Heery v CJC [2000] QCA 511

POST AND TELECOMMUNICATIONS - TELEPHONIC AND RELATED SERVICES - INTERCEPTION OF COMMUNICATIONS - IN GENERAL

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - JURISDICTION

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - APPROPRIATE FORM OF RELIEF - DISCRETION OF COURT - OTHER CASES

PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - CORRECTION UNDER "SLIP" RULE

CRIMINAL LAW - FEDERAL AND STATE INVESTIGATIVE AUTHORITIES - QUEENSLAND - Criminal Justice Commission obtained an approval pursuant to s 82 of the Criminal Justice Act 1989 to use listening devices at the respondent's premises - listening devices used to record private conversations - declarations and orders made in the Supreme Court that listening devices were used without authority, that their use amounted to a breach of confidence and that recordings and transcripts be destroyed - order failing to specify "particular matter" in relation to which approval given - fundamental requirement - whether approval valid - whether s 101 of the Criminal Justice Act 1989 ousted the Supreme Court's power to make a declaration in relation to the conduct of CJC or officer - whether discretionary factors justified a refusal to make the declarations - where subsequent to the hearing the respondent commenced separate proceedings seeking damages for breach of confidence - whether administrative order may be amended under the rules of court - effect of s 119 of the Criminal Justice Act 1989 - criteria for application of the "slip rule" not made out

Criminal Justice Act 1989 (Qld) s 82, s 101, s 119, s 123

Invasion of Privacy Act 1971 (Qld), s 43(1)

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, referred to

Ancart Pty Ltd v Snowy River Council (1995) 39 NSWLR 78, cited

Attorney-General v Observer Limited [1990] 1 AC 109, cited

Australian Broadcasting Corporation v Samual Jacobs QC [1991] SASC 2953; (1991) 56 SASR 274, cited

Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247, cited

Carruthers v Connolly [1998] 1 Qd R 339, cited

Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, cited

Coles v Wood [1981] 1 NSWLR 723, referred to

The Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, cited

Duchess of Argyll v Duke of Argyll [1967] Ch 302, cited

Enfield v Development Assessment Commission [2000] HCA 5; (2000) 74 ALJR 490, cited

Entick v Carrington [1765] EWHC J98; (1765) 95 ER 807, cited

Evans Deakin Industries Ltd v Commonwealth [1983] 1 Qd R 40, referred to

Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, cited

Gallo v Dawson (1988) 63 ALJR 121, cited

Garnett v Ferrand [1827] EngR 492; (1827) 6 B & C 611, cited

Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, cited

Jackson v Slattery [1984] 1 NSWLR 599, cited

L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590, cited

McMurtrie v Commonwealth [2000] NSWSC 781, NSWSC 20448 of 1999, 18 August 2000, cited

Re Multiplex Constructions Pty Ltd [1999] 1 Qd R 287, referred to

Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18; (1974) 131 CLR 286, referred to

Ousley v R [1997] HCA 49; (1997) 192 CLR 69, referred to

R (a solicitor) v Lewis [1987] 2 Qd R 710, cited

Reg v IRC, ex parte Rossminster [1979] UKHL 5; [1980] AC 952, cited

Shaw v Coco (1991) 102 ALR 75, cited

Storey and Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, cited

Vezitis v McGeechan [1974] 1 NSWLR 718, cited

Re Whiting [1994] 1 Qd R 561, cited

Wingecorribee Shire Council v Minister for Local Government [1975] 2 NSWLR 779, cited

A J Morris QC with R N Traves for the appellant/cross-respondent

W Sofronoff QC with G C Newton for the respondent/cross-appellant

Boulton Cleary & Kern (Townsville) for the appellant/cross-respondent

Official Solicitor for the Criminal Justice Commission for the respondent/cross-appellant

[1] DAVIES JA: I agree with the reasons for judgment of Thomas JA and with the orders he proposes.

[2] THOMAS JA: On 24 March 2000 White J made a declaration concerning the use by officers of the Criminal Justice Commission of listening devices at Mr Heery's house in Townsville between 3 July and 22 August 1996. Her Honour declared that the monitoring and recording by officers of the Criminal Justice Commission of conversations by the use of such listening devices at Mr Heery's house were breaches of confidence. Her Honour further declared that the use of the devices had not been approved or authorised in accordance with s 82 of the Criminal Justice Act 1989. Her Honour ordered that the various tapes, notes and transcripts of conversations so recorded should be destroyed by officers of the Commission ("the CJC"). Her Honour also dismissed an application by the CJC seeking amendment of the original orders which had purported to approve the use of the listening devices.

