al JUDGMENT No. tn CATCHWORDS ADMINISTRATIVE LAW - judicial review - decision of justice to issue search warrant under Crimes Act (Cth), s.10(1) - whether reviewable error. CRIMINAL LAW AND PROCEDURE - search warrants - issue of search warrant under Crimes Act, s.10(1) - issue to officer of Australian Federal Police seconded to National Crime Authority - whether officer a "constable" within the meaning of s.10(1) - whether warrant may issue under s.10(1) to a member of the staff of the National Crime Authority. CRIMINAL LAW AND PROCEDURE - search warrants - construction - books and records authorised to be seized - whether sufficiently identified. DISCOVERY AND INTERROGATORIES - Federal Court - judicial review proceedings - decision of justice, if satisfied by information on oath, to issue search warrant - allegedly no evidence to support decision - some information on oath allegedly supplied to justice orally - whether discovery and interrogatories appropriate. Crimes Act 1914, s.10(1) National Crime Authority Act 1984, ss.11, 12(1), 12(4), 22, 47(1), 48, 49, 51(1), 51(¢2) Australian Federal Police Act 1979, ss.8(1), 33(6), 33(7) WAYNE RYDER & ORS. v. THEODORE RICHARD MORLEY & ORS. NO. WAG 12 OF 1987 CORAM: FOX, JENKINSON AND WILCOX Jd. 9 SEPTEMBER 1987 PERTH Fe tee ' a) Jo 4 * oo Bw tor re rene eee ewe egies ee veer IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION ) ) ) No. WAG 12 of 1987 ) ) ) ) ON APPEAL from a single judge of the Federal Court of Australia BETWEEN: WAYNE RYDER, EVELYN AMY RYDER, W. RYDER & CO., THOR NICKEL EXPLORATION PTY. LTD., FRANCO AUSTRAL EXPLORATION PTY. LTD., RAFFINDALE PTY. LTD. and TAKSAN PTY. LTD. Appellants AND: THEODORE RICHARD MORLEY First Respondent AND: JANES KENNETH MCLAREN Second Respondent AND: NATIONAL CRIME AUTHORITY Third Respondent MINUTE OF ORDER JUDGES MAKING ORDER: FOX, DATE OF ORDER: WHERE MADE: JENKINSON AND WILCOX JJ. 9 SEPTEMBER 1987 PERTH. 2 eee wore tc ee er od mares eae oe oe en nr aN om, tp te oo LY aoe \ nee 2. THE COURT ORDERS THAT: 1. The appellants have leave to appeal from the order of Toohey J. made on 16 December 1986, and the appeal as filed, so far as it relates to the subject of that order, be deemed to have been instituted pursuant to leave so granted. The said appeal be dismissed. The appeal from the order of Toohey J. made on 19 January 1987 be allowed. The orders contained in paragraphs 1 and 2 of the said order made on 19 January 1987 be set aside. The respondents' costs of each of the said appeais be taxed and four-fifths of the aggregate of the said costs be paid by the appellants. Note: Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. eon ee te ee ee ys Se ee IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALTA No. WAG 12 of 1987 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL from a single judge of the Federal Court of Australia BETWEEN : WAYNE RYDER, EVELYN AMY RYDER, W. RYDER & CO., THOR NICKEL EXPLORATION PTY.LTD., FRANCO AUSTRAL EXPLORATION PTY.LTD., RAFFINDALE PIY.LTD. and TAKSAN PTY. LTD. Appellants AND: THEODORE RICHARD MORLEY First Respondent AND: JAMES KENNETH McLAREN Second Respondent AND: NATIONAL CRIME AUTHORITY Third Respondent CORAM: FOX, JENKINSON AND WILCOX JJ. DATE: 9 SEPTEMBER 1987 REASONS FOR JUDGMENT THE COURT: On 30 July 1986 a Justice of the Peace for Western Australia (the first respondent) issued under sub-s.10(1) of the Crimes Act 1914 a search warrant to James Kenneth McLaren (the as re ee , 3 wire re wemas i re meee ee second respondent), a detective sergeant of the Australian Federal Police who at the time was attached to the National Crime Authority ("the Authority") (the third respondent), authorising entry to the premises of Messrs. Horwath and Horwath, Chartered Accountants, of Perth, and the seizure of documents and records relating to the present appellants. The issue of the warrant was challenged by the appellants, who at first instance were applicants under the Administrative Decisions (Judicial Review) Act 1977. Six grounds are stated in the application. The parties apparently found it convenient that five of them be dealt with separately, as in effect being preliminary points. The decision of the learned primary Judge is now reported (Ryder v. Morley (1986) 70 A.L.R. 593), and is the subject of this appeal. The principal part of the order of his Honour in relation to these grounds was as follows:- "The application insofar as it is based upon the grounds set out in paragraphs 1, 2, 3, 4 and 6 of the application be refused." The remaining ground (numbered 5) was that "there was no evidence or other material to justify the making of the decision" to issue the warrant, and this was stood over by consent. The applicants then filed a motion seeking discovery and leave to administer interrogatories in relation to this ground. His Honour was of the view that no such orders should be made on the ground that the applicants were simply "fishing". From this decision, with his Honour's leave, the applicants have appealed, a ee epee cee ey