Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Doyle v Commissioner of Police (No 3) [2020] NSWCA 240 Hearing dates: 22 September 2020 Decision date: 30 September 2020 Before: Leeming JA Decision: 1. Note that for the purposes of order 1 made on 5 March 2020 entitling access to persons who have given an appropriate undertaking to inspect item 24, the undertakings contained in the short minutes of order provided on 21 September 2020 are appropriate. 2. Continue the stay of order 1 made by order 4 of 5 March 2020 until 5 pm on Wednesday 7 October 2020. 3. List the proceedings for directions before me at 9.30am on 21 October 2020. 4. Reserve the question of costs. Catchwords: APPEAL – stay of execution – informal application for stay pending application for leave to appeal – whether issue already decided by Court of Appeal – whether already decided on remitter from Court of Appeal – whether subsequent High Court authority confirmatory of position – whether prospect of success and balance of convenience favoured a stay – application refused – orders made permitting access to seized item, subject to undertakings, for limited purpose of permitting Commissioner to be heard as to the grant of injunctive relief. Legislation Cited: Evidence Act 1995 (NSW), s 138 Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Barbeliuk v NSW Commissioner of Police & Ors [2020] HCASL 187 Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22 Doyle v Commissioner of Police [2020] NSWCA 11 Doyle v Commissioner of Police (No 2) [2020] NSWCA 34 Doyle v Commissioner of Police (No 3) [2019] NSWSC 1787 R v Swaffield (1998) 192 CLR 159; [1998] HCA 1 Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; 94 ALJR 502 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Category: Consequential orders (other than Costs) Parties: Philip William Doyle (First appellant) Mark Barbeliuk (Second appellant) Commissioner of Police (First respondent) Detective Senior Constable Tiffany O'Neill (Second respondent) Deputy Registrar Cally D'Arcy (Third respondent) Representation: Counsel: R Stitt QC (Appellants) P Singleton (First and second respondents) Solicitors: Executive Legal (Appellants) Makinson d'Apice Lawyers (First and second respondents) Crown Solicitor's Office (Third respondent, submitting) File Number(s): 2020/7681 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2019] NSWSC 1787 Date of Decision: 13 December 2019 Before: Lonergan J File Number(s): 2018/266913 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. LEEMING JA: In New South Wales, contrary to submissions repeatedly made on behalf of either or both appellants, there is no automatic entitlement to the return of things seized pursuant to a search warrant which is later found to be invalid. Any other position would be inconsistent with Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, and is confirmed by s 138 of the Evidence Act 1995 (NSW). That section expresses in the widest terms the policy discretion developed by the common law: R v Swaffield (1998) 192 CLR 159; [1998] HCA 1 at [68]. The explicit assumption is that unlawfully obtained evidence may, subject to discretion, be tendered at a trial. 2. A person in New South Wales whose thing is taken without lawful authority has rights at common law and equity as well as under any applicable statute. In such a case, the primary remedy will be injunctive: seeking to prevent the use or dissemination of the thing, and requiring its return or destruction. It is clear that such an injunction is discretionary. Relevant to the discretion will be the circumstances in which the absence of lawful authority came about – did the police officers act in wilful disregard of the law, or with reckless indifference to their obligations, or alternatively did they execute a warrant which was valid on its face in good faith, only to be confronted many months later with an appellate decision holding that the warrant was invalid (the present litigation arises out of facts much closer to the latter than the former). 3. Even if there could be doubt about the discretionary, as opposed to automatic, entitlement to injunctive relief in a case such as the present, authority is now clear. In Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; 94 ALJR 502, all members of the High Court held that the search warrant executed upon Ms Smethurst was invalid, all held that such relief as she might have was discretionary, and a majority declined to order any relief for the return of information copied from her mobile phone. 4. None of this is to detract from the basal proposition that people, especially police officers upon whom is conferred power to trench upon people's liberty and property, must obey the law. Failing to obey the law will have consequences. In the case of things seized pursuant to a warrant which turns out to be invalid, a variety of remedies may be available, including injunctive relief in equity. Procedural background 1. The dispute has now been confined to the laptop and the image of its hard drive, and it is accepted by both sides that because it was acquired after Mr Doyle commenced serving his sentence of imprisonment, such property rights as may be asserted in relation to it are those of its owner Mr Barbeliuk. Procedurally, what is occurring is the working out of relief consequent upon allowing an appeal brought by Messrs Doyle and Barbeliuk, but the outstanding issue only concerns Mr Barbeliuk. Consistently with this, the further appeal which is contemplated, and on which the present application for a stay is based, is confined to one brought by Mr Barbeliuk. Although Mr Doyle remains the first appellant in the proceeding, in substance the only moving party is the second appellant Mr Barbeliuk. 2. In Doyle v Commissioner of Police [2020] NSWCA 11, the Court of Appeal constituted by Payne JA, Simpson AJA and me allowed an appeal and declared that the search warrant executed on premises owned by Mr Doyle and occupied by Mr Barbeliuk was invalid. However, this Court also rejected the appellants' submission that the things seized should be returned to them, either as of right, or by exercise of this Court's discretion but without permitting the Commissioner to inspect what had been seized by reason of ex parte injunctive relief obtained long ago by the appellants which had thereafter been continued. This was plain from what was said at [82]-[84]: "The applicants sought further relief. In their written submissions, the applicants appeared to concede that the relief sought by them was discretionary. However, on several occasions during oral submissions, Mr Agius contended that the applicants were entitled to return of the items seized, and destruction of all copies, as of right. He relied on no authority. The submission is unsound. In point of principle, insofar as the claim is based on ownership or equitable entitlement, orders for mandatory injunctions, and delivery up and destruction, are equitable and discretionary. Insofar as the orders are based on judicial review of executive action, once again it is clear that relief is discretionary. All authority to which this Court was referred points in favour of there being a discretion. Some of the decisions are contained in Caratti v Commissioner of the Australian Federal Police (2017) 257 FCR 166; [2017] FCAFC 177, especially at [158]-[159]. In that appeal as in the present it appears that the appellant laboured under the misapprehension that once the warrant was found to be invalid, the items seized must necessarily be returned. In a modified form, Mr Agius maintained by way of fallback that where no evidence had been adduced of the utility of any of the documents seized, the discretion should inevitably be exercised in favour of granting substantive relief. That cannot be right, in circumstances where the applicants had obtained interlocutory relief preventing the police from inspecting or using the things seized. Mr Agius' response was that the applicants had the ability, in the two or three days after the documents were seized and before ex parte relief was obtained, to review them and put on such evidence as they had wished. We reject that aspect of the submission, and not merely because two or three days in late August 2018 before proceedings were commenced was not sufficient to permit the respondents to adduce evidence of the utility of the material. The main point is that the primary judge, on the view her Honour took on the validity of the warrant, did not reach the question of discretion, except in relation to item 25. The result of this appeal is that the discretion must be re-exercised" (emphasis added). 1. The judgment concluded at [93]: "All those matters compel the conclusion that there needs to be a further hearing to resolve whether orders should issue for the return of any items which the police say they are entitled to retain. The orders below make provision for that, and on an urgent basis. We have in mind any dispute as to the exercise of discretion being heard within the next fortnight. The intention of the orders is not to alter the interlocutory regime which was put in place by the primary judge pending appeal. However, it will be clear from the above that we have rejected the applicants' submission that the discretion should be exercised without the respondents having any access to the documents which remain subject to that regime. It may be necessary for the orders to be made (as were foreshadowed by Mr Singleton last week) varying that regime, with the applicants' position protected by appropriate undertakings. If any dispute arises, that will be resolved by a single Judge of Appeal" (emphasis added). 1. The primary judge had considered the warrant valid, but that one item (item 25) had been taken outside its scope, and had declined to grant injunctive relief: at [164], [167], [176]-[177]. Because the Court of Appeal took the view that the warrant was invalid, it was necessary to exercise the discretion in relation to all that had been seized (and to re-exercise the discretion in respect of item 25). However, because of relief obtained by Mr Doyle and thereafter continued, the respondent had not had access to the material seized. Thus it was that the Court made the following order: "5. Reserve for the consideration of a Judge of Appeal questions of (a) the variation of the extant interlocutory regime applicable to items 1, 10, 24 and 25, (b) the exercise of discretion in relation to items seized by the police pursuant to the warrant, and copies of those items, and (c) costs at first instance and in this Court." 1. I interpolate that the Court's orders bind the parties. The Commissioner is bound by the declaration that the warrant is invalid, and cannot save in very special circumstances reagitate the matters determined by the Court of Appeal. So too, Mr Barbeliuk is bound by the orders explicitly premised upon there being an exercise of discretion concerning the return of the things seized. 2. The orders made by the Court of Appeal on 14 February 2020 envisaged nominated representatives of the Commissioner giving undertakings, inspecting the documents, and there being a hearing before a single Judge of Appeal. In light of an impending trial, it had been contemplated that all of that would occur by the end of February. However, none of that has as yet occurred. 3. In circumstances described by me in Doyle v Commissioner of Police (No 2) [2020] NSWCA 34 at [15]-[20], on 18 February 2020 senior counsel then appearing for the appellants contended that he was at liberty to contend that the police not be given access to the laptop computer. I set down that hearing on 25 February 2020. 4. On the question of the nature of the appellants' claimed entitlement to the return of the laptop, there was the following exchange: "HIS HONOUR: Three times you've said any discretion ought not be exercised. You say there's no discretion. Is that your primary position, and is that a position that you say remains open notwithstanding the decision of the Court of Appeal. AGIUS: The decision of the Court of Appeal related to a discretion to retain an item. We accept that decision. Our submission would be that that discretion should not be exercised in their favour, and if there is a discretion to inspect the item, our first submission would be that there would be no discretion to inspect the item and that that has not been decided by the Court of Appeal, nor by any case, any of the judgments referred to in Cahyadi refer to an opportunity to inspect an item which is unlawfully seized." 1. I rejected the application. I did so for two independent reasons. 2. First, I was of the view that it was not open to the appellants to reargue this issue. I said at [54]: "I do not accept that the issue remains unresolved, or that it is open to me to determine it afresh." 1. I explained that that was because of the orders made on 14 February 2020, which had determined that issue, and that if there were any doubt about that, it was confirmed by the Court's reasons. 2. Secondly, I regarded the submission as wrong in principle. The Commissioner is entitled to be heard against the equitable relief sought by the appellants for the return of Mr Barbeliuk's computer and the destruction of the image. As it happens, by reason of orders obtained ex parte and subsequently continued by consent, the police have not as yet had access to the computer, save for a three day period after it was seized. I did not accept that the hearing should take place in circumstances where the police were precluded from inspecting the contents of the computer. 3. I said at [73]-[76]: "No claim of copyright or privilege or confidential information was sought to be made out by Mr Barbeliuk. His claimed entitlement was based on ownership of the computer, and his entitlement to its return consequent upon the finding that the search warrant was invalid. There are difficulties given that Mr Barbeliuk was not a party for many months, and that the amendment of the summons to claim that the warrant was invalid happened relatively late in the litigation, but those matters may be put to one side. The underlying right turns on Mr Barbeliuk's ownership of the physical computer, and vindication of the important right of citizens to insist that police exercising compulsive powers conform to the law. In reality, bearing in mind that Mr Barbeliuk does not own the image made by police of his hard drive, his rights ultimately turn upon the latter, not the former. Those rights are quite different from an equitable right to confidential information, or a legal right to privilege. True it is that Mr Barbeliuk will ultimately be entitled to the return of his computer (if for no other reason, pursuant to statute), and it may well be that the exercise of a discretion in accordance with the principles in Caratti results in its earlier return because the warrant was invalid. But I fail to see why the fact that he has obtained interlocutory relief trumps the ordinary right of a defendant against whom discretionary relief is sought to be heard including as to the contents of the computer. Analogies with privilege are inapposite. If a party has in its possession a document which is said to be privileged, and disputes that claim, then that party will not ordinarily be permitted to inspect the document in order to advance its submissions. There is no balancing exercise. Either the document is privileged or it is not. If it is privileged, then the other party will not be permitted to see it, because that is of the essence of the right. But Mr Barbeliuk's submissions for the return of his computer without any variation to the interlocutory regime are not based on privilege. It is conceded that the relief Mr Barbeliuk seeks is discretionary. I do not see how it can be right, with respect, for Mr Barbeliuk on the one hand to have obtained interlocutory relief preventing access to the computer in the possession of the police, and on the other hand to say that the discretion should be exercised adversely to the police because the police have, in compliance with the orders he has obtained, not accessed the computer and cannot adduce direct evidence of its contents. The interlocutory relief should not be permitted to predetermine the ultimate rights of the parties." 