dam ted ett tun > JUDGMENT Wo.!225 9 |F9S IN_THE FEDERAL COURT ) VICTORIAN DISTRICT REGISTRY ) No VG 612 of 1995 GENERAL DIVISTON ) BETWEEN: JOHN FLANAGAN and ANGELA DIANNE _F- GAN Applicants AND: MMISSTONER F THE AUSTRALIAN FEDERAL POLICE First Respondent DIRECTOR F PUBLI PROSECUTIONS Second Respondent COMMONWEALTH OF AUSTRALTA Third Respondent No VG 613 of 1995 BETWEEN: ROBERT CHARLES HOWARD Applicant AND: COMMISSTONER F THE AUSTRALIAN FEDERAL POLICE First Respondent DIRECTOR OF PUBLIC PR 'IONS Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent No VG 747 of 1995 BETWEEN: BRUNO _GROLLO Applicant AND: COMMISSIONER OF THE TRALIAN FEDERAL POLICE First Respondent DIRECTOR OF PUBLIC PROSECUTIONS Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent CORAM: BEAUMONT, RYAN AND LINDGREN JJ PLACE: MELBOURNE DATE: 28 NOVEMBER 1995 REASONS FOR JUDGMENT (No. 1) (Qn_ applicants' application for leave to amend their pleadings) THE COURT: Application by the applicants for leave to amend their pleadings to include applications for judicial review under the Administrative Decisions (Judicial Review) Act 1977 of the decisions made on 11 August 1993 by Ms. S. Brown CM to issue Search warrants The applicants apply further to amend their amended applications and statements of claim to conform with the documents marked "MFI-5 and 6" so as to include applications for review under the Administrative Decisions (Judicial Review) Act 1977 ('ADJR Act') of the decisions made on about 11 August 1993 by Ms S Brown CM pursuant to s.10 of the Crimes Act 1914 to issue three search warrants authorizing members of the AFP to enter and search for documents and things in premises at 10-30 Chifley Drive, Preston, 313 Gillies Street, Thornbury and 321 Gillies Street, Thornbury ('the search warrants')." In essence, the grant of leave is justified, the applicants submit, on the footing that the joinder of this additional claim for relief would avoid a multiplicity of proceedings (see Federal Court of Australia Act $.22; 0.13 sub~-r.2(2)). For the applicants, it is further contended that the proposed amendment raises no new issues of fact. It is also put by the applicants, in the alternative, that even without the amendments the applications and pleadings as presently framed require consideration of the same issues relating to the search warrants, as part of our deciding whether or not to grant injunctions already sought to restrain the respondents - "from ... giving in evidence in any proceeding of see (iii). any documents or information obtained from the use of the intercepted communications or information obtained therefrom." In aid of their submission that the grant of leave to amend would avoid multiplicity of proceedings, the applicants have foreshadowed that if leave is refused, they will commence separate proceedings under the ADJR Act seeking the same relief. On behalf of the respondents, the grant of leave is opposed, substantially on the ground that the respondents would be prejudiced if it were allowed. In this connection it is contended that the applicants are out of time for several reasons. First, they say that the applicants should have brought proceedings for judicial review within the usual 28 day limit, time being calculated from the date of the execution of the search warrants. Alternatively, even if the 28 day time limit does not apply, it is argued that the applicants have delayed inordinately, i.e. unreasonably, in making the subject claims since they have known about the search warrants since August 1993. It is further submitted on behalf of the first and second respondents that particular prejudice would be suffered by them if the amendment were now allowed because of the lapse of time since the issue of the warrants. That particular prejudice, we gather, arises from the likely difficulty which the decision-maker would have in recalling the extent, if any, to which she was influenced by the references in the informations to the material obtained on the telephone intercepts in deciding to issue the search warrants. Although we have found the question difficult of resolution, we have come to the conclusion that we should allow these amendments. It is true that, on the face of it, more than two years have elapsed since the issue of the search warrants. However, there is before us unchallenged evidence from the applicants' legal advisers which explains adequately, in our view, the apparent delay. These reasons include the course of litigation in this Court, and in the High Court of Australia, challenging, on constitutional and other grounds, the validity of the search warrants and the telephone intercept warrant. In short, it appears that the possibility of a challenge to the validity of the telephone intercept warrant was first considered by the applicants' legal advisers in either May or June of this year. It was not until 9 June this year that the High Court refused special leave to