(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.