we ees —_- te abhstlie a *470 Administrative law - Judicial review - decisions of maaqistrate Made im course ot preliminarv hearing - revocation ot letter of request issued by Court of Pettv Sessions - order that documents obtained be returned to Hong Kong - power of Court of Pettv Sessions to issue letter of request - whether issue of letter of request a procedural matter - power ot Court of Pettv Sessions to regulate own procedures - whether issue of letter of request adjectival or substantive - form of letter of request - application ex parte - evidence taken without notice to defendants - use of letter of request procedure to obtain documents - whether documents obtained pursuant to letter of request admissible - whether decisions of magistrate administrative or judicial Administrative Decisions (Judicial Review) Act 1977 3.5 Supreme Court Act 1935 (WA) Part III Evidence Act Amendment Act 1974 (WA) Hong Kong Evidence Ordinance ss.75, 76, 77, 77B JAMES KENNETH PARSONS, IAN STEPHEN JAMES, PATRICK REDMOND McCARTHY v. IAN GEOFFREY MARTIN, IAN McKENZIE MURCHISON, PETER HUGH LLOYD, PETER D'ARCY CLARKE, DAVID JOHN GERMAIN, JOHN MICHAEL GILLON, ROBIN DAVID HUSTON, JOHN ARTHUR PRIDEAUX (REX) BOYDEN, ROGER JAMES HUNTINGDON No. WA G80 of 1984 BOWEN C.J., NORTHROP & TOOHEY JJ. PERTH 34 DECEMBER 1984 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION JUDGES MAKING ORDER : DATE OF ORDER WHERE MADE No. WA G80 of 1984 —_ ee ww ON APPEAL from the Federal Court of Australia BETWEEN: JAMES KENNETH PARSONS First Appellant TAN STEPHEN JAMES Second Appellant PATRICK REDMOND McCARTHY Third Appellant and IAN GEOFFREY MARTIN First Respondent IAN McKENZIE MURCHISON Second Respondent PETER HUGH LLOYD, PETER D'ARCY CLARKE, DAVID JOHN GERMAIN, JOHN MICHAETL GILLON Third Respondents ROBIN DAVID HUSTON Fourth Respondent JOHN ARTHUR PRIDEAUX (REX) BOYDEN, ROGER JAMES HUNTINGDON Fifth Respondents Q R D E R Bowen C.J., Northrop & Toohey Jd. 14° December 1984 Perth THE COURT ORDERS THAT: 1. The appellants' appeal is dismissed. 2. The second respondent's cross-appeal is dismissed. 3. The appellants pay the second and third respondents' costs of the appeal. 4. There be no order as to the costs of the second respondent's cross-appeal. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G80 of 1984 ON APPEAL from the Federal Court of Australia BETWEEN: JAMES KENNETH PARSONS First Appellant IAN STEPHEN JAMES Second Appellant PATRICK REDMOND McCARTHY Third Appellant and IAN GEOFFREY MARTIN First Respondent IAN McKENZIE MURCHISON Second Respondent PETER HUGH LLOYD, PETER D''ARCY CLARKE, DAVID JOHN GERMAIN, JOHN MICHAEL GILLON Third Respondents ROBIN DAVID HUSTON Fourth Respondent JOHN ARTHUR PRIDEAUX (REX) BOYDEN, ROGER JAMES HUNTINGDON Fifth Respondents CORAM: BOWEN C.J.. NORTHROP & TOOHEY JJ. 19 December 1984 REASONS FOR JUDGMENT THE COURT This appeal raises important questions concerning the power of a Court of Petty Sessions to issue a letter of request 2. and the procedures to be followed when such a letter 1s issued. The matter came before a ludqe of this Court on an application under the provisions of the Administrative Decisions (Judicial Review) Act 1977. In that application a challenge was made to decisions made by the first respondent, Mr. I.G. Martin S.M., 1n the course of committal proceedings against the second respondent, Mr. Murchison. The appellants are federal police officers and they are complainants in charges made against the second, third, fourth and fifth respondents for breaches of the Banking (Foreign Exchange) Regulations. The first and second appellants are complainants in the charges against the second and third respondents. The third appellant is the complainant in all charges against the fourth and fifth respondents save for one charge against Mr. Huston in which Mr. Parsons is the complainant. There were three charges against Mr. Murchison. Complaint No. 09030, brought by Mr. Parsons, alleged a breach of reg. 41 of the Banking (Foreign Exchange) Requlations. Complaint Nos. 11908 and 11911, brought by Mr. James, alleged a breach of reg. 40 of those regulations. After complaint No. 09030 had been made but before any summons was served on Mr. Murchison, Mr. Parsons sought and obtained from the Court of Petty Sessions in Perth a letter of request addressed to the "Competent Judicial Authority in the British Crown Colony of Hong Kong". It will be necessary to look closely at the terms of the letter of request but, at this stage, 3. 