McCarthy v Commissioner of Taxation

1. The application that the proceedings be transferred to the Supreme Court of New South Wales be refused.
2. The orders sought in paragraphs 1 and 2 of the applicant's interlocutory application filed on 5 July 2013 be stood over generally.
3. The interlocutory application dated 12 July 2013 brought by the second respondent be stood over generally.
4. The proceedings be stood over generally.
5. Costs reserved.
6. Liberty to the parties to apply on three days notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1440 of 2012

JUDGE: ROBERTSON J DATE: 25 JULY 2013 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 704 of 2013

JUDGE: ROBERTSON J DATE: 25 JULY 2013 WHERE MADE: SYDNEY

Introduction 1 Applications similar in substance have been made in each of these two matters, although they differ in form. 2 The broad background is that each applicant has tax appeals pending in this Court and each applicant has brought proceedings under s 39B of the Judiciary Act 1903 (Cth) seeking to have the assessments held invalid and quashed. Each applicant is also the defendant in criminal proceedings in the Supreme Court of New South Wales having been charged on indictment that between about 24 May 2001 and about 30 December 2002 they conspired with each other and various other persons with the intention of dishonestly influencing the Commissioner of Taxation in the exercise of his duties as a public official contrary to s 135.4(7) of the Criminal Code Act 1995 (Cth).

The Seller matter 3 The applicant in this matter, by interlocutory application dated 5 July 2013, seeks the following interlocutory orders: 1. Leave be granted to the Applicant to file and serve [an] Amended Originating Application in the form annexed to the Affidavit of Don Pearson sworn 5 July 2013 and marked "B". 2. In the alternative, leave be granted to the Applicant to file and serve an Amended Originating Application in the form annexed to the Affidavit of Don Pearson sworn 5 July 2013 and marked "B" with additional claims added as available following the determination of matters raised at Court on 16 July 2013. 3. That proceedings no 704 of 2013 be transferred to the Supreme Court of New South Wales. 4 The proposed amended originating application at annexure "B" is in the following form, retaining the original marking to indicate the proposed amendments: On the grounds stated herein in the Points of Claim, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903 (Cth). 1. A declaration that the following assessments issued by the First Respondent are void and of no effect: (i) notices dated 10 June 2009, of assessment of income tax, amended assessment of income tax or assessment and liability to pay penalty, for years ending 30 June 1999, 30 June 2000, 30 June 2001 and 30 June 2002; and (ii) notices of assessment of GST net amount (within the meaning of A New Tax System (Goods and Services Tax) Act 1999) ("GST Act") under subsec 105-5(1) of Schedule 1 of the Taxation Administration Act 1953 for the quarters ended 31 March 2001, 30 June 2001 and 30 September 2001 dated 29 May 2009; and (iii) amended assessments following the Objection Decision made by the First Respondent dated 15 April 2011. ("the Assessments") 2. A declaration that the Assessments were not assessments for the purposes of the Income Tax Assessment Act 1936 (Cth) ("ITAA36") or the GST Act. 3. A writ of certiorari that the Assessments be quashed. 4. A declaration that any decision of the Second Respondent to disclose the following material to the First Respondent or any other person for purposes of assessment was invalid: (i) [this subparagraph was masked]; (ii) [this subparagraph was masked]; (iii) material seized on 9 June 2005 pursuant to section 3E of the Crimes Act 1914 ("Crimes Act") and information and documents obtained by the Second Respondent using the Second Respondent's powers ("Search warrant Material") 5. A declaration that the provision by the Second Respondent to the First Respondent of the material identified in paragraphs 4(i)-(iii) above, for purposes of issuing the Assessments, was unlawful. 6. A declaration that the use by the First Respondent of the material listed in sub-paragraphs 4(i)-(iii) and the affidavit of Mr Robert Speirs sworn 28 March 2005, for purposes of issuing the Assessments, was unlawful. 7. A writ of mandamus that the First Respondent return to the Second Respondent the material listed in sub-paragraphs 4(i)-(iii). 8. A writ of mandamus that the First Respondent destroy material obtained by or created by the First Respondent derivatively from the material listed in sub-paragraphs 4(i)-(iii) ("ACC Derivative Material"). 9. A declaration that the search warrants issued under section 3E of the Crimes Act on 8 June 2005 naming Steven Economou as the executing officer were invalid. 10. A writ of mandamus that the Second Respondent return to the Applicant material unlawfully seized under search warrants executed on 9 June 2005. 11. A writ of mandamus that the Second Respondent destroy material derived from material unlawfully seized under search warrants executed on 9 June 2005. 12. A writ of Prohibition restraining the First Respondent from using or relying upon the Assessments, the material listed in sub-paragraphs 4(i)-(iii) and ACC Derivative Material in any proceedings, including proceedings to recover tax the subject of the Assessments. 13. A declaration that notices issued by the First Respondent pursuant to section 264 and served on the Second Respondent were invalid. 14. Costs. 15. Any further or other order the Court thinks fit. 5 In the Seller matter, the Australian Crime Commission (ACC) is a party. 6 By interlocutory application dated 12 July 2013, the ACC seeks orders pursuant to rule 26.01 of the Federal Court Rules 2011 (Cth) and s 31A of the Federal Court of Australia Act 1976 (Cth) that the claims for relief in paragraphs 4, 5, 9, 10 and 11 of the applicant's originating application be dismissed and that it be removed as a party to the proceedings. 7 The facts relevant to the application for the transfer of proceedings to the Supreme Court of New South Wales are distilled in the affidavit of Ms Alexander sworn on 12 July 2013 in the Seller matter. 8 On 14 March 2012 Mr Seller was charged on indictment by the Commonwealth Director of Public Prosecutions in the Supreme Court of New South Wales for offences against a law of the Commonwealth. 9 On 27 February 2012, Mr Seller filed in the Supreme Court a notice of motion seeking a permanent stay of his criminal prosecution in that Court. On 17 August 2012 the primary judge granted the motion and ordered that Mr Seller's prosecution in that Court be permanently stayed. On 1 March 2013 the New South Wales Court of Criminal Appeal granted the Crown's appeal and set aside the orders made by the primary judge on 17 August 2012 and dismissed Mr Seller's motion seeking a permanent stay. 10 An application for special leave to appeal to the High Court of Australia is due to be heard in August or September 2013. 11 The prosecution of Mr Seller has not been otherwise stayed and remains before the Supreme Court although the proceedings have been adjourned by consent pending the outcome of the application for special leave to appeal. 12 Four search warrants were issued on 8 June 2005 in relation to the offence the subject of the charge against Mr Seller. Evidential material was seized pursuant to those warrants and the evidential material seized forms part of the brief of evidence served by the Commonwealth Director of Public Prosecutions upon Mr Seller to be used in the prosecution of him for the offence the subject of the charge. 13 The originating application for relief under s 39B was filed in the Federal Court on 23 April 2013. It claimed the same relief as sought in proposed amended originating application which I have set out at [4] above, the only change of substance being that it made clear that paragraphs 4(i) and (ii) referred to material obtained under the Mutual Assistance in Criminal Matters Act 1987 (Cth) and information obtained directly or indirectly from a person by making use of that material.

The McCarthy matter 14 In this matter the applicant's amended interlocutory application dated 4 July 2013 was, as a matter of substance, in the same form but with the addition of the claim that leave be granted to join as a party the Chief Executive Officer of the ACC. 15 Importantly, the proposed amended originating application for relief under s 39B was, as a matter of substance, in the same form as the corresponding document in the Seller matter which I have set out at [4] above. 16 I note however that in the McCarthy matter the proposed amendments are much more extensive. The originating application for relief under s 39B was filed on 21 September 2012. It sought relief only in relation to the assessments and on a basis that was limited to the assessments allegedly having been made on material alleged to have been obtained by the Commissioner of Taxation otherwise than in accordance with the Australian Crime Commission Act 2002 (Cth). By interlocutory application filed on 14 January 2013 leave had been sought to file an amended originating application. 17 The ACC opposed the joinder application in the McCarthy matter. 18 There are recovery proceedings pending in the Supreme Court of New South Wales between the Deputy Commissioner of Taxation and Mr McCarthy.

