Lamb v. Moss & Anor [1983] FCA 254; (1983) 49 ALR 533

Seymour v. A/G for the Commonwealth of Australia [1984] FCA 329; (1985) 57 ALR 68

State Drug Crime Commission of NSW v. Chapman & Ors (1988) 12 NSWLR 447

Attorney General v. Walker (1849) 3 Ex 342 RV Bebic, Unreported NSW SC (CCA) 27th, May 1982

Burmah Oil Co. v. Bank of England [1979] UKHL 4; (1980) AC 1090

National Crime Authority Act 1984 s 51(3)

Administrative Decisions (Judicial Review) Act 1977 s 5

instructed by Australian Government

Solicitor

1st Respondent: Mrs D. McOnie

2nd Respondent: A. Martin

instructed by Yee and Co.

I have before me an application for an Order of Review of two decisions given by the first respondent, a Magistrate of the Local Court of New South Wales, given on the 17th of October 1989 and the 27th of October 1989 respectively. The decisions were given in the course of committal proceedings being heard by the first respondent in respect of charges brought against the second respondent of (inter alia) "conspiracy to import a prohibited import, namely a commercial quantity of heroin to which s 233B of the Customs Act 1901 applies."

2. On the 11th of October 1989, during the course of the committal proceedings, the applicant, National Crime Authority ("N.C.A.") was served with a subpoena on behalf of the second respondent requiring the production of the following documents:

"Any photograph of the person referred to as TAI KOR

and any document or statement referring to the

indentity and whereabouts of the person referred to

as TAI KOR in the statement of CHOY LIM SHUN (also

known as ALBERT CHOY) and record of interview

between him and Chief Superintendent Marony in Hong

Kong in February 1988.

All photographs shown to CHOY LIM SHUN (also known

as ALBERT CHOY) for the purpose of identifying the

person referred to as TAI KOR and any documents,

notes and reports relating to attempts by any

person to identify any person referred to as TAI

KOR in statements of CHOY LIM SHUN (also known as

ALBERT CHOY) or ascertain his whereabouts."

3. It appears from material placed before me that Choy Lim Shun (also known as Albert Choy) is a significant witness in the proceedings and an alleged accomplice in the conspiracy charged. He has given evidence of conversations with the person referred to as Tai Kor which would form part of the evidence of the conspiracy in which it is alleged that the second respondent was involved. It further appears that it is alleged by this witness that the person Tai Kor played a major role in the organisation and direction of the conspiracy. This person is also referred to in the particulars of overt acts which have been supplied by the prosecution to the defence.

4. A subpoena in similar terms has also been issued on behalf of second defendant in the current proceedings, Sze Yau-Sing. The same questions have arisen in relation to this subpoena.

5. It has been made apparent, on behalf of both defendants, that there is a serious issue as to the identity, and even the existence of the person Tai Kor and that it is desired to obtain information as to his existence and whereabouts so that appropriate enquiries can be instituted on behalf of each defendant. The material sought in the subpoenas is said to be relevant to such enquiries.

6. The N.C.A. is not, itself, the informant in the proceedings brought against the second respondent. I am informed that the informant is the Director of Public Prosecutions. It is conceded, however, that the prosecution was "instituted as a result of an investigation carried out by the Authority in the performance of its function" within the meaning of s 51(3) of the National Crime Authority Act 1984.

7. The N.C.A. appeared by Counsel before the learned Magistrate and objected to answering the subpoena. After not inconsiderable debate, his Worship made the decisions complained of. The first decision, as set out in the Application in these proceedings was made on the 17th of October 1989 and was "That the Statutory Privilege afforded by section 51(3) of the National Crime Authority Act 1984 did not extend to the subpoena issued by the Second Respondent to the Applicant in committal proceedings titled D.P.P. v. CHAI and SZE and that the Applicant is required to produce the documents sought in the subpoena subject to any claim for public interest immunity. That s.51(3) of the National Crimes Authority Act 1984 did not alter the Common Law liability of the Applicant to produce documents on subpoena.

8. The second decision, made on the 27th of October 1989, is described in the Application as being "That the subpoena issued at the request of the second respondent to the applicant be answered within seven days."