cen nyo ee, wae = - . vt . ~ . eae . te ve enema ate, and that appeal has come before us, together with the appeal in relation to the other aspects of the case, pursuant to an order made by his Honour that the matters be heard together. Leave to appeal in relation to the five grounds was not sought, and nothing was submitted on this aspect during the hearing before us. The refusal of the application in relation to those grounds did not however completely dispose of the application, and should be regarded as interlocutory (see Hope v. R.C.A. Photophone of Australia Pty. Ltd. (1937) 59 C.L.R. 348; John Grant and Sons Limited v. The Trocadero Building and Investment Co. Ltd. (1938) 60C.L.R. 1). Leave was therefore necessary, but should be granted. The grounds of appeal are in summary these: 1. Sub-section 10(1) of the Crimes Act does not authorise a search warrant to be issued for the purposes of the activities of the Authority, or, at least to a member of the staff of the Authority acting as such. 2. The warrant was bad on its face as being too uncertain and too wide, and in any event did not comply with the explicit requirements of sub-s.10(1). 3. The order for discovery and interrogatories sought should have been made. Sub-section 10(1) of the Crimes Act provides as follows:- "10.¢1) Ti ia Justice of the Peace is satisfied by information on oath that there is there is reasonable ground for suspecting that there is in any house, vessel, or place - (a} anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed; (b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or (c) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence, he may grant a search warrant authorizing any constable named therein, with such assistance as he thinks necessary, to enter at any time any house, vessel, or place named or described in the warrant, if necessary by force, and to seize any such thing which he may find in the house, vessel, or place." "Constable" is defined in s.3 of the Crimes Act as meaning "a member or special member of the Australian Federal Police or a member of the police force of a State or Territory." The first ground was argued essentially on the terms of the National Crime Authority Act 1984 ("the Act"). It was put that the powers given to the Authority, seen in the light of its functions, did not authorise it to go about its affairs by the use of warrants issued under sub-s.1i0(1) of the Crimes Act. A basic difficulty with this argument is that what is challenged is the issue of the warrant. Given the correctness of the submission, it does not involve an impediment to the exercise of the power in sub-s.10(1). We understand that Detective Sergeant es oe? "7 a mote eee ay Eos or ' Pa he oe pareer oo 4 i mee age oe McLaren has been seconded to the Authority, but that fact would seem immaterial. The basic requirements of the sub-section are that a Justice of the Peace should be satisfied on oath of certain matters, that he should exercise his discretion in favour of the grant of a warrant, and that it should authorise entry and seizure by a "constable". If a person acts without the authority of the National Crime Authority Act and obtains a warrant, its validity will depend on compliance with the Crimes Act, and not on the scope of the National Crime Authority Act. The person to whom the warrant is to give authority is to be a "constable" within the meaning of s.3 of the Crimes Act. We have no doubt that, although seconded to the Authority, Detective Sergeant McLaren was a "constable". If the constable uses or attempts to use his power for the benefit of the Authority and this is forbidden, different questions arise. It was around this aspect that the argument principally revolved, and we shall deal with it. The functions of the Authority as set out in s.11 of the Act are different from the functions of the Australian Federal Police as set out in sub-s.8(1) of the Australian Federal Police Act 1979. Put very shortly, and therefore with some lack of accuracy, sub-s.8(1) deals with the provision of "police services" in relation to the Australian Capital Territory and Commonwealth laws, while s.11 of the National Crime Authority Act gives the Authority functions in relation to "relevant criminal activities", which are defined in the Act by reference to prescribed "relevant offences" (see sub-s.4(1)). Sub-section 11¢1) confers upon the Authority what are described as "general eee Are sete aes ew pte en sragclote Moser ee eve functions" of collecting, analysing and disseminating information and intelligence in relation to "relevant criminal activities" (para.11(1)(a)), and the investigation of matters relating to "relevant criminal activities" (para.11(1)(b)). It is also given express power to arrange for or seek the establishment of task forces for the purpose of investigating "relevant criminal activities" (para.11l(1)(c)), and to co-ordinate the investigations by those task forces (para.11(1)(d))}. Sub-section 11(2) confers "special" functions upon the Authority, namely to investigate matters relating to a "relevant criminal activity" referred to it by a Commonwealth or State Minister pursuant to ss.13 and 14. Such an investigation is described in the Act as a "special investigation" (sub-s.4(1)). Section 12 deals with the performance by the Authority of its functions. Sub-sections (1) and (4) thereof are as follows :- "(1) The Authority shall - (a) in performing the functions referred to in paragraph 11(1)(b) and in' sub-section 11(2), assemble any evidence of an offence against a law of the Commonwealth or of a Territory, or of an offence against a law of a State, that it obtains in the course of its investigations, being evidence that would be admissible in the prosecution of a person for that offence, and furnish that evidence to the Attorney-General of the Commonwealth or of the State or to the relevant law enforcement agency; and (b) in performing the function referred to in paragraph 11(1)(d), endeavour to ensure that any evidence of an offence against a law of the Commonwealth or of a Territory, or of an offence against a law of a State, that is obtained in the course of investigations of a kind referred to in that paragraph, being evidence that would be admissible in the prosecution of a person for that offence, is note oe assembled and furnished to the Attorney-General of the Commonwealth or of the State or to the relevant law enforcement agency. (4) In relation to the performance by the Authority of the functions referred to in paragraph 11(1)(b) and sub-section 11(2), nothing in this Act (other than section 28)- (a) shall be taken to confer on a member, or ona member of the staff of the Authority (other than a member of the Australian Federal Police or a member of the Police Force of a State), power to interview a person in relation to an offence that the person is suspected of having committed, except ina case where the person has been served, as prescribed, with a summons to appear as a witness at a hearing before the Authority, and has not yet so appeared; or (b) shall be taken to confer ona member of the staff of the Authority who is a member of the Australian Federal Police or of the Police Force of a State a power to interview a person that the member of the staff of the Authority does not have in his capacity as a member of the Australian Federal Police or of the Police Force of that State, as the case may be." Sub-section 47(1) of the Act provides that, subject to ss.48 and 49, the staff of the Authority shall be persons appointed or employed under the Public Service Act 1922. Section 48 provides for the employment by the Authority of consultants engaged by the Chairman, and s.49 provides for the secondment of staff to the Authority, including Federal or State Police officers whose services are "made available" to the Authority (see paras. 49(a) and (c) and s.58). All of these persons are "members of the staff of the Authority" (sub-s.4(1)). Attention is directed by the appellants to s.22 of the Act, which deals, and is the only section (except for s.23, which is not relevant for present purposes) which does deal, with the owes te epee ee an wocere wee pee ee issue of search warrants. We set it out in full: "22(1) (2) (3) A member of the Authority may apply to a Judge of a prescribed court for the issue of a warrant under sub-section (2) if - (a) the Authority has reasonable grounds for suspecting that, on a particular day (in this section referred to as the "relevant day"), being the day on which, or a particular day within one month after the day on which, the application is made, there may be, upon any land or upon or in any premises, vessel, aircraft or vehicle, a thing or things of a particular kind connected with a@ matter relating to a relevant criminal activity, being a matter into which the Authority is conducting a special investigation (in this section referred to as "things of the relevant kind"); and (b) the Authority believes on reasonable grounds that, if a summons were issued for the production of the thing or things, the thing or things might be concealed, lost, mutilated or destroyed. Where an application under sub-section (1) is made to a Judge of a prescribed court, the Judge may issue a warrant authorizing a member of the Australian Federal Police, or of the Police Force of a State, or any other person, named in the warrant, with such assistance as he thinks necessary and if necessary by force - (a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle; (b) to search the land, premises, vessel, aircraft or vehicle for things of the relevant kind; and (c) to seize any things of the relevant kind found upon the land or upon or in the premises, vessel, aircraft or vehicle and deliver things so siezed Esic] to the Authority. A Judge shall not issue a warrant under sub-section (2) unless - (a) an affidavit has been furnished to him setting out the grounds on which the issue of the warrant is being sought; {b) the applicant (or some other person) has given to the Judge, either orally or by