Carmody, Christopher John v MacKellar, Paul Stephen & Ors [1996] FCA 791

CATCHWORDS Criminal Law and Procedure - Warrants - Warrants issued by eligible Judges under Telecommunications (Interception) Act 1979 (Cth) and Customs Act 1901 (Cth) in relation to a practising barrister - Criminal trial pending in which evidence obtained under warrants is proposed to be adduced against the barrister - Federal Court applications challenging the validity of the warrants - Whether Federal Court has jurisdiction to review the decisions to apply for and issue the warrants - Whether the criminal trial court has jurisdiction to treat the warrants as being issued without jurisdiction or power - Whether Federal Court should exercise its discretion not to entertain the hearing of the application for judicial review - Whether warrants authorise the interception and recording of communications the subject of legal professional privilege - Whether failure of warrants to provide for or deal with the protection of privileged communications may invalidate warrant - Whether issue of law in relation to privilege is appropriate for determination by Federal Court - Whether other issues of mixed fact and law are appropriate for determination by trial court. Practice and Procedure - Whether Federal Court proceeding speculative and foredoomed to failure - whether discovery and interrogatories should be ordered where applicant has no other evidence - Whether limited discovery and interrogation should be ordered in relation to uncontroversial facts relevant to determination of issue of law - Whether s.63(2) of the Telecommunications (Interception) Act 1979 prohibits inspection by the applicant of discovered documents - Whether general principles in administrative law proceedings should apply to telecommunication intercept or listening device warrants issued in secret. Words and Phrases - meaning of "improper conduct". Administrative Decisions (Judicial Review) Act 1977 ss.5(2), 6(2) and Schedule 1 Constitution s.75(v) Customs Act 1901 (Cth) ss.219A, 219B and 219F Judiciary Act 1901 ss.39B Telecommunications (Interception) Act 1979 (Cth) ss.5(1), 6EA, 6L, 7, 45, 49(2) and 63 Flanagan v. Commissioner of Australian Federal Police and Others (1996) 60 FCR 149 Walton v. Gardiner (1993) 177 CLR 378 Kizon v. Palmer & Others (Northrop J, unreported 24 October 1995) Bunning v. Cross (1978) 141 CLR 54 Hilton v. Wells (1985) 157 CLR 57