9. It is clear that the N.C.A. relies, in this Application, which is brought under s 5 of The Administrative Decisions (Judicial Review) Act 1977 upon alleged error of law in the decisions (s 5(1)(f). Particulars of the alleged errors of Law are set out in the Application as follows:

As to the first decision; "(i) The First

Respondent did not correctly construe s.51(3) of

the National Crime Authority Act 1984. (ii) The

First Respondent's decision was based, at least in

part, on the view that s.51(3) of the National Crime

Authority Act 1984 does not alter the common law."

As to the second decision; "(i) The First

Respondent expressed the view that he could not

uphold the Applicant's claim of public interest

immunity without the grounds of that claim being

disclosed to the Second Respondent. (ii) The First

Respondent refused to read the affidavit relied

upon by the Applicant in support of its claim for

public interest immunity in relation to the

subpoena itself. (iii) The First Respondent failed

to take into account relevant consideration in

consequence of the refusal specified in paragraph (ii).

10. The applicant seeks that the decisions be set aside. The matter is of some urgency, as it would appear that the proceedings are currently held up because the cross-examination of crucial overseas witnesses cannot be completed whilst the question of the availability of this material remains in doubt. It was but faintly argued, and only at the conclusion of the hearing before me, that these proceedings should not be entertained as being an unwarranted interference with the conduct of committal proceedings. (Lamb v. Moss and Anor [1983] FCA 254; (1983) 49 ALR 533; Seymour v. A/G for the Commonwealth of Australia [1984] FCA 329; (1985) 57 ALR 68). The point was not developed in argument. I am of the view that, in this case, the claim for public interest immunity made by the N.C.A. and the question of construction of s 53 of the National Crime Authority Act 1984 renders it appropriate that this Court deal with the matter at this stage.

11. I turn to the first decision. Unfortunately, the parties to this application were unable to agree as to precisely what decision had been made by the second respondent in relation to the immunity claimed by the applicant under s 51(3). Before dealing with this aspect of the argument, I find it convenient to set out the whole of the relevant section. It provides as follows:

"51. (1) This section applies to-

(a) a member or acting member of the Authority; and

(b) a member of the staff of the Authority.

(2) A person to whom this section applies who,

either directly or indirectly, except for the

purposes of this Act or otherwise in connection

with the performance of his duties under this Act,

and either while he is or after he ceases to be a

person to whom this section applies-

(a) makes a record of any information; or

(b) divulges or communicates to any person any

information,

being information acquired by him by reason of, or

in the course of, the performance of his duties

under this Act, is guilty of an offence punishable

on summary conviction by a fine not exceeding

$5,000 or imprisonment for a period not exceeding 1

year, or both.

(3) A person to whom this section applies shall not

be required to produce in any court any document

that has come into his custody or control in the

course of, or by reason of, the performance of his

duties under this Act, or to divulge or communicate

to a court a matter or thing that has come to his

notice in the performance of his duties under this

Act, except where the Authority, or a member or

acting member in his official capacity, is a party

to the relevant proceeding or it is necessary to do so-

(a) for the purpose of carrying into effect the

provisions of this Act; or

(b) for the purposes of a prosecution instituted as

a result of an investigation carried out by the

Authority in the performance of its functions.

(4) In this section-

"court" includes any tribunal, authority or person

having power to require the production of documents

or the answering of questions;

"produce" includes permit access to, and

"production" has a corresponding meaning.

12. As I apprehend it, it was part of second respondents submission before me that the first respondent had, at this stage, merely construed section 51(3)(b) and not embarked upon a determination as to whether the production of the documents called for under the subpoena was "necessary" for the purpose of the prosecution. It was put that a reading of the transcript leading up to and including the first respondent's decision indicated that this ultimate question had been deferred. It has, consequently, been necessary for me to read the quite extensive transcript of submissions and argument that preceded the learned Magistrate's extempore decision on N.C.A.'s claim for immunity under s 53. I have come to the conclusion, not without some hesitation, that his Worship did finally dispose of the claim for immunity under the section. Whilst there was some suggestion in argument that evidence might be required to determine whether the documents sought were "necessary", it sufficiently appears, in my view, that this matter was not left in abeyance but was, in the up-shot, not regarded by the first respondent as a prerequisite to the giving of his decision. Senior Counsel for the second respondent had indicated that he had no instructions which would enable him to adduce any evidence on the question. He put, however, very elaborate, repeated, and apparently definitive submissions on the question of the relevance of the material sought to issues arising in the proceedings.

