case_text: On 30 March 2006, I found that the respondent ('Siminton') had committed contempt by breaching and failing to comply with certain orders made by Sundberg J on 15 December 2006 ('the Sundberg J orders): see Australian Prudential Regulation Authority v Siminton [2006] FCA 326 ('the first judgment'). These reasons for judgment use the terms employed in, and are to be read together with, the first judgment. 2 The contempts committed by Siminton fall into two categories. The first category consisted of Siminton dealing with, and giving instructions in relation to, the disposition of moneys in certain bank accounts in the manner set out in charges 1.1 and 1.2 of the first statement of charge and in charges 1.1, 1.2, 1.3 and 1.4 of the second statement of charge ('the disposal contempts'): see [16]-[30] of the first judgment. The second category, which consisted of a failure by Siminton to post notices on two websites, was the subject of charge 1.5 of the first statement of charge ('the website contempts'): see [38]-[41] of the first judgment. 3 APRA submitted that the disposal contempts amounted to criminal contempt. In particular, APRA submitted that the disposal contempts were 'a calculated and clandestine attempt to withdraw funds from the Terra Nova Cache account, in deliberate defiance of paragraph 2(b) [of the Sundberg J orders], indicating [Siminton's] attitude to the Court's authority.' APRA pointed to, inter alia , the following factors to support its contention: 'The [disposal] contempts involve breaches...on 5 separate occasions... The Respondent deliberately disobeyed the orders. Large sums of money are involved in the breaches of paragraph 2(b) electronic transfers of $622,880 ... and an attempted cash withdrawal of $500 000. The contempts...were calculated and disguised. The contempts were committed in the context of proceedings against the Respondent alleging contraventions of the Banking Act where public funds may have become imperilled. There are no mitigating factors, such as contrition (the Respondent has not put on any affidavit material in support of his defence).' 4 I am satisfied that APRA's submissions as to the nature of Siminton's contempts are supported by the evidence and are plainly correct. On the evidence before the Court, it is clear that Siminton's disposal contempts were of an extremely serious kind and constituted wilful disobedience and contumacious disregard of the Court's orders. The seriousness of the breaches is underlined by the fact that Siminton's conduct was precisely the kind of conduct against which Sundberg J sought to guard by the making of the orders the subject of the contempt charges. The conduct involved the actual transfer of large sums of money ($536 880.18, $38 000, $43 000, $5 000 and $10 000 respectively) and an attempted cash withdrawal from a Bendigo Bank account of $500 000, all of which occurred shortly after Siminton became aware of the Sundberg J orders. I would add that the failure of Siminton to obtain the cash withdrawal of $500 000 from the Bendigo Bank account came about fortuitously and not as a result of any change of mind on the part of Siminton. I am prepared to infer that the nature and sequence of the transfers effected by Siminton, and his attempt to withdraw a significant amount of cash from an account with which he had no previous association, were an attempt by Siminton to avoid detection by APRA. I can more readily draw that inference in the absence of any explanation of the transactions in question by Siminton. The seriousness of the disposal contempts is exacerbated by the fact that, as a result of the transfers made in breach of the orders, amounts of $5 000, $10 000 and $43 880.18 (ie $617 880.18 transferred to Agios account via Technocash less $574 000 transferred from that account to the Bendigo Bank account) appear to have been taken outside the direct protection of the Sundberg J orders. That observation is made on the assumption that the $574 000 transferred to the Bendigo Bank account (of which Siminton attempted to withdraw $500 000) is still within the direct protection of the Sundberg J orders. 5 Because of the belated compliance by Siminton with the Sundberg J orders in relation to posting notices on the two websites, the website contempts are less serious. Although the website contempts evidence a disregard by Siminton for the orders of the Court, they would not, standing alone, warrant a term of imprisonment. 6 The findings set out above are based on the evidence adduced at the hearing on liability and on APRA's written submissions on liability and penalty filed prior to the penalty hearing. Siminton's response to APRA's evidence and submissions was to continue to maintain, as he is entitled to do, that he 'is constrained from personally giving evidence in support of his plea by his exercise of the right against self-incrimination'. Another response was to file some material to the effect that his solicitor was making an endeavour to settle the main proceeding. Siminton also filed a statement by a friend stating that he was of good character. His counsel supplemented that statement from the bar table. The responses set out above are relevant to penalty but, having regard to the seriousness of the contempt, carry little weight on the issue of penalty. 7 Siminton's counsel also relied on the fact that Siminton had no prior contempt convictions and had eventually posted at least one of the requisite notices. I accept that both of those matters should be taken into account in Siminton's favour on the issue of penalty. 10 As I explained at [10]-[11] of the first judgment, the distinction between civil and criminal contempt has lost much of its significance. In so far as the distinction might be relevant to penalty, I am satisfied that the disposal contempts involved deliberate defiance of the Sundberg J orders and constituted a criminal contempt. As stated above, because the disposal contempts were disguised steps calculated to defeat, and which in part defeated, the purpose of the Sundberg J orders, they amount to particularly serious contempts. 11 Although Siminton has not gone into evidence about his contempts, I am prepared to give him the benefit of the doubt in relation to the website contempts, in that I am prepared to regard them as not involving deliberate defiance. Accordingly, in so far as it may be relevant to penalty, I treat those contemps as civil contempts. 12 Siminton has provided no evidence about his financial circumstances. However, APRA has adduced some evidence relevant to that matter. He was made bankrupt on 9 August 2001 and has failed to provide a statement of affairs or to deliver up his passport as required by the Bankruptcy Act 1966 (Cth) ('the BA '). As a discharge usually only occurs three years after the filing of a statement of affairs, the bankruptcy is likely to continue for at least three more years. Under s 58 of the BA , the property of Siminton, including 'after-acquired property' as defined in s 58(6) , vested in his trustee on his bankruptcy. A fine imposed on a bankrupt is not provable in bankruptcy (see s 82(3) of the BA ). There is no evidence that Siminton has any capacity to pay a fine and the interlocutory orders made in the proceeding prevent him from accessing any of the funds upon which he might otherwise lawfully draw upon to pay any fine. 16 I accept that imprisonment should be a last resort but, having regard to the circumstances outlined above, I am in no doubt that in relation to the disposal contempts a term of imprisonment is both appropriate and necessary to vindicate the Court's authority. I regard personal deterrence as remaining a significant factor but I regard general deterrence as being of particular importance in the present case. Freezing orders of the kind made by Sundberg J are commonly made by the courts in order to preserve the status quo pending an interlocutory or final hearing. If such orders were seen as being able to be disobeyed with impunity that would significantly undermine the ability of the courts to effectively administer justice according to law.