[3] Both parties have appealed, although Mr Heery's appeal is limited to the question of what should be done with the tapes, notes and transcripts. It is now common ground that they should be preserved as further litigation is pending between the parties. Leaving aside for the moment the possibility of dealing with this issue by way of undertaking and the costs associated with Mr Heery's appeal, the essential appellate burden in these proceedings is upon the CJC, although in point of form it is the cross-appellant. It must displace the declarations that have been made. If necessary it seeks to do so by retrospective correction of the original orders.

[4] In March 1996 the CJC decided to investigate the circumstances surrounding the execution of a memorandum of understanding which had been made in the context of a by-election for a seat in the Queensland Parliament. The Honourable K J Carruthers QC was appointed to conduct the investigation. The nature of information which Mr Heery was thought to have relevant to the subject matter of that investigation or why surveillance of him by means of such devices was considered necessary was not in issue before the court in the present matter. The point at issue was whether the order approving the use of the listening devices was invalid because it failed to specify any particular matter in relation to which the devices were to be used.[1]

[5] On 3 July 1996 the CJC applied ex parte in camera before Derrington J and obtained an approval purportedly given under s 82 of the Criminal Justice Act 1989 authorising entry into certain premises. Those premises were not identified in the approval, but it is common ground that they were premises in which Mr Heery was then living with his girlfriend in Townsville, and I do not understand any point to be made now about the failure to specify the particular premises in the approval. Listening devices were then installed, maintained, serviced, monitored for the equivalent of 16 hours per day, and eventually removed. Shortly after obtaining the alleged approval the CJC served Mr Heery with a notice to produce documents and he gave evidence before the inquiry. Various conversations were intercepted, overhead, monitored, recorded and transcribed until 22 August 1996. The chairman of the CJC then certified his approval to the use of the information that had been obtained for the purpose of Mr Carruthers' investigation.

[6] Subsequently, based on information obtained through use of the listening devices, an indictment was presented in the District Court charging Mr Heery with two alternative offences. The first charge, shortly stated was that contrary to s 129 of the Criminal Justice Act he had destroyed a relevant record namely a telephone bill with intent to obstruct the discharge of a function by a unit of the CJC. The alternative charge was that contrary to s 126 of the Criminal Code he had destroyed a telephone bill which might be required as evidence in a proceeding of the CJC, with intent to prevent it from being used as evidence in the proceeding. The matter proceeded to trial. The Director of Public Prosecutions relied only on the second alternative charge. Evidence obtained by means of the listening devices was led during the trial. The jury found Mr Heery not guilty.

[7] It was established before White J that the material obtained by means of the devices included many conversations of an intimate nature between Mr Heery and his girlfriend, including his proposal of marriage to her. Conversations between Mr Heery and other persons in the house, in the course of which he made adverse comments about family and friends which he would not have made other than in private, were also recorded. There were also several conversations between Mr Heery and his solicitors seeking their advice concerning matters relevant to his appearance before the Carruthers Inquiry which he regarded as strictly confidential.

[8] It is not contested that the surreptitious recording of private conversations of a confidential nature not otherwise authorised by law may be actionable as a breach of confidence.[2]

[9] After his acquittal Mr Heery promptly commenced an action in the Supreme Court seeking the declarations which were subsequently made by White J. These were made pursuant to a notice of motion in similar terms to the writ. The action proceeded without pleadings. It is common ground that the central issue was whether the approval was invalid. Matters raised on behalf of the CJC included the submission that a declaration should in any event be refused on the discretionary ground of lack of utility, and further on the ground of "protection from liability" afforded to the CJC by s 101 of the Criminal Justice Act.