1t 1s enough to note that 1t referred to criminal proceedings unstituted 1n the Court of Petty Sessions in which the second, third, fourth and fifth respondents (all named) were involved. On the same day, 20 September 1983, the Court of Petty Sessions also issued a letter of request to the "Competent Judicial Authority of the Republic of Singapore", again referring to criminal proceedings instituted against the second, third, fourth and fifth respondents. The application under the Judicial Review Act was expressed to be one to review decisions of the first respondent made on 27 July 1982, while sitting as a stipendiary magistrate in the Perth Court of Petty Sessions and conducting a preliminary hearing with respect to the complaints made by the first and second appellants against the second respondent. The decisions sought to be reviewed were expressed in these terms: "1. Revoked a Letter of Request dated 20th September 1983 and issued out of the Perth Court of Petty Sessions to the High Court in Hong Kong. 2. Directed that the documents obtained pursuant to the Letter of Request issued to the High Court in Hong Kong be returned to the Clerk of the Perth Court of Petty Sessions to be retained by the Court until their return to the Court in Hong Kong. 3. Refused to allow the Applicants to rely upon copies of certain documents obtained pursuant to the said Letter of Request. 4. Consequentially declined to permit certain evidence to be given by an officer of the Hong Kong and Shanghai Banking Corporation. 5. Stayed a Letter of Request dated 20th September 1983 and issued out of the Perth Court of Petty Sessions to the Supreme Court in Singapore". Before this Court objection was taken by counsel for the second and third respondents that the tissues raised by the appellants were entirely moot or academic and that this Court should not entertain the appeal. The basis of the objection was in part that committal proceedings against the second respondent had been completed and he had been discharged, there being no challenge made or pending to the dismissal of the charges against him. As to the third respondents, it was said that no committal proceedings have commenced against them and that 1f there are such proceedings and an attempt is made to make use of evidence obtained in Hong Kong pursuant to the letter of request, that will be the appropriate time to consider the reception of that evidence. There was no appearance on behalf of the fourth and fifth respondents; no committal proceedings have yet commenced against them. In view of the objection to competency, it 1s as well to note the grounds upon which it was said in the application that the appellants were aggrieved by the decisions made by the first respondent. They were: "l. The Applicants have been unable to adduce proper evidence in the proceedings in which the decisions are made. 2. The Applicants will be unable to adduce proper evidence in proceedings against the Third Respondents listed for 5. preliminary hearing in the Perth Court of Petty Sessions commencing 20th Auqust 1984, 3. The Applicant will be unable to adduce proper evidence in the proceedings against the Fourth and Fifth Respondents listed for mention in the Perth Court of Petty Sessions on 2nd November 1984". The physical availability of material obtained in Hong Kong and Singapore is maintained for future use because the primary judge ordered that the documents obtained pursuant to the letters of request "be retained in the custody of the Perth Court of Petty Sessions". There was no appeal from that part of his Honour's judgment. There are good reasons why this Court should entertain and deal with the appeal. The appellants invite the Court to do so, in part in order to clarify the position of prosecuting authorities seeking to obtain evidence outside Australia and also to rebut a suggestion that in obtaining the letters of request senior Commonwealth legal officers may have acted in abuse of process of the Court. These are important matters, no doubt, but unless there is a live issue it would not be appropriate for this Court to deliver a judgment that was no more than an advisory opinion. But the committal proceedings against the third respondents (and for that matter against the fourth and fifth respondents) remain to be heard. It is true that any question of the admissibility of material obtained in Hong Kong must be a matter for the judgment of the stipendiary magistrate before whom the committal proceedings take place. But if the Court of Petty Sessions lacked power to issue a letter of request, this Court a should say so. Whether the Court should also say whether it is at ail open to the prosecution to adduce evidence in the form of documents obtained pursuant to the letters of request, even if there be power to issue such a letter, is another matter. The appellants and the second and third respondents were parties to the application under the Judicial Review Act and they are parties to this appeal. The determination by this Court of the issues raised by the appeal will not be moot or academic. It is apparent that the prosecution will seek to use the material from Hong Kong against the third respondents in the course of committal proceedings and, the matter having