Puglisi, Joseph & Anor v Australian Fisheries Management Authority & Ors [1997] FCA 1125

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 412 of 1996

BETWEEN: JOSEPH PUGLISI

First Applicant

ALAN McCAMISH

Second Applicant

AND: THE AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

First Respondent

AUSTRALIAN FEDERAL POLICE

Second Respondent

PETER LAWRENCE MATTHEW GIFFARD

Third Respondent

MARK FLETCHER

Fourth Respondent

STEVEN CHURCH

Fifth Respondent

ERROL RICHARD RAISER

Sixth Respondent

TERRENCE NORMAN ALLEN

Seventh Respondent

GILLIAN McDONALD

Eight Respondent

JONATHON SAMUEL SELMES

Ninth Respondent

JUDGE(S): HILL J

DATE: 1 OCTOBER 1997

PLACE: SYDNEY

REASONS FOR JUDGMENT On 28 August 1997 I delivered reasons for judgment in this matter. In the course of those reasons I said (at 18): "I will make declarations that each of the March warrants was invalid and that the April warrants were valid. I will further declare that no items were seized at the Parson Street premises pursuant to the April warrant relating to those premises." I did not, at the time, make orders but rather directed the preparation of short minutes of order to give effect to those reasons. I took this course largely because I wished to hear further argument as to the form of the declarations to be made and as to costs. In accordance with the orders I made each of the parties prepare draft short minutes. They differ only in one respect, namely, whether a declaration should be made by me that the warrants numbered 96/38 and 96/40 issued by the ninth respondent on 3 April 1996 under s 3E of the Crimes Act 1914 were valid. Counsel for the applicant urges that I make no declaration as to the validity of these warrants. In particular, he points to the decision of a Full Court of this Court in Flanagan v Commissioner of The Australian Federal Police (1995) 60 FCR 149. In that case an application was made for judicial review of decisions to apply for certain telephone intercept warrants. Among the grounds upon which the warrants were challenged was a ground that there was an improper purpose on the part of those seeking the warrant and that there was a fraudulent non-disclosure of relevant information. The Full Court decided in the circumstances of that case, where criminal proceedings had been commenced prior to the application to this Court and adjourned pending that application being made, that it should hear those matters concerning the validity of the warrant as involving matters of law but that the Court should be reluctant to intervene where prosecution proceedings had been commenced particularly where there were the complicated issues of fact. The Court suggested that it might be more appropriate and in the interests of avoiding fragmentation of proceedings that these challenges be taken before the magistrate. Counsel has referred me also to a decision of the New South Wales Court of Appeal in Coles v Wood (1981) 1 NSWLR 723 where the it was held that leave to appeal was necessary but should be refused where an appeal was sought to be brought against the dismissal of an application for declarations that a search warrant was invalid. The case makes it clear, if authority be necessary, that where an application for a declaration of invalidity has been dismissed no issue estoppel would be created should the matter be raised at a later time before a magistrate in criminal proceedings. The primary argument of the applicant is really one of fairness. It is said that as a matter of discretion where a conscious decision has been made following Flanagan's case to raise in this Court only those matters which Flanagan suggests are appropriate to be heard in this Court but not other matters which might involve fragmentation of proceedings and which are more appropriate to be heard in the criminal proceedings, the Court should be slow to make a declaration of validity of the warrant which would or could effectively create an issue estoppel precluding argument on the additional matters before the magistrate. Insofar as is relevant, Flanagan's case may be distinguishable in that in Flanagan the prosecution proceedings had commenced before proceedings in this Court were commenced whereas in the present case the application was made in this Court prior to the commencement of a prosecution. Although the point was not taken in argument, whatever may be said about the making of a declaration of validity of the warrant executed at Bungo Street, Eden, a declaration should not be made of the validity of the warrant in respect to the premises 40 Parson Street, Ulladulla where nothing turned upon the validity of that warrant since the goods in question were seized not under it but under another warrant. It is put by counsel for the respondents that where a case arises as in Flanagan where there are both legal and factual arguments they should all be raised in the Court and it should be for the Court to decide in its discretion whether to hear the whole matter or only some of it and to leave some matters to the magistrate. Counsel for the applicants offered to adduce evidence that a conscious decision had been made in this case, not to seek to challenge the warrants on the basis of factual matters of the kind which Flanagan suggests were more appropriate to be heard before the magistrate and that that decision had been a conscious one made having regard to the Full Court's decision in Flanagan. I accept without the need for evidence, what counsel has said at the bar table as to the consciousness of the choice that was taken. Counsel for the applicant says that his research has disclosed only one case: Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 where a declaration has been made that a search warrant was valid. So far as his researches have gone, at least, he has not been able to locate any case, other than Karina, where such declaration has been made. Counsel for the respondent appears not to have researched that question. With some hesitation, I think that what is said by the applicant is of considerable weight. If the Court is now to make a declaration that the warrants are valid when only some of the matters dealing with validity have been agitated, the applicant would be substantially disadvantaged. Having considered the matter I think as a matter of discretion I should not make a declaration as to the validity of either of the warrants numbers 96/38 and 96/40, issued by the ninth respondent on 3 April 1996 under s 3E of the Crimes Act because it seems to me that in the circumstances the unfairness outweighs the public interest in finality of litigation. In so doing I take into account the view often expressed by the Court that where there are prosecutions extant factual challenges to the validity of a warrant are more appropriately litigated in the prosecution proceedings rather than in proceedings for judicial review. Accordingly, I would declare: (1) That the search warrants issued by the eighth respondent on 18 March 1996 to the third, fourth and fifth respondents purportedly under s 85 of the Fisheries Management Act are invalid. (2) That nothing seized from 40 Parson Street, Ulladulla, on 4 April 1996 was seized under search warrant 96/38, issued by the ninth respondent on 3 April 1996 under s 3E of the Crimes Act. (3) I would further order that the application be otherwise dismissed and that there be no order as to costs. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill