notices", it is pleaded: "51. A notice in writing made pursuant to sections 13 or 14 of the Act (or the relevant State provisions) is not required to describe, identify or define the matter referred thereby. 52. If contrary to the allegation made in paragraph 51 a notice in writing issued pursuant to sections 13 or 14 of the Act (or the relevant State provisions) is required to describe, identify or define the matter referred thereby, the Notices and each of them, if valid, did not refer the Forex Transactions to the NCA for special investigation." 11 It is then pleaded under the heading "Invalidity of Notices for Non-Compliance with the Act" that: "53. Alternatively to paragraph 51 in contravention of section 13 or section 14 of the Act, section 5 of the Victorian Act or section 5 of the South Australian Act as the case requires none of the Notices describe, identify or define: (a) any matter; or (b) any matter purportedly referred to the NCA by the person issuing the Notice." 12 In paras 54 and 55 it is then alleged that in contravention of identified statutory requirements, each of the Bowen Notice, the Crabb Notice, the First Sumner Notice, the Second Sandon Notice, the Duffy Notice and the Second Sumner Notice "did not describe the general nature of the circumstances or allegations constituting the alleged relevant criminal activity". 13 Paragraph 56 goes on to assert that, as a consequence of matters alleged in various identified earlier paragraphs, each of the notices "was and is invalid and incapable of authorising the NCA to use its Coercive Powers", and that as a consequence of "the matters alleged in paragraphs 48 to 52 none of the Notices authorised a special investigation into the Forex Transactions." 14 The allegation of a duty owed by the NCA to Elliott is to be found in these terms in para 57 of the statement of claim: "At all relevant times the NCA when making any request for a reference or that any of the Notices be issued owed a duty to the Applicant to fully inform each Minister requested to issue a notice and/or the IGC of all matters material to the performance of their respective functions under sections 9, 10, 13 and 14 of the Act. PARTICULARS The duty arises by reason of: (a) the matters alleged in paragraphs 10, 11, 12, 17, 18 and 39; (b) the fact that the special investigation to be and being conducted into the affairs of the Applicant was instigated and controlled by the NCA; (c) the functions and duties of the IGC under the Act; (d) sections 9, 10, 11, 12, 13, 14, 25, 28, 29, 30, 33, 55 and 59 of the Act (and their counterparts, if any, in the State legislation); (e) the fact that the NCA when purporting to perform its functions and duties under the Act did so in the utmost secrecy without the Applicant having the opportunity or ability to ascertain the scope of its lawful authority; (f) the consequence to the Applicant of his being subject to Coercive Powers." 15 After reciting in para 58 that it was material to the performance by Sandon, Duffy and Sumner and the IGC of certain identified statutory functions that the NCA had used, and proposed to continue to use, its Coercive Powers to investigate the Forex Transactions and for other impliedly impermissible purposes set out in para 45 which I have already quoted, the statement of claim goes on to allege these breaches of the duty imputed to the NCA: "59. In breach of the duty referred to in paragraph 57 above, the NCA: (a) made the statements and representations referred to in paragraph 39 above; (b) did not inform Sandon, Duffy, Sumner or the IGC of the matters referred to in paragraph 58 above." 16 Paragraphs 60 and 61 of the statement of claim are not cast as allegations of breach of any duty but plead, as a consequence of an intention imputed to the NCA, that each of the Second Sandon, the Duffy and the Second Sumner Notices was invalid and incapable of authorising the NCA to use its Coercive Powers either generally or to investigate the Forex Transactions. 17 The narrative is then resumed to recite the issue of a summons MS46, accompanied by a copy of the Second Sandon, the Duffy and the Second Sumner Notices to Elliott to appear before the NCA to give evidence and produce documents at a hearing. He is said to have attended in response to that summons at "the First Hearing" on 10 January 1991 and it is then alleged: "70. Summons MS46 set out that the NCA intended to question the Applicant in regard to, and required production of documents concerning, the remuneration of directors of EXL and the obtaining of EXL securities by the directors of EXL. 71. Summons MS46 did not set out that the general nature of the matters in relation to which the NCA intended to question the Applicant was or included the Forex Transactions. ... 73. At the First Hearing the NCA questioned the Applicant in relation to the Forex Transactions and the Applicant gave evidence." 18 It is then alleged that, in response to another summons MS94 dated 12 June 1991 accompanied by the same Notices as Summons MS46, Elliott attended a "Second Hearing" before the NCA on 21 June 1991 and a "Third Hearing" on 15 November 1991 and was then called upon to produce documents in relation to the Forex Transactions. The statement of claim then goes on to allege: "80. Each of Summons MS46 and Summons MS94 was issued for a purpose other than the purpose for which the power in section 28 of the Act was conferred, namely: (a) investigating the Forex Transactions; (b) discrediting the Applicant; (c) obtaining evidence for use of the NZSC; (d) obtaining evidence for use of the NZSFO; (e) obtaining evidence for use by the SMETL. PARTICULARS Each purpose is to be inferred from the facts and matters contained in Schedule B. Further particulars will be provided after discovery. 81. Each of Summons MS46 and Summons MS94 was issued with the intention of harming the Applicant. PARTICULARS That the intention was that alleged is to be inferred from the facts and matters set out in Schedule B. Further particulars will be provided after discovery." 19 Corresponding allegations are made in paras 82 and 83 of the purposes for which the First, Second and Third Hearings were convened. It is then alleged in para 84 that each of Summonses MS46 and MS94 was and is invalid. Under the heading "Duties Concerning Summons", the statement of claim goes on to plead as follows that a duty was owed to Elliott by either or both Mr Julian Leckie, an officer of the NCA and the NCA itself: "85. At all relevant time Leckie and/or the NCA owed a duty to the Applicant: (a) not to issue Summons MS46 or Summons MS94 except for the purposes of a special investigation; (b) to attach to each of Summons MS46 and Summons MS94 a copy of each Notice to which a Hearing convened under section 25 of the Act related; and (c) to set out in Summons MS46 the general nature of the matters in relation to which the NCA intended to question the Applicant at the First Hearing. PARTICULARS The duties arise by reason of: (i) the matters alleged in paragraphs 63 to 79; and (ii) sections 28 and 30 of the Act; (iii) the fact that the special investigation to be and being conducted into the affairs of the Applicant was instigated and controlled by the NCA; (iv) the consequences for the Applicant of being summoned to a Hearing." 20 A breach of that duty and other consequences are pleaded in these terms in para 86: "By reason of the matters alleged in paragraphs 80 and 81: (a) Leckie and/or the NCA was in breach of the duty referred to in paragraph 85(a); (b) [Deleted] (c) the conduct of Leckie and/or the NCA issuing in [sic] summons MS46 and Summons MS94 was a misfeasance in public office; (d) the issuing of Summons MS46 and Summons MS94 was an unlawful act." 21 By para 89 it is pleaded that the NCA is vicariously liable for Leckie's breach of duty or misfeasance in public office. A further set of duties is then imputed to either or both Leckie and the NCA "not to hold the First, Second or Third Hearing except for the purposes of a special investigation". The pleading then goes on to allege in paras 90 and 91 that the convening of each of those meetings was in breach of those duties, a misfeasance in public office and an unlawful act. 22 By paras 92 and 93 it is alleged : "92. When conducting the First Hearing the NCA owed to the Applicant a duty to inform him of sufficient information of and concerning the subject matter of the proposed questioning (including informing him of any alleged wrongdoing on his part) as would enable him: (a) to know whether he was suspected of having committed an offence in relation to the subject matter of the questioning; and (b) to exercise his rights under section 30(4) of the Act. PARTICULARS The duty arises from the following facts and matters: (a) alleged in paragraphs 63 to 81; (b) sections 25(8), 28(3) and 30(4) of the Act; (c) the fact that the special investigation to be and being conducted into the affairs of the Applicant was instigated and controlled by the NCA; (d) the consequences for the Applicant of being summoned to a Hearing; (e) the fact that at the time of the First Hearing the NCA: (i) considered the Applicant a target of the special investigation purportedly conducted pursuant to the Notices; (ii) knew or believed the Forex Transactions was not genuine; (iii) believed that the Applicant may have committed an offence in relation to the Forex Transactions. 93. In breach of the duty alleged in paragraph 92 above the NCA and/or Leckie: (a) did not inform the Applicant that he was suspected of having committed an offence in relation to the Forex Transactions; (b) did not enable the Applicant to properly exercise his rights under section 30(4) of the Act; (c) pretended that the Forex Transactions was genuine; (d) set out to entrap the Applicant into giving false answers." 23 Finally in that context, it is alleged in para 94 that the NCA is vicariously liable for the breach of duty or misfeasance alleged against Leckie in paras 90 and 91. 24 Under the heading "Intimidation by Summons" paras 95 to 100 allege that Elliott was intimidated and coerced by unlawful threats into attending the First, Second and Third Hearings of the NCA. Paragraph 101 of the statement of claim then alleges that the NCA, Leckie and Livermore (another officer of the NCA): "each owed a duty to the Applicant not to divulge or communicate any information purportedly acquired by the NCA by reason of, or in the course of, the performance of the Act concerning its special investigation into the affairs of the Applicant. PARTICULARS The duties arise by reason of the fact that a special investigation in relation to the affairs of the Applicant was being conducted, the provisions of the Act, particularly section 51 and the damage that may be caused to the Applicant as a person under investigation by a disclosure of information." 25 It is then pleaded in paras 102 and 103 that one or more of Leckie, Livermore and the NCA provided "information concerning the Forex Transactions obtained using Coercive Powers to the NZSC, the NZSFO or the SMETL or, alternatively to the NZSC and the NZSFO in the knowledge or belief that it would be passed on to SMETL for its use and would eventually be published in New Zealand and, consequently, in Australia. It is further alleged that the provision of information as alleged in paras 102 and 103 was not authorised by, or done for the purposes of, the NCA Act and was not done in connection with the performance of a duty under that Act but was done with the intention of harming Elliott. 26 It is also said, echoing paras 86 and 91 that the provision of information as alleged in paras 102 to 105 was a breach of duty, a misfeasance in public office and an unlawful act and, in so far as it was done by Leckie or Livermore, attracted vicarious liability to the NCA. 27 After making allegations against Crabb which will be considered later in these reasons, the statement of claim goes on to plead in paras 117 and following under the heading "ASSEMBLY OF EVIDENCE AND CHARGES": "117. Once the NCA obtains evidence that would be admissible in a prosecution for an offence, by reason of section 12 of the Act the NCA must assemble that evidence and give it to: (a) the Attorney-General of the Commonwealth or the 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. 118. By reason of section 12 of the Act the NCA owed a duty to the Applicant to assemble and give to Seymour and to the DPP evidence that would be admissible in a prosecution for an offence. 119. The NCA was and is not authorised by the Act or otherwise to file charges against or to prosecute a person for the commission of an offence. 120. The DPP was and is not authorised by the DPP Act or otherwise to investigate whether an offence was committed or to file charges. 121. After December 1989 and prior to 23 December 1993 the NCA obtained evidence, including transcripts of questioning of the Applicant, and other material relating to the Forex Transactions by use of its Coercive Powers (the Evidence). 122. The NCA did not give the Evidence to a person to whom it was required to be given under section 12 of the Act. PARTICULARS Prior to 23 December 1993 the NCA did not give the Evidence to the Attorney-General of the Commonwealth or a State or to a law enforcement agency but retained possession of the Evidence for the purpose of filing charges." 28 Those matters are said to constitute a breach of the duty alleged in para 118 and a contravention of s 12 of the NCA Act. 29 Reference is then made in para 126 to prosecutorial guidelines ("the Guidelines") published by the fourth respondent ("the DPP") pursuant to the Director of Public Prosecutions Act 1982 (Vic) ("the DPP Act") and to an agreement between the NCA and the DPP ("the DPP/NCA Agreement") that: "in respect of investigations being conducted by the NCA: (a) once the NCA determined that an investigation was ready for referral to the DPP, the DPP would provide advice on specific questions of evidence upon being presented with specific material to consider; (b) wherever possible the NCA should not lay charges prior to referral of the brief of evidence to the DPP and receiving advice from the DPP about the appropriate persons to be charged and appropriate charges; (c) after close consultation with the NCA, the DPP would advise the NCA on the appropriate person to be charged, appropriate charges and the conduct of the prosecution in accordance with the Guidelines." 30 There follow four paragraphs framed, it appears, to charge only the DPP although para 128 recites that the DPP advised or directed the NCA in various respects and "managed and/or co-ordinated the special investigation being conducted by the NCA." It is then alleged in paras 131 and 132 that the NCA was not authorised by the NCA Act or otherwise to engage in the conduct referred to in para 128 and that its purported exercise of power was consequently unlawful and invalid. 31 The narrative then resumes by reciting a decision by Mr Sherman or the NCA to file charges against Elliott, the filing of those charges by Sgt Seymour and Elliott's arrest on 23 December 1993. It is next alleged that the charges were filed at the direction of the DPP or alternatively of either or both Sherman and the NCA for the purpose of enabling the NCA to charge Elliott. The first allegation of conspiracy to which "the DPP, Seymour, Sherman and/or the NCA" are said to have been parties is then made as follows by paras 136 to 138A: "136. Further or alternatively, the decision to charge was made pursuant to an agreement between the DPP, Seymour, Sherman and/or the NCA to be effected by means of a device or contrivance to enable the NCA to charge the Applicant in circumstances where the NCA well knew it had no power or authority to do so. PARTICULARS The device or contrivance involved the use of Seymour, a member of the staff of the NCA who happened to be a police officer, to perform a function on behalf of the NCA which the NCA was not authorised to perform. The agreement was made at a time before the Charges were filed and is to be inferred from the facts and matters set out in Schedule C. 137. At all relevant times the DPP well knew of the device or contrivance and that the NCA did not have the power or authority to charge the Applicant. PARTICULARS The Applicant refers to and repeats the particulars under paragraph 128 and in Schedule C. 138. Accordingly, by reason of the matters referred to in paragraphs 136 to 137 Seymour, Sherman, the NCA and the DPP agreed and thereby conspired to unlawfully prevent or defeat enforcement or operation of section 12 of the Act by assuming the role of a law enforcement agency. 138A. In furtherance of the conspiracy referred to in paragraph 138 the following acts were taken: (a) the NCA retained control of the evidence concerning the Charges; (b) the NCA directed Seymour to become a member of the Victoria Police on 4 November 1993; (c) the DPP advised the NCA of the Charges; (d) the NCA entered into agreements with the Victoria Police concerning payment by the NCA of any costs incurred by or ordered against Seymour and paid those costs; (e) the DPP and the NCA acted in accordance with the terms of the DPP/NCA agreement in respect of the Charges." 32 It is then alleged that "as a consequence" the NCA contravened s 12 of the NCA Act and the filing of the charges was an abuse of process and unlawful. Paragraph 140 alleges a duty owed by the DPP to Elliott when advising the NCA to charge him with any offence and para 141 pleads: "In breach of the duty referred to in paragraph 140 above, the DPP advised the NCA and/or Seymour that the Applicant should be charged as he was by Seymour in circumstances where the DPP: (a) knew that to charge the Applicant as and when proposed would cause the Applicant irreparable harm, loss and damage and severely prejudice the national interest; (b) knew that such of the evidence as has been collected by the NCA was or was likely to be inadmissible against the Applicant or excluded by the Court on the grounds that it was illegally unfairly or unlawfully obtained; (c) had not taken into account public interest factors which militated against a decision to proceed with a prosecution against the Applicant; (d) had not taken into account the defences which may be open to the Applicant; (e) had not taken into account the expenditure that would be involved in such a prosecution; (f) had not taken into account the irreparable harm, loss and damage that would be caused to the Applicant by his being charged as and when proposed; (g) had not taken into account the prejudice to the national interest that would be caused if the Applicant were charged as and when proposed; (h) had not taken into account the circumstances in which the evidence had been gathered by the NCA." 33 Collected under the heading "Conspiracies" there are then several paragraphs framed to implicate Crabb in a separate conspiracy "to use unlawful acts with the intention of harming" Elliott "in his reputation, business and public office". 34 A further or alternative allegation of conspiracy is then made in para 144 to the effect that: "in or about December 1989 Robert James Lee Hawke, Paul John Keating, Bowen, Crabb, and the ABC agreed to make derogatory public statements about the Applicant with the predominant object of harming him. PARTICULARS (a) The agreement is to be inferred from the facts and matters set out in Schedule A. (b) The statements are those referred to in Schedule A. (c) That the statements were made with the predominant object of harming the Applicant is to be inferred from the position of the Applicant as alleged in paragraph 1, from the harm that would be done to any person in the position of the Applicant, and was done to the Applicant, by public disclosure of the fact that his affairs were being investigated by the NCA and from the position of the persons making the disclosures and their knowledge that such harm would or was likely to occur." 35 Separate conspiracies between Crabb and the ABC to harm Elliott are alleged in paras 146 to 149 and in para 150 a further, similar, conspiracy is alleged between the NCA, the NZSC, the NZSFO and SMETL. The pleading then concludes with these compendious allegations in paras 152 and 153: "152. The Applicant has suffered loss and damage by reason of the following: (a) the breach of duty referred to in paragraph 59; (b) [Deleted] (c) the breach of duty and misfeasance in public office referred to in paragraph 86; (d) the breach of duty referred to in paragraph 87; (e) the breach of duty referred to in paragraph 88; (f) the breach of duty and misfeasance in public office referred to in paragraph 91; (g) the breach of duty referred to in paragraph 93; (h) the intimidation referred to in paragraph 99; (i) the breach of duty and misfeasance in public office referred to in paragraph 106; (j) the breach of duty and misfeasance in public office referred to in paragraph 112; (k) the abuse of process referred to in paragraph 116; (l) the breach of duty referred to in paragraph 123; (m) the abuse of process referred to in paragraph 132; (ma) the conspiracy referred to in paragraph 138; (n) the abuse of process referred to in paragraph 139; and (o) the breach of duty referred to in paragraph 140; (p) the conspiracy referred to in paragraph 142; (q) the conspiracy referred to in paragraph 144; (r) the conspiracy referred to in paragraph 146; (s) the conspiracy referred to in paragraph 148; (t) the conspiracy referred to in paragraph 150. PARTICULARS (i) The Applicant has suffered damage to his reputation. (ii) The Applicant lost offices he held and the benefits attached to those offices. (iii) The Applicant has incurred costs and expenses of defending his criminal trial. (iv) The Applicant has lost the value of his shareholding in EXL and Harlin. 153. Further, the Applicant claims exemplary damages against the NCA, Crabb and the ABC by reason of their contumelious disregard of his rights and reputation when engaging in the conduct of each of them complained of above." 36 Presumably to support the claim for injunctive relief in the application, the penultimate paragraph recites: "154. The NCA continues to conduct a special investigation into the affairs of the Applicant pursuant to the Notices and each of them. PARTICULARS The continuation of the special investigation is: (a) admitted by the NCA in its latest annual report prepared pursuant to section 61; and (b) to be inferred from the fact that the NCA has not served written notices pursuant to section 29A(5) on any person upon whom it served a summons." 37 Schedule A to the statement of claim recites: (i) Throughout 1989 the Applicant was the Chief Executive of EXL Limited and a shareholder, director and a chairman of the board of Elders and a shareholder, director and chairman of the board of Harlin, Federal President of the Liberal Party and President of the Carlton Football Club. (ii) In 1989 Crabb was Minister for Police and Emergency Services for the State of Victoria and a member of the IGC appointed under the Act. (iii) In 1989 Robert Hawke was Prime Minister of, Paul Keating was the Treasurer of and Bowen was the Attorney-General of the Commonwealth of Australia. (iv) Each of Hawke, Keating, Bowen and Crabb were members of the Australian Labor Party. (v) In September 1989 a Part C offer made by Harlin to the shareholders of EXL had resulted in Harlin acquiring 56% of the shares in EXL. (vi) Towards the end of 1989 EXL was negotiating for a restructuring of its businesses. The restructuring proposals under negotiation were widely publicised. (vii) One such restructuring proposal involved negotiations with Grand Metropolitan PLC in the United Kingdom which were and which were known to Hawke, Keating, Bowen and Crabb to involve highly sensitive negotiations which may be affected by a challenge made to the credibility of the Applicant. (viii) A Federal election was required to be held in the first half of 1990. (ix) Towards the end of 1989 it became a strategic policy of the Labor Party to attack the Applicant personally. (x) In later 1989 and early 1990 the Applicant was in fact attacked in the print and other news media. (xi) On about 14 November 1989 Keating said that the strategy of attacking the Coalition through the Applicant was correct. (xii) On about 20 November 1989 Hawke said that the Federal Government would be remorseless and relentless in its campaign against the Applicant in the run up to the next Federal election. (xiii) On 21 December 1989 Bowen purported to issue the Bowen reference. (xiv) At the time the Bowen reference was made and issued it was known by Bowen and by the NCA to be invalid. (xv) On 24 January 1990 Keating said of the Applicant that 'he is going to cop it right in the neck'. (xvi) On 16 February 1990 Hawke announced the Federal election which was to take place on 24 March 1990. (xvii) At some time prior to 20 February 1990 Crabb supplied information to the ABC of and concerning the Bowen reference and an alleged investigation into the affairs of the Applicant by the NCA. (xviii) In about February 1990 Bowen had authorised the leaking of the information to the ABC specifically and/or the media generally of and concerning an alleged investigation by the NCA into the affairs of the Applicant. (xix) The ABC broadcast the information on 20 February 1990 during the program 'The 7.30 Report'. (xx) The Crabb reference was made and dated 15 March 1990." 38 Schedule B to the statement of claim specifies in chronological order from 1 March 1990 to 14 June 1991 a series of communications passing between and within the NZSC, SMETL, the Australian National Companies and Securities Commission ("NCSC"), the NZSFO and the NCA in relation to the Forex Transactions. Schedule C, it will be recalled, was referred to as furnishing particulars of the agreement alleged in para 136 and the knowledge of the DPP alleged in para 137 that the NCA did not have the power or authority to charge Elliott. That Schedule is in these terms: " (i) The DPP/NCA Agreement stated that the DPP was to be involved in the decision as to which person should be charged as a result of an NCA investigation and with what charges. (ii) The DPP (through himself and his employees, the identity of the latter being presently unknown to the Applicant), the NCA (through Sherman, Livermore, Seymour and others whose identity is presently unknown to the Applicant), Sherman and Seymour each knew that neither the DPP nor the NCA could file the Charges and that section 12 of the Act required the NCA to give all evidence, the conduct of filing the Charges and the prosecution of the applicant to a member of the Victoria Police. (iii) The DPP, as admitted in exhibit 'JB-2' to the affidavit of Mr John Buckley sworn 4 October 1993, had been advising the NCA concerning the Charges since August 1991 at which time Seymour was not a member of the staff of the NCA and in the course of so advising learnt and agreed to the swearing in of Seymour as a member of the Victoria Police on 4 November 1993 solely for the purpose of filing the Charges. (iv) Each of Seymour, Sherman, the DPP and the NCA agreed to the NCA directing Seymour to become a member of the Victoria Police six weeks before the Charges were filed and almost four years after the Bowen Notice was issued so that the NCA could retain control over the evidence, the filing of the Charges and the prosecution. (v) The terms of the DPP/NCA Agreement. (vi) The particulars under paragraph 135. (vii) Seymour has always had his costs of this and other legal proceedings relating to the Charges paid by the NCA as is evidenced by the payment of costs ordered in favour of Messrs Woods and Psaltis consequent upon their discharge at committal. (viii) The NCA arranged with the Victoria Police for Seymour to become a member of the Victoria Police. (ix) The DPP advised and directed the NCA, not Seymour, in relation to the filing of the Charges and to use Coercive Powers. (x) The Decision to Charge was not made by Seymour."