case_outcome: applied

case_text: In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 , I accepted the following submission, which was made on behalf of the applicant in that case, as accurately setting out the principles relevant to the question of penalty for contempt: '1.5 In deciding the appropriate penalty, a court should consider the following factors: (1) contemnor's personal circumstances; (2) nature and circumstances of the contempt: R v West Australian Newspapers Ltd; Ex Parte DPP (WA) (1996) 16 WAR 518; (3) effect of the contempt on the administration of justice: Durack v Gallagher (1982) 44 ALR 272 at 286-7; (4) contemnor's culpability: Durack v Gallagher (1982) 44 ALR 272 at 286-7; (5) need to deter the contemnor and others from repeating contempt: DPP v John Fairfax & Sons Ltd (1987) 8 NSWLR 732, Kirby P at 741; and (6) absence or presence of a prior conviction for contempt: Attorney-General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405 at 410. However, other criminal history is irrelevant: R v Giscombe (1984) 79 Cr App R 79 at 84. 1.6 In deciding the amount of any fine the Court should take into account the contemnor's financial means: Smith v R (1991) 25 NSWLR 1. The court may also suspend the fine on terms. Contrition and apology 1.7 Genuine contrition and a full and ample apology may also reduce the penalty: R v Gray [1900] 2 QB 36 at 41-2; Superstar Australia Pty Ltd v Coonan & Denlay Pty Ltd (No 2) (1982) 65 FLR 432 at 436. Imprisonment 1.8 It is widely accepted that the court should only impose a term of imprisonment in the most serious criminal contempt cases: Keeley v Justice Brooking [1979] HCA 28 ; (1979) 143 CLR 162 at 179; Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238. 1.9 In Deputy Commissioner of Taxation v Hickey [1999] FCA 259 , Carr J held that imprisonment is a "last resort": see also R v Vasin (1985) 39 SASR 45; James (1985) 14 A Crim R 364; Skipper (1992) 64 A Crim R 260.'