[10] In pursuing the application Mr Heery appeared to be seeking public vindication for a wrong. The only relief sought consisted of declarations together with an order that would give him control of the offending material. There was however no unqualified statement on his behalf that this was the only relief he would seek or that he would not make a damages claim in due course. The prospect of further proceedings undoubtedly occurred to the CJC's counsel who, in address, observed that it was evident from Mr Heery's desire to obtain the records that the matter would not end with declarations by her Honour. Mr Heery's counsel rejoined with the comment "I don't think there's any basis for saying that". In due course the learned judge observed in her reasons for judgment that "there is nothing to suggest that this is in any way a 'split' trial and that there will or is likely to be any subsequent action for damages". During the substantial time during which judgment was reserved, a writ was issued on Mr Heery's behalf seeking damages. After the present judgment was delivered on 24 March 2000, the writ was served and a statement of claim delivered containing claims for damages for trespass, collateral abuse of legal process, breach of confidence, breach of statutory duty and equitable compensation.

[11] The present notice of appeal inter alia raises the ground that declarations ought not to have been made separately from determination of all of the appellant's claims against the respondent. It further claims that her Honour erred in finding that there was nothing to suggest that the proceedings were a split trial or that there would be any subsequent action for damages. Mr Sofronoff QC for the CJC further submitted that when Mr Heery brought a damages claim he was under a duty to correct any implied representation to her Honour to the contrary. This, he submits, should have been done by advising her Honour of the bringing of a claim for damages prior to delivery of judgment. The effect of Mr Heery's bringing of sequential claims will be considered in due course.

[12] It will be convenient to consider firstly the validity of the approval that was obtained from Derrington J on 3 July 1996. It will then be necessary to consider whether s 101 prevents the granting of a declaration of invalidity. The correctness or otherwise of the exercise of her Honour's discretion to grant such relief will then be considered, along with questions as to whether any different order ought now to be made. Finally, if declarations against the CJC would otherwise be maintainable, consideration will be given to whether the CJC's application to correct the original error by means of application under the slip rule should have been allowed.

"(1) The Invasion of Privacy Act 1971, s 43(1) does not apply in relation to use of a listening device within the meaning of that Act by a person authorised in writing to do so by the chairperson in accordance with an approval of a judge of the Supreme Court given in relation to a particular matter specified in the approval.

(2) If the chairperson is satisfied by evidence on oath or affirmation, or by statutory declaration, that there are reasonable grounds for suspecting that use of a listening device may disclose information relevant to the subject matter of an investigation by the commission, the chairperson may apply to a judge of the Supreme Court for an order approving such use."

[14] Section 123 prescribes procedures and other matters governing an application made pursuant to s 82.

[15] The "order" made by Derrington J on 3 July 1996 states:

"Pursuant to s 82 of the Criminal Justice Act 1989 authority is granted to such persons as are authorised in writing by the chairperson of the Criminal Justice Commission to ... enter and re-enter using such reasonable force as is necessary the premises specified in the affidavit of the applicant ... and to install, maintain, service and remove listening devices in and from these premises; and ... intercept, overhear, monitor and record private conversations by means of the said listening devices for a period of 28 days from the date hereof ..."

A number of conditions were then stated. These limited the period of the authorisation to 30 July 1996 or further order, granted an extended period for entry for the purpose of removing the devices and required a report to be made to the Supreme Court of the circumstances surrounding the exercise of the power granted by the order. Plainly there is no specification of the purpose for which the devices might be used or of the subject matter in respect of which the exercise was undertaken. For reasons to be mentioned later I reject Mr Sofronoff's submissions that the inclusion in the heading of the words "in the matter of an application by Pierre Mark Le Grand" was a sufficient specification of a particular matter under s 82(1).

[16] The grant of approval for the use of invasive devices of these kinds is a power that needs to be exercised with considerable caution. Judges, as designated persons with the authority to approve the performance of acts which would otherwise be unlawful, exercise considerable care in ensuring that appropriate limitations are attached to such approvals. The limitations that are commonly imposed are not confined merely to time, place and nature of the devices, but are designed to prevent general fishing expeditions, or the invasion of a person's premises and privacy in the hope that something discreditable might turn up against him or her. The aversion of the common law to general warrants is well known.[3] Although provisions vary according to the statute prescribing the particular procedure, concerns of this kind are common to the consideration of all applications for the covert use of such devices under the Invasion of Privacy Act 1971, under the Drugs Misuse Act 1986[4] or under ss 82 and 123 of the Criminal Justice Act. The requirement in s 82 of that Act that the approval of the judge be given "in relation to a particular matter specified in the approval" is in my view a very important protection. Indeed other than the fact that the approval must be obtained from a Supreme Court judge, it is the only direct legislative recognition of the need for protection of citizens' rights in such matters. It is a potential safeguard against the granting of general authority to use listening devices, and is an inhibition upon the use of such powers for purposes of victimisation.