appeal from a decision of a Full Federal Court dismissing an appeal from the decision of Jenkinson J., itself dismissing an application for judicial review of the issue of the search warrants. Accordingly, a perception of the need to seek the review embodied in the amendments now under consideration cannot be imputed to the applicants before 9-June 1995. Moreover, the circumstances are not such that the applicants or those advising them should have known of that need earlier than that date. Given the complexity of the questions sought to be agitated in the litigation, the lapse of time until early in October, when the present application for leave to amend was foreshadowed, was not, we think, unreasonable. We also see considerable force in the applicants' contention that to permit the joinder of the claims now proposed in the present action would tend to avoid unnecessary multiplicity of proceedings. We acknowledge that the proposed amendments' have some, albeit limited, potential for prejudice to the first and second respondents by reason of the lapse of time since the issue of the warrants. Nevertheless, it is to be borne in mind in this respect, that it is not and would not be suggested that the decision-maker will not be available to give evidence. It is true that if the Chief Magistrate (now her Honour Justice Brown) were to be called to give evidence, she would need to recall events which took place some time ago. However, in accordance with the ordinary rule, she would be entitled to refresh her memory from the warrant as issued and from the information in support of it. This would at least tend to alleviate any potential prejudice in this connection. Weighing all the considerations for and against the grant of leave, we have concluded that we should exercise our discretion in favour of allowing the proposed amendments. We would add that, in our view, Justice Brown should be joined as a party. Applicants' application for leave to amend para.20 of the further amended statement of claim (filed in Court on 12 October 1995) The applicants seek, in MFI "5", leave to insert "Particular (1)" in para.20 as follows: "20. In breach of the duty of disclosure the applicant for the warrant did not inform the Judge of the facts and matters which were or may be material to the exercise of his discretion to issue the warrant. PARTICULARS (1) The affidavit of John William Draffin sworn 1 June 1993 did not contain any or any sufficient information: (a) vrelating to or reporting on the progress that had been made in the tax fraud investigation; (b) xrelating to the intention of the AFP to charge, among others, Bruno Grollo with conspiring to defraud the Commonwealth; {c) relating to the need and the basis for any need for any further information to justify charges in relation to the tax fraud investigation." In our view, this leave should be refused for the reason given by Lindgren J. in argument; that is to say, those "particulars" do not, in truth, specify any particular facts or matters which were, or might have been, material to the exercise of the discretion to issue the warrant and which should have been disclosed. With the proposed para.(1), there may be contrasted the existing particulars (proposed to be numbered (2) if the amendment were to be allowed) which do state such particular facts or matters. Applicants' application for leave to amend para.22 of their urther amended statement of claim (filed in Court on 42 October 1995) In MFI "5", the applicants have foreshadowed amendments to the particulars of para.22 of their further amended statement of claim. In that paragraph, it is presently alleged that the application for the warrant has been made by an individual officer of the AFP and not by, or on behalf of, the AFP as required by the Act. As additional particulars, the applicants now seek to add statements to the effect that the Commissioner did not authorise the making of the application and that it was not made in accordance with the procedures laid down in. the Commissioner's Policy dated 15 April 1992, now in evidence as Exhibit 0. In our view, the application for leave to amend is not necessary. It. is clear from the pleadings, as they now stand, that the applicants' case in chief is that the application was not made on behalf of the AFP. It is true, as counsel for the applicants agreed in the course of argument, that the real object of the additional particulars is to anticipate a positive defence. However, argumentative material of this kind, need not and should not be pleaded except possibly by way of reply. We note that counsel for the applicants have now indicated that they do not oppose the leading of evidence by the respondents directed to the issue of non-compliance with the Policy (Exhibit "0"). I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of their Honours Justice Beaumont, Justice Ryan and Justice Lindgren ; Associate fuk Dated: 28 November 1995