progressed this far, i1t is desirable in the interests of time and cost that this Court express a view on certain matters likely to be raised before the stipendiary magistrate, in so far as those matters were the subject of the application to this Court. In revoking the letter of request, which had been issued by one of his brother magistrates, the first respondent was very critical of the way in which the order for the issue of letters of request had been obtained. Any suggestion that the learned magistrate who issued the letter of request was misled by the appellants' legal representative 1s not well founded. From material placed before the primary judge it 1s apparent that the magistrate was told at the outset that there was no statutory or common law authority for the application then before the court and that the prosecution relied upon an "inherent jurisdiction" in the court to issue a letter of request. The prosecution was acting on the advice of 7. independent counsel. It is apparent that the magistrate was concerned that the application before him was made ex parte. The leaqal representative put to him the analoay of the procedure for a search warrant, arquing that the procedure proposed did not involve direct action against a defendant but was part of the investigation being pursued by the prosecution. The validity of that proposition 1s another matter but we do not think it can be said that the learned magistrate was misled in any way by the prosecution. At a later stage the question of the power of the court to issue the letters of request was fully argued by counsel for the prosecution and counsel for the second respondent. This was in the context of an application by the second respondent that the letters of request should be revoked, a course which the magistrate declined to take. However in the course of committal proceedings before the first respondent, Mr. Martin S.M. had no hesitation in revoking the letter of request addressed to the authorities in Hong Kong. He did so primarily on the ground that there was no power in the Court of Petty Sessions to issue the letter. He was critical of the way in which the application for the issue of the letter had been brought before his brother magistrate, of the way in which the evidence was obtained in Hong Kong and of the fact that the material placed before the court in Hong Kong was transmitted, not to the Court of Petty Sessions in Western Australia, but to the prosecutor. 8. In addition to revoking the Hong Kong letter of request, his Worship directed that the documents obtained pursuant to 1t be returned to the Clerk of the Perth Court of Petty Sessions to be retained by the court until the return of the documents to Hong Kong. His Worship declined to allow the appellants to rely upon copies of certain of the documents obtained pursuant to the letter of request. It should be made clear (and this matter will be developed later in these reasons) that the prosecutor did not seek to adduce the documents in evidence by reason of their transmission to Western Australia pursuant to the letter of request. The prosecutor proceeded on the basis that there was available certain documentary material which, if to be adduced on behalf of the prosecution, had to be adduced in the ordinary way. In other words the prosecution accepted the onus of identifying the written material, demonstrating its relevance and satisfying the Court that it should be tendered through the evidence of a particular witness. It would appear from the transcript of proceedings before Mr. Martin S.M. that some documents had been transmitted from Singapore pursuant to the letter of request addressed to the authorities in that country. After some debate his Worship commented: "Then we stay any action with regard to the letter of request addressed to the court of Singapore". The application for review identified the decision made by his Worship in that respect as a decision to "Stay" the letter of request. Strictly speaking, what his Worship stayed was any proceedings under that letter. The documents were already in Western Australia. As alreadv mentioned, the primarv fudge ordered that the documents obtained pursuant to the letters of request be retained in the custody of the Perth Court of Petty Sessions. Those documents remain with the court until further order. His Honour also ordered that, subject to all objections and exceptions as to relevance and admissibility, the applicants be permitted to rely upon the documents in the proceedings against the third, fourth and fifth respondents. Otherwise the application was dismissed. In practical terms this meant that the decision of Mr. Martin S.M. revoking the letter of request addressed to Hong Kong, his decision to refuse to allow the appellants to rely upon copies of certain documents in proceedings against the second respondent and his decision staying the letter of request addressed to Singapore stood. The first and primary question in this appeal is whether the Court of Petty Sessions had authority to issue the letter of request to Hong Kong. An answer to that question will also determine the authority of the court to issue a letter of request to Singapore. There is no statute empowering a Court of Petty Sessions to issue a letter of request. The Evidence Act Amendment Act 1974 (WA) introduced a number of sections under the heading "Summary Procedure for Examination of Witnesses otherwise than at a 10. hearing". The amending legislation was expressed to come into operation on a date to be fixed bv proclamation; no date has ever been fixed. Those sections contained procedures whereby in circumstances where "a court... in Western Australia is authorized bv or umder any Act or law to authorize or order evidence to be taken otherwise than at the hearing of the legal proceedings in respect of which the evidence is required", the court might request a "corresponding court" (being a court declared by notice under the hand of the Attorney General) to order the examination of a witness or the production of documents. Provision was made for the receipt of depositions from a corresponding court and the reception of depositions and documents in evidence. But, as appears from 5.110 of the amendments, before this procedure may be invoked it is necessary that the court be authorised "by or under any Act or law" to authorise or order evidence to be taken otherwise than at the hearing of the legal proceeding. In the view we have taken, a Court of Petty Sessions is not authorised by or under any Act or law so to authorise or order evidence to be taken. The procedure of Courts of Petty Sessions in Western Australia is qoverned by the provisions of the Justices Act 1902. Section 68 of that Act requires that every defendant "shall be admitted to make his full answer and defence to the charge, and to have the witnesses examined and cross-examined by his counsel or solicitor". Sub-section 69(1) reads: "Every witness shall be examined upon oath, or in such other manner as 18 prescribed or allowed by the Acts in force for the time being in relation to giving evidence in Courts of Justice". abe ll. It was not suggested that there was any "other manner" prescribed for Courts of Petty Sessions. In relation to a preliminary hearing, s.102 requires the justices to "examine all the witnesses called by the prosecution" and there is nothing in the Act which either authorises the issue of a letter of request or the reception of evidence obtained in another country except in the manner provided by the Act. Section 96 of the Act empowers the Governor to make regulations "for carrying out this Act". It was not suggested that any regulations had been made relating to the taking of evidence outside Western Australia. Before the primary judge it was contended by the present appellants that Mr. Martin S.M. fell into error by confusing the jurisdiction of the Court of Petty Sessions with the power of the court to regulate its own procedure. As part of that submission, the appellants argued that specific statutory authority to issue a letter of request was not necessary because the Court had an inherent power to regulate procedural matters and the issue of a letter of request was of a procedural nature. That submission was repeated before this Court and in addition counsel for the appellants arqued that the issue of a letter of request does not of itself involve any consequences to the party against whom it is sought because the foreign court may not accede to the request and, even 1f 1t does, the material produced (whether oral lz. testimony or documents) 1s not ipso tacto admissible in the request in court. That arqument was rejected by the primary judae who said: "I, for myself, cannot see how issuing a letter of request in the terms of the letter of request which was in fact sent to the High Court of Honaq Kong ... can be said to be requlating the procedure of the court". The Court of Petty Sessions is of course a creature of statute. So too 1s the Supreme Court of Western Australia though 1ts jurisdiction, as spelled out in Part III of the Supreme Court Act 1935, is largely tied to the turisdiction of the superior courts in England as at 1861. In 1ts strict sense the term "jurisdiction" means: "\.. the authority which a court has to decide Matters that are litigated before it or to take coanisance of matters presented in a4 formal way for its decision". (Halsbury's Laws of England 4th Ed. Vol. 10 para 715). The expression "inherent jurisdiction" has come to be used, not s0 much to refer to the authority of the court to decide matters before 1t but rather to describe the power which a court mav have. independent of statutory authority, express or implied. In Australia , with its Federal system, there is in truth no court of unlimited jurisdiction though the term continues 13. to be used. Thus in Walsh v. Giumelli (1975) WAR 114 at p.116 the Full Court referred to the turisdiction, powers and authority of Magistrates sitting in Pettv Sessions and said: "But their jurisdiction 1s statutory, and thev have no inherent jurisdiction such as is possessed by superior courts of unlimited jurisdiction". In Smith v. Brown (1978) WAR 157 at p.159 Burt C.J. reiterated: "The jurisdiction of courts of petty session 1s entirely statutory. They have no inherent qurisdiction". In Rv. Forbes; Ex parte Bevan (1972) 127 CLR 1 at p.7 Menzies J. spoke of inherent jurisdiction as "the power which a court has simply because 1t 185 a court of a particular description". He added: "Inherent jurisdiction 1s not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision 1s to be considered as conferring more than 1s actually expressed that further jurisdiction 1s conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as 'imherent jurisdiction', which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have 'inherent Jurisdiction' ". In our opinion a court exercising jurisdiction conferred by statute has powers expressly or by implication conferred by the legislation which governs it. This is a matter of statutory 14. construction. We are of opinion also that it has in addition such powers as are incidental and nmecessarv to the exercise ot the qurisdiction or the powers so conferred. In view of the wav in which the phrase "inherent jurisdiction" is used in manv ot the cases, 1t seems advisable qaenerallyv to avoid the use of it to refer to this incidental and necessary power of a statutory court. It would not be right to say that, because it is a court of limited jurisdiction, a Court of Petty Sessions has no power to regulate its own procedures. But the submission of the appellants that if a matter is not truly one of jurisdiction 1t must be one of procedure and within the competence of the court to regulate goes too far. The relevant distinction for present purposes is not between jurisdiction on the ome hand and procedure on the other but rather between matters of substantive law and adjectival law, a distinction adverted to by Wickham J. in Sparks v. Bellotti (1981) WAR 65. His Honour said at pp.68-69: "The jurisdiction of a court to hear and determine in respect to subject matter, parties and territorial limits, and in respect to the substantive law to be applied, 1s to be distinguished from the manner in which that jurisdiction may be exercised. ... Where, however, the enabling statute, or rules or regulations lawfully made thereunder, is silent as to adiectival or procedural matters - that 1s the manner of the exercise by the court of its duties and powers - then the court has an unexpressed power to control its procedures". 15. Whether a matter 1s truly adjectival may not always be capable of ready determination. We do not regard the issue of a letter of request as merely adjectival. Ina very real sense it seeks to extend the power of the court beyond its territorial jurisdiction even though it mav be that the letter of request does no more than ask the court of another country to exercise its power to require persons to attend before 1t, give evidence and produce documents. Counsel have not been able to point to any instance of a Court of Petty Sessions, in the absence of statutory authority, issuing a letter of request for the taking of evidence in another country. The provisions of the Justices Act to which reference has already been made (ss.68, 69, 102) emphasise that evidence in Courts of Petty Sessions is through witnesses who appear before the justices. The power to receive a written statement in committal proceedings is limited to the circumstances mentioned in sub-s.69(2) of the Justices Act. In R v. Keystone Fisheries Limited (1955) 15 WWR 307, Williams C.J.Q.B. held that the Court of Queens Bench in Manitoba had and alwavs had inherent jurisdiction to order the issue of letters of request in aid of its commissions to take evidence. At p.310 he said: "The issue of letters of request is a matter of procedure. They are issued in aid. There may be no need to resort to them, but if there is they are instantly available and, if 16. recoanized by the foreiqn court, delav and expense will be avoided". An appeal from that decision was dismissed. See R. v. Keystone Fisheries Limited (1955) 17 WWR 255. In his treatise Evidence in Trials at Common Law, Professor Wigmore, referring to letters of request or letters rogatory, said at para 2195a: "Although the power today is frequently expressed in statutes, it should not be doubted that any domestic court has inherent power at common law to issue and to honour letters rogatoryv". Despite the generality of this statement, it seems clear enough that, at least in England and Australia, courts of petty sessions have not issued letters of request. In Smyth v. F.S. Brunning Proprietary Ltd (1913) VLR 280 Cussen J. held that the Evidence Act 1890 of Victoria did not authorise a judge of the Supreme Court to order the issue of a letter of request, ina county court action, for the examination of witnesses abroad. His Honour later held (Smyth v. F.H. Brunning Proprietary Limited (No. 3) (1913) VLR 362) that, on the removal of the action into the Supreme Court, that Court had jurisdiction to order the issue of letters of request. It appears from those decisions that there was no suagestion that the county court might, without statutory authority, itself issue a letter of request. In England there is statutory authority for the High Court to issue a letter of request for the purpose of proceedings 17. 2m a county court (County Courts Act 1959 sub-s.85(1)). This assumes an absence ot power in the county court itself. In our view there was no power inthe Court ot Pettv Sessions to issue the letter of request to Hong Kong or, for that matter. to Singapore. There was no express power to do so, there was no implied power to do so, there was no incidental power to do so and the issue of a letter of request, at least 1n the case of a Court of Petty Sessions, goes beyond the mere regulation of its own procedure. Having reached that conclusion, 1t may be said that it 1s unnecessary to consider the form of letter of request, the circumstances 1n which evidence was adduced and documents produced in Hong Kona, the manner of transmission of that evidence and those documents to Western Australia and the use sought to be made by the appellants of that material before the Court of Petty Sessions. But 1t 1s necessary to deal with these matters because of a submission by the appellants that, notwithstanding any lack of power in the court to issue the letter of request and whatever irreqularities there may have been in the execution of the letter, documents did arrive in Western Australia which the appellants were entitled to adduce in evidence, subject only to ordinary rules concerning admissibility. Part VIII of the Hong Kona Evidence Ordinance 15 entitled "Evidence for Proceedings in Other Jurisdictions". Section 75 of the ordinance provides that where an application 1s made to the Hiagh Court for evidence to be obtained in Hong Kong 18. and the court is satisfied that the application 1s made in pursuance of a request issued by or on behalf of a court exercising jurisdiction in a country outside Hong Kong and that the evidence is to be obtained for the purposes of civil proceedings which either have been instituted before' the requesting court or whose institution before that court is contemplated, the High Court shall have the powers conferred on it by Part VIII. Sections 76 and 77 give the court such power as is appropriate for the purpose of giving effect to the request, subject to certain safeguards to the person whose evidence is sought. Section 77B imports the provisions of ss.75, 76 and 77 where evidence 1s sought for the purposes of criminal proceedings save that proceedings must have been instituted and no order may make provision otherwise than for the examination of witnesses or the production of documents. The letter of request issued out of the Perth Court of Petty Sessions to Hong Kong recites that criminal proceedings have been instituted in the Court of Petty Sessions against the respondents for breaches of the Banking (Foreign Exchange) Requlations, that the criminal proceedinas are not of a political character; that it has been represented to the court that it is necessary for the purposes of justice and for the due prosecution of the respondents; that those named in the schedule should be ordered to produce documents and be examined as witnesses; and that the documents and witnesses appear to be within the jurisdiction of the competent judicial authority 1n Hong Kong. 19. The letter then requests that authority to summon the witnesses to be examined and to cause their evidence and all documents produced upon examination to be transmitted to the Court of Petty Sessions in Western Australia. Attached to the letter of request 1s a lengthy schedule containing a statement of facts and identifying a number of companies and the information sought from then. The letter of request 1s in common form and not, we think, open to objection by reason of its terms. However, it 1s apparent from the procedures followed on behalf of the appellants and from what their counsel said during the hearing of this appeal, that the appellants at no time intended to use the letter of request in the accepted way. In particular they did not seek, before the High Court of Hong Kong, to adduce evidence and to secure the production of documents through witnesses with a view to having that evidence, oral and documentary, transmitted to the Court of Petty Sessions as evidence in the committal proceedings, subject to all proper objections. What the appellants sought to do by means of the letter of request, as their counsel freely acknowledged, was no more than to obtain the production of documents (1n fact copy documents), not for transmission to the Court of Petty Sessions as evidence but simply to secure their production in Western Australia. This was offered as the Justification for making an ex parte application for the issue of the letter of request and for not informing the respondents of the taking of evidence in Hona Kona. 20. In our view this was an improper use of the letter of request procedure. We use improper, not in any pejorative sense because the appellants did not seek to conceal from the Court of Petty Sessions, or it would appear, from the court in Honda Kong what their intentions were. But it was improper in the sense that it was not within the scope of the procedure envisaged by the letter of request. The whole procedure was seen by the appellants as part of their investigations and the assembling of material as a result of which a decision would be taken as to the evidence to be adduced before the Court of Petty Sessions. That is not the purpose of a letter of request and this letter should not have been used in that way and for that purpose. It is arguable that the appellants were not bound to give notice to the respondents of their intention to make application for the issue of a letter of request. See the remarks of Gibbs J. (as he then was) in Hardie Rubber Co. Pty. Ltd. v. General Tire and Rubber Co. (1971-1973) 129 C.L.R. 521 at p.54l. But 1t was entirely inconsistent with the purpose of a letter of request and the manner of its execution that the appellants should have proceeded before the High Court of Hong Kong without notice to the respondents. In so far as the notice of appeal seeks orders and declarations that the issue of the letter of request was not unauthorised or beyond power, the appeal must be dismissed. The matter is complicated by the challenge to the decision of Mr. 21. Martin 5.M. in which he refused to allow the appellants to rely upon copies of certain documents obtained pursuant to the letter of request and declined to permit evidence to be qiven bv an officer of the Hong Kong and Shanghai Banking Corporation relating to those documents. The view of the primary judge was that it would not be a proper exercise of the discretionary jurisdiction of the Federal Court under the Judicial Review Act to interfere with the exercise of a discretion reposed in the Court of Petty Sessions, particularly in the area of the admissibility of evidence arising during the course of a preliminary hearing. His Honour commented: "How his discretion to exclude evidence that has been obtained improperly in the sense that it was unauthorised is to be exercised, 15 amatter for him, and only in the most exceptional circumstances, of which this is not one, would such a discretion be reviewed by the Federal Court under the Act". In so far as the second respondent is concerned, that is no longer a live issue. The committal proceedings against him have come to an end. It would be open to the Attorney General to proceed against him by ex officio indictment but in that event quite different considerations would arise. So far as the other respondents are concerned, there 1s the order of the primary judge that, subject to all just objections and exceptions as_ to relevancy and admissibility, "the Applicants be permitted to rely upon documents in the proceedings against the Third Respondents, the Fourth Respondent and the Fifth Respondents". 22. This Court is concerned with an appeal from the i1udqment of the primary judge not from the judgment of the stipendiary Magistrate except to the extent that the former atfirms the latter. The appellants have not directly challenged the particular order made by the primary ludge. However the notice of appeal relates inter alia to that part of the judgment whereby the primary judde: "(2) Held that there existed a discretion to exclude evidence obtained by means of the letter of request and that there was no basis for interfering with the decision of Mr. Martin S.M. to exclude such evidence; (3) Accordingly, dismissed with costs, the applications of the Appellants for orders to quash the following decisions of Mr. Martin S.M.: (a) His decision to refuse to allow the Appellants (Applicants) to rely upon copies of documents obtained pursuant to a letter of requst directed to the High Court of Hong Kong. (b) His decision to decline to permit certain evidence to be given by an officer of the Hong Kong and Shanghai Banking Corporation. (c) His decision to stay a letter of request issued out of the Perth Court of Petty Sessions to the Supreme Court of Singapore". The grounds of appeal assert that his Honour was wrong in law and in fact in holding that there existed any basis for the magistrate to exclude the evidence obtained by means of the letter of request procedure and that he should have held that there was no discretion to exclude that evidence or alternatively that there was no proper basis for 1ts exclusion. 