affidavit, such further information (if any) as the Judge — perce eee Aer mater oe et rm (4) (5) (6) (7) requires concerning the grounds on which the issue of the warrant is being sought; and (c) the Judge is satisfied that there are reasonable grounds for issuing the warrant. Where Judge issues a warrant under sub-section (2), he shall state on the affidavit furnished to him in accordance with sub-section (3) which of the grounds specified in that affidavit he has relied on to justify the issue of the warrant and particulars of any other grounds relied on by him to justify the issue of the warrant. A warrant issued under this section shall - (a) include a statement of the purpose for which the warrant is issued, which shall include a reference to the matter relating to a relevant criminal activity into which the Authority is conducting a special investigation and with which the things of the relevant kind are connected; (b) state whether entry is authorized to be made at any time of the day or night or during specified hours of the day or night; (c) include a description of the kind of things authorized to be seized: and (d) specify a date, not being later than one month after the date of issue of the warrant, upon which the warrant ceases to have effect. A warrant issued under this section may he executed, in accordance with its terms, at any time during the period commencing on the relevant day and ending on the date specified in the warrant as the date upon which the warrant ceases to have effect. Where, in the course of searching, in accordance with the terms of a warrant issued under this section, for things of the relevant kind, the person executing the warrant finds a thing that he believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an offence against a law of the Commonwealth, of a State or of a Territory, and he believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss or destruction, or its use in committing such an offence, the person may seize the thing and, if he does so, the things shall be deemed, for the purposes of this Act, to have been seized pursuant to the warrant. pe ee ey ee ee op me yee Py tr ee one (8) (9) (10) (11) (12) (13) 10. Where a thing is seized pursuant toa warrant issued under this section - (a) the Authority may retain the thing if, and for so long as, retention of the thing by the Authority is reasonably necessary for the purposes of a special investigation to which the thing is relevant; and {b) if the retention of the thing by the Authority is not, or ceases to be, reasonably necessary for such purposes, the Authority shall cause the thing to be delivered to - (i) aif the thing may be used in evidence in proceedings of a kind referred to in sub-section (13) - the authority or person responsible for taking the proceedings; or (ii) if sub-paragraph (i) does not apply - the person who appears to the Authority to be entitled to the possession of the thing, unless the Authority has furnished the thing to the Attorney-General of the Commonwealth or of a State, or to a law enforcement agency, in accordance with paragraph 12(1)(a). The Authority may, instead of delivering a thing in accordance with sub-paragraph (8)(b)(ii), deliver a thing to the Attorney-General of the Commonwealth or of a State, or to a law enforcement agency, for the purpose of assisting in the investigation of criminal offences, where the Authority is satisfied that the thing is likely to be useful for that purpose. Nothing in this section affects a right of a person to apply for, or the power of a person to issue, a warrant, being a right or power existing otherwise than by virtue of this section. A reference in this section to adudge of a prescribed court shail be constructed as a reference to - (a) a Judge of the Federal Court; or (b) a dudge of a court 'of a State or Territory. In this section "thing" includes a document. Without limiting the generality of paragraph (1)(a), a reference in this section toa _ thing connected with a matter relating toa relevant criminal activity, being a matter into which the Authority is conducting a special investigation, li. includes a reference to a thing that may be used in evidence in proceedings for the taking, by or on behalf of the Crown in right of the Commonwealth, of a State or of a Territory, of civil remedies in respect of a matter connected with, or arising out of, an offence to which the relevant criminal activity relates." It is to be noted that the right to apply for a warrant is limited to matters into which the Authority is conducting a "special investigation" (sub-s.(1)). The right to apply is given to a "member" of the Authority (see 5.7) but the warrant issues to a police officer "or any other person" named in the warrant (sub-s.