SUBMISSIONS OF THE NCA, SEYMOUR AND SHERMAN 39 Counsel for the NCA who also appeared for Sergeant Seymour and Mr Sherman advanced a number of grounds in opposition to the grant of leave to amend the statement of claim and in support of their motion for the whole action to be struck out or permanently stayed. It is convenient to examine each of those grounds separately and in the order in which it was advanced.

A. ABUSE OF PROCESS 40 It was first contended on behalf of the NCA that the statement of claim was in furtherance of an abuse of process. That contention rested on four separate grounds.

(a) Collateral Attack on the Acquittal 41 This ground invoked the proposition that the maintenance of the present proceedings involved a collateral attack on final determinations of the criminal proceedings in the Supreme Court of Victoria. To understand that submission, it is necessary to set out in more detail than I have so far, the history of the criminal proceedings which resulted in Elliott's acquittal. In the course of those proceedings, it was contended on behalf of Elliott that the NCA hearing at which he had given the evidence to which the criminal charges related had been conducted as part of a deliberate abuse by the NCA of its statutory powers under the NCA Act. In a related way, it was contended that the NCA, before it embarked on its investigation into the foreign exchange transaction, had failed to perceive or identify any nexus between the subject of that investigation and the matters which had been referred to the NCA pursuant to ss 13 and 14 of the NCA Act. 42 In the course of Ruling No 2 given during the voir dire to which I have already referred, Vincent J noted that, before a jury had been impanelled, Counsel for Elliott had argued: "the inference is open, on the basis of disclosed material, that the National Crime Authority, when investigating the transactions with which this trial is concerned, was acting outside the parameters of references given to it. Accordingly, it was contended that at the time at which it employed, in relation to the accused man, the special powers available to it when specifically authorised by the granting of a reference it was acting unlawfully." 43 That submission and the consequences which were said to flow from it made it necessary for his Honour to examine a large body of documents which had been produced on subpoena addressed to the NCA. Near the end of Ruling No 2, Vincent J observed that a particular problem had arisen from a contention which had been advanced that, at the relevant time, the NCA was not pursuing an investigation of the Forex Transactions within the terms of reference which it had been given. After noting that the accused contended that disclosure of the material produced on subpoena would "indicate that there was no such relationship ever perceived", his Honour continued: "I think that it is appropriate for me to say that, bearing the nature of the issue in mind, I carefully scrutinised the documents to see if there was any indication or sign of the existence of a perception of a relationship between an investigation of the foreign exchange transactions and the question of securities acquisition and disposal in the Elders company. I found no document which contained any express statement or which, at least to my untutored eye indicated that any such perception of connection existed. If that is correct, then it appears to me that the proper course would be for that concession to be made on behalf of the National Crime Authority." 44 At the outset of Ruling No 9 published on 6 May 1996, Vincent J noted that the prosecution was seeking to adduce evidence of statements made by each of the accused in the course of hearings conducted by the NCA in the purported exercise of its powers under s 25 of the NCA Act. In the course of those statements, according to the prosecution, each of the accused, including Elliott, had provided a false version of his knowledge of, and the circumstances relating to, the Forex Transactions. It was further recorded in Ruling No 9 that the learned trial Judge had perused a large number of documents and had heard a deal of evidence from witnesses called by the prosecution. None of the accused gave evidence on the voir dire and nor were any witnesses called on their behalf. After observing that the voluntariness of any of the impugned statements could not be denied on the ground that any of their makers had lacked appropriate legal advice or had his will overborne in any way, his Honour continued: "The argument with respect to the issue of voluntariness is based upon a quite different proposition; namely, that the National Crime Authority acted unlawfully in conducting hearings into the foreign exchange transactions with which this trial is concerned. It is said that this subject was not encompassed by any reference given to the Authority to conduct a "special investigation" and that, accordingly, the Authority had no power to require any of the accused to attend at a hearing, or to compel them to answer questions, in relation to it. Each responded, as he reasonably understood that he was required to do by law, to a summons served upon him to attend a hearing." 45 After reviewing the early history of the NCA investigation into the affairs of EXL which had been initiated by a conversation between Mr Bosch, who was then Chairman of the National Companies and Securities Commission ("NCSC") and Mr Faris QC, then Chairman of the NCA, Vincent J concluded: "The subject of the proposed, and then authorised investigation, (setting to one side the question of the validity and the precise wording of the Notices of Reference) was 'the way in which directors of Elders IXL have gained effective control of one of Australia's largest companies'. There were suspicions that 'relevant offences' may have been committed in the achievement of this objective and possibly, if the note made by Mr Bosch, on 22 November 1989, accurately records the views expressed to him by Mr Faris, the involvement of some directors in a 'conspiracy of huge magnitude'. It is painfully obvious that the Authority neither sought, nor was it granted, a general reference to investigate the affairs of Elders IXL Ltd, its directors, or associated companies or persons." 46 In the course of Ruling No 9, Vincent J identified a preliminary, or earlier, stage in a process of investigation at which connections between the matter being investigated and some randomly perceived or discovered subject may not be apparent. He continued: "However, whether or not any such linkages exist at all, or whether or not the new subject bears upon the authorised subject matter, may be unclear or unknown. This does not mean that the investigator is simply precluded from looking at the new subject. Commonsense would suggest that some pursuit of it may be required, to the extent, at least, of determining whether it may bear upon the subject matter of the authorised investigation. But, commonsense would also suggest that, in circumstances where the investigator is provided with coercive powers which can only be exercised for the purposes of pursuing an authorised investigation, it would follow that they cannot be employed at that initial stage. Before they can be used there must be, in my opinion, at minimum, the existence of the perception of a nexus between the new subject of interest and the subject matter of the authorised investigation. … A hearing could not be justified as having been conducted for the purposes of a 'special investigation' unless those who proposed to do so had addressed the question of its purpose in relation to the special investigation. Before coercive powers were employed, they would, at least, need to be satisfied on reasonable grounds that there was reason to suspect that the subject matter of the hearing bore upon the subject matter of the 'special investigation'. [See George v Rockett (1990) 170 CLR 104 and the cases cited therein]." 47 After concluding that, within the NCA, "no seriously arguable formulation of a possible nexus [between the matter referred to the NCA and the Forex Transactions] was ever advanced even retrospectively" Vincent J observed near the end of Ruling No 9: "In the course of argument, it was contended on behalf of the accused that the proper inference to be drawn from the evidence is that the Authority and those who represented it, for one or more basic reasons, embarked upon a course involving the deliberate abuse of powers at their disposal. In a previous ruling, I expressed the view that, on the basis of the material then before the Court, a good arguable case existed for this proposition. Since that time I have perused additional documents and heard a great deal more evidence bearing on the question. In order to ensure that the accused enjoyed an ample opportunity to canvass any relevant issue with the various witnesses and in order that I might be properly informed about the matter, I accorded to counsel considerable latitude in cross-examination, sometimes over the understandable expressions of frustration of counsel appearing for the prosecution. At the end of this process, whilst I have some reservations concerning the conduct of certain witnesses, I do not consider that the inference of deliberate abuse, for which the accused contend, can be drawn. Of course, as I have indicated, this view does not dispose of the problem but it does, I think, place it in its proper perspective." 48 His Honour's reasoning in Ruling No 9 led him to this conclusion: "In conclusion, I consider that for the above reasons the impugned statements were not made voluntarily in the relevant sense and are inadmissible. For completeness, I should add that I have not found it necessary to address a further argument advanced on behalf of the accused which rested upon the proposition that strict compliance with the statutory requirements as to the Notices and summonses served on the accused was necessary before the accused could be required to attend at a s 25 hearing or answer questions concerning a specific subject at such a hearing, although there is some obvious force to this assertion." 49 In Ruling No 13, after rehearsing some of the conclusions reached in Ruling No 9, the learned trial Judge noted that Ruling No 9 had been concerned with the admissibility of certain statements made by the accused themselves in NCA hearings. His Honour then observed: "Second, the factual situation is now relatively clear. It would appear that each of the pieces of evidence in respect of which the present submissions have been made was obtained through the unlawful employment of the coercive powers available to the National Crime Authority in strictly designated circumstances in a similar fashion to and as part of the same Operation Albert activities as the evidence I have already found to have been unlawfully obtained. There has been no suggestion that any significant distinction can be made at this level." 50 Another reference was then made to Ruling No 9 as embodying a statement that: "…I was not satisfied that deliberate abuse of power had been made out by the accused." 51 His Honour then continued: "My attention was drawn to the oral evidence of a number of witnesses, the effect of which was that none perceived themselves as acting unlawfully or inappropriately. No expression of curial disapproval is called for in that situation, and certainly the employment of the sanction of excluding vital evidence would not be justified, Mr Woinarski [Senior Counsel for the Prosecution] argued. … Although I am not persuaded that there has been any deliberate abuse of those powers, I am satisfied that they were certainly employed in a regrettably casual fashion with little indication that any significant regard was had to important constraints set out in the Act under which the National Crime Authority was established." 52 Near the conclusion of Ruling No 13 his Honour observed: "Generally, and, I suspect, only rarely prior to trial, would a court look behind the words of the authorising instrument on the basis of which an investigative body had purported to act. Even at the trial level, this would be an extremely unusual occurrence. I certainly am not aware of another case where there has been a comprehensive examination of the lawfulness of the investigative process of the kind that has occurred in this matter and it is not to be ignored that the real situation did not emerge until after months of argument and evidence." 53 After the acquittal of the six accused had been directed by Vincent J, the DPP, pursuant to s 450A of the Crimes Act 1958 (Vic), referred to the Victorian Court of Appeal questions on several points of law which were said to be raised by rulings given on the voir dire, particularly Ruling No 9 and Ruling No 13. In DPP Reference No 2 of 1996 [1998] 3 VR 241 the Court of Appeal held that the "matter" referred for investigation under s 13(1) of the NCA Act is to be ascertained solely from the notice in writing under that section without regard to extrinsic material. Secondly, it was held that perception of a nexus between the subject inquired into at a hearing and the matter referred is not essential to the validity of the hearing. All that is required, Brooking JA indicated at 261, is that "the subject to be inquired into shall in fact fall within the scope of the matter that has been referred" to the NCA. However, his Honour went on to observe, also at 261: "To say that the phrase 'for the purposes of' in s 25(1) and s 28(7) is not concerned with the state of mind of members of or other persons representing the authority is of course not to say that that state of mind may not be called in question in an attempt to show, in reliance upon the doctrine of administrative law, that a power has been exercised for an ulterior purpose." 54 Finally, the Court of Appeal held that statements made by a witness in evidence given at a NCA hearing are not necessarily involuntary and accordingly inadmissible in criminal proceedings by reason only of the circumstance: (a) that the hearing was not held for the purposes of a special investigation, or (b) that the summons directed to the witness was not issued for the purposes of a special investigation within the meaning of the NCA Act. 55 In the light of that history, Counsel for the NCA argued before me that the contention rejected by Vincent J in Ruling No 13 that the NCA had deliberately abused its statutory powers was the foundation of part of the case pleaded in the statement of claim and it would be an abuse of process for the same issue to be litigated again in the present proceedings. 56 In support of that contention, Counsel for the NCA relied on Hunter v Chief Constable of the West Midlands Police [1982] AC 529. In that case, the factual issue was whether a confessional statement made by the appellant, one of the "Birmingham Six", had been induced by violence and threats by the police. After a voir dire lasting eight days, the trial Judge found beyond reasonable doubt that the statement had been voluntary and not induced by police assaults. The issue was also left to the jury who were warned by the trial Judge that if the allegations of the accused were, or might reasonably be, true, the statements were worthless. All six were convicted. Writs claiming damages for physical injuries allegedly caused by the police were issued against the relevant Chief Constables and the Home Office. Applications to strike out the actions were refused at first instance but upheld by the Court of Appeal. On appeal to the House of Lords it was held that considerations of public policy precluded the bringing of a civil action which depended for its success on controverting findings of fact necessarily made in the course of reaching a verdict of guilty in a criminal trial. 57 Lord Diplock, with whom the rest of their Lordships agreed, identified, at 540, the applicable legal principle when he cautioned: "Nevertheless it is my own view, which I understand is shared by all your Lordships, that it would be best, in order to avoid confusion, if the use of the description 'issue estoppel' in English law, at any rate (it does not appear to have been adopted in the United States), were restricted to that species of estoppel per rem judicatam that may arise in civil actions between the same parties or their privies, of which the characteristics are stated in a judgment of my own in Mills v Cooper [1967] 2 QB 459, 468-469 that was adopted and approved by this House in Reg v Humphrys [1977] AC 1, the case in which it was also held that 'issue estoppel' had no place in English criminal law. The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made. The proper method of attacking the decision by Bridge J in the murder trial that Hunter was not assaulted by the police before his oral confession was obtained would have been to make the contention that the judge's ruling that the confession was admissible had been erroneous a ground of his appeal against his conviction to the Criminal Division of the Court of Appeal. This Hunter did not do." 58 The nature of the final decision against which no collateral attack may be brought was described by his Lordship in these terms, at 542: "In the instant case the relevant final decision by a competent court in which the identical question sought to be raised has been already decided is the ruling of Bridge J, on the voir dire in the murder trial, that Hunter's confession was admissible. Initially his ruling may have been provisional in the limited sense that up to the time that the jury brought in their verdict he had power to reconsider it in the light of any further evidence that might emerge when the whole question of the circumstances in which the confession was obtained was gone into again before the jury on the question of the weight to be attached to it: Reg v Watson (Campbell) [1980] 1 WLR 991. But his ruling became final when the trial ended with the return of the jury's verdict of guilty and the pronouncement by the judge of the mandatory sentence of life imprisonment. Bridge J thereupon became functus officio. His ruling that the confession was not obtained by the use of violence by the police, as Hunter had alleged, could thereafter only be upset upon appeal to the Court of Appeal (Criminal Division). The fact that the whole matter of the circumstances in which the confession was obtained was gone into a second time before the jury and that the jury, in view of the judge's direction to them, must clearly also have been satisfied beyond reasonable doubt that Hunter's account of the assaults upon him by the police was a fabrication does not affect the finality of the judge's ruling, though it would exacerbate the public scandal to the administration of justice that would be involved if Hunter, by changing the form of the proceedings to a civil action, were to be permitted to set up in that action the same case that must have been decided against him not only once but twice, even though technically it was only the first of those decisions that eventually qualified as the final decision against him by a competent court upon the very question that he seeks now to raise." 59 Counsel for the NCA also referred in this context to Ricardo Lessur-Millar (aka Walter Levinge) (1990) 47 A Crim R 111 where the applicant sought in this Court orders under s 39B of the Judiciary Act 1903 restraining the further prosecution of criminal proceedings against him in New South Wales. He also sought a declaration that his extradition from the USA in 1986 had been illegal. Lockhart J made an order permanently staying the application, saying at 117: "For this Court to allow the present matter to proceed and to consider granting the relief sought by the applicant would be to lend its aid to a further investigation of the very matters which have been fully considered by judges at first instance and on appeal in New South Wales and, though a special leave application and not the hearing of a substantive appeal, by the High Court. No fresh evidence of any probative kind has been placed before the Court additional to what was before the New South Wales courts. It is vexatious and an abuse of process for a party, having sued unsuccessfully before the courts of New South Wales, to seek to agitate the very same issues and facts in this Court. The proceedings, remedies and parties are not precisely identical; but they are in all essential respects the same: see Moore v Inglis (1976) 50 ALJR 589 which, though not directly applicable to this case, is akin to it." 60 I do not discern from the cases to which I have been referred as providing some guidance in the application of the concept of abuse of process by attack on a finding of fact or ruling of law in earlier proceedings, any immutable principle that no such attack should ever be allowed. In Rogers v The Queen (1994) 181 CLR 251 Mason CJ observed, at 255: "I agree with the reasons given by Deane and Gaudron JJ for concluding that the prosecution's tender of the records of interview constituted a direct challenge to the 1989 determination and was therefore an abuse of process. The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not the party's genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories (Hunter v Chief Constable [1982] AC at p 536 per Lord Diplock). Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process." 61 After referring to Williams v Spautz (1992) 174 CLR 509, Hunter v Chief Constable and Moevao v Department of Labour [1980] 1 NZLR 464 at p 481, his Honour continued, at 256: "These statements indicate that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute. This led the majority in Walter v Gardiner to state that the question whether criminal proceedings should be permanently stayed was to be determined by a weighing process involving a balancing of a variety of considerations ((1993) 177 CLR at pp 395-396). Those considerations, which reflect the two aspects of abuse of process outlined above, include (ibid, at p 396): 'the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.' In the present case, a weighing of these considerations inevitably compels the conclusion that a stay should be ordered. The public interest in securing the convictions of the appellant is clearly outweighed by other relevant considerations. The tendering of the confessions by the prosecution was vexatious, oppressive and unfair to the appellant in that it exposed him to re-litigation of the issue of the voluntariness of the confessional statements in the records of interview. This issue had already been conclusively decided in the appellant's favour because the confessions sought to be tendered - although relating to different crimes - were made at the same time and in exactly the same circumstances as the confessions that were the subject of the voir dire. Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue. These considerations necessarily prevail over any competing public interest in the securing of convictions against the appellant." 62 Deane and Gaudron JJ, who together with Mason CJ comprised the majority in Rogers v The Queen rested their conclusion on "the principle which ensures the incontrovertible character of judicial decisions", (at 278) and the need to avoid what Spencer Bower and Turner, The Doctrine of Res Judicater 2nd Edn (1969) at 411 called "the scandal of conflicting decisions". 63 Consistently with that reasoning, in both Hunter v Chief Constable and Ricardo Lessur-Millar, the person seeking to agitate in subsequent litigation an issue of fact or law which had earlier been decided adversely to that person had suffered an adverse final adjudication in the earlier proceedings. 64 In the present case, assuming in favour of the NCA, that Vincent J's finding in ruling No 9 excluded a deliberate abuse of power in any form, that finding was not obviously essential to the final resolution of the criminal proceedings which occurred when the verdicts of not guilty were entered. What was essential to that resolution was his Honour's conclusion in Ruling No 9 that those conducting the NCA investigation had not perceived a nexus between the Forex Transactions and the subject matter of the investigation authorised by the reference. 65 The case which Elliott seeks to make in these civil proceedings is not inconsistent with his acquittal in the criminal proceedings. It is true that his allegations of deliberate abuse of statutory power are arguably inconsistent with Vincent J's refusal in Ruling No 9 to impute deliberate abuse to the NCA or its officers. However, it was never open to Elliott, in the events which happened, to appeal against that refusal. That was because his acquittal was consistent with the result which would have been obtained had the confessional evidence been excluded on the ground of deliberate abuse which his Honour eventually refused to uphold. 66 It may be that as a result of being forced to defend these proceedings the NCA will succeed in controverting the findings or reasoning which resulted in Elliott's acquittal. However, that will be a consequence of a conscious decision by Elliott to persist in prosecuting his civil action. On weighing all available discretionary factors of the kind which Mason CJ said in Rogers v The Queen require evaluation in a case of this kind, I do not consider, on balance, that they militate against a trial on the merits of this action. Particularly because of the corrections of the reasoning at first instance which have been made by the Court of Appeal in Director of Public Prosecutions Reference No 2 of 1996, I do not regard the continuance of these proceedings as calculated to erode public confidence in the administration of justice because it may result in a judgment inconsistent with Elliott's acquittal. (b) Versions of the Forex Transactions in "the public domain" 67 This part of the NCA's submission was to the effect that there were in "the public domain" five different accounts of the Forex Transactions. They were identified as follows: (i) The account given by Elliott and Scanlon at the NCA hearings to the effect that the Forex Transactions were genuine. (ii) The account given in defences filed on behalf of Elliott and Scanlon in the civil action against them and Jarrett, Biggins and the Bank of New Zealand by Foster Brewing Group Ltd and Elders Finance Australia Ltd that the payments of $37M and $29M had been made pursuant to an arrangement with Mr Hawkins and ETL for the "warehousing" of BHP shares. The relevant sub-paragraphs of Elliott's amended defence in that action were: "18.2 He says further that prior to the January payment Elders IXL Limited (Elders) was indebted to Equiticorp Tasman Limited (Equiticorp) as a consequence of the sale of the shares owned by Beid Pty Ltd in Broken Hill Proprietary Company Limited, (the Elders obligation). 18.3 If and insofar as the January payment and the September payment were made with the knowledge, consent or authority of Elliott (which is denied) any such payments were only known, consented to or authorised by Elliott to have been made and/or were made: 18.3.1 in discharge of the Elders obligation or some other obligation of Elders; and/or 18.3.2 in the interest of or for the benefit of Elders; and/or 18.3.3 with the authority of Elders; and/or 18.3.4 honestly, in the exercise of the powers and in discharge of the duties of those responsible for performing Elders obligation or some other obligation of Elders; and/or 18.3.5 in good faith; and/or 18.3.6 for a lawful and proper purpose; and/or 18.3.7 in circumstances which did not involve the improper use by any person charged with the responsibility of discharging the Elders obligation or some other obligation of Elders of their position to gain directly or indirectly an advantage for themselves or for any person other than Elders or to cause a detriment to Elders. 18.4 If and insofar as the January payment and the September payment were not made in discharge of the Elders obligation or some other obligation of Elders they were made without the knowledge, consent or authority of Elliott. 18.5 If and to the extent that the January payment and the September payment were made in discharge of the Elders obligation or some other obligation of Elders, Elders suffered no loss and damage by reason of the making of those payments." (iii) The account given by Mr Jarrett that the Forex Transactions were, to the knowledge of Elliott and Scanlon, a sham to conceal a warehousing arrangement between EXL and Hawkins and ETL. (iv) An assertion by Mr Richter QC, Senior Counsel for Elliott in the criminal trial, to the effect that: "It is no part of our case to argue [the] foreign exchange transactions were genuine. We have admitted it. There is no problems about that, the foreign exchange transactions are not said by us to be genuine. We have admitted them not to be genuine." (v) The account given on behalf of Mr Scanlon in a press release on 22 August 1996 that the Forex Transactions had been a sham contrived by Jarrett pursuant to an arrangement with Hawkins and ETL for the "warehousing" of BHP shares and resulted in a profit for EXL of approximately $90M. According to that press release: "None of Messrs Elliott, Scanlon and Biggins were privy to what had been planned. The plan was devised and implemented by Elders Finance and its Chief Executive Officer, Jarrett to the exclusion of Messrs Elliott, Scanlon and Biggins. Elders Finance operated with a separate Board. Messrs Scanlon and Biggins were not members of the Elders Finance Board and Mr Elliott was not at relevant meetings. … It was not until January 1994, after charges of theft had been laid, that Jarrett revealed to Messrs Elliott and Scanlon that the contrived FX transaction, that Jarrett had implemented in fact, discharged Elders' obligation to Equiticorp under the Equiticorp Agreement. This took place at or about the time Jarrett was negotiating for himself an indemnity against prosecution." 68 Against that background, it was argued that it is an abuse of process for Elliott to persist with the present litigation in which a finding has to be made about whether the financial losses he has incurred and the alleged damage to his reputation have been caused by the misfeasance or breach of duty attributed to the NCA or by a conspiracy in which it was implicated. Accordingly, so it was argued, Elliott should not be given leave to amend his statement of claim or proceed with the action unless he commits himself unequivocally, on affidavit, to one of the five versions of the Forex Transactions recounted above. That contention pointed specifically to each of the allegations made by Mr Jarrett in his statement of 10 March 1994 and it was said that the proposed affidavit by Elliott should contain substantive responses to those allegations. 69 Counsel for Elliott did not concede that all five versions of the Forex Transactions instanced by the NCA are in the public domain. In particular, they contend that the evidence given by Elliott and Scanlon at the NCA hearings, which Vincent J ruled inadmissible in the criminal trial, has never been made public. They also point to para 27 of the statement of claim which, it is said, precludes the genuineness of the Forex Transactions from arising as an issue at the trial. That paragraph, it will be recalled, recites: "In about January and September 1988 EXL made payments to the Bank of New Zealand Ltd (BNZ) purportedly in settlement of foreign exchange transactions (the Forex Transactions). PARTICULARS (a) On about 11 January 1988 a payment was made by EXL to BNZ and a subsequent payment was made by BNZ to a company or companies associated with Allan Robert Hawkins (Hawkins) and/or Equiticorp Tasman Ltd (ETL) in the sum of about $39.5 million; and (b) On about 7 September 1988 a payment was made by EXL to BNZ and a subsequent payment was made by BNZ to a company or companies associated with Hawkins and/or ETL of about $27 million." 70 It is true that a finding by this Court that Elliott had deliberately lied on oath at the hearings of the NCA when he said that he believed the Forex Transactions to have been genuine, would greatly diminish his prospects of establishing a direct causal link between the antecedent irregularities, breaches of duty or conspiracies imputed to the NCA and the losses and damage which he allegedly suffered in consequence of the laying of the criminal charges. However, the version or explanation of the Forex Transactions which he elects to give for the purposes of the trial in this Court will be only one part of a complex mosaic of facts to be established if one or more of the causes of action pleaded in the statement of claim are to be made out. 71 Moreover, it is likely that, as a matter of appropriate case management, Elliott will be required, shortly after the close of pleadings, to file affidavits or witness statements embodying the evidence-in-chief which he proposes to adduce at trial. That will necessitate his adoption of one explanation or another of the Forex Transactions. It is to be noted in this context that para 27 of the statement of claim in its present form is embarrassing because it requires the respondents to plead to the "purported purpose" of the payments of $39.5M and $27M. If Elliott now accepts that those payments were not genuinely in settlement of foreign exchange transactions, he should say so in the statement of claim and, if relevant, he can indicate how and when he came to learn of the real purpose for which those payments were made. 72 For these reasons, I am not disposed to accede to the submission that Elliott should now file, as a condition of being allowed to continue the action, an affidavit to the effect suggested by Counsel for the NCA. (c) Proceedings "Foredoomed to Failure" 73 This ground of the NCA's attack derived its formulation from Walton v Gardiner (1993) 177 CLR 378 where Mason CJ, Deane and Dawson JJ observed at 392: "The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. (See, eg, Metropolitan Bank v Pooley (1885), 10 App Cas 210 at pp 220-221; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at pp 128-130)" 74 Unlike the first two limbs of the argument based on abuse of process, this ground was not self-contained but depended, in part, on points made in other submissions on behalf of the NCA including those which I have already discussed. However, Counsel for the NCA did rely specifically under this head on ss 32, 32A and 36 of the NCA Act. 75 Under s 32, a person whose claim to be entitled to refuse to furnish information, produce a document or answer a question is decided by the NCA not to be justified may apply to this Court for a review of that decision. Section 32A affords a similar right to apply to the Supreme Court of a State where the requirement to produce a document or answer a question arises in relation to a reference to the NCA made by a Minister of the Crown of that State. 76 It was said that those sections preclude a private right to damages for breach of statutory duty under the NCA Act. Any illegitimate requirement by the NCA for the production of a document or the answering of a question, so the argument went, gives rise only to "the defined public law rights" conferred by ss 32 and 32A which are subject to the strict time limits imposed by s 57. 77 It is clear that ss 32 and 32A have been framed to afford to a person subject to a requirement by the NCA to produce documents or answer questions, a relatively speedy and expeditious right to test in this Court the validity of that requirement. However, it is not nearly so clear that those sections, by expressly conferring one form of relief, necessarily exclude any right to make the NCA liable in damages for negligence or some other tort. It is to be borne in mind that ss 32 and 32A are narrowly predicated on an entitlement in the citizen to refuse to produce a document or answer a question when required to do so by the NCA. Those sections, however, are silent on remedies in respect of other aspects of the NCA's powers and in respect of torts like conspiracy and misfeasance in a public office. 78 Section 36 of the NCA Act provides: "(1) A member has, in the performance of his functions or the exercise of his powers as a member in relation to a hearing before the Authority, the same protection and immunity as a Justice of the High Court. (2) A legal practitioner assisting the Authority or representing a person at a hearing before the Authority has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court. (3) Subject to this Act, a person summoned to attend or appearing before the Authority as a witness has the same protection as a witness in proceedings in the High Court." 79 It is true, as Counsel for the NCA submitted, that the extent of the immunities conferred by that section is a matter of statutory construction. The immunity of a Justice of the High Court extends to any act done in the course of the performance of judicial duties; Gallo v Dawson (No 2) (1992) 109 ALR 319. The performance of judicial duties, including the discharge of administrative functions intimately connected with those duties, has a relation with actual or projected hearings of proceedings in the Court which may be more immediately discernible than that between the duties of members of the NCA and hearings conducted by that body. Accordingly, the question of statutory construction which Counsel have identified is one to be resolved in the context of the conduct of a member which the NCA will assert, and Elliott will deny, is "in relation to a hearing before" the NCA. It may be appropriate, if the relevant facts can be agreed, or separately found without unduly fragmenting the trial, to resolve that question pursuant to O 29 of the Rules of this Court separately from other questions or issues in the action. However, because it cannot be posed as a "pure" question of law, I am not prepared to answer it now in response to what is, effectively, an invitation to enter summary judgment for the respondents. (d) Proceedings not bona fide 80 This ground was advanced by way of a second support for the NCA's attack based on the risk of inconsistencies between a judgment in the present action and the outcome of the criminal trial. Indeed, McHugh J who dissented in Rogers v The Queen saw Hunter v Chief Constable as having been resolved primarily on the ground of the plaintiff's having an ulterior purpose in pursuing the civil action. His Honour said, 181 CLR at 287: "But I think that the decision is best explained as a case of an abuse of process arising from civil proceedings being commenced for the improper purpose of putting pressure on the Home Secretary to review the appellant's criminal convictions. Hunter was one of the so-called Birmingham Six. The written and oral confessions of Hunter and his fellow accused amounted to the chief evidence against them on charges of murder. They alleged that the confessions were made as the result of threats and violence. The trial judge found, beyond reasonable doubt (This is not the test in Australia: Wendo v The Queen (1963) 109 CLR 559), that there had been no physical violence or threats by the police officers who obtained the confessions and that the confessions were made voluntarily. The appellant and the other accused repeated their allegations before the jury, but they were convicted. Subsequently, Hunter sued the police officers for damages for assault. The House of Lords held that Hunter's statement of claim should be struck out as an abuse of process of the court." 81 After reproducing part of the extract from the speech of Lord Diplock which I have set out above, McHugh J concluded, at 289: "In my opinion, the decision in Hunter is best explained and justified on the ground that the civil action was brought for the improper purpose of putting pressure on the Home Secretary (see Hunter [1982] AC at p 541) to review the plaintiff's convictions for murder (this was also the conclusion of Davies J in Saffron v Federal Commissioner of Taxation [No 2] (1991) 30 FCR 578 at pp 582-583. In so far as the decision rests on the conclusion that the ruling of the trial judge was a final determination in the same sense that determinations as to ultimate issues are final, it is contrary to principle and should not be followed in this country." 82 It was submitted on behalf of the NCA that the Court should infer from the failure of the statement of claim to disclose a cause of action, the lack of particularity and the confusion of the pleading that Elliott is continuing to prosecute this action for the ulterior purposes of seeking the disbanding of the NCA, obstructing any continuing investigation by the NCA of his activities and defaming various persons (including non-parties) under cover of privilege. However, I am not persuaded to impute those ulterior purposes to him on the basis of any such inference. If the statement of claim wholly fails to disclose a cause of action it will be struck out for that reason alone without any exploration of the applicant's motives in pursuing the proceedings. Mere lack of particularity or confusion, on the other hand, can be cured by appropriate leave to make further amendments subject to the usual protection of the respondents in respect of costs. I fail to see how the continued prosecution of an action to a judgment in favour of the respondents with costs could be regarded by Elliott as contributing to the object attributed to him of bringing about the "disbanding" of the NCA. Finally, it is trite to observe that the Court has ample powers under O 14 r 8 and from other sources to frustrate any attempt to introduce irrelevant scandalous matter for the extraneous purpose of disparaging some individual, whether a party or not.