case_outcome: cited

case_text: As with any deliberate defiance of the Court's orders, Siminton's disposal contempts have a severe and deleterious effect on the administration of justice. I observed in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 629 at [79] that the rule of law in a democratic society does not permit any member of the society to pick and choose the laws or court orders that are to be observed and those that are not. I added: 'Maintenance of the rule of law in our society does not only require that parties are able to resort to courts to determine their disputes ( Patrick Stevedores Operation No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 31 ; (1998) 153 ALR 641 at [1] per Hayne J), it also requires that parties comply with the orders made by the courts in determining those disputes.'


case_text: In Pelechowski v The Registrar, Court of Appeal [1999] HCA 19 ; (1998) 198 CLR 435 at 463 [88] McHugh J observed: 'if breaches of court orders were regarded as of little moment, respect for and observance of the law would inevitably deteriorate and, ultimately, pose a threat to social order.' 19 In my view, the object of general deterrence in the present case requires that a penalty be imposed that protects the effective administration of justice by demonstrating that the Court's orders cannot be disobeyed with impunity. 20 APRA submits that for each of the disposal contempts the appropriate penalty is a sentence of imprisonment of nine months and that for each of the website contempts the appropriate penalty is a sentence of one month, with the sentences to be served concurrently. 21 The Court has a broad discretion as to penalty. Having regard to the factors set out above and the matters put forward by counsel on behalf of Siminton, the appropriate term of imprisonment for the disposal contempts is 10 weeks. I would add that had there been any prior contempt convictions, the penalty would have been significantly greater. I am also not prepared to accede to Siminton's submission that any sentence of imprisonment should be suspended. In the present case, there are not sufficient mitigating circumstances to justify suspending the sentence. 22 As explained above, the website contempts did not involve deliberate defiance and therefore do not warrant imprisonment. Although I have expressed doubt as to the efficacy of a fine in respect of Siminton, I have decided that a fine of $5 000 is appropriate in respect of the website contempts. In arriving at that figure, I have given particular weight to the absence of any satisfactory explanation, regret, contrition or remorse on Siminton's part. 23 APRA sought to have Siminton pay its costs in respect of the contempt motions on a 'party-party' basis. I am satisfied that APRA is entitled to have its costs paid on that basis. Although APRA failed on its 'failure to file allegations', those allegations played a very small part in the contempt case. In the circumstances, I am prepared to order that Siminton pay APRA's costs of and incidental to the contempt proceedings on a party-party basis. As APRA pointed out, costs orders against a bankrupt are subject to s 58(3) of the BA . I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel J. Associate: Dated: 10 April 2006 Counsel for the Applicant: D Sharp Solicitor for the Applicant: Erhardt & Associates Counsel for the Respondent: D Mortimer SC with St J Hibble and V Prishkich Solicitor for the Respondent: Australian Prudential Regulation Authority Date of Hearing: 10 April 2006 Date of Judgment: 10 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/397.html


case_text: Counsel appearing for Siminton offered an 'unreserved apology' on behalf of his client but stated that Siminton maintains his plea of not guilty and proposes to appeal. As was stated by RD Nicholson J in analogous circumstances in Australian Competition and Consumer Commission v Info4pc.com [2002] FCA 949 ; (2002) 121 FCR 24 at 57-58 [155] , such an apology does not 'demonstrate any remorse to be taken into account'. Siminton's counsel also proffered an undertaking to comply with all of the orders of the Court. That undertaking is to do no more than Siminton is obliged to do in any event. 15 In the result, there is no evidence upon which I would be prepared to act that Siminton has displayed any regret, remorse or contrition about his contempts.