The legislation 19 The transfer applications, so called, arise from s 39B(1C) of the Judiciary Act. If that provision applies it means that the Federal Court does not have jurisdiction, at least to some extent. 20 The relevant provisions are as follows: 39B Original jurisdiction of Federal Court of Australia Scope of original jurisdiction (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. Note: Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia. Jurisdiction for certain writs that relate to criminal prosecutions etc. (1B) If a decision to prosecute a person for an offence against a law of the Commonwealth, a State or a Territory has been made by an officer or officers of the Commonwealth and the prosecution is proposed to be commenced in a court of a State or Territory: (a) the Federal Court of Australia does not have jurisdiction with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against the officer or officers in relation to that decision; and (b) the Supreme Court of the State or Territory in which the prosecution is proposed to be commenced is invested with, or has conferred on it, jurisdiction with respect to any such matter. (1C) Subject to subsection (1D), at any time when: (a) a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before a court of a State or Territory; or (b) an appeal arising out of such a prosecution is before a court of a State or Territory; the following apply: (c) the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision; (d) the Supreme Court of the State or Territory in which the prosecution or appeal is before a court is invested with, or has conferred on it, jurisdiction with respect to any such matter. (1D) Subsection (1C) does not apply where a person has applied for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory. (1E) Where subsection (1D) applies, the prosecutor may apply to the court for a permanent stay of the proceedings referred to in that subsection, and the court may grant such a stay if the court determines that: (a) the matters the subject of the proceedings are more appropriately dealt with in the criminal justice process; and (b) a stay of proceedings will not substantially prejudice the person. … Jurisdictional rules to apply despite any other law (1F) Subsections (1B), (1C), (1D), (1E) and (1EA) have effect despite anything in any other law. In particular: (a) neither the Jurisdiction of Courts (Cross-vesting) Act 1987, nor any other law, has the effect of giving the Federal Court of Australia jurisdiction contrary to subsection (1B), (1C) or (1EA); and (b) neither section 9 of the Administrative Decisions (Judicial Review) Act 1977, nor any other law, has the effect of removing from the Supreme Court of a State or Territory the jurisdiction given to that Court by subsection (1B), (1C) or (1EA). References to officer or officers of the Commonwealth (2) The reference in subsection (1), (1B), (1C) or (1D) to an officer or officers of the Commonwealth does not include a reference to a Judge or Judges of the Family Court of Australia. Definitions (3) In this section: civil proceeding has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004. related civil proceeding decision, in relation to a civil proceeding, means: (a) a decision of the Attorney-General to give: (i) notice under section 6A of the National Security Information (Criminal and Civil Proceedings) Act 2004 in relation to the proceeding; or (ii) a certificate under section 38F or 38H of that Act in relation to the proceeding; or (b) a decision of the Minister appointed by the Attorney-General under section 6A of that Act to give: (i) notice under section 6A of that Act in relation to the proceeding; or (ii) a certificate under section 38F or 38H of that Act in relation to the proceeding. related criminal justice process decision, in relation to an offence, means: (a) a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including: (i) a decision in connection with the investigation, committal for trial or prosecution of the defendant; and (ii) a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and (iii) a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and (iv) a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and (v) a decision in connection with an appeal arising out of the prosecution; or (b) a decision of the Attorney-General to give a certificate under section 26 or 28 of the National Security Information (Criminal and Civil Proceedings) Act 2004 before or during a federal criminal proceeding (within the meaning of that Act) in relation to the offence.