1. Further to the above, I noted, but did not rely upon, the evidence adduced by the police, in particular the unchallenged evidence of Detective Sergeant Karras that he believed that the computer is likely to contain child abuse material. I also noted that: "I am conscious that Detective Sergeant Karras has a deal of experience in matters of this nature. His beliefs are in part a product of that experience. Mr Barbeliuk has known Mr Doyle since he was a teenager and worked at the Kogarah Mecca. He is the donee of a power of attorney. He has been living in Mr Doyle's home for many years. His laptop was found in the top drawer of a wardrobe in the master bedroom. The USB sticks which are item 22 and which contain child abuse material were found in the third drawer of a wardrobe in the master bedroom. The execution of the warrant records an officer saying: '2:14 pm, we got some USB sticks 1, 2, 3, 4, 5 in a plastic bag in the third drawer on this second panel of the cupboard. It was just sitting there. Was sitting on top of the passport, I won't seize the passport, but it is a current passport but is current for Mark Alexander Barbeliuk.'" 1. I made the following orders which were in part derived from the form of orders to which the parties had consented in relation to other items seized: "1. In spite of any other order made in the proceedings (whether in the Common Law Division or the Court of Appeal), counsel and the solicitors acting for the Commissioner of Police in these proceedings, who have given an undertaking to the Court in accordance with Order 2 below, may inspect the contents of the item known in these proceedings as item 24 (being a silver Apple MacBook owned by Mr Barbeliuk) and the image of the hard drive of item 24. 2. The respondents to provide within 7 days of today an agreed form of undertaking, or, in lieu of agreement, the undertaking they propose, to be proffered in relation to the right of access given by Order 1 above. 3. The parties to provide minutes of any further orders as agreed, or in lieu of agreement, the orders they seek, in relation to access to item 24 and the image of its hard drive, by officers of the Digital Forensics Unit of the NSW Police Force, within 7 days of today. 4. Stay the operation of Order 1 above until 2 pm on 12 March 2020. 5. List the proceedings for directions before me at 9:30 am on 2 April 2020. 6. Liberty to apply on two business days' notice." 1. On 11 March 2020, the orders permitting representatives of the Commissioner to access the laptop upon giving a undertaking were stayed until the determination of a special leave application which was then proposed, and which eventuated (albeit not within time). Special leave, and the requisite extensions of time, was sought from the judgments delivered on 14 February and 5 March 2020. The application was refused on 9 September 2020: Barbeliuk v NSW Commissioner of Police & Ors [2020] HCASL 187. The reasons of Bell and Nettle JJ stated: "Given that it remains to be determined whether the police will be required to return the computer to the applicant or prohibited from accessing the information it contains, and it is not suggested that an appeal would not lie from Leeming JA's order to the Court of Appeal, this is not an appropriate vehicle for the grant of special leave. It would be futile, therefore, to grant the extension of time sought." 1. It followed that the 7 day stay of order 1 effected by order 4 was extended until 9 September 2020, but thereafter ceased to be in force. On 10 September 2020, the access regime made on 5 March 2020 ceased to be the subject of a stay. 2. The matter returned before me for directions on 22 September 2020. The parties had supplied proposed short minutes of order the previous day. Those of the Commissioner proffered certain undertakings, which were substantially identical to those proffered six months earlier, confining the use of any material recovered from the laptop to the application in the present proceedings for the return of the laptop and destruction of the image. Those from Mr Barbeliuk contemplated an application for leave to appeal from the orders made by me on 5 March 2020, and a further stay. 3. It was confirmed at the commencement of the hearing that the only substantive issue was whether there should be a stay pending an as yet inchoate application for leave to appeal. Oral submissions 1. It is convenient to reproduce the entirety of what was said in support of the stay: "STITT: Your Honour, the status quo should be maintained and the stay should be continued until further order which will be the final determination for the following reasons: there is a significant legitimate public interest element in the administration of justice which requires police officers in the execution of their duties to act within the law and not to breach the law or act illegally, and the Court will intervene to prevent the erosion or undermining of the administration of justice by the police acting illegally in their investigations. The High Court has said as much in the Lawyer X case involving the Victorian