case_outcome: followed

case_text: Mr Oke submits that the execution of the Birchgrove warrant was illegal and that the AFP should be ordered to return, or destroy, the hard drive image. His application raises various issues regarding the provisions of Part IAA of the Act, and the interaction of those provisions with the common law of legal professional privilege, including the principle enunciated by the High Court in Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52, that a document recording a privileged communication cannot be made the subject of a search warrant issued under s 10 (now s 3E) of the Act. 6 The validity of the Birchgrove warrant itself is not challenged. What is challenged is the validity of its execution. There are three issues to be determined on the application concerning the validity of the execution of the Birchgrove warrant: 1. Whether the execution of the search was invalid because it did not comply with s 3H of the Act, in that the copy of the warrant provided to Mr Oke at the commencement of the search did not contain the name of the issuing officer and the handwritten portion of the attestation clause; 2. Whether the execution of the search was invalid because the copy of the warrant provided to Mr Oke at the commencement of the search did not have attached a copy of the privilege notice; 3. Whether the seizure of the laptop computer was invalid because the executing officer did not have the requisite state of mind specified in s 3F of the Act or because it was the subject of a claim of legal professional privilege; Submissions were also directed to the appropriate forms of relief if any of those claims were made out. 7 A further issue arose on the amended application, but no longer arises. It concerned the purported return of the laptop computer, and then its re-seizure from Mr Oke, on 2 July 2004, apparently invoking s 3K of the Act. Senior counsel for the AFP during the hearing of the application acknowledged that the AFP's entitlement to retain the laptop computer or a copy of its hard drive was not enhanced by what occurred on 2 July 2004 or by s 3K of the Act. It is not therefore necessary to further address that issue. 101 In Baker v Campbell [1983] HCA 39 ; 153 CLR 52 , the High Court by majority concluded that, in the event that legal professional privilege attaches to and is maintained in respect of documents held by a legal firm, those documents cannot properly be made the subject of a search warrant issued under s 10 of the Act. Section 10 of the Act has since been repealed but it is similar, for present purposes, to the relevant parts of ss 3E and 3F. In Baker v Campbell it was assumed that the documents in issue were privileged, as the matter was heard on a case stated. 102 The practical difficulties which may arise in circumstances where legal professional privilege is claimed in respect of documents which would otherwise fall within the terms of a search warrant were recognised by Wilson J, who said (at 97): "It is asserted that a claim of privilege in circumstances where the proceedings in respect of which it is made have not begun immediately raises procedural difficulties if the claim is contested. There is no judge already seized of jurisdiction in the matter to determine the disputed claim. The interests of all parties must be protected pending a determination of the dispute. In my experience the procedural difficulties can be overcome consistently with that objective if the members respectively of the police force and the legal profession co-operate in a reasonable and responsible way. I do not think that it is necessary for the purposes of the stated case to explore the problem." 103 Following the decision in Baker v Campbell, the Law Council of Australia and the AFP entered into an agreement as to the manner in which such claims should be treated. The terms of that agreement form the guidelines contained in the privilege notice and which were attached to the original Birchgrove warrant. 104 The privilege notice reads as follows: "If a claim is made for legal professional privilege in respect of any document covered by the warrant, and if the person claiming privilege is prepared to co-operate with the executing officer, the following procedure will be followed to the extent to which it is possible to do so: 1. The executing officer or a constable assisting will prepare a list of the relevant documents in cooperation with the person claiming privilege. The list will show the general nature of each document, the ground on which privilege is claimed, and the name of the person claiming privilege; 2. The documents will be placed in an envelope or other container which will be sealed; 3. The list and the container will be endorsed with a note to the effect that, having regard to the claim for privilege, the warrant has not been executed in respect of the documents set out in the list and that those documents have been sealed in the container pending resolution of the claim; 4. The list and the container will be signed by the executing officer or constable assisting and the person claiming privilege; 5. The sealed container and a copy of the list will be delivered to a third party agreed between the executing officer or constable assisting and the person claiming privilege; 6. The third party shall hold the container and the copy of the list pending resolution of the claim for privilege; 7. Subject to any agreement to the contrary, the person claiming privilege will have four working days after delivery to the third party in which to commence proceedings to establish the privilege claimed. If proceedings are commenced within that time the sealed container and the copy of the list will be delivered to the registrar of the court in which the proceedings have been brought. The documents will then be held by the registrar pending the order of the court; 8. Subject to paragraph 9, if proceedings are not commenced within four working days, or such other period as may be agreed, the third party will deliver the documents, or such of them as the executing officer still wishes to examine, to the executing officer; 9. Nothing in this document prevents the executing officer from discussing a claim for privilege with the person raising the claim. If agreement can be reached on which documents are covered by legal professional privilege, and which are not, the third party will be asked to act in accordance with that agreement. If the person claiming legal professional privilege is not prepared to cooperate with the executing officer, it will normally be necessary for the executing officer or a constable assisting to examine each relevant document to determine whether there is a proper basis for seizure." 105 Mr Oke contended that, as a matter of law, it is not possible to "seize" an item under the Act which is subject to a claim of legal professional privilege. 106 The respondent submitted that the effect of the decision in Baker v Campbell is only that a search warrant cannot be executed in a manner which abrogates or nullifies the claim of privilege. It was said that to "seize" a document or thing means to take it into lawful possession subject to the claim of privilege being determined, so that seizure under the Act was still possible even if the seized item may ultimately be recognised as privileged. 107 I do not accept either contention. In my view, Baker v Campbell decides that a search warrant cannot authorise the seizure of privileged documents. The Birchgrove warrant must therefore be read as authorising seizure of the documents that satisfy the conditions specified, provided that they are not documents subject to legal professional privilege. Nor does it decide that a search warrant cannot authorise the seizure of documents in respect of which there is merely a claim to legal professional privilege. That question did not arise. Nor, upon my reading of the judgments in Baker v Campbell , is there anything said in that case to support such a contention. 112 I consider their Honours' conclusion is consistent with the decision in Baker v Campbell [1983] HCA 39 ; 153 CLR 52. In Baker v Campbell the documents the subject of the search warrant were assumed to be privileged from disclosure or production on the ground of legal professional privilege. In that event, they could not be the subject of a search warrant under the Act. So, here, if the laptop computer and all its contents were to be so protected, it could not have been the subject of the Birchgrove warrant and its seizure would not have been authorised. The approach of the Full Court in JMA Accounting addresses the circumstances where there is a contested claim to such privilege and the practicality that it cannot be immediately resolved (and where s 3K(2) has not been availed of).