The issues 21 As may be seen, the endpoint of the proposed claim of each applicant under s 39B is the setting aside of the assessments. In each matter a number of grounds for that conclusion is advanced, some to do with the investigation by the ACC, some to do with the material under the Mutual Assistance in Criminal Matters Act 1987 and some to do with the search warrants. 22 In the McCarthy matter, leave is sought to file and serve an amended originating application in a form that would include for the first time paragraphs 9, 10 and 11, which directly concern the search warrants. The curiosity is that the applicant seeks to amend to add claims in relation to which he contends that this Court does not, for the time being, have jurisdiction by virtue of s 39B(1C) of the Judiciary Act. 23 In the Seller matter, the originating application under s 39B filed on 23 April 2013 already includes those paragraphs. 24 Under the so-called application to transfer, the first issue is whether at present the Federal Court does not have jurisdiction, by virtue of s 39B(1C) of the Judiciary Act, in respect of the whole or in respect of some parts of the proposed amended originating applications and, if in respect of parts, which parts. If the Federal Court does not at present have jurisdiction with respect to any part of the proposed amended originating applications a question is whether it would not have jurisdiction with respect to any of each application on the basis that the entirety of the proceeding is one matter within the meaning of s 39B(1C). 25 Another part of the issue is the scope of the expression a writ of mandamus or prohibition or an injunction against officers of the Commonwealth in relation to a related criminal justice process decision. 26 There is a minor associated issue as to the status of the criminal proceedings in the Supreme Court. After the Court of Criminal Appeal announced its decision I understand that Mr Seller and Mr McCarthy were again to be arraigned but that did not occur by consent and it was agreed between the parties that that matter would not go forward until after the hearing of the application for special leave to appeal from the judgment of the Court of Criminal Appeal setting aside the stay order. Nevertheless, in my opinion, in each case a prosecution for an offence against a law of the Commonwealth is before the Supreme Court of New South Wales. The prosecutions commenced and have not been stayed, having been adjourned by consent pending the outcome of the application for special leave to appeal. 27 In Mr McCarthy's case there was said to be a further factual issue which is whether his application was filed at a time when there was a stay of the criminal proceedings in the Supreme Court between 17 August 2012 and 1 March 2013, and whether, therefore, it is necessary to consider s 39B(1D). In my view, on the evidence before me, Mr McCarthy had not applied for a writ of mandamus or prohibition or an injunction in relation to a related criminal justice process decision before the commencement of a prosecution for an offence against a law of the Commonwealth. As I have said, the originating application for relief under s 39B was filed on 21 September 2012 but sought relief only in relation to the assessments and on a basis that was limited to the assessments allegedly having been made on material alleged to have been obtained by the Commissioner of Taxation otherwise than in accordance with the Australian Crime Commission Act 2002 (Cth). 28 If the Federal Court does not at present have jurisdiction in respect of the whole or part of the originating application the next issue is whether the Federal Court has power to transfer the whole or parts to the Supreme Court of New South Wales under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and, if the Federal Court has that power, whether it should so exercise it. 29 Reference was made on each side to the decision of the Supreme Court of New South Wales in Pratten v Commonwealth Director of Public Prosecutions [2013] NSWSC 594. 30 The corollary of the Federal Court at present not having jurisdiction is that the Supreme Court does have that jurisdiction see s 39B(1C)(d). 31 Also in contention in the Seller matter is the application of the ACC that certain paragraphs of the proposed amended originating application should be struck out. The Commissioner of Taxation supported the argument of the ACC that paragraph 9, 10 and 11 of the proposed amended originating applications be struck out. 32 One possibility adverted to in submissions is that the determination of these issues could await the outcome of the application for special leave to appeal to the High Court from the decision of the New South Wales Court of Criminal Appeal removing the stay on the criminal proceedings. If the criminal proceedings were stayed, that is, if special leave to appeal were granted and the ensuing appeal in each case successful then there would be no question of the Federal Court not having jurisdiction because a prosecution would no longer be before the Supreme Court for the purposes of s 39B(1C) of the Judiciary Act.