(2)). The section is more detailed, requires more specific information and is in general expressed to be more protective of the rights of citizens, than is sub-s.10(1) of the Crimes Act. While Detective Sergeant McLaren was engaged in an inquiry, we do not know whether it was a "special investigation", which deals with a "matter relating to" a specified "relevant criminal activity", and is not confined to things used or believed to be intended to be used for the commission of a crime. Unlike sub-s.10(1) of the Crimes Act, $.22 expressly authorises search, to which activity special provisions are attached (sub-s.(7)). Sub-sections 51(1) and (2) of the Act are as follows: "61.¢1) This section applies to - (a) a member or acting member of the Authority; and (b) a member of the staff of the Authority. 51.(2) A person to whom this section applies who, either Girectly 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 7. fan ae - ue owe weeps mee gee Somer tee 12. person to whom this section applies - (a) makes a record of any information; or (b) divuliges 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 find not exceeding $5,000 or imprisonment for a period not exceeding 1 year, or both." It is submitted that sub-s.51(2) would prevent a police officer on the staff of the Authority from swearing out a warrant based on confidential information acquired as a member of the staff of the Authority. There is no direct evidence in this case that matter rendered confidential by sub-s.51(2) was disclosed, although the warrant was sought in order to assist an investigation under the Act. We do not know that we should infer a breach of the sub-section. However, if, in any case, information was divulged to a Justice in breach of sub-s.51(2), this would not involve invalidity of the warrant. It is submitted that, bearing in mind relevant parts of s.22, and other provisions in the Act protective of individuals being investigated by the Authority (see ss.28-32) it cannot have been intended that the protection could be subverted by reliance on sub-s.10(1) of the Crimes Act. We have in what we have already said attempted to show the different purposes and functions of sub-s.10(1) of the Crimes Act and s.22 of the Act. In our view, it is not to be assumed that the latter negatives the operation of the former. Indeed, the contrary is expressly provided for (sub-s.22(10)). ee eee ae 7 rae 5 a en te ue we wre nara ' 13. We are of the view that the provisions of the Act referred to cannot properly be construed as involving any restriction on the use of sub-s.10(1) of the Crimes Act for purposes such as those under discussion. On the contrary, once an offence is known or suspected, sub-s.10(1) acts as a convenient corollary to s.22 and other powers of the Authority. We revert briefly to a matter already mentioned, namely whether Detective Sergeant McLaren was a "constable" within the meaning of sub-s.10(1) of the Crimes Act at the relevant time. Section 33 of the Australian Federal Police Act provides for the secondment of any member of the force to any "body or Organization (including an international body or organization) whether within or outside Australia" (para.33(1)(b)). This clearly covers attachment to the Authority under s.49 of the Act. Sub-sections 33(6) and (7) of the Australian Federal Police Act are as follows: "(6) During a period of secondment of a member under this section, the member - (a) retains the same rights, powers and immunities as the member would, but for the secondment, have as such a member; and (b) remains subject to the same obligations and liabilities in relation to discipline as those to which the member would, but for the secondment, have been subject as such a member. (7) Nothing in sub~section (6) affects - (a) any rights, powers or immunities that a member who is seconded under this section has by virtue of holding the office or position to which the member has been seconded; or {b) the extent to which the member is subject to obligations or liabilities in relation to discipline by virtue of holding the office or position to which the member has been seconded." a aatecpr ee tenner wd Tw poset pepe ca ~r-> J ' 14. In our opinion, the "rights" and ""powers" referred to in sub-s.(6) are not limited to pension and seniority rights. The sub-section supports the conclusion that an officer on secondment is still a "constable" within the meaning of sub-s.10(1) of the Crimes Act. As previously indicated, sub-s.22(10) of the Act makes the position clear, so far as concerns Detective Sergeant McLaren's authority to apply for a warrant, and the power to issue him with one. Having in mind that para.49(a) of the Act refers to members of the Australian Federal Police being made available to assist the Authority, and to a similar provision in para.58(1)(b), that sub-section possibly has its principal reference to police officers, but it seems clear enough that this includes Federal Police officers. There are submissions to the effect that the warrant is bad on its face. The warrant is set out as an appendix to his Honour's reasons, and it is unnecessary to reproduce it. It appears to be wide, but this is largely attributable to a number of factors:- (a) the lengthy preamble, going to show jurisdiction; (b) the following of the statutory language, which deals with suspicion and belief; (c) the lengthy statement of what might be described as "documents";and (d) the repetition, at the end, of the state of belief concerning the commission of the offence. 