13. In light of the decision that the learned Magistrate came to on the question of construction of the section, there was, as I see it, no impediment to his making a final decision that it afforded no immunity to the N.C.A. in the circumstances. I am satisfied that this appears sufficiently from what he said at page 52 of the transcript of the hearing of the 17th of October 1989. There is a sufficient indication at that page that his Worship regarded himself as having made an order that the N.C.A. produce the documents, notwithstanding the terms of s 51(3), subject only to the outstanding question whether the N.C.A. could rely upon public interest immunity at common law, this question being reserved for further argument.

14. The question, in this application, so far as the "first decision" is concerned is whether the first respondent erred in his approach to the construction of s 51(3) and in particular of the word "necessary" in that sub-section. There was no dispute that the word "prosecution" did not require that attention be focused only on the requirements of the prosecution case. It was conceded before me, and, it would appear, before the learned Magistrate that the word referred properly to the whole of the proceedings involved in the hearing of the prosecution. It was also conceded that the proceedings were instituted as a result of an investigation carried out by the N.C.A.

15. The question, therefore, before the learned Magistrate was simply whether the production of the documents in compliance with the subpoena was "necessary" for the purpose of the prosecution as so understood. It is clear, from the transcript, that counsel for the N.C.A. submitted to the first respondent the same arguments in this regard as have been put before me.

16. In reliance upon dictionary definitions it was submitted that "necessary" should be construed as meaning "indispensable" or "that cannot be done without." It was submitted that something far more than mere relevance was required to satisfy the sub-section. It was put that an onus was cast upon the second respondent as issuer of the subpoena, to show that the subpoenaed material was indispensable, as being essential to the conduct of this case.

17. His Worship did not accede to this submission. He considered that the word "necessary" must be interpreted in its context. He derived assistance, as I do, from the judgment of Allen J. in State Drug Crime Commission of N.S.W. v. Chapman and Ors (1988) 12 NSWLR 447. His Honour was there required to consider the construction of s 29(3) of the State Drug Crime Commission Act 1985 which, for practical purposes, is identical with s 51(3) of the National Crime Authority Act 1984.

18. In relation to s 29(3) of the State act, his Honour said:

"It follows that I do not accept the fundamental

assumption of the submission made for the Drug

Commission, namely that s 29 (3) is directed

exclusively to the interests of the prosecution

with complete disregard to the normal rights of an

accused person conferred by the common law.

Two questions remain for consideration. One is the

degree of restriction imposed by the word

"necessary". the other is whether it is within the

discretion of the judge or magistrate to inspect

documents in respect of which the statutory

privilege is claimed in order to rule upon the

validity of the claim.

As to the word "necessary" it does not have, in my

judgment, the meaning or "essential". The word is

to be subjected to the touchstone of reasonableness.

The concept is one as to what reasonably is

necessary in a commonsense way. As Pollock CB said

in Attorney-General v. Walker [1849] EngR 223; (1849) 3 Ex 242; 154

ER 833:

"It may be stated as a general rule that those

things are necessary for the doing of a thing which

are reasonably required or which are legally

ancillary to its accomplishment."

I do not consider any closer definition than that

should be attempted. The word speaks for itself."

19. I agree, with respect, that there should be no restrictive definition of the word "necessary" where used in this legislation. It was quite open, in my view, to the learned Magistrate to accept, as he clearly appears to have done, that production of the documents was "necessary" if they appeared sufficiently relevant to the issues raised or to be raised in the proceedings before him. He had heard more than ample argument as to the relevance of the material. I am satisfied that he accepted that the documentary material sought in the subpoena was relevant to the proceedings and that in holding that he was "against the Authority ... on the s 51(3) claim" he was rejecting the N.C.A.'s submission as to the construction of the word "necessary", was upholding the second respondents submissions on construction and was also deciding that sufficient relevance had been demonstrated to warrant rejection of the N.C.A.'s claim to the statutory immunity.

20. I am unable to attach any particular significance the learned Magistrate's use of phrases in his extempore judgment, such as "I am of the view that ... the section was not intended to oust the general law relating to the production of documents on subpoena". I think this statement must be read with an earlier statement in his reasons where he refers to a submission by senior counsel for the second respondent in the words "He submits that "necessary" must be read as relevant and does not in any way cut down the defendants entitlement under the ordinary rules relating to subpoenas, to have documents produced." I consider that his Worship is merely stating that, in his view, the use of the word "necessary" in the sub-section does not impose upon the issuer of the subpoena any requirement of demonstrating an entitlement to the production of the documents over and above what he would be required to demonstrate at common law.

21. I am, consequently, of the view that no error of law has been demonstrated in the "first decision".

22. I turn, then, to the "second decision". After the first respondent had dismissed the claim for immunity under the section, he was asked to consider a claim by the N.C.A. based on the ordinary concepts of public interest immunity. After hearing considerable argument, his Worship dismissed the claim and ordered production of the documents within seven days. This decision was given on the 27th of October 1989. Again it is helpful in considering the decision to have regard to the argument and submissions which preceded it, especially as there is, again, some dispute as to what the learned magistrate was actually being asked to decide. Regrettably, I do not have the benefit of the whole of the transcript of these submissions. It is clear from the transcript of the 27th of October that argument on these matters took place on earlier days in respect of which no transcript has been provided. As the matter is urgent, it is necessary for me to proceed on the basis of what his Worship, in his extempore reasons, set out as being the events and submissions which preceded his decision. It is convenient to set out the relevant passage from those reasons. His Worship, after referring to his rejection of the claim for statutory immunity said:

"Counsel then tendered an affidavit in support of a

claim for public interest immunity by Garry Phillip

Allen sworn on 17 October 1989 and objected to the

contents of the affidavit and the affidavit itself

being disclosed to anyone other than myself. This

course was objected to by Mr McGregor, Counsel for

the defendant Chai. The National Crime Authority

then tendered an affidavit sworn 20 October 1989 by

Gregory Joseph Thomas Cusack, an officer of the

National Crime Authority which had been served on

Chai's solicitors. The affidavit is in the

following terms; Mr Cusack affirms that he is a

member of the National Crime Authority, he's read

the affidavit of Garry Phillip Allen. He's of the

opinion that the matters disclosed in the affidavit

particularly the grounds upon which public interest

immunity is claimed in paragraphs nineteen, twenty,

twenty one, twenty three and twenty five of the

affidavit would prejudice the operations and

effectiveness of the Authority in fulfilling its

statutory functions under the National Crime

Authority Act (1984) Commonwealth as amended. He

therefore claims public interest immunity in

respect of production, in respect of, and that is a

clerical error, it is intended to read "I therefore

claim public interest immunity in respect of the

inspection of the affidavit in respect of the

matters referred to therein."

Counsel for the National Crime Authority again

submitted the affidavit of Mr Allen for my perusal

only. Counsel for the defendant Chai objected to

my reading Mr Allen's affidavit unless his client

was served with a copy. He also submitted that the

affidavit tendered and served was not in the proper

form and was not valid."

23. His Worship then went on to consider a number of authorities relating, for the most part, to the nature and contents of a valid certificate by a Minister of the Crown or other appropriate claimant for public interest immunity in respect of a subpoena. He then concluded as follows: "There are certainly circumstances where the Court might act, where a certificate is not tendered, or on statements from the Bar Table, or purely on its own initiave (sic), where it is apparent, that a claim exists. But I don't consider, that the present circumstances, warrant a claim being upheld, other than upon an affidavit, in proper form, setting out with some particularity, the grounds upon which the claim is based. It is not apparent, from the affidavit of Mr Cusack, that the disclosure of the grounds alone, would per se involve the disclosure of the information in respect of which public interest immunity is claimed. If and when a valid and sufficient certificate is furnished, the Court might then, and then only, appropriately consider, whether there is anything to suggest that the production sought, will be helpful to the Defendant's case, and, if there is, to, then, balance, two public interests. I order that the Subpoena be answered, within seven days ...."

24. It is fairly clear that his Worship's ruling was made in the context that there would certainly be an application made to this Court to test its validity. This is reasonably apparent from a reading of portions of the transcript preceding the giving of the decision, and also from passages occurring immediately after the extempore decision was given. In those passages, his Worship indicates that he does not propose to allow any questioning of witnesses which might "tend to ... disclose the information for which public interest immunity is sought." He goes on, shortly thereafter, to say that he does not regard himself as being in a position to make any other determination in relation to the subpoena ... "until a valid claim has been established."

25. Those passages, and other passages, suggest that it was contemplated by the learned Magistrate and the parties that a further affidavit might be placed before the Court, by the N.C.A. to overcome the deficiencies which his Worship had held to exist in the current affidavit. In a matter as vital as a claim for public interest immunity, especially where claimed in a context of investigation, at an international level of a conspiracy for the importation of narcotic drugs, it is, of course, reasonable that a further opportunity would be allowed by a Court to the Authority claiming the immunity to present further evidence in support of the immunity where there had been some defect in the previous evidence.