[17] Mr Sofronoff submitted that s 82(1) is concerned only with the creation of a defence to what might otherwise be an offence by the officers of the CJC under s 43(1) of the Invasion of Privacy Act. He further submitted that applications of the present kind are governed by s 123. Section 123 however expressly deals with "an application pursuant to s 82", and s 82 is headed "Authority to use listening devices". The approval of a judge of the use of a listening device is referred to in both subsections (1) and (2) of s 82 and I do not consider that the separation of s 82 into numbered paragraphs confines s 82(1) to the subject matter of a defence under s 43 of the Invasion of Privacy Act. The requirement that the necessary approval be given in relation to a particular matter specified in it is to ensure that the particular matter is specified in the order. Such an order might subsequently need to be examined by a court or even by a jury, and good reason can be seen for such a requirement. I also think that the purpose of such a provision is the meritorious one of limiting the ambit of the order to a finite and particular matter. Plainly ss 82(1), 82(2) and 123 should be read together.[5]

[18] Mr Sofronoff submitted in the alternative that the order in any event contained any necessary specification required by s 82(1). He referred to the heading of the order in question which contains the words "In the matter of an application by Pierre Mark Le Grand". This, he submitted, shows that the approval was given in relation to the matter of such an application which limits the order to the matters which were put up before his Honour in the ex parte application. In short he submitted that the heading conveyed the message that the approval was limited to the matters that were agitated on that application. I reject these submissions. In order to find out what such matters were, some difficulty would be expected, not to mention a potential for uncertainty and a lack of necessary specificity. Section 82(1) is not satisfied by indirect reference to some other document. There must be particular matter in relation to which the devices are to be used, and that matter must be clearly specified in the approval. In my view this particular approval failed to specify any particular matter in relation to which the listening devices might be used. It failed to comply with the essential requirement of s 82(1) of the Act.

[19] Section 101 of the Criminal Justice Act provides:

(a) by the commission, any commissioner or an officer of the commission;

(b) a legal practitioner appointed or engaged to assist in the conduct of proceedings of the commission;

(c) a legal practitioner or other person authorised by the commission to appear at proceedings;

(d) a person who acts or purports to act in response to a notice, or a notice of summons, issued under this Act;

does not render the commission or any person liable to any claim, demand or action, if the act is done, or the omission is made, in good faith and without negligence for the purpose of the discharge of the functions and responsibility of the commission or of any of the functions of an organisational unit of the commission."

[20] It was not contended below or here that s 101 precludes the making of a declaration that a particular document relied on by the CJC is invalid or of a declaration that certain acts or conduct of the CJC were contrary to law.[6] However it was made clear at first instance that the CJC intended to rely upon s 101 if any damages claims were to be brought. In such event it was submitted that pleadings should be ordered and that such issues should proceed to trial in the ordinary way.

[21] Section 101 provides a defence to the Commission (and to persons who act on behalf of the Commission) against liability for any claim, demand or action provided that the persons concerned have acted in good faith and without negligence for the purpose of discharging functions of the Commission. The purpose of such a protection would seem to be to permit the CJC and its agents to serve the public without fear of personal legal liability for so doing, provided that they act carefully and in good faith. Certainly the rationale behind the immunity of judicial officers from suit "is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be".[7] The immediate question however is whether, subject of course to proof of good faith and absence of negligence, s 101 is a potential defence to the making of a declaration in respect of acts done by the CJC.

[22] This section and the protective section in the Independent Commission Against Corruption Act 1988 (NSW)[8] have received only limited judicial attention, and I have found no judicial discussion of such sections[9] or of privative clauses in various forms[10] that provides any particular assistance in the present matter.

[23] A measure such as s 101 has the effect of destroying rights recognised by the common law, and of limiting the legal accountability of a body (along with its officers) which plays an important part in public life and in the administration of the criminal law. It should be strictly construed. The heading to s 101 is "Protection from liability" and the word "liable" is central to the text of the provision. It is true that protection is granted against liability to any "claim, demand or action", and more than one construction of this provision is open. Mr Sofronoff however did not submit that the section renders the CJC immune from suit or action, and readily conceded that it could be successfully sued to the end that orders such as those in Ainsworth v Criminal Justice Commission[11] might be made.