Consideration 33 In Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395, the defendants in Customs prosecutions sought to have search warrants, issued under s 198 of the Customs Act 1901 (Cth), set aside and the documents seized returned to them so that they could not be used in the course of prosecutions in the District Court. The central issue was whether the Customs prosecutions were or were not a prosecution for an offence against a law of the Commonwealth within the meaning of, relevantly, s 39B(1C) of the Judiciary Act. In allowing the appeal, the Full Court said that they were such a prosecution. 34 Having so decided, what is significant for present purposes is that the Full Court said, at [77], that a decision taken in the course of an investigation leading to a Customs prosecution, such as the decision to issue a search warrant under s 198 of the Customs Act, was a "related criminal justice process decision". Such a decision was properly to be regarded as one "made in the criminal justice process". The Full Court also said, at [81]: The meaning to be attributed to an expression such as "a related criminal justice process decision" which is a legislative construct, does not reflect any established usage. The underlying purpose of Sch 2 of the Jurisdiction of Courts Act, as expressed so clearly in the Second Reading Speech, must constantly be borne in mind. A construction which promotes the purpose or object underlying an Act is to be preferred to a construction that would not promote that purpose or object: s 15AA of the Acts Interpretation Act 1901 (Cth). The Full Court had said earlier in its reasons that the intendment of the legislation, as the Minister made clear in his Second Reading Speech, was to put a stop to the use of what the government regarded as unmeritorious delaying tactics commonly employed in the criminal justice process. The aim was to remove collateral access to federal administrative law procedures and remedies in this Court, at least in those cases where a prosecution for an offence against a law of the Commonwealth has been commenced. 35 In addressing s 39B(1C) it is necessary to identify the offence and then the (related) criminal justice process decision in relation to that offence. This must be a decision made in the criminal justice process in relation to the offence and it was submitted here that this was a decision in connection with the investigation of each defendant or a decision in connection with the issue of a search warrant. The remaining step is to identify the matter in which the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer of the Commonwealth in relation to that criminal justice process decision related to the offence. 36 The answers to these questions establish the extent to which the Federal Court does not have jurisdiction and the Supreme Court does have jurisdiction. 37 The word "matter" is defined in s 2 of the Judiciary Act, unless the contrary intention appears, as including any proceeding in a Court, whether between parties or not, and also any incidental proceeding in a cause or matter. 38 There is a coincidence in language between s 39B(1), which states that the original jurisdiction of the Federal Court includes jurisdiction "with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth", and s 39B(1C)(c), which provides that the Federal Court does not have jurisdiction "with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision". 39 A straightforward application of Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395 shows that the Federal Court has no jurisdiction in respect of at least the parts of the present applications which impugn the validity of the search warrants and seek the return to the applicant of material seized under those warrants or the destruction of that material. On the evidence, that material forms part of the criminal proceedings and there will be a question of its admissibility in those proceedings. I conclude that in relation to paragraphs 9, 10 and 11 the Federal Court does not at present have jurisdiction. 40 The applicants referred also to other grounds as being in relation to a criminal justice process decision. Those grounds were 7, 8 and 12. 41 As to ground 7, it seeks a writ of mandamus so as to require the Commissioner of Taxation to return to the ACC certain material, including material seized under the search warrants. Not only does this reference to the search warrants not seek to impugn those warrants but of itself, a grant of this remedy would not seem to impact on the criminal proceedings as it would merely effect the return of the material not to the applicant but to the ACC. 42 As to ground 8, it seeks a writ of mandamus so as to require the Commissioner of Taxation to destroy material obtained by or created by him derivatively from certain material, including material seized under the search warrants. Again, not only does this reference to the search warrants not seek to impugn those warrants but of itself, a grant of this remedy would not seem to impact on the criminal proceedings as it would merely effect the destruction of derivative material and would not touch the material seized under the search warrants. 