26. I must, however, approach this matter on the basis of the ruling that has already been made in respect of the evidence which has been tendered. It is submitted on behalf of the N.C.A. that the ruling is wrong in law insofar as the claim was, at that stage, dismissed because Mr Cusack's affidavit did not indicate the grounds for the claiming of immunity. It is further put that the grounds relied on by the N.C.A. were set out in the affidavit of Mr Allen, to which reference is made in Mr Cusack's affidavit. It is submitted that the learned Magistrate erred in law in refusing to read this affidavit in conjunction with Mr Cusack's affidavit.

27. I am not able, with respect, to ascertain from his Worships reasons precisely why he decided to deal with the N.C.A.'s claim simply on the basis of Mr Cusack's affidavit. it is apparent that he did not read Mr Allen's affidavit although it was tendered to him for the purpose of the application.

28. It appears that it was tendered on the basis that the first respondent would read its contents without their being disclosed to anyone else. It appears from the passage cited above that this course was objected to by Counsel for the second respondent, the issuer of the subpoena. As it appears at least possible that the learned Magistrate may have decided not to have recourse to Mr Allen's affidavit in part because he acceded to this submission. I consider that I should deal with questions which then arise.

29. It is clear that submissions were made before the learned magistrate to the effect that Mr Cusack was not an appropriate person to claim the immunity. Submissions were made, to the effect that only the relevant responsible Minister could make such a claim. This submission does not appear to have found favour with his Worship. It is not made the basis of the rejection of the N.C.A.'s claim. Before me, it was specifically conceded on behalf of the second respondent that Mr Cusack, having regard to his position in the N.C.A. was an appropriate person to make the claim for immunity.

30. I turn, then, to the substantive questions. I firstly make the assumption, which, as indicated above, may be incorrect, that the first respondent has refrained from having regard to the contents to Mr Allen's affidavit, on the basis that it has not been made available to the defence. In my view this would not, an available reason for refusing to consider the affidavit. The affidavit may, itself, contain material, which if disclosed could adversely effect public interest. The very reasons advanced in the affidavit for the non-disclosure of the materials sought in the subpoena may themselves indicate facts the disclosure of which in a public forum might well be inimical to the proper and efficient conduct of the operations of the N.C.A.. Of course they may not; in which case, the Court may well think it appropriate to make the contents available to the defence for the argument of the question of immunity. Such considerations cannot, of course, arise unless the Court has regard to the contents of the affidavit in the first place.

31. The question has been dealt with in an unreported judgment of the Court of Criminal Appeal in the State of New South Wales given on the 27th of May 1982 in the case of Regina v. Bebic and Ors.

32. Samuels J.A., giving the judgment of the Court says (at page 4):

"Mr Mason tendered an affidavit in support of his

claim for privilege. He submitted, however, that

the affidavit should not be placed on the file,

that is to say that it should be read only by the

Court and not disclosed to the party calling, on

the footing that the contents of the affidavit would

or might themselves compromise the claim for privilege.

We had and we still have some doubts about the

propriety of restricting the affidavit in the way

proposed. However, it may well be that that course

is, in certain cases, of which this is one, no more

than a logical extension of the established

practice of the Court inspecting the allegedly

privileged documents itself. See Conway v. Rimmer

[1968] UKHL 2; (1968) AC 910, and Sankey v. Whitlam (1978) 142 CLR 1."

33. His Honour returned to the matter (on page 5), saying "It seems to us that granted that it is now common-place for judges to make a private inspection of documents in order to resolve a claim for privilege (see Conway at 979 and 995-6 and Sankey at 65) it follows that in a proper case the judge may similarly keep to himself the affidavit by which the claim is supported It is a question of public interest which is to be decided separate from the lis between the principal antagonists, in which, in the present case, the party answering the subpoena is not involved."

34. I consider that these statements are of general application. In my view, if the learned Magistrate had debarred himself from considering the contents of Mr Allen's affidavit on the basis that he should not do so unless it was disclosed to the defence in advance of his consideration, then he would have fallen into error. I repeat that, it is not clear that he has done so. He was, however, urged to take this course by Counsel for the second respondent and, in those circumstances, I have felt it appropriate to deal with the questions in the way that I have.