B. THE STATEMENT OF CLAIM DISCLOSES NO CAUSE OF ACTION 83 It was contended on behalf of the NCA that, insofar as it is possible to spell out of the statement of claim some elements of causes of action against it, they are all what have been called "intentional" torts. It was then argued that the statement of claim contained no appropriate allegation of intention as manifested by malice or knowledge that the action being taken was unlawful and would cause injury. Although Counsel for Elliott disclaimed any attempt to rely on some of the causes of action said by the NCA to have been defectively pleaded, it is convenient to examine each of those "intentional" torts in the order in which they were treated in the NCA's submissions and then to consider the attempt to plead negligence which is said to underlie various references to "breach of duty".

(a) Action on the case of the kind which Beaudesert Shire Council v Smith (1966) 120 CLR 145 suggested to be available 84 In my earlier reasons for judgment, I invoked the recent judgment of the High Court in Northern Territory v Mengel (now reported at (1995) 185 CLR 307; (1995) 129 ALR 1) as supporting the rejection of this cause of action which the applicants had then sought to plead against the ABC. In the light of that ruling Counsel for Elliott now disavow any intention of relying on a Beaudesert action on the case against any of the remaining respondents.

(b) Malicious Prosecution 85 Similarly, Counsel for Elliott acknowledge that no attempt had been made to plead this cause of action which, they pointed out, would require Elliott's acquittal on the criminal charges to be pleaded.

(c) Conspiracy to Injure 86 The statement of claim in its present form appears to plead two conspiracies to which the NCA is alleged to have been a party. The first was between the NCA, Seymour, Sherman and the DPP. The second was between the NCA, the NZSC, the NZSFO and SMETL. (i) Conspiracy between Seymour, Sherman, the NCA and the DPP 87 This first conspiracy appears to be pleaded only in the following paragraphs of the statement of claim in its present form: "136. Further or alternatively, the decision to charge was made pursuant to an agreement between the DPP, Seymour, Sherman and/or the NCA to be effected by means of a device or contrivance to enable the NCA to charge the Applicant in circumstances where the NCA well knew it had no power or authority to do so. PARTICULARS The device or contrivance involved the use of Seymour, a member of the staff of the NCA who happened to be a police officer, to perform a function on behalf of the NCA which the NCA was not authorised to perform. The agreement was made at a time before the Charges were filed and is to be inferred from the facts and matters set out in Schedule C. 137. At all relevant times the DPP well knew of the device or contrivance and that the NCA did not have the power or authority to charge the Applicant. PARTICULARS The Applicant refers to and repeats the particulars under paragraph 128 and in Schedule C. 138. Accordingly, by reason of the matters referred to in paragraphs 136 to 137 Seymour, Sherman, the NCA and the DPP agreed and thereby conspired to unlawfully prevent or defeat enforcement or operation of section 12 of the Act by assuming the role of a law enforcement agency. 138A. In furtherance of the conspiracy referred to in paragraph 138 the following acts were taken: (a) the NCA retained control of the evidence concerning the Charges; (b) the NCA directed Seymour to become a member of the Victoria Police on 4 November 1993; (c) the DPP advised the NCA of the Charges; (d) the NCA entered into agreements with the Victoria Police concerning payment by the NCA of any costs incurred by or ordered against Seymour and paid those costs; (e) the DPP and the NCA acted in accordance with the terms of the DPP/NCA agreement in respect of the Charges." 88 In my earlier reasons for judgment, at pp 35-36, I noted that the allegations in the statement of claim as it then stood that the DPP was implicated in a civil conspiracy were "related to a decision whether or not to charge Elliott with a criminal offence, the giving of advice bearing on that decision or investigations preparatory to it … the allegation against the DPP is that he knowingly lent his aid to that [invalid] conduct [by the NCA] by providing legal advice and proposed to charge Elliott with various offences thereby enabling the NCA and the other respondents to achieve indirectly what they were prohibited from doing directly." 89 At p 38 of the same reasons for judgment, I examined the separate cause of action in conspiracy against the Australian Broadcasting Commission ("the ABC") which was then, but is no longer, a respondent to the present proceeding. I there noted the "dichotomy established by a long line of authority between a conspiracy to perform an unlawful act or use unlawful means on the one hand and a conspiracy to injure by the use of lawful means on the other." As against the ABC, it was said on behalf of Elliott that the conspiracy alleged was of the former type. I assume that the conspiracy between the NCA, Seymour, Sherman and the DPP is also of that "unlawful means" kind. If that is so, it remains necessary to plead the agreement or combination and to establish that the occasion had arisen for resorting to or threatening to resort to unlawful means. Otherwise, there would be, as Dixon J pointed out in McKernan v Fraser (1931) 46 CLR 343 at 361: "… at most … a combination for a purpose to be effected by a lawful means or, if necessary, by unlawful means. The occasion did not arise for resorting to or threatening to resort to unlawful means, and no circumstance occurred in which such means could have been employed against the respondents." 90 The unlawful act on which the alleged conspiracy between the NCA and the DPP is sought to be founded appears to be a contravention of s 12 of the NCA Act. Since that section is directed to the performance by the NCA of various of its functions, it is not clear from the pleading what unlawful act the DPP agreed to perform. In particular, it is not clear whether the acts alleged in paragraph 138A are said to have been unlawful or what made them so. Nor does the pleading of the agreement between the NCA and the DPP allege that it was entered into for the purpose of injuring Elliott. Finally, in this context, is not possible to discern from the pleading in its present form what damage is alleged to have been suffered by Elliott as a result of the agreement or conspiracy between the NCA and the DPP. As Lord Diplock said in Lonhro Ltd v Shell Petroleum (No 2) [1982] AC 173 at 188: "Regarded as a civil tort, however, conspiracy is a highly anomalous cause of action. The gist of the cause of action is damage to the plaintiff; so long as it remains unexecuted the agreement, which alone constitutes the crime of conspiracy, causes no damage; it is only acts done in execution of the agreement that are capable of doing that. So the tort, unlike the crime, consists not of agreement but of concerted action taken pursuant to agreement." 91 I would only allow an allegation of conspiracy between the NCA and the DPP to be persisted in if the statement of claim were to specify with more particularity than it does at present when the agreement or combination was formed, what unlawful means were agreed to be employed and the facts or circumstances which made them unlawful. For reasons which I have endeavoured to explain, the pleading should also indicate when the occasion for resort to those unlawful means arose and how their employment, in execution of the agreement, caused damage to Elliott. (ii) Conspiracy between the NCA, NZSC, NZSFO and SMETL 92 The sole allegations of this conspiracy appear to be those pleaded as follows in paras 150 and 151 of the statement of claim: "150. In between 9 May 1990 and June 1991 the NCA agreed with the NZSC, NZSFO and SMETL to use unlawful acts with the intention of harming the Applicant in his reputation, business and public office. PARTICULARS (a) The agreement was made by Leckie and Livermore on behalf of the NCA, Mr John Farrell on behalf of the NZSC, Messrs Ellis and McPherson on behalf of the NZSFO and SMETL's solicitors, Phillips Nicholson, on behalf of SMETL and is to be inferred from the facts and matters set out in Schedule B. (b) The unlawful acts are those alleged in paragraphs 45, 63 to 100 and 102 to 107. (c) That the acts were used with the stated intention is to be inferred from the facts and matters set out in Schedule B and from the Charges, particularly from the NCA's stated purpose of discrediting the Applicant. 151. In furtherance of the conspiracy referred to in paragraph 150 the NCA, NZSC, NZSFO and SMETL engaged in the conduct referred to in Schedule B." 93 The unlawful act alleged in paragraph 45 was the procurement by the NCA of the First Sandon, Second Sandon, Duffy and Second Sumner Notices for one or more of the purposes of discrediting the applicant or obtaining evidence for use by one or more of NZSC, NZSFO or SMETL. Paragraphs 63 to 100, it will be recalled, set out in chronological order various actions commencing with the summoning of Elliott on 21 November 1990 to appear at an NCA hearing to give evidence and concluding with the assertion that the NCA is vicariously liable for allegedly intimidatory conduct engaged in by Leckie. The incorporation of paragraphs 63 to 100 as particulars of the unlawful acts which the NCA, NZSC, NZSFO and SMETL conspired to commit thus amounts to an allegation of conspiracy to injure by the commission of various individual torts including abuse of power, breach of duty, misfeasance in a public office and intimidation. 94 At p 41 of my earlier reasons for judgment I noted the omission from Vol 38 of Atkin's Encyclopaedia of Court Forms and Precedents 2nd Ed of a precedent of a statement of claim alleging conspiracy to injure by unlawful means. I then speculated that: "The omission from the second edition of the 'unlawful means' precedents may reflect the doubt expressed in Fleming, The Law of Torts 8th Edn p 709 whether conspiracy 'adds anything of substance to the conditions under which a single individual would be liable for the modern tort of interference with business by 'unlawful means'." 95 I entertain the same doubt as to whether the allegation that the NCA agreed with one or more of the NZSC, NZSFO or SMETL adds anything of substance to the individual torts with which various paragraphs between 63 to 100 of the statement of claim seek to charge the NCA. 96 In Lonhro Ltd v Shell Petroleum (No 2) (supra) Lord Diplock acknowledged the significant difference between the crime of conspiracy and the civil tort of the same name. In the criminal law conspiracy is sometimes referred to as an "inchoate crime"; see e.g. Glanville Williams, Criminal Law : The General Part 2nd Edn pp 663 and 664. It is completely committed once the agreement has been made. The civil tort, on the other hand, as Lord Diplock pointed out, requires the commission of concerted acts done in the execution of the agreement which cause damage to the plaintiff. 97 As with the allegations of conspiracy between the NCA and the DPP, I am prepared to allow Elliott to continue to allege a conspiracy between the NCA and one or more of NZSC, NZSFO and SMETL only if the statement of claim specifies with sufficient particularity the time and making of each agreement between the alleged conspirators, the unlawful means agreed to be employed and the facts or circumstances which made them unlawful. The unlawful means relied on should be indicated in the body of the pleading alleging the conspiracy or in particular specifically appended to that part of the pleading and should not be incorporated by reference to several other, otherwise unrelated, parts of the statement of claim. The pleading should also indicate what unlawful acts were performed pursuant to the alleged agreement and how those acts caused damage to Elliott.

(d) Breach of Statutory Duty 98 Counsel for Elliott have disclaimed any intention to plead breach of statutory duty by the NCA.