15. The last-mentioned, (d), can be regarded as surplusage, but its language seems to have a qualifying effect on the prior enumeration of "things" (i.e.documents), having in mind that the qualification last appeared in the preamble. It is submitted that the words are words of qualification involving an independent judgment by the addressee of the warrant as to the reasonable grounds for belief. This seems unlikely, because the justice, as issuing authority, has already, of necessity, formed the necessary belief, and, provided the description is sufficiently detailed, there is no scope, so far as concerns the content of the warrant, for a further limitation. The purpose of including the clause is, it would seem tous, to actas a reminder of what may be seized. In this sense it can be regarded as surplusage; there is an unnecessary, although emphatic, repetition (cf. Re Arno; Ex p. Forsyth (1985) 9 F.C.R. 557). There will, however, be situations in which a searcher comes across some "thing" which in his mind cannot reasonably be thought to satisfy the statutory criterion. It should not then be seized (see Trimbole v. Onley (No.3) (1981) 56 F.L.R. 321, 333 and the cases there cited). If the searcher makes an error in this way, another warrant cam issue. It is of interest that in several reported cases there have been similar clauses which have not aroused adverse comment (for example Crowley v. Murphy (1981) 52 F.L.R. 123; Brewer v. Castles (1984) 1 F.C.R. 55; Parker v. Churchill (1986) 9 F.C.R. 334). In our view the words cannot reasonably be understood as creating ambiguity or uncertainty, and their presence does not invalidate the warrant. stop Bo ee ere ene een. wo ee ee ge 16. It was also submitted that the warrant was too general, at least in part. The warrant authorises the seizure of, inter alia, "files in respect of" named persons, "books registers, ..., microfiche records, diaries in respect of" the same named persons. It is submitted that having in mind the qualification of "files" and "diaries" by reference to the named persons and the absence of "and" either before "books" or "diaries", that the second list of named persons qualifies only "diaries" and accordingly the "books registers, ..., microfiche records" are at large. This would not, we think, be a reasonable reading of the language used, and the warrant would not be so understood. There was a mistake in the warrant in the reference made to a statutory provision (s.86(1)(e) of the Crimes Act) which had been repealed, but we agree with his Honour that bearing in mind the language of the warrant, this could not lead to uncertainty or ambiguity. Turning to the sixth ground of the application, we are of the view that the most satisfactory course is for the matter to be returned for original hearing in this Court but free from the order made by his Honour refusing discovery and interrogatories. We say this because a particular matter pointed to by the appellants has been that some oral evidence was given to the Justice before the warrant was issued. This was in answer to questions posed by the Justice. The point does not appear to have been taken below, but the appellants now submit that the "information on oath" required by sub-s.10(1) of the Crimes Act must be in writing (see Crowley v. Murphy (1981) 52 F.L.R. 123 at menace cm peo , wee owe ae NN wep write 17. 143, and the cases there cited). There may therefore be scope for interrogatories in relation to this matter. We feel it most satisfactory for the Judge at first instance to deal with the matter as if an original application was made to him but based naturally on the evidentiary material put before him. We do not feel satisfied, as matters stand, that the application was a "fishing" one. This does not mean that the Judge at first instance may not in the ultimate come to that conclusion. We would allow the appeal so far as concerns discovery and interrogatories and set aside his Honour's order without making any further order. The appeal should otherwise be dismissed. The amount of time occupied with the argument on the matter of discovery and interrogatories was slight. In all the circumstances, we think there should be anorder that the appellants pay four-fifths of the respondents' costs of the appeal. I certify that this and the sixteen (16) preceding pages are a true copy of the Reasons for Judgmen herein of the Court. Associate: = Dated: 9 Sept ey 1987 Counsel for the Appellants: D. H. Solomon Solicitors for the Appellants: Phillips Fox R.J.M. Anderson Q.C. and P. Macliver Counsel for the Respondents: Solicitors for the Respondent: Australian Government Solicitor Dates of hearing: 18, 19 May 1987 Date judgment delivered: 9 September 1987 ne ne te ee . 7 a tT. . Pt cunemens eee we eee nee me wpe seee tote eee - wna we ee