43 As counsel for the ACC submitted, these claims relate to the provision of information between the various agencies once the information had been obtained and whether or not restrictions on use were complied with, as opposed to any defect in the warrant affecting the reliance by the Commissioner on that material. 44 As to ground 12, it is directed to prohibiting the Commissioner of Taxation from using in any proceedings, including tax recovery proceedings, the assessments, certain material, including material seized under the search warrants, and the derivative material within ground 8. Of itself, a grant of this remedy would not seem to impact on the criminal proceedings as the Commissioner of Taxation is not conducting those proceedings. Again, this paragraph relates back to paragraph 4 and ACC derivative material which is defined in paragraph 8. As counsel for the ACC submitted, that relief is not relating to a criminal justice process decision but is instead related to the Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146 arguments that the applicants propose to run as to the dissemination of material obtained pursuant to restrictions. 45 Summarising the position, I find that in the Seller proceedings the Federal Court at present does not have jurisdiction in respect of grounds 9, 10 and 11. In the McCarthy proceedings I do not grant leave to amend the originating application so as to add grounds 9, 10 and 11 in relation to which at present the Federal Court would not have jurisdiction. 46 In my opinion it is not necessary or appropriate to transfer those grounds to the Supreme Court, on the assumption that the Federal Court has power to do so. This is because the Supreme Court has jurisdiction, at this time, with respect to the substance of those grounds and, in my opinion, the form in which that issue might arise in the Supreme Court in the criminal proceedings should not be encumbered with or embarrassed by the form these grounds would take if transferred. 47 Next to be considered is whether there are any other consequences of my conclusion with respect to grounds 9, 10 and 11. Should those grounds be struck out as contended for by the ACC or does the subject matter of those grounds have a double character so that the Federal Court could continue to deal with those grounds, as submitted by the Commissioner of Taxation? 48 As to the latter, that submission is untenable in light of the exclusive jurisdiction which the Supreme Court has while the prosecution is before it: this is the effect of s 39B(1C)(d). I do not doubt that the alleged invalidity of the search warrants is sought to be deployed for different purposes in the two courts but that is to state the problem rather than to provide a solution to it. 49 As to the former proposition, in my view it would not be appropriate to strike out grounds 9, 10 and 11 because this Court will again have jurisdiction once the prosecution proceedings are concluded. 50 The next issue is whether it is necessary to form a concluded view on whether or not the balance of the claims or proposed claims fall within s 39B(1C). In my view it is not so necessary. 51 This is because, first, I do not accept the submission that even assuming this Court continued to have jurisdiction to hear and determine the balance of the claims or proposed claims it would be appropriate to do so in the absence of jurisdiction to deal with grounds 9, 10 and 11. In my opinion the applicants should not be disentitled by reason of this Court's temporary lack of jurisdiction from seeking to impugn the assessments on all of the grounds on which they wish to do so. No separate, that is to say other than jurisdictional, attack has been made on the availability or cogency of the s 39B proceedings although the Commissioner of Taxation has reserved his rights so to argue at the final hearing of those proceedings. 52 A further ground on which I conclude that it is not necessary to form a concluded view on whether or not the balance of the claims or proposed claims fall within s 39B(1C) is that to do so may prove to be embarrassing, in a legal sense, in the Supreme Court. I say this because the evidence before me shows only the prospect of the search warrant and the material derived from it forming part of what it is the Supreme Court will deal with in the criminal proceedings. As to the balance of the grounds it is not at all clear to me that in the criminal proceedings the validity of the assessments or the information or material obtained or gathered apart from under the search warrants will be in issue or relevant. Perhaps it will be but, if so, the Supreme Court will have jurisdiction by virtue of s 39B(1C)(d) to decide whether it has jurisdiction to deal with it. That jurisdiction may be, for the time being, exclusive. If it is, the Supreme Court should, in my opinion, be able to deal with that question, if it became necessary to do so, without the possible distraction of a decision of this Court on very little evidence. 