(e) Misfeasance in Public Office 99 An example, acknowledged by Counsel for Elliott, of an attempt to plead this cause of action is afforded by paras 102 to 106 of the statement of claim which allege: "102. In and after May 1990 Leckie, Livermore and/or the NCA provided information concerning the Forex Transactions obtained using Coercive Powers (the Information) to: (a) the NZSC; (b) the NZSFO; (c) the SMETL. PARTICULARS The Information so provided is set out in Schedule B. 103. Alternatively to paragraph 102, after May 1990 Leckie, Livermore and/or the NCA provided Information to the NZSC and the NZSFO in the knowledge or belief that: (a) it would be passed on to SMETL for its use; and (b) such information would be eventually published in New Zealand and consequently Australia. PARTICULARS (i) Particulars are contained in Schedule B. (ii) The knowledge or belief is contained in Livermore's affidavit sworn 6 July 1992 in the prosecution of Hawkins in New Zealand and in Sherman's letter dated 12 October 1992 which is exhibit A9 to the Applicant's affidavit sworn 30 September 1993. 104. The provision of Information to the NZSC, the NZSFO and/or the SMETL was: (a) not authorised by the Act or otherwise; (b) not done for the purposes of the Act; (c) not done in connection with the performance of a duty under the Act. PARTICULARS (i) None of the NZSC, NZSFO or SMETL was a law enforcement agency within the meaning of sections 4 and 11(1)(a) of the Act; (ii) None of the NZSC, NZSFO or SMETL was an authority or person in another country performing functions similar to that of the NCA; (iii) In obtaining evidence for the NZSC, NZSFO or SMETL the NCA was not performing its functions within the meaning of sections 17 or 19 of the Act. 105. The Information was provided to the NZSC, the NZSFO and/or SMETL with the intention of harming the Applicant. PARTICULARS The intention is to be inferred from the matters set out in Schedule B and the knowledge of the NCA that the information would be disclosed publicly. 106. By reason of the matters alleged in paragraphs 102 to 105: (a) the NCA, Leckie and/or Livermore acted in breach of the duty referred to in paragraph 101 above; (b) the provision of the information to the NZSC, NZSFO and/or SMETL: (i) [Deleted] (ii) was a misfeasance by each of them in public office; (iii) was an unlawful act." 100 In Aronson and Whitmore, Public Torts and Contracts (1982), the tort of misfeasance in a public office is described at p 120 in these terms: "A new tort seems to be emerging, a tort which can be committed only by public officers. Its title is 'misfeasance in a public office'. In essence, it consists of the unauthorised infliction of loss in circumstances where the officer is either acting maliciously or knows that he lacks authority to do what he is doing. It is early days yet, but if this tort does exist, then it exists independently of other torts such as trespass, negligence or breach of statutory duty. The essential ingredients are proven damage, lack of authority, and either malice or knowledge that authority was lacking. It may be that the emergence of this new tort will not be of immense practical significance, because in most cases of unauthorised harm inflicted by malicious or deliberate abuse of power, a 'private law' tort will have been committed. (As in Trobridge v Hardy (1955) 94 CLR 147, where the maliciously motivated policeman was liable in assault, malicious arrest and false imprisonment.) And in most cases, malice or wilful excess of power would be very difficult to prove. But even if the misfeasance tort is not often used in practice, that would not deny its public significance. It can be galling and frustrating to suffer loss through a public official's incompetence, negligence, carelessness or mere error. But the occasional occurrence of such loss is inevitable; and in this respect, the public services are no different from business and service industries in the private sector. However, there is a special sense of outrage when a public official wilfully abuses his power. If such wilful abuse constitutes a tort other than misfeasance in a public office, it can be 'punished' by the award of exemplary damages. (See Rookes v Barnard [1964] AC 1129, at 1226; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; and Broome v Cassell & Co Ltd [1972] AC 1027, at 1128.) It would accord with the spirit of the cases on exemplary damages, therefore, to recognise an independent tort of misfeasance in a public office in cases of such malicious or wilful abuse." 101 The subsequent discussion in the same text suggests that it is an essential ingredient of the tort for the public officer to have acted maliciously or with knowledge that his or her actions were beyond power or otherwise illegal. In Campbell v Ramsay (1968) 70 SR(NSW) 327 it was held that malice is such an ambiguous concept that the pleader of a case in misfeasance in a public office must identify the material facts alleged to constitute malice, a bare allegation of "malice" being insufficient. Proof of actual damage is also necessary; (Farrington v Thomson [1959] VR 286). 102 In Northern Territory v Mengel (supra) Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ in a joint judgment indicated, at 347, that the elements of the tort of misfeasance in public office are the infliction of damage and either an intention, as the actuating motive, to inflict damage or the performance of an act which the public officer knows is beyond power and which involves a foreseeable risk of harm. 103 Insofar as paras 102 to 106 of the statement of claim are relied on as disclosing the cause of action of misfeasance in public office, I consider that they should have identified how the provision of information to any of the NZSC, the NZSFO and SMETL caused damage to Elliott. They should also have alleged, if it be the applicant's case, that the infliction of that damage was the purpose which actuated either or both Leckie and Livermore in supplying the information. Particulars should have been provided of the facts and circumstances which are said to form the basis for imputing that malice to each of the public officers concerned. I do not consider that Schedule B to the present statement of claim supplies particulars of that kind. It consists essentially of a catalogue of communications between the NCA and one or other of NZSC, NZSFO and SMETL. It is true that in para (iv) of Schedule B it is alleged that Livermore had concluded that "if SMETL's allegations [that the Forex Transactions were not genuine] could be substantiated, it will possibly disclose offences in Australia in its own right and it would certainly discredit the players involved". That statement of particulars supports a conclusion that Livermore hoped that the allegation that the Forex Transactions were not genuine would be substantiated. It also permits the conclusion that Livermore expected that the substantiation of the allegations about the Forex Transactions would "discredit the players involved" including Elliott. However, without more it does not support the allegation that Livermore arranged for the NCA to supply information and otherwise co-operate with the New Zealand authorities for the purpose of inflicting damage on Elliott. Rather, it suggests that Livermore was concerned to assist the New Zealand authorities to substantiate the allegations that the Forex Transactions were shams because he expected that outcome would discredit Elliott and thereby contribute to the success of the NCA's investigation into his activities. 104 Nor do I consider that knowledge by Leckie or Livermore that the information supplied to the New Zealand authorities would be disclosed publicly as alleged in the particulars appended to para 105 of the statement of claim, sufficiently particularises an allegation of malice. The public disclosure of the information, presumably in the course of Court proceedings, would only be damaging to Elliott and the other "players" if the allegations that the Forex Transactions had not been genuine were substantiated as Livermore apparently hoped they would be. 105 Similar considerations apply to the formulation of misfeasance in public office on the alternative basis that either or both Leckie and Livermore knew that it was beyond power for the NCA to supply information to the New Zealand authorities and the supply of that information involved a foreseeable risk of harm to Elliott. The pleading should have particularised fully the basis on which knowledge of the NCA's lack of power is imputed to each of Leckie and Livermore and how the mere provision of information (as distinct from substantiation that the Forex Transactions were shams) involved a foreseeable risk of harm to Elliott. 106 The NCA invoked s 36 of the NCA Act as affording a complete answer to any allegation of misfeasance in public office against Leckie who, at the relevant time, was a member of the NCA. However, for reasons akin to those explained when discussing that section in the context of the NCA's argument that the present proceedings are "foredoomed to failure", it cannot be asserted without contradiction that whatever Leckie did, for example in connection with the supply of information to the New Zealand authorities, was done "in relation to a hearing before" the NCA. Moreover, if Livermore was the holder of a public office so as to be liable for the commission of this tort, he could not invoke the immunity conferred by s 36 on a "member" of the NCA. 107 Accordingly, for reasons which I have endeavoured to explain, I consider that Elliott should only be allowed to maintain his reliance on misfeasance in public office if his pleading gathers together in an identifiable way with adequate particulars all of the allegations of fact necessary to establish that tort. That will require specification of each act which the NCA is said to have carried out in excess of its powers, with an indication of how Leckie, Livermore or any other officer responsible intended that the exceeding of the NCA's powers should inflict damage on Elliott. If the alternative basis indicated by the joint judgment in Northern Territory v Mengel is to be availed of, the pleading should allege, with appropriate particulars, that each relevant officer knew that the NCA's powers were being exceeded and that such excess of power involved a foreseeable risk of harm to Elliott.

(f) Intimidation 108 This tort is alleged in the following paragraphs of the statement of claim: "95. By serving Summonses MS46 and MS94 Leckie and/or the NCA demanded that the Applicant attend the First Hearing and the Second and Third Hearings respectively and that he give evidence and produce documents. 96. Leckie and/or the NCA threatened the Applicant with prosecution for a contravention of section 30 of the Act should the Applicant refuse to attend the First Hearing and give evidence or should he refuse to attend the Second and Third Hearings and produce documents. PARTICULARS The threat is contained in Note 1 in Summons MS46 and MS94. 97. The Applicant attended at and appeared before the NCA at each of the First, Second and Third Hearings in response to the demands and threats referred to in paragraphs 95 and 96 above. 98. By reason of the matters alleged in paragraph 84, any prosecution of the Applicant for his non-attendance at the First, Second or Third Hearings under section 30 would have been unlawful. 99. Accordingly, by issuing and serving Summonses MS46 and MS94 Leckie and/or the NCA by threats and unlawful means intimidated and coerced the Applicant into attending the First, Second and Third Hearings, answering questions asked of him and producing documents." 109 Note 1 to Summons MS46 which required Elliott to appear at a hearing of the NCA at 10.00am on 3 December 1990 was in these terms: Take Notice that: 1. Section 30(11) of the National Crime Authority Act 1984 makes it an offence, punishable by a fine of $1000 or imprisonment for 6 months to, without reasonable excuse, refuse or fail to comply with a summons served under section 28(1) of the Act." 110 Sub-section 30(1) of the NCA Act provides: "A person served, as prescribed, with a summons to appear as a witness at a hearing before the authority shall not, without reasonable excuse: (a) fail to attend as required by the summons; or (b) fail to attend from day to day unless excused, or released from further attendance, by a member." 111 The tort of intimidation consists in a threat by the defendant to commit some unlawful act thereby causing loss to the plaintiff. The unlawful act may be a separate, substantive tort, a breach of contract, or a criminal offence. Where the threat has been directed against the plaintiff and not a third party, the plaintiff must have complied with the demand. In Rookes v Barnard [1964] AC 1129 Lord Reid observed, at 1168: "So long as the defendant only threatens to do what he has a legal right to do he is on safe ground. At least if there is no conspiracy he would not be liable to anyone for doing the act, whatever his motive might be, and it would be absurd to make him liable for threatening to do it but not for doing it. But I agree with Lord Herschell (Allen v Flood [1898] AC 1, 121; 14 TLR 125, HL(E)) that there is a chasm between doing what you have a legal right to do and doing what you have no legal right to do, and there seems to me to be the same chasm between threatening to do what you have a legal right to do and threatening to do what you have no legal right to do. It must follow from Allen v Flood (supra) that to intimidate by threatening to do what you have a legal right to do is to intimidate by lawful means. But I see no good reason for extending that doctrine. Threatening a breach of contract may be a much more coercive weapon than threatening a tort, particularly when the threat is directed against a company or corporation, and, if there is no technical reason requiring a distinction between different kinds of threats, I can see no other ground for making any such distinction." 112 I do not construe Summons MS46 as embodying a threat by Leckie or the NCA to do anything to Elliott. Note 1 to the summons, in my view, did no more than state the effect of s 30(11) of the NCA Act which provides: "A person who contravenes subsection (1), (2) or (3) is guilty of an offence punishable, upon conviction, by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months." 113 Even if as para 96 of the statement of claim suggests, the note to the summons amounted to a threat to prosecute Elliott for contravention of s 30 if he failed to attend the hearing on 3 December 1990, that was not a threat to do an unlawful act. It amounted to no more than a statement of the consequences if Elliott were successfully prosecuted for an offence after failing, without lawful excuse, to attend the hearing. The only substantive torts which that comes anywhere near threatening are malicious prosecution and abuse of process. As was pointed out in the joint judgment of the High Court in Northern Territory v Mengel (supra) at 350: "There are also difficulties associated with the notion of liability for an 'unlawful prosecution' if that extends beyond malicious prosecution or abuse of process. Moreover, there is implicit in the principle espoused by Priestly J an assumption that the assertion that certain legal consequences will attend a course of action amounts to a threat for the purposes of the principle stated in Salmond's Law of Torts. That assumption cannot be maintained in the face of what was said by Dixon J in relation to the first aspect of the claim considered in James v The Commonwealth (1939) 62 CLR 339 at 370." 114 Accordingly, I do not consider that a threat to commit either of those torts can be spelled out of the appending of Note 1 to Summons MS46. 115 The pleading also does not make clear on its face how the threat (assuming one to have been made) caused Elliott to suffer any loss. As I understand what was said in argument by Counsel for the applicant, it is contended that the threat induced Elliott to attend an unlawfully convened hearing of the NCA and to incur the expense of retaining solicitors and counsel to represent him at that hearing. However, because of the clear view I have formed that the pleading does not disclose a threat by Leckie or the NCA to commit any unlawful act, it is unnecessary to consider whether there was a sufficient causal link between the incurring of legal fees and the service on Elliott of Summons MS46. For these reasons, I consider that the statement of claim does not disclose a cause of action in intimidation and that the applicant has not demonstrated any reasonable basis on which he should be allowed to replead in an attempt properly to charge the NCA or Leckie with that tort.