35. If he has not done so then, it would appear, as a matter of logic, that he has refused to have regard to the contents of the affidavit because it has been made by a person who, it is conceded, was not himself in a position to make a claim for immunity on behalf of the N.C.A.. That claim has been made by Mr Cusack in his affidavit, Mr Cusack being a person who, it is conceded, had the necessary authority to do so. The learned Magistrate has clearly rejected the claim of public interest immunity at this stage on the basis that Mr Cusack's affidavit, to which he has had regard, does not in itself indicate sufficient grounds within the meaning of the authorities. It seems to me that the question devolves itself simply into one of whether Mr Cusack's reference to the grounds as being set out in the affidavit of Mr Allen, which affidavit is sought to be tendered in secret by the N.C.A., is sufficient to require that the Magistrate have regard to that affidavit to determine whether grounds for the claiming of immunity have been made out. Conversely, is it an error of law on the part of the learned Magistrate to have refused to accept the tender of that affidavit, for the limited purpose of himself alone considering its contents, after Mr Cusack, in his affidavit, has referred to certain paragraphs of Mr Allen's affidavit as, in effect, providing the grounds upon which the immunity is claimed.

36. Although the absence of transcript prevents me from being entirely certain, it is tolerably clear from information supplied from the bar table, that Mr Cusack's affidavit was introduced into the case to overcome problems resulting from objections properly taken to the standing of Mr Allen to claim public interest immunity on behalf of the N.C.A.. Mr Allen, it appears, is a solicitor in the employ of the N.C.A. without necessary executive status for the making of any such claim. Mr Cusack who, it is acknowledged, has such status,in his affidavit makes a claim for immunity in respect of inspection of Mr Allen's affidavit and "in respect of the matters referred to therein." This latter phrase is very elliptical. It is reasonable, however, in the general context of these proceedings, to read it as referring to claims, presumably made in that affidavit, to immunity from production and inspection of the documents sought in the subpoena.

37. Do the contents of Mr Cusack's affidavit require that the learned Magistrate have regard to the contents of Mr Allen's affidavit for the purpose of determining the claim for public interest immunity made in respect both of that affidavit and of the documents subpoenaed? Does his current refusal to do so amount to an error of law attracting review by this court?

38. The affidavit is certainly very meagre. It indicates quite clearly that Mr Cusack has read Mr Allen's affidavit. The learned Magistrate, was and is, therefore, in a position to accept that Mr Cusack has formed a view as to the existence of grounds warranting a claim for public interest immunity in respect of that affidavit. Mr Cusack, however, does not state in his affidavit that he has, himself, examined or considered the material sought in the subpoena. He has, therefore, provided no information to the Magistrate that he has, as the officer responsible for claiming public interest immunity in that material, turned his mind to the actual material itself or to the form of answer that should be given to the subpoena.

39. In these circumstances, the first respondent has clearly taken the view that there has not been placed before him, in acceptable form, by an appropriate person, a sufficiently clear claim for immunity. He has come to that view after a careful consideration of the relevant authorities. I consider it to be clear from his judgment that he has proceeded on the basis that without any such clear claim being made by such a person, he should not embark upon a reading of a supporting affidavit merely, as it were, to eke out a claim not properly made by the person who should make it .

40. I have considered the cases of high authority, which were also considered by the first respondent. I am satisfied that those authorities support the Magistrate's view. In particular the passage from the speech of Lord Wilberforce in Burmah Oil Co. v. Bank of England [1979] UKHL 4; (1980) AC 1090 at 1108 referred to in his Worship's judgment provides clear warrent for the approach he has taken.

41. Accordingly, I am satisfied that no reviewable error of law has been demonstrated in his Worship's "second decision". Even if it be the case that he has fallen into the error discussed previously, his decision not to accept Mr Allen's affidavit is supportable for the reasons just referred to. It would seem appropriate, however, that an opportunity be given to the N.C.A. to place further evidence before the Magistrate in support of its claim for public interest immunity. If, indeed, the public interest would be adversely affected by the production of the documents sought, or even by some limited response to the subpoena then it is, in every respect, highly desirable that this matter be determined by the Magistrate. Indeed, as I have said, it would appear from the transcript that he envisages some subsequent application in this regard.

42. At this stage, however, I find that no error of law has been demonstrated in the first respondent's decisions. Accordingly I make the following order:

1. The application is dismissed.

2. The applicant is to pay the respondents costs.