53 If the jurisdiction of the Supreme Court is not exclusive, what then? Is it possible that it has no jurisdiction or would the jurisdiction be concurrent? The starting point is the Judiciary Act and then, if necessary, s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987. As to the Judiciary Act, if s 39 does not do so, s 68 confers jurisdiction on the Supreme Court with respect to persons who are charged with offences against laws of the Commonwealth. As to civil matters, the Supreme Court plainly has jurisdiction under s 39(2) unless excluded under s 38(e) and if so excluded then under s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987. Thus the jurisdiction would be concurrent. 54 If it came to the point at which, as a practical matter, the Supreme Court wished to deal with these remaining issues but found it did not have exclusive jurisdiction but only concurrent jurisdiction and it was necessary or appropriate to have these parts of the proceedings transferred from this Court to that Court then an application could be made to this Court. At present these are mere possibilities. 55 What needs to be added is that apart from the s 39B(1C) aspect, the matter that is within the original jurisdiction of the Federal Court by virtue of s 39B would be a special federal matter for the purposes of the Jurisdiction of Courts (Cross-vesting) Act 1987. This is because a writ of mandamus or prohibition is sought against an officer or officers of the Commonwealth. An injunction sought against an officer or officers of the Commonwealth may be in a different position because it is not taken out of s 39 by s 38(e) and thus would not be a matter in respect of which the Supreme Court would not, apart from the Jurisdiction of Courts (Cross-vesting) Act 1987, have jurisdiction. However in the applications or proposed applications for relief under s 39B no such injunction is sought. 56 Submissions were made by the applicants as to the strong policy against the fragmentation of the criminal process. But the same strong policy applies within Courts as well as between Courts. It seems to me unlikely, speaking generally, that the Supreme Court in the exercise of civil jurisdiction would determine an issue of fact or mixed fact and law which would arise in pending criminal proceedings: see Sankey v Whitlam (1978) 142 CLR 1 at 26. 57 Submissions were also made as to abuse of process but in my view the present proceedings are not and would not be an abuse of process where the proceedings in the one Court are stood over and it is not sought to prosecute the same proceedings in different courts at the same time. It is to be recalled that the effect of s 39B(1C) is temporal. 58 In my opinion the proceedings in each case under s 39B in this Court should be stood over generally to the effect that, in the absence of something exceptional, interlocutory steps in those proceedings are suspended. 59 As to transferring the proceedings to the Supreme Court, assuming that the Court has the power to so transfer under the Jurisdiction of Courts (Cross-vesting) Act 1987, I would not so act. This is because of the only temporary removal of jurisdiction from this Court, because the s 39B proceedings would otherwise be to a large extent a special federal matter and because there are tax appeals brought by both of the applicants in this Court. As to the tax appeals, it has not been submitted or suggested that they should be transferred to the Supreme Court and there are statements by the High Court in Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146 which, on one view, suggest that proceedings under s 39B impugning the validity of assessments and tax appeals in relation to those assessments should, generally, be heard together or in close association with each other. On that basis I would not conclude that it was more appropriate that the relevant proceeding be determined by the Supreme Court or that it was otherwise in the interests of justice that the proceeding be determined by the Supreme Court within s 5(4)(b) of the Jurisdiction of Courts (Cross-vesting) Act 1987. I should also say that I am unpersuaded at present that the Jurisdiction of Courts (Cross-vesting) Act 1987 applies to permit a transfer where this Court does not have jurisdiction by virtue of s 39B(1C). 