(g) Negligence 116 It will be recalled that Counsel for Elliott have disavowed any attempt to allege a breach of statutory duty by the NCA. However, they have contended that the statement of claim alleges breaches of "ordinary common law duties of care that arise from the circumstances". Those circumstances, it is said, may include sections of the NCA Act and reference has been made, first, to L Shaddock & Co Pty Ltd v Parramatta City Council [No 1] (1981) 150 CLR 225. That case was explained by Brennan J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 483 as establishing that a municipal council "is under a duty to intending purchasers to use reasonable care in issuing the certificate, a duty that arises at common law (if it does not arise by statute) when the council knows that reliance will be placed upon it". After reviewing a number of authorities, his Honour continued, at 485: "But the 'normal' duty of care cannot be a duty to exercise a statutory power to prevent injury to another, or otherwise to act in such a way as to prevent injury to him, unless Parliament has imposed such a duty or unless the authority has itself created or increased the risk of injury of that kind. In the absence of a statutory duty, a 'normal' duty to exercise care cannot arise unless the acts actually done in exercise of a statutory power create or increase a risk of foreseeable injury to another, and then the duty is to do those acts with reasonable care and to take 'reasonable precautions' to prevent that injury occurring. … In Shaddock & Associates Pty Ltd v Parramatta City Council [No 1] (1981) 150 CLR 225 the performance of public functions by the Council was one of the circumstances which warranted a conclusion that the Council realized or ought to have realized that a person seeking information from the Council about town planning proposals intended to act upon the information given so that a duty of care arose in the giving of the information: see per Gibbs CJ ((1981) 150 CLR at pp 234-235; Stephen J (1981) 150 CLR at p 242; Mason J (1981) 150 CLR at pp 252-253. Again the duty of care arose not by reason of the statutory powers with which the Council was invested but because the Council had adopted a practice of providing information which it possessed as a planning authority and private persons were accustomed to seek and to act on the information provided." 117 To similar effect, Deane J acknowledged, at 500, that a statutory body may attract liability "under the ordinary principles of the common law of negligence" at least if the actions involved are not taken in the exercise of policy-making powers and functions of a quasi-legislative character. His Honour continued, at 500: "No such legislative intent can be assumed however in a case, such as the present, where the relevant powers and functions are of a routine administrative or 'operational' nature. In such a case, the mere fact that a public body or instrumentality is exercising statutory powers and functions does not mean that it enjoys immunity from liability to private individuals under the ordinary law beyond the extent that there can be actually discerned in the relevant legislation an express or implied intent that the private rights of individuals be displaced or subordinated. Nor does it mean that the existence of the statutory powers and functions, the assumption of responsibility which may be involved in their exercise, or any reliance which may be placed upon a presumption that they have been or are being properly exercised is to be ignored or discounted in determining whether there existed in the relationship between public body or instrumentality and private citizen a degree of proximity which was adequate to give rise to a duty of care under the principles of common law negligence. At the outset, one must distinguish between a positive act or misfeasance and an omission or non-feasance and between physical damage and mere or pure economic loss. In the absence of some contrary express or implied statutory mandate or special common law right, there will ordinarily be little difficulty in discerning that a defendant, whether public instrumentality or private person, was under a duty to take reasonable care to avoid causing ordinary physical injury to the person or property of a plaintiff by the direct impact of its, his or her positive action. In such cases, as pointed out previously, the reasonable foreseeability of such damage being caused will ordinarily suffice to establish the requisite proximity of relationship and there will also ordinarily be no difficulty in the operation of the rule that a cause of action will arise when the physical damage is sustained. The position is different in cases where the alleged negligence is constituted by a mere failure either to act or to prevent another from acting or where the alleged loss or damage is pure economic loss." 118 For a recent discussion of the elusive concept of "proximity" as a determinant of the existence of a duty of care owed by the holder of a public office see Wade v State of Victoria [1999] 1 VR 121. In that case, the plaintiff, a former member of the Victoria Police, had been employed by a company which manufactured and supplied gaming machines. The Queensland Criminal Justice Commission, in the course of preparing a report on the risk of criminal involvement in the gaming industry in Queensland, requested information from the Victoria Police regarding the plaintiff's police service. The Victoria Police provided information which the plaintiff alleged was false and misleading and caused him to lose his job. He brought an action against the State of Victoria and the member of the Victoria Police who had provided the information, alleging negligence and defamation. In resolving preliminary questions of law as to whether the facts alleged in the statement of claim gave rise to a duty of care and, if so, whether a breach of that duty could found an action in negligence, Harper J analysed the concepts of proximity and reliance as developed by the High Court and the House of Lords and concluded, at 137: "Whatever approach or combination of approaches one seeks to adopt, it seems to me that only the two considerations to which I am about to refer throw any doubt upon the conclusion that a former employer owes to a former employee a duty of care in providing to a third party information about that employee. Accordingly, if that information is false and misleading, and if it is carelessly supplied with the result that the employee suffers foreseeable financial loss, the employer will be liable in damages to the employee unless such a result would either impose an unfair, unjust or unreasonable duty upon the alleged wrongdoer (the first of the two considerations) or would cause the emasculation of other bodies of legal doctrine (to repeat the phrase used by Dawson J in Hill v Van Erp (1997) 188 CLR 159 at 184)." 119 At no place that I can discover in the present statement of claim is it alleged that any of the duties said to have been owed by the NCA to Elliott was a duty of care. In para 57, for example, it is alleged that the NCA owed a duty "to fully inform each Minister … and/or the IGC (Inter-Governmental Committee) of all matters material to the performance of their respective functions" under specified sections of the NCA Act. Breaches of that duty are alleged in para 59 and certain "consequences" (presumably of the alleged breaches) are set out in para 61. 120 Similarly, in para 85 it is alleged that Leckie and/or the NCA owed various duties to the applicant not to issue Summonses MS46 and MS94 except for the purposes of a special investigation and, presumably alternatively, to ensure that the summonses had attached to them each Notice to which the proposed hearing related and were otherwise in a particular form. Breaches of that duty are alleged in paras 86(a), 87(a) and 88(a). In para 90, it is similarly alleged that "the NCA and/or Leckie owed a duty to the applicant not to hold the First, Second or Third Hearing except for the purposes of a special investigation". A breach of that duty is alleged in para 91(a). A further duty, presumably alternative to that alleged in para 90, is alleged in para 92 to have been owed to Elliott by the NCA to inform him of the subjects about which he would be questioned at each hearing. A breach of that further duty is alleged in para 93. 121 An apparently different type of duty is alleged in paras 101 and following under the heading "DUTIES OF SECRECY". I do not understand it to be suggested that a duty of care may not import an obligation to keep some matter secret but the form of the pleading is capable of conveying that a different duty, having different consequences if breached, is alleged in paras 101 and following. Moreover, there is some circularity in the allegation of a breach of this duty in that para 104(c) alleges that the provision of information to one or more of the NZSC, the NZSFO and SMETL was "not done in connection with the performance of a duty under the Act". It is then alleged in para 106 that: "By reason of the matters alleged in paras 102 to 105(a) the NCA, Leckie and/or Livermore acted in breach of the duty referred to in paragraph 101 above." 122 In para 118 of the statement of claim it is alleged: "By reason of section 12 of the Act the NCA owed a duty to the Applicant to assemble and give to Seymour and to the DPP evidence that would be admissible in a prosecution for an offence." 123 It is by no means clear whether that paragraph is intended to allege a duty of care. The corresponding allegation of breach in para 123 alleges only: "As a consequence, the NCA: (a) breached the duty referred to in paragraph 118; (b) contravened section 12 of the Act." 124 By confining the source of the alleged duty to s 12 of the NCA Act, the pleader appears to be invoking a breach of statutory duty but, as I noted at the outset of this discussion of a cause of action in negligence, Counsel for Elliott has expressly disavowed reliance on breach of statutory duty by the NCA. Paragraph 152 of the statement of claim includes an allegation that the applicant has suffered damage by reason of the breach of duty referred to in para 123. However, no attempt has been made, as seems to be required, for example, by the observations of Deane J in Sutherland Shire Council v Heyman quoted above, to indicate the circumstances which made it reasonably foreseeable that Elliott would suffer pure economic loss as a result of the NCA's alleged contravention of s 12. 125 It should be clear from the necessarily brief discussion of the authorities which I have undertaken in this part of these reasons that Elliott's ability to establish a cause of action in negligence against the NCA will depend on proof of a complex set of circumstances going beyond persuading the Court to adopt the construction of certain sections of the NCA Act for which he contends. I am not persuaded by the facts so far revealed that his prospects of making the NCA liable in negligence are so hopeless that all attempts to plead that cause of action should be struck out of the statement of claim. However, the parts of the pleading where those attempts are made must be clearly identified and drawn together. As well, all the circumstances (not merely identified statutory provisions) relied on as establishing the requisite degree of proximity, including those said to make it foreseeable that Elliott would suffer economic loss in consequence of the NCA's allegedly negligent acts or omissions, must be fully pleaded or particularised.

CLAIMS AGAINST THE DPP 126 It has been asserted by Counsel for Elliott that the statement of claim seeks to plead three causes of action against the DPP. As with the arguments raised on behalf of the NCA, it is convenient to deal separately and in order with each of those causes of action.

(a) Conspiracy 127 The first allegation of conspiracy against the DPP is that he agreed with Seymour, Sherman and the NCA to co-operate in the commission of various allegedly unlawful acts. I have discussed this allegation at paras 87 to 91 of these reasons and there indicated the deficiencies which I consider exist in the formulation of paras 136 to 138 of the statement of claim of a cause of action in conspiracy between the DPP and the NCA. However, Counsel for Elliott have pointed to paras 117 to 135 as containing allegations which contribute to disclosing that cause of action. 128 Paragraphs 117 and 118 allege a duty which is said to be imposed by s 12 of the NCA Act on the NCA and owed to Elliott to assemble and pass on to the relevant law enforcement agency evidence which would be admissible in a prosecution for an offence. It is then pleaded in paras 119 and 120 that the NCA was not empowered to lay charges or initiate prosecutions and the DPP was not authorised to investigate whether an offence had been committed or to lay charges. It is next alleged in paras 122 and 123 that, in breach of its duty and in contravention of s 12, the NCA, having assembled evidence in relation to the Forex Transactions, did not pass it on to the relevant law enforcement agency but retained it "for the purpose of filing charges" presumably on its own behalf. Except for para 120, nothing from para 117 to para 123 makes any allegation against the DPP. It is then pleaded in para 124 that: "The DPP has published prosecutorial guidelines pursuant to the obligation or power contained in section 10 of the DPP Act (the Guidelines)." 129 Paragraph 125 sets out what are contended to be matters which the DPP is required by the Guidelines to disregard and to take into account when deciding whether to prosecute. There is then alleged in para 126 the existence of a "DPP/NCA Agreement" which is said to have contained terms providing for co-operation between those two Authorities before the laying of charges. It is next pleaded in paras 127 to 130: "127. As a result, the DPP was: (a) in a position to decide whether the Applicant would be charged, and if so, with what offences, and whether the Applicant would be prosecuted; and (b) required by law to comply with the guidelines when deciding whether to charge the Applicant with Offences and when giving advice or purporting to give any advice in that regard. 128. In and between 1991 and 1995 the DPP, in relation to the Forex Transactions: (a) managed and/or co-ordinated the special investigation being conducted by the NCA; and/or (b) advised the NCA in relation to the special investigation; (c) directed the NCA to exercise its Coercive Powers; (d) directed the NCA as to whom it should charge with offences; (e) retained counsel to appear on behalf of the NCA. PARTICULARS (a) These matters are referred to in Livermore's affidavit sworn 6 July 1992 in the prosecution of Hawkins and in the letter which is exhibit JB-2 to the affidavit of John Buckley sworn 4 October 1993 and filed herein. (b) At some time prior to 21 September 1993 the DPP decided that charges should be filed alleging that the Applicant had committed the Offences (Charges). (c) At some time prior to 21 September 1993 the DPP directed the NCA and/or Seymour to file the Charges. 129. As a consequence, the DPP purported to exercise the powers conferred upon the NCA under the Act with the acquiescence and co-operation of the NCA. 130. The DPP was not authorised by the DPP Act or otherwise to engage in the conduct referred to in paragraph 128 above." 130 Paragraphs 131 and 132 allege that the NCA was not empowered by the NCA Act to engage in the conduct referred to in para 128 and, in consequence, the NCA's purported exercise of those powers, including the Coercive Powers was unlawful and invalid. It is then alleged in paras 133 and 134 that either or both Sherman and the NCA decided to charge Elliott and the charges were laid by Seymour. 131 The operative effect of paras 117 to 135 appears to be stated in paras 136 and 137 which have been set out in paragraph 87 of these reasons. As far as it impinges on the DPP, that effect is that the DPP agreed to lend his aid to the NCA's charging Elliott, ostensibly in the name of Seymour, when all participants in the agreement knew that it was beyond power for the NCA to do so. There is an apparent conceptual difficulty in "an unlawful means" conspiracy to perpetrate an excess of power by a public officer or authority, assuming that to be an unlawful act in the requisite sense. That is because, of its nature, the unlawful act can only be performed by the public officer or authority, so that ex hypothesi a presumptive co-conspirator can make no direct contribution to the employment of the unlawful means. However, in Patrick Stevedores Operations Pty No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ observed, at 657: "Although only an employer can engage in conduct contravening s 298K(1), all parties to a conspiracy that the employer companies should engage in such conduct are liable as concurrent tortfeasors (Clerk and Lindsell on Torts, 17th ed (1995) p 1272; Fleming, The Law of Torts, 9th ed (1998) p 288; The Koursk [1924] p 140 at 155-6; O'Brien v Dawson (1942) 66 CLR 18 at 27-8, 41; CBS Songs Ltd v Amstrad Consumer Electricons Plc [1988] AC 1013 at 1058; Newcastle (Town) v Mattatall (1988) 52 DLR (4th) 356 at 365; New South Wales v McCloy Hutcherson Pty Ltd (1993) 116 ALR 363 at 369; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 581, 607; 141 ALR 1). If the conspiracy to perform an unlawful act is completed by the performance of the act, it is only necessary for one of the conspirators to have performed the act or to have procured the act to be performed for an action to lie against all (Galea v Cooper [1982] 2 NSWLR 411 at 417; 45 ALR 432). If damages are recovered, each is liable for the whole amount (Rich v Pilkington (1691) Carthew 171; 90 ER 704; Mitchell v Tarbutt (1794) 5 TR 649; 101 ER 362)." 132 Accordingly, the possibility remains that the applicant can demonstrate an agreement between the NCA and the DPP to commit some misfeasance in a public office which could only have been performed by a member or officer of the NCA. As well, it is conceivable that a case may be made that the DPP agreed to perpetrate an abuse of process which is discussed below. I shall therefore allow the allegation of a conspiracy between the NCA and the DPP to be preserved in a reformulated statement of claim provided that it complies with the requirements indicated in para 91 of these reasons.