Police in their investigations and the barrister Gobbo, and it of course was the principle which underlay the recent prosecution and conviction of Detective Jubelin in his illegal recording of interviews with a witness, a member of the public, in the William Tyrrell investigation. Your Honour, this Court has found that the police acted illegally in breach of the law relating to the relevant search warrant. The items seized were obtained unlawfully. There is no evidence to suggest or establish that Mr Barbeliuk has committed any offence. Now, your Honour, the respondents should not derive any benefit at all from the possession of the illegally seized items even if it consists only of being read by the respondents' lawyers whose primary duty is to their client, the New South Wales Police. That use does amount to use of the computer for investigative or prosecutorial purposes. The stay should be continued until further order and the interlocutory order does not undermine the rights of the parties. If your Honour pleases." 1. I raised two further matters with Mr Stitt: the fact, as it seemed to me, that his submission was inconsistent with what had been held in Smethurst, and that the submission being made had been made before. Concerning the latter, I said: "[W]hen I looked at this the second time on 25 February, I formed the view that I was bound by the Court of Appeal constituted by me, Payne and Simpson JJA, and I thought that Mr Agius who was making the same submission, in effect, that you've just made was doing something that just wasn't left open by the orders. I'm inclined to think that the submission you're now making is doubly precluded, first of all by the decision of the Court of Appeal on 14 February and secondly, what I did earlier this year." 1. Although originally content to proceed on the basis of an intention to seek leave to appeal, Mr Stitt accepted my invitation to support his application by the summons seeking leave to appeal, draft notice of appeal and summary of argument in support. The orders I made permitted Mr Stitt to be heard as to Smethurst, a decision which he was unable to address at the hearing. 2. Mr Singleton, who appeared for the Commissioner as he had in February, opposed the latest application for a stay, stating that the matter had already been considered by the Court of Appeal, from whose orders special leave to appeal had been refused. He continued: "It is true, or we are prepared to accept the principle that Mr Stitt began with, namely that the police should conform to the law and if they don't, there may be adverse repercussions to them. But that proposition is to be balanced against other relevant factors such as the importance of the material in question. Ultimately, also remitted to your Honour individually is the question of whether the police, as investigators, should have access to this material, and it has been determined that that judgment should be formed on the basis of some knowledge on the Court's part of what is inside the laptop. So in our respectful submission, in short what is sought is a stay of the effect of a decision that's already been made by a Full Bench and not overturned by the High Court when it had the opportunity. The matter should proceed without further delay. That will not prejudice the ultimate interests of Mr Barbeliuk. We accept that he has an interest in not having illegally or improperly obtained material used against him in a criminal trial. We accept even that he has a broader privacy type interest in not having the police even look at his material. We even accept that having the lawyers look at it under strict confidentiality arrangements is a small infringement on his privacy, but it is with great respect so small and for a sufficiently good purpose. And it's already been determined against him that the matter should now proceed with proper, although not extreme expedition, and that what now needs to be done is simply to approve the terms of the undertaking if the Court agrees with them or amend them, if necessary, and give us a deadline for coming back with evidence and submissions arising from that inspection by the lawyers. May it please, your Honour." 1. Both sides confirmed that although Mr Doyle's second trial was to commence imminently, the outcome of the present dispute was not anticipated to impinge upon it. That seems correct so far as I can see. Written submissions 1. In accordance with directions made on 22 September, I received written submissions on 23, 24 and 25 September. 2. The draft documents for bringing an application for leave to appeal were supplied on 23 September 2020. I do not think it is necessary to summarise them at any length, save to say that the summary of argument stated that I erred "in the exercise of [my] discretion in making an order giving the legal representatives of the first respondent access to item 24 in the circumstances that pertained at that time" and to note that the summary of argument (with respect correctly) identifies that there were two reasons for making the order, namely, that I considered (a) that it was a consequence of the decision on 14 February, and (b) that it was correct in principle (paragraph 16). 