[24] The point at issue is whether the court's jurisdiction to make declarations has been ousted. Whilst it is possible for such a result to be achieved courts do not lightly infer that such jurisdiction has been excluded, and clear words are necessary.[12] The breadth and utility of this remedy[13] and its important role in the shaping of modern administrative law[14] is well recognised. It has been observed that at the time of its origin, declaratory relief was about the only relief available to a subject against the Crown as the courts were unable to make coercive orders against the Crown.[15] This supervisory jurisdiction, as it has now developed, remains one of the critical tools by which courts protect individual rights and maintain the rule of law.

[25] I do not think that the present section ousts the court's power to grant a remedy of this kind. In being made the subject of a declaration of right neither the CJC nor its officers are rendered subject to personal or direct liability. Nor do I think that the CJC or its officers would be deterred from the proper pursuit of their functions through being subject to supervision and declaration by the courts as to the lawfulness of their actions.

[26] In my view s 101 should be construed as referring to claims, demands or actions that produce actual liability on the part of the CJC or the officer concerned.

[27] On this footing the acts and omissions of the CJC are not immune from surveillance by the courts or a wronged citizen precluded from obtaining a public determination of the illegality or invalidity of acts done by the CJC, even though the CJC and its officers remain immune from actual liability. Section 101 could, however, subject to the proof of good faith and absence of negligence, be relied upon by the CJC as a defence to any further proceedings by a claimant, even if the declaration was in relation to conduct that would otherwise found a right to damages in favour of the claimant.

[28] In the present case the potential operation of s 101 was relied on by the CJC as a circumstance why the learned trial judge should refrain from making a declaration. It was not however advanced as a substantive defence or absolute bar to the making of any declaration as it would have been had damages been claimed. The applicability of s 101 was not determined by her Honour, and it finds mention in her Honour's reasons only in the context of an assumption that it would effectively preclude any further proceedings for damages. As there has been no determination in relation to the applicability of s 101, no question of estoppel arises against the CJC in relation to any defence it may wish to raise under that section. This is conceded by Mr Heery in his statement of claim and also by his counsel in the course of these proceedings.

[29] Two declarations were made, the first declaring the CJC's use of the devices to be breaches of confidence, and the second declaring that the use of the devices was not approved in accordance with s 82 of the Act. I understand Mr Sofronoff to submit that whilst a declaration akin to the second declaration might be made, the first could not be made, at least until after it had been decided that a s 101 defence was not available. The first declaration however is not a declaration of liability. As already mentioned, s 101 remains available to the CJC to raise as a defence if claims for damages are pursued. The evidence justified such a declaration and I do not see any basis upon which the first declaration ought to be set aside.

[30] In summary s 101 is and remains a potential defence against the claim for damages that is now brought against the CJC, but it does not preclude the making of the declarations.

[31] It was submitted that even if a prima facie case were shown justifying declarations they should be withheld on discretionary grounds. The first point relied on by Mr Sofronoff is an objection to the splitting of the action. He submitted that her Honour would not have made a declaration had it been known that the appellant would engage in this litigation in a piecemeal way. Certainly her Honour assumed that the application contained all that was sought on Mr Heery's behalf. Whilst no assurance was given against their being subsequent claims a statement by Mr Heery's counsel probably assisted her Honour to take that view. Even so, it is difficult to think that the fact that Mr Heery might, if successful in proving the invalidity of the approval, take further proceedings against the CJC, would be a good reason let alone a decisive reason for deciding to withhold relief that would otherwise be granted to him. Indeed the prospect of further proceedings aided by the determination on a preliminary point would provide increased utility for the making of such a declaration.