(b) Abuse of Process 133 This cause of action is said to be pleaded in para 139 of the statement of claim which alleges: "As a consequence: (a) the NCA acted in contravention of section 12 of the Act; and (b) the filing of charges by Seymour constituted an abuse of process by Seymour, Sherman and/or the NCA and the DPP and was unlawful." 134 A difficulty is created at the outset by the general prefatory expression "As a consequence …". It is nowhere made clear which of the preceding allegations is said to entail the consequence that there has been an abuse of process. The essence of that cause of action has been indicated in these terms by Isaacs J in Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 91: "In the sense requisite to sustain an action, the term 'abuse of process' connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose, and as ex hypothesi the final judgment however given will have no reference to the ulterior purpose, there is no necessity to await the irrelevant determination." 135 See all Williams v Spautz (1992) 174 CLR 519 where Mason CJ, Dawson, Toohey and McHugh JJ observed, at 526: "To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event. … It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed (In re Majory [1955] Ch 600 at pp 623-624) or some collateral advantage beyond what the law offers (Goldsmith v Sperrings Ltd [1977] 1 WLR at pp 498-499; [1977] 2 All ER at pp 581-582; see also Varawa v Howard Smith Co Ltd (1911), 13 CLR at p 91)." 136 Later in the same judgment, their Honours indicated, at 529, that it is sufficient if the predominant purpose, as distinct from the sole purpose, of the moving parties to obtain some advantage collateral to the successful determination of the litigation. 137 These authorities lead me to conclude that to make out this cause of action the applicant has to plead and prove that the criminal proceedings were instituted by one or other of Seymour, Sherman, the NCA or the DPP, not for the purpose of securing the conviction of Elliott and the other defendants, but predominantly for some other purpose. That ulterior purpose must be pleaded. It is not, I consider, sufficient merely to plead that the proceedings were instituted in the name of Seymour because it was beyond power for either or both the NCA and the DPP themselves to institute them. It is also necessary to demonstrate that the institutional maintenance of the criminal proceedings resulted in the infliction of loss or damage on Elliott. That may require an assertion that, but for the improper purpose, the criminal proceedings would not have been instituted at all. 138 It will be apparent from these remarks that I entertain grave doubts whether any available facts can be pleaded by Elliott to establish abuse of process by any of the persons or authorities named in para 139. However, because the elements of that cause of action have not previously been examined in the context of the present proceedings, I am not prepared to preclude him from making another attempt to fix one or more of the relevant respondents with liability for that tort.

(c) Breach of Duty 139 It has been said on behalf of Elliott that paras 124 to 129 and 140 to 141 of the statement of claim allege "a breach of a duty to comply with the Guidelines". Paragraph 140 alleges: "As a consequence: (a) the NCA acted in contravention of section 12 of the Act; and (b) the filing of charges by Seymour constituted an abuse of process by Seymour, Sherman and/or the NCA and the DPP and was unlawful." 140 Paragraph 141 has been reproduced in paragraph 32 of these reasons. 141 It is not expressly pleaded that the duty allegedly owed to the applicant was a duty of care but, given the disclaimer of any allegation of a breach of statutory duty, the cause of action described as a breach of duty which is said to be pleaded in paras 124 to 129 and 140 to 141 must be in negligence, if that is so, as indicated in para 125 of these reasons, it is necessary for the pleader to set out a complex set of circumstances and to go beyond merely pointing to the Guidelines. The difficulty of proof is enhanced by the fact that the Guidelines, particularly as summarised in para 125(b) of the statement of claim, do not all tend in the same direction and some, on their face, import a duty to the general public or the revenue rather than to the alleged or prospective offender. 142 Consistently with what I have said in relation to the attempt to disclose a cause of action in negligence against the NCA, I consider that the applicant should replead the corresponding allegations against the DPP if he wishes to persist in them. The reformulation of those allegations must indicate in the application of which Guidelines the DPP owed a duty of care to Elliott, the other circumstances said to give rise to the requisite proximity of relationship between the DPP and Elliott and the matters which made it foreseeable that Elliott would suffer economic loss as a result of a breach of the imputed duty of care. Even if those pleading obstacles are overcome, the applicant will still have to persuade the Court not to give effect to the policy considerations which prevailed with the Court of Appeal in Elguzouli-Daf v Commissioner of Police of Metropolis [1995] QB 355 and with Harper J in Grimwade v State of Victoria (1997) 90 A Crim R 526 to preclude the imputation to State or Crown prosecuting authorities of a duty of care to prospective accused persons. However, I shall not foreclose that question now in case a reformulated attempt to plead negligence against the DPP or the NCA raises facts which arguably make those authorities distinguishable.

ACTION AGAINST CRABB (a) Misfeasance in Public Office 143 In para 108 of the statement of claim it is alleged that Crabb owed a duty to Elliott not to disclose information about an investigation which he, Crabb, received in his capacity as a member of the IGC. As pointed out in para 121 above, a "duty of secrecy" as it has been called may import a duty of care to the person who is entitled to have the secret preserved, but I do not understand any breach of a duty of care to be alleged against Crabb. Rather, it is alleged that he intentionally disclosed information which he had received as a member of the IGC to the ABC for the purpose of discrediting Elliott and achieving an electoral advantage for the Australian Labor Party and an electoral disadvantage for the Liberal Party. 144 Those allegations, in my view, would satisfy the requirements for pleading misfeasance in a public office if they were accompanied by an assertion, with appropriate particulars, that Crabb's actions inflicted actual economic loss on Elliott.

(b) Conspiracy 145 In my earlier reasons for judgment of 12 May 1995 I examined an allegation that Crabb had acted "in furtherance of a conspiracy between Robert James Lee Hawke, Paul John Keating, Lionel Frost Bowen and others". There are now alleged in paras 142 to 149 four separate agreements to which Crabb is said to have been a party and which are relied on as founding claims of conspiracy against him. The first such agreement is alleged in para 142 in these terms: "142. In about December 1989 and until early 1990 Robert James Lee Hawke, Paul John Keating, Bowen, Crabb and the ABC agreed to use unlawful acts with the intention of harming the Applicant in his reputation, business and public office. PARTICULARS (a) The agreement is to be inferred from the facts and matters set out in Schedule A. (b) The unlawful acts were those referred to in paragraphs 24 and 112. (c) That the acts were taken with the intention of harming the Applicant is to be inferred from the position of the Applicant as alleged in paragraph 1, from the harm that would be done to any person in the position of the Applicant, and was done to the Applicant, by public disclosure of the fact that his affairs were being investigated by the NCA and from the position of the persons making the disclosures and their knowledge that such harm would or was likely to occur." 146 The unlawful acts referred to in paras 24 and 112 of the statement of claim were, as I understand it, misfeasance in public office constituted, first, by the issue for an ulterior purpose of each of the Bowen, Crabb and First Sumner Notices (para 24) and, secondly, by the disclosure by Crabb to the ABC of information acquired by him in his capacity as a member of the IGC. 147 Ten separate events from the end of 1989 to 15 March 1990 are then alleged in para 143 to have been "in furtherance of the conspiracy alleged in paragraph 142". 148 The second agreement to which Crabb is alleged to have been a party is that described in these terms in para 144: "Further or alternatively, in about December 1989 Robert James Lee Hawke, Paul John Keating, Bowen, Crabb and the ABC agreed to make derogatory public statements about the Applicant with the predominant object of harming him." 149 The third allegation of conspiracy against Crabb is that contained in para 146 that he "and the ABC agreed to use unlawful acts with the intention of harming the Applicant in his reputation, business and public office". In particular (b) to that paragraph the unlawful act relied on is said to be that alleged in para 112, ie, Crabb's misfeasance in a public office by providing information to the ABC. 150 The fourth allegation of conspiracy against Crabb is that alleged in para 148 of the statement of claim that "between December 1989 and 20 February 1990 Crabb and the ABC agreed to make the original television broadcast with the predominant object of harming the Applicant". In the earlier reasons for judgment of 12 May 1995, I referred to the long-established dichotomy between a conspiracy to perform an unlawful act or use unlawful means and a conspiracy to injure by the use of lawful means. As I perceive it, the first and third conspiracies alleged against Crabb are of the "unlawful acts or means" kind and the second and fourth conspiracies are founded on agreements for the performance of lawful acts with the predominant purpose of injuring the applicant. 151 I have already adverted at para 131 of these reasons to the notion of a conspiracy for the performance of an unlawful act which only one party is capable of performing, such as misfeasance in public office where only one public officer is said to have been party to the alleged agreement. On the assumption, authorized by the majority of the High Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (supra), that persons other than the public officer can be parties to such a conspiracy, the terms of the agreement to that effect must be alleged and particulars must be given of the documents or conversations said to constitute that agreement or the facts and circumstances from which it is to be inferred. 152 It is significant that no date is ascribed in para 142 to the making of the agreement there alleged. However, Schedule A which is said to provide particulars of the matters from which the making of the agreement is to be inferred, recites events extending throughout 1989 up to 15 March 1990. I entertain grave doubts whether all those so-called particulars support an inference as to the making of an agreement to which Crabb was a party. Some go no further than suggesting a motive for some of the alleged conspirators to seek to injure or discredit Elliott. It is not alleged that Crabb had any knowledge of some other matters alleged in Schedule A. The unlawful acts alleged in para 24 of the statement of claim are the issue of the Bowen, Crabb and First Sumner Notices which occurred respectively on 21 December 1989, 15 March 1990 and 18 May 1990. However, if the agreement was made in or about December 1989 it is not clear why the conspirators would then have foreseen a need or occasion for the issue of the Crabb or First Sumner Notices. Another deficiency in this part of the pleading is that no indication is given in either the body of paras 142 and 144 or the particulars of how the alleged conspirators intended that economic loss would be inflicted on Elliott. Nor are any particulars given of the loss actually suffered. The general allegations in para 152 and the particulars thereto are insufficient in that respect because it is inconceivable that the damage intended, and actually caused, by a conspiracy, for example between Hawke, Keating, Bowen, Crabb and the ABC was co-extensive with that caused by the alleged negligence of the DPP or a misfeasance in public office for which the NCA is said to be liable. 153 Similar considerations apply to the conspiracies between Crabb and the ABC alleged in paras 146 and 148 which are presumably alternative. The publication by the ABC of matter allegedly damaging to Elliott occurred on 20 February 1990 so the unlawful acts contemplated by the third conspiracy alleged against Crabb was his misfeasance in public office in disclosing the information to the ABC. Presumably, the same damage was inflicted by both torts but particulars should be given of the nature of the damage which Crabb intended to inflict and the extent of the damage which Elliott actually sustained as a result of the publication. Nothing in Schedule A seems, on its face, to support an inference that the ABC had entered into an agreement with Crabb with the intention of harming Elliott and it is to be remembered that the broadcast occurred before the issue of the Crabb Notice. Accordingly, if Elliott is to be permitted to persist in the allegations presently made in paras 146 and 148 of the statement of claim, those allegations will have to be expanded and adequate particulars provided of the making of the agreement between Crabb and the ABC and the damage intended to be caused to, and actually inflicted on, Elliott in consequence of the broadcast of 20 February 1990. CONCLUSION 154 It was urged by Counsel for the respondents who opposed the grant of leave to further amend the statement of claim that the history of the applicant's attempts to formulate the various causes of action discussed above strongly suggests that none of those causes of action can be made out. That view was taken by Gleeson CJ in Trau v University of Sydney (1989) 34 IR 466 where his Honour said, at 475: "Even under the modern system of pleading, considerations of form and substance are often closely intertwined. If one sees that a plaintiff's lawyers are experiencing extreme difficulty in formulating with clarity and particularity their client's cause of action then that is often a very good indication that there is no cause of action. The history of the present matter creates the strong impression that such a problem exists, compounded by an additional difficulty created by a need to manoeuvre around problems concerning periods of limitation." 155 It will be apparent from the examination which I have already undertaken of the causes of action which the applicant's advisers have sought to formulate in various parts of the statement of claim that I do not consider that it is impossible properly to plead all of those causes of action. 156 I have not dealt in these reasons with all of the detailed criticisms of the form of the statement of claim made, in particular, by Counsel for the DPP. That is not to say that none of those criticisms has validity. However, the conclusions which I have reached about the availability of specific causes of action and the concessions made by Counsel for the applicant that certain paragraphs of the present statement of claim cannot stand will necessitate considerable reformulation and reduction of the whole pleading. Concessions made on behalf of the applicant included the abandonment of paras 32, 40 and 51 of the present statement of claim. Also, as I understand it, the judgment of a Full Court of this Court in A B v National Crime Authority (1998) 156 ALR 52 concededly compels the abandonment of at least paras 48, 52 and 53 of the present statement of claim. 157 I therefore consider it appropriate to allow the applicant to reformulate the statement of claim as he may be advised giving effect to the concessions to which I have just referred. The new draft statement of claim should be confined to the causes of action indicated in these reasons to be arguably available and should also take account of criticisms of form made in these reasons and by Counsel for the respondents in the course of argument on the motion for leave. The reformulated statement of claim should be filed and served by 3 September 1999. The remaining respondents will then be afforded an opportunity to indicate any remaining or new respects in which the new draft statement of claim is said to fail to disclose a cause of action or to be otherwise embarrassing. To that end the applicant's motion on notice dated 4 February 1998 and the motions by the various respondents which are presently before the Court will be adjourned to 27 September 1999 when I shall also receive submissions as to the orders for costs in respect of those motions and the costs occasioned by any order which may be made granting leave further to amend the statement of claim. I shall make similar orders in respect of Mr Scanlon's application in proceeding No VG 434 of 1993 against the DPP as sole remaining respondent. I certify that the preceding one hundred and fifty-seven (157) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate: Dated: 19 July 1999 Appearance in VG 411/93 Counsel for the Applicant: Mr J Judd, QC with Mr R Peters

Solicitors for the Applicant: Barker Gosling

Counsel for the First, Second and Third Mrs S Crennan, QC Respondents: with Mr B Walters

Solicitors for the Respondent: Australian Government Solicitor

Counsel for the Fourth Respondent: Mr R Redlich, QC with Mr P Kidd

Solicitors for the Fourth Respondent: Peter Wood, Solicitor for Office of Public Prosecutions for the State of Victoria

Counsel for the Sixth Respondent: Mr S Southall, QC

Solicitors for the Sixth Respondent: Maurice Blackburn & Co

Date of Judgment: 19 July 1999