3. The Commissioner was highly critical of Mr Barbeliuk's application. He regarded Mr Barbeliuk's prospects of success as "remarkably poor", including because the appeal was from a discretionary interlocutory decision, and "the proposed appeal in substance [contended] that a decision already made by the Court of Appeal in the same case is wrong". The submission continued that the summary of argument "presses the proposition that the laptop should be returned without any inspection by or on behalf of the police – a proposition that has been rejected by the Court of Appeal already, and regarding which the High Court has declined to intervene". 4. The Commissioner accepted that a refusal to grant a stay would have the effect of irreversibly permitting the Commissioner's lawyers to inspect the laptop's contents, which would infringe Mr Barbeliuk's privacy. But the Commissioner emphasised that the infringement would be subject to strict confidentiality, and was outweighed by the legitimate interest in progressing the case. The submission continued: "In addition to the general interest in conducting litigation expeditiously, there is a legitimate public interest in having any necessary police inquiries progress expeditiously. That interest is not merely theoretical or one of principle. Det Sgt Karras has testified, without objection or cross-examination, that other seized items were found to contain photographs of minors engaged in sexual activity and that he believes that 'it is likely that the laptop will contain child abuse material' ... If that belief is correct then there is a real need for the police to investigate expeditiously, for photographic child abuse material will often be the product of child abuse and there may be a need to intervene to prevent abuse from continuing. The mere possibility that this need exists, combined with the overwhelming importance of intervening if child abuse has occurred and therefore might still be occurring, produces a strong case against further delay and therefore a strong case for refusing a stay. The evil of granting a stay that is later found not to have been warranted is far greater than the evil of refusing a stay so as to produce a minor breach of privacy." 1. In his submissions in reply, Mr Barbeliuk maintained that Smethurst, far from standing in the way of acceptance of his submissions, should be regarded as warranting the matter being considered afresh. It was also submitted that Smethurst was distinguishable, on the basis that the High Court did not consider the position where the articles seized were not required for any prospective criminal trial. Reliance was placed on the judgments of Gageler, Gordon and Edelman JJ, who were minded to grant limited injunctive relief. It was said that: "The mere fact that a potential criminal investigation remains on foot cannot be enough to justify and order that the police retain or gain access either directly or indirectly to the contents of the illegally acquired material. In this case the police have not provided any evidentiary foundation of the commission of any offence or crime by Mr Barbeliuk." Disposition 1. I reject Mr Barbeliuk's application for a further stay, pending his application for leave to appeal from the 5 March 2020 orders of the Court of Appeal constituted by me. 2. First, Mr Barbeliuk remains bound by the orders made on 14 February 2020. The position is no different from that which obtained in Doyle v Commissioner of Police (No 2). The submission now advanced by Mr Barbeliuk, represented by different solicitors and counsel, was determined by the Court of Appeal by its decision on 14 February 2020. I do not accept that it is open to him to make this application. 3. In substance, this latest application is a third attempt to relitigate the same issue. The submissions made by senior counsel newly briefed for Mr Barbeliuk are in substance identical to those made by Mr Agius reproduced in [82]-[84] of the first Doyle decision, which were reiterated before me in the second Doyle decision. The entitlement of the police to access to the laptop, for the limited purpose of a hearing as to whether the appellants should obtain injunctive relief, was determined by the Court of Appeal in its first judgment. It is explicit in order 5 made on 14 February 2020, from which the High Court has refused special leave to appeal. 4. Attempting to re-litigate a matter that has already been determined may amount to an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [33] (to be clear, I do not in this judgment find, nor have I been asked to find, that there has been an abuse of process). 5. Secondly, I continue to regard it to be correct as a matter of principle that such relief as Mr Barbeliuk may be entitled in equity is discretionary, for the reasons I gave on the last occasion. 6. In short, even though the warrant has now been found to be invalid, Mr Barbeliuk is not entitled to the injunctive relief he seeks automatically. Instead, there is a discretion which falls to be exercised. The Commissioner is entitled to be heard as to the exercise of that discretion. The Commissioner is entitled to adduce evidence to that end. He has done so, including opinion evidence – presently uncontroverted – that the laptop computer is likely to contain child abuse material. There are difficulties with that evidence, but it is supported by the fact that the laptop was found in the same place (quite possibly, Mr Barbeliuk's bedroom) as USB sticks which did in fact contain child abuse material. The only reason to date he has been unable to obtain access to the image of Mr Barbeliuk's computer in his possession is the continuation of ex parte relief obtained initially by Mr Doyle, and continued thereafter. I do not accept that the substance of the Commissioner's right to be heard as to the exercise of discretionary relief sought by Mr Barbeliuk is to be predetermined by the fact that Mr Doyle obtained such relief. 