[32] The difficulty which confronts Mr Heery in view of the events which have happened is that White J was not presented with the opportunity of deciding whether the litigation should be allowed to proceed in stages, and proceeded to exercise her discretion to grant declarations on the assumption, which has proved to be erroneous, that no further claims would be pursued. Mr Sofronoff submitted that it is not possible for this court to know whether her Honour's discretion may have been differently exercised had Mr Heery's intention to proceed in this manner been known. He further submitted that a preliminary determination of right in such circumstances would be inappropriate, relying upon a statement in Coles v Wood[16] which expresses general disapproval of entertaining proceedings for declarations of invalidity of a search warrant unless the appropriate substantive remedies were also sought in the proceedings. Reference was also made to Neeta (Epping) Pty Ltd v Phillips[17] in which Barwick CJ and Jacobs J noted the difficulties which emerged in that case from a separate determination that a contract had been validity rescinded. Their Honours observed that it was generally undesirable that a court should so declare unless the parties were agreed on the consequences which flow from the declaration. Courts are well aware of the difficulty of tidy subdivision of a case into discrete points or questions. However the fact remains that over the past two decades, and particularly over the last decade, considerable savings and efficiencies have been achieved by a greater willingness on the part of courts to determine particular questions and issues and to do so in a final way. This has been reflected not only in the practice of the courts but in rules of court.[18] The change of approach between Evans Deakin Industries Ltd v Commonwealth in 1983[19] and Re Multiplex Constructions Pty Ltd in 1999[20] is significant. In my view nothing has emerged in the material or in argument to suggest that it would have been inappropriate for White J to determine the issues she in fact determined even if Mr Heery's intention to proceed further with a damages claim had been known. Shortly stated the issues of unlawfulness of the approval and of breach of confidence were discrete points which could conveniently be determined without a full trial involving inter alia proof of damages, and further issues that arise under the foreshadowed defence under s 101.

[33] It is difficult to think that White J would have come to a different conclusion or that her Honour would have refused relief had the misconception upon which the CJC now relies been dispelled. However this court has received additional evidence that was not available to her Honour, and it is both desirable and necessary that the matter now be reheard with regard to all known facts.[21] This is plainly a case in which this court should proceed to determine the matter rather than send it back for redetermination. There is no good reason why the parties should be required to start afresh or why declarations should not be made on the issues which have been actually litigated. It is not suggested that any different evidence would have been presented on those issues had the present facts been known. There is no submission that the evidence before her Honour was insufficient to justify the making of both declarations. It is appropriate that such declarations be made and that the parties be at liberty to proceed with action No 539 of 1999 in which Mr Heery has already delivered an amended statement of claim. There is in my view no valid discretionary basis upon which the declarations should be withheld. The basis upon which it was submitted at first instance that there was no utility in making declarations has been removed. There was sufficient utility to justify the making of declarations of right alone, but there is now added utility in the determination of an essential issue in an action.

[34] It was further submitted that the declaration was granted as the result of a concealment of material facts. I do not think that this is the case. Mr Sofronoff's primary concern was that Mr Heery had "stolen a march" on the CJC by obtaining the first declaration, and that the CJC would thereby be deprived of relying upon a defence under s 101. For reasons earlier given I consider that this concern was based upon an incorrect premise.

[35] For the above reasons it is appropriate, subject to the further matters addressed below, that the declarations should remain.

"A declaration that the use of listening devices at 22 Kitchener Road, Pimlico, Townsville between 3 July 1996 and 22 August 1996 by officers of the Criminal Justice Commission were not approved or authorised in accordance with the terms of s 82 of the Criminal Justice Act 1989."

Mr Sofronoff submitted that although a declaration might be made concerning improper acts of the CJC or concerning the invalidity of a document such as the approval it obtained on 3 July 1996, the second declaration did not contain sufficient detail of the basis upon which s 82 had been infringed.

[37] It was submitted that the declaration should have stated that the approval was not in accordance with s 82 "in that it did not specify a particular matter". The second declaration was essentially in terms of the relief originally requested in the writ and repeated in the notice of motion. The present submission was made orally during the appeal, and I can find no similar earlier submission complaining of the form of the declaration before her Honour or in the notice of appeal or written arguments. The reason for the submission was said to be that in the absence of a statement of the nature of the actual error or omission, the declaration might be apt to be misinterpreted by mischievous persons. This, with respect, seems unlikely, and in any event it is unlikely that persons intent upon mischief would be dissuaded by the longer declaration that is now preferred by the CJC.

[38] I am not persuaded that this is other than an appropriate declaration. Fine judgment may be involved in deciding where to stop in such matters, but it is not generally desirable that declarations be cluttered with explanatory material. I do not consider it necessary or desirable at this stage to interfere with the form of the declaration.

[39] Application was made to her Honour to amend Derrington J's "order", under order 32 rule 12 of the then Rules of Supreme Court. Her Honour declined to grant the application. Order 32 rule 12 provided:

Clerical mistakes in judgments or orders, or errors appearing therein and arising from any accidental slip or omission, may at any time be corrected by the court or a judge on motion or summons, and an appeal shall not lie from an order directing such amendment."

The rule is designed to allow for the correction of accidental omissions or mistakes relating to matters in issue or incidental to the proceedings.[22]

[40] Mr Morris QC for Mr Heery submitted that the rules of court are not applicable to the correction of an error of this kind. The granting of the approval was an administrative act, the performance of which was required to be done by a Supreme Court judge as a persona designata.[23] Accordingly he submitted that the rules of court, which apply to procedures conducted by judges in their judicial capacity, are not available to enable the character or affect of an administrative act to be altered. But for the terms of s 119 of the Criminal Justice Act I would uphold that submission. However that section provides that certain applications (including applications under s 82) "shall be made in accordance with the rules of court or, in so far as those rules do not provide, as directed by a judge of the Supreme Court, and shall be heard in chambers." This is a sufficient legislative indication that such applications and approvals if granted are intended to be subject to the regime available under the rules of court. If they can be made under the rules of court they can be amended under the rules of court. I therefore do not consider that relief is precluded on this particular basis.

[41] The submission for the CJC is that the objection to the approval is a technical one which does not impinge upon the correctness of the exercise of the judge's discretion, and that the omission is one wholly of form. I am unable to agree with those submissions. For reasons earlier mentioned the designation of the particular matter to which the approval relates is a fundamental requirement of the exercise of the power. The listening devices were affixed in reliance upon an ineffective approval. It is not appropriate that such an omission be retrospectively cured so that an unauthorised act may be converted into an authorised one.

[42] Further, I am not persuaded that the correction that is sought would necessarily reflect the true intention of the judge who made the order in the form he did. It is now suggested that there should be added to the order the words "in relation to an investigation by the Criminal Justice Commission into a certain memorandum of understanding signed by the Honourable Robert Borbidge MLA, the Honourable Russell Cooper MLA and Sgt Gary Wilkinson". I am unable to tell whether a submission to that effect was made to Derrington J at the time, or whether some other particular matter such as "possible perjury in the course of these proceedings" was suggested, or whether indeed any particular matter was in view.

[43] Reference was made to observations of Gaudron J in Ousley v R[24] in which her Honour considered that evidence obtained by means of an invalid warrant should have been received at a trial notwithstanding illegality in obtaining it. Her Honour referred to the technical nature of the illegality and the lack of culpable impropriety on the part of the officers in question. Those observations relate to the exercise of a particular discretion in criminal trials, sometimes referred to as a Bunning v Cross[25] discretion, in which the court weighs up the respective public and private interests in admitting evidence unlawfully obtained. The comments are concerned with quite a different issue to that of amendment of a defective approval.

[44] It was pointed out on behalf of the CJC that there is no evidence that the listening devices were used for any other purpose than that actually specified in an authority subsequently issued by the chairman of the CJC. That however is irrelevant. We are concerned with the validity of an approval which resulted in things being done of which Mr Heery was unaware and over which he had no control and which on the evidence has resulted in significant embarrassment and difficulty for him. The question is whether such an invalidity ought to be retrospectively cured.

[45] For the above reasons I do not consider that the necessary criteria for application of the slip rule are made out and do not consider that it should be here used for making lawful that which was not.[26]

Mr Heery's appeal against the order that the documents be destroyed by the CJC

[46] As earlier indicated both parties are agreed that the documents and other items should not be destroyed, and it seems desirable that this part of her Honour's order should not be allowed to stand. The CJC has at all material times offered an undertaking not to destroy the records and there has been no real contention between the parties on this score. It was suggested that the court might make only a minor variation to the order to the effect that they be destroyed at a future date after termination of the proceedings. However I think it preferable in the circumstances simply to set aside the order for destruction, leaving open the question as to what should eventually be done with this rather diverse material as to which different orders may in due course be appropriate in respect of different items.