23. The relief sought by the notice of appeal includes orders and declarations that the decision of Mr. Martin S.M. whereby he refused to allow the appellants to rely upon copy documents obtained pursuant to the letter of request be set aside; that his decision declining to permit evidence to be given by an officer of the Hong Kong and Shanghai Banking Corporation be set aside; and that there existed no basis for excluding that evidence from the preliminary proceedings. Even it this Court agreed with the submissions made in support of these grounds of appeal, there is nothing to be gained by granting the relief sought. That relief relates directly to the committal proceedings against the second respondent, which proceedings have now been terminated. It may be said that, in view of the committal proceedings pending against the other respondents, this Court should express a view as to the approach to be taken by any other magistrate before whom such proceedings should be heard, it being assumed that it will be someone other than Mr. Martin S.M. We do not think this Court should do so. Unless and until the prosecution seeks, in other committal proceedings, to adduce evidence relating to the documents obtained from Hong Kong and the documents themselves, objection is taken to that evidence and the Magistrate has ruled on the objection. this Court does not know what issues are likely to arise. 24. We do not wish to be taken as agreeing with the view expressed by the first respondent that there was on the part of the appellants an abuse of the process of the Court of Petty Sessions and a contempt of that court. Nor does it follow that any proposal in further committal proceedings to rely upon the copy documents obtained from Hong Kong should necessarily be determined in accordance with the principles enunciated by the High Court in Bunning v. Cross (1977-1978) 141 CLR 54. Counsel for the parties did not contend that this decision had direct application in the present case. Counsel for the respondents was content to argue that the primary judge had correctly approached the matter of the discretion available to the magistrate to exclude the evidence sought to be adduced. He also drew attention to the remarks of Brennan J. in Baker v. Campbell (1983) 57 ALJR 749 at p.772. Referring to the admissibility of a document seized under search warrant, being a document brought into existence solely for use in litigation, his Honour said: "The tender of such a document in evidence should be rejected not so much because it affects the interests of the person entitled to the privilege, but because it subverts the Court's procedure for conducting adversary litigation ... But there is no consideration favouring the admission of evidence if its admission subverts the Court's procedure for conducting adversary litigation. Ordinarily, the admission of evidence serves the public interest by enhancing the Court's capacity for determining the controversy before it. Where that capacity 1s impaired by the admission of evidence, there is no public interest favouring its admission". Aqain, the application of the principle expressed by Brennan J. must depend upon the circumstances in which and the 25. manner by which the prosecution attempts to rely upon the material obtained from Hong Kong. It would be premature for this Court to express a view on the principles to be applied. In all the circumstances, the appropriate order is that the appeal be dismissed. There 18 a cross-appeal by the second respondent challenging that part of the judgment of the primary judge overruling the second respondent's objection to the Jurisdiction of the Federal Court to entertain the application brought by the appellants under the Judicial Review Act. The basis of this challenge was that the Federal Court had no jurisdiction to entertain, under the Judicial Review Act, a decision which, it was said, was not of an administrative character but was a decision made by a magistrate in the exercise of the judicial power of the Commonwealth. Mr. Heenan acknowledged that in view of Lamb v. Moss (1983) 49 ALR 533 and other authorities it would be difficult for him to sustain this ground. But he wished to keep it open for possible argument in the High Court. In the circumstances the Court need do no more than acknowledge the weight of existing authority and dismiss the cross-appeal. | certify that this and the QU preceding pages are a true cony of the reasons for judgment herein of the Court AX ) pT Nn, cit Dated 14 12 SY