7. Thirdly, the appellants' submission is irreconcilable with what has more recently been held by the High Court in Smethurst. All members of the High Court acknowledged that Ms Smethurst was not entitled as of right to the recovery of a copy of data taken from her phone pursuant to an invalid warrant. A majority of the High Court held that Ms Smethurst was not entitled to any injunctive relief at all. Even the minority considered that such injunctive relief as might issue should be tailored so as to enable a further warrant to be executed upon her mobile phone. 8. With respect to Mr Barbeliuk's submissions to the contrary, neither the reasoning nor the outcome in Smethurst warrants reconsideration of any of the existing decisions. To the contrary, it confirms their correctness. 9. Fourthly, in substance the application is for a stay pending an (anticipated) application for leave to appeal. (Actually, it is for a substantial extension of time to seek leave to bring an appeal, but I put that to one side.) The ordinary principles in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5 apply. The onus lies on Mr Barbeliuk to make out a case why it is just to deny the Commissioner the entitlement to examine the contents of the laptop in advance of any hearing of his application for injunctive relief. He has in my view conspicuously failed to do so. Invidious though it is to review the prospects of success from my own order, I think the prospects are very weak, particularly because I regarded the matter as determined by what had already been decided. In terms of the balance of convenience, it overwhelmingly favours access. What will occur is that there will be limited inspection confined to persons who have given an undertaking to the Court to use the material only for the purposes of the application for injunctive relief. It may be that following a hearing for injunctive relief, Mr Barbeliuk obtains the orders he seeks. Alternatively, it may be that the police are permitted to retain all or part of the material copied by them. Either or both sides will have a right to have the orders reconsidered by the Court of Appeal constituted by three Judges of Appeal (as was mentioned by the High Court in refusing special leave). No answer has been given to the case advanced by the Commissioner, based on the uncontested evidence of child abuse material found near the laptop and Det Sgt Karras' belief that it is likely that there is child abuse material on the laptop. Conclusion 1. Order 1 made on 5 March 2020 confirmed the entitlement of counsel and solicitors for the Commissioner who had given an undertaking. There is no dispute concerning the sufficiency of the undertakings proffered by the Commissioner. They extend to officers in the Digital Forensics Unit of the NSW Police, and that is appropriate. It follows that the limited stay of order 1 effected by order 4 made on 5 March 2020, and extended pending the determination of the application for special leave, has expired. 2. What should happen now is that persons who have given the undertaking to the Court and provided copies of it to the appellants may examine the laptop, solely for the purpose of determining whether to adduce evidence in support of an application to oppose injunctive relief being granted to the appellants. It is not presently clear how long that will take. In the first instance, I will relist the matter for directions in three weeks' time, with a view on that occasion to making any further timetabling orders and setting down the remaining issues for hearing. 3. It may be that I am wrong about the effect of this Court's decision and orders of 14 February 2020, and about the question of principle, and about Smethurst being contrary to the application being made. In circumstances where there is no longer any suggestion of urgency, I shall continue the operation of the stay until 7 days from today. The effect will be that after 5pm next Wednesday 7 October 2020 legal practitioners and officers from the Digital Forensics Unit who have provided a copy of an undertaking to the Court in the terms mentioned above may access Mr Barbeliuk's computer, for the limited purposes of that undertaking. They may not use anything they obtain for any other purpose. 4. In light of Mr Doyle's second trial, this judgment will not immediately be made available on Caselaw. 5. I make these orders: 1. Note that for the purposes of order 1 made on 5 March 2020 entitling access to persons who have given an appropriate undertaking to inspect item 24, the undertakings contained in the short minutes of order provided on 21 September 2020 are appropriate. 2. Continue the stay of order 1 made by order 4 of 5 March 2020 until 5 pm on Wednesday 7 October 2020. 3. List the proceedings for directions before me at 9.30am on 21 October 2020. 4. Reserve the question of costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2020