[47] Although the CJC is the cross-appellant, it is the substantial appellant in these proceedings. Some difficulty arises in formulating appropriate orders having regard to the fact that Mr Heery's conduct may be regarded as to some extent conducing to the bringing of the CJC's appeal. The CJC has shown that there was misapprehension on the part of the trial judge for which Mr Heery was responsible, and this court has in the end re-exercised the necessary discretion, though not in favour of the CJC. It was certainly not unreasonable for the CJC to seek to have the matter ventilated, though in the result it has been unsuccessful. In all the circumstances I would order that the CJC pay one-half of Mr Heery's costs of the appeal and cross-appeal to be assessed.

[48] Mr Heery's appeal is allowed and the order for destruction of material by the Criminal Justice Commission should be set aside. The cross-appeal of the Criminal Justice Commission is dismissed. The CJC is to pay one-half of Mr Heery's costs of the appeal and cross-appeal to be assessed.

[49] DOUGLAS J: I agree with Thomas JA's reasons for judgment in this matter.

[2] Duchess of Argyll v Duke of Argyll [1967] Ch 302; Attorney-General v Observer Limited [1990] 1 AC 109, 256, 270; Shaw v Coco (1991) 102 ALR 75, 90, 102; R (a solicitor) v Lewis [1987] 2 Qd R 710, 726.

[3] Entick v Carrington [1765] EWHC J98; (1765) 95 ER 807, 812, 818; Shaw v Coco (1991) 102 ALR 75, 81; Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, 359; Ousley v R [1997] HCA 49; (1997) 192 CLR 69, 105-107; Reg v IRC, ex parte Rossminster [1979] UKHL 5; [1980] AC 952, 1008.

[4] These provisions have recently been repealed and re-enacted in different form by the Police Powers and Responsibilities Act 2000.

[5] These provisions appear to have been substantially derived from s 19C of the Commissions of Inquiry Act 1950, which was inserted into that Act in 1987.

[6] cf Ainsworth v Criminal Justice Commission [1992] HCA 10; [1992] 175 CLR 564, 597.

[7] Garnett v Ferrand [1827] EngR 492; (1827) 6 B & C 611, 625 per Lord Tenterden CJ; compare Gallo v Dawson (1988) 63 ALJR 121, 122; Carruthers v Connolly [1998] 1 Qd R 339, 377-380.

[9] Re Whiting [1994] 1 Qd R 561; McMurtrie v Commonwealth [2000] NSWSC 781, NSWSC 20448 of 1999, 18 August 2000.

[10] Ancart Pty Ltd v Snowy River Council (1995) 39 NSWLR 78; Vezitis v McGeechan [1974] 1 NSWLR 718; Wingecorribee Shire Council v Minister for Local Government [1975] 2 NSWLR 779; Jackson v Slattery [1984] 1 NSWLR 599; Australian Broadcasting Corporation v Samual Jacobs QC [1991] SASC 2953; [1991] 56 SASR 274.

[11] [1992] HCA 10; (1992) 175 CLR 564.

[12] Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 436-437 per Gibbs J, (with whom Walsh, Stephen and Mason JJ agreed on this point).

[13] Forster v Jododex Australia Pty Ltd above; Enfield v Development Assessment Commission [2000] HCA 5; (2000) 74 ALJR 490 at p 495 para [22].

[14] Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247; The Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, 49-50; Enfield v Development Assessment Commission above at 493-495.

[15] Meagher, Gummow & Lehane, _Equity: Doctrines and Rem_edies, 3rd ed at par [1906].

[16] [1981] 1 NSWLR 723, 728, 729 per Hutley JA with whom Moffitt P and Samuels JA agreed.

[17] [1974] HCA 18; (1974) 131 CLR 286, 307.

[18] See for example the substantial amendments to order 39 rule 12 of the Queensland Rules of Supreme Court effected by Supreme Court Rules Amendment Order (No 2) 1994, 3 February 1994; see further Uniform Civil Procedure Rules chapter 13 part 5 rules 482-486; as to Federal Court rules and practice see Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718, 1 June 1999, BC 9902875 per Branson J.

[19] [1983] 1 Qd R 40, 45.

[20] [1999] 1 Qd R 287.

[22] Storey and Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446.

[23] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 444; Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, 360; Ousley v R [1997] HCA 49; (1997) 192 CLR 69.

[24] [1997] HCA 49; (1997) 192 CLR 69 at 95.

[25] [1978] HCA 22; (1978) 141 CLR 54.

[26] Compare L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590, 597.