60 It follows that I should not, at present, decide the status of the ACC as a party or prospective party. That issue can be addressed at a time this Court again has jurisdiction over the entirety of the controversy. I have already indicated that I would not strike out the paragraphs in the Seller matter in respect of which this Court does not at present have jurisdiction. In relation to the application for leave to amend to add those paragraphs in the McCarthy matter the same effective result follows as I would not grant leave to amend to add paragraphs in respect of which this Court presently does not have jurisdiction. As to the other paragraphs sought to be added by amendment, they form part of the overall application to amend, including the search warrant claims. The proposed amendments to add the other paragraphs can be addressed at a time this Court again has jurisdiction over the entirety of the controversy. I add that plainly each of the two s 39B applications should be kept together given that they raise identical legal issues and almost identical factual issues. 61 As I have said above, I have not decided the question of jurisdiction so far as concerns those parts of the applications which do not raise the validity of the search warrants or seek the return or destruction of material taken under those warrants. The question of construction is not straightforward and any operation of s 39B(1C) may depend on what facts will be before the Supreme Court of New South Wales in the criminal proceedings, if those proceedings are not stayed. 62 There are two competing constructions of s 39B(1C): a broader construction which emphasises the words "with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought" and a more limited construction which emphasises the words "in relation to a related criminal justice process decision". In Pratten v Commonwealth Director of Public Prosecutions [2013] NSWSC 594, the court seems to have favoured the latter view: see the judgment at [123]-[124], [141] and [215]. I was told however by counsel before me who appeared for the plaintiff in that case that those matters were not argued in the Supreme Court in that case. 63 The more limited construction is consistent with the purpose of the provision which was identified in the Second Reading Speech as being to avoid the use of unmeritorious delaying tactics in the criminal justice process, by removing the "collateral access of defendants to federal administrative law procedures and remedies". Similarly, the explanatory memorandum said that s 39B(1C) provided that the Federal Court did not have jurisdiction to hear an application made by the defendant under s 39B(1) in relation to a decision made in the criminal justice process in relation to that offence and that the Supreme Court in which the prosecution was being heard was given jurisdiction with respect to such applications for injunctions and writs of prohibition and mandamus against a Commonwealth officer in relation to those decisions. Put differently, except in cases where the proceedings in the Federal Court consisted only of claims relevant to the criminal proceedings, the broader construction would confer on the court hearing the criminal proceedings exclusive jurisdiction with respect to issues having no bearing on the criminal proceedings. 64 The difficulty, in my opinion, does not stem from the phrase "in relation to" having, as it does, a content largely dependent on context: see R v Khazaal (2012) 246 CLR 601 at [31] per French CJ and the cases there cited. Rather, the difficulty arises from the coincidence in language between the grant of jurisdiction effected by s 39B(1) and the removal of jurisdiction effected by s 39B(1C). Section 39B(1C) seems to have been drafted on the basis that the relevant proceedings in the Federal Court would consist only of claims relevant to the criminal proceedings. I accept that the jurisdiction of the Federal Court may be defined by reference to part of a matter (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [26], [226] and [281]) but the question remains whether that is the effect of the words used in s 39B(1C). 65 A further aid to construction is that a grant of jurisdiction is not to be read by making implications or imposing limitations which are not found in the express words (Owners of Shin Kobe Maru v Empire Shipping Company Inc (1994) 181 CLR 404 at 421), while, conversely, laws excluding jurisdiction are construed narrowly: see M Leeming Authority to Decide (2012) at 132 and the cases there cited in footnote 55. 66 In my opinion, although it is unnecessary for me to decide the point in light of the conclusions I have come to above, bearing in mind the mischief to which the provision is directed, the inconvenient and apparently unintended consequences of the broader construction and the principle referred to in the immediately preceding paragraph, the better construction is that s 39B(1C) operates to take away jurisdiction from this Court only in respect to the part or parts of the matter in which the defendant seeks the prescribed relief in relation to the criminal justice process decision and that this is to be tested by the effect of the relief claimed, if it were granted, on the criminal proceedings. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.