case_outcome: distinguished

case_text: Spender J considered the validity of a series of s 3E search warrants which failed to name the issuing officer in Seeter Pty Ltd v Commonwealth (2004) 210 ALR 437. In that case, the attack was upon the validity of the warrants, rather than upon the validity of their execution. His Honour concluded at 453-454, [60]-[63] that the omission of the issuing officer's name did not invalidate the warrants. He noted at 453, [60] that each page of the search warrants under consideration bore the registration number and signature of the issuing officer, and the official stamp of the issuing authority. In those circumstances, Spender J was satisfied that the issuing officer had "adequately identified her capacity to issue the warrants": at 454, [63]. Although I was referred to that case by counsel, on reflection I do not think it assists in resolving the present issue. The Birchgrove warrant itself is not under attack, and it contains the name of the issuing officer as well as a completed attestation clause. 44 Part IAA of the Act was introduced by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth). It clearly prescribes specific powers and safeguards in relation to warrants and other matters in the investigation of Commonwealth offences, including safeguards of the rights of individuals in relation to whom the coercive investigatory powers of the Commonwealth are invoked. Of particular significance to the present issue is that the Explanatory Memorandum to the Crimes (Search Warrants and Powers of Arrest) Amendment Bill 1994 (Cth) stated, in relation to s 3H(5): "In order to prevent forgery or other wrongful use of the warrant copy, subsection 3H(5) provides that the copy need not include the signature of the issuing officer or the seal of the Court. This provision has been included at the specific request of the ACT Chief Magistrate." 45 There is no prescribed form for a search warrant issued under s 3E. Subsections 3E(5), (6) and (7) specify information which an issuing officer must state in a search warrant issued under that section. That information includes the time at which the search warrant expires: s 3E(5)(e). Section 3E(5A) directs that the time so specified must be not later than the end of the seventh day after the day on which the search warrant is issued. Those subsections do not expressly require the issuing officer to be described in, or to sign, the search warrant. 46 However, in my view, it is implicit that a search warrant will also bear on its face sufficient information to identify that it has in fact been issued by an issuing officer, so that any person entitled to see a copy of the search warrant under s 3H(1) can be satisfied as to its authenticity. That was the point made by Spender J in Seeter 210 ALR at 254, [63]. Section 3H(5) also supports the inference that a search warrant issued under s 3E should bear the signature of the issuing officer or some means of identifying that the issuing officer is in fact a person falling within the definition of "issuing officer" in s 3C(1) of the Act. That is because it expressly permits the copy of a search warrant made available under s 3H(1) not to include the signature of the issuing officer. The use of the seal of a court as part of that identification would not necessarily be expected, as the issue of a search warrant under the Act is an administrative or executive act rather than a judicial one. 47 On the Birchgrove warrant, the attestation clause was immediately preceded by words addressing the requirement of s 3E(5)(e) in the following terms: "THIS WARRANT MAY BE EXECUTED BETWEEN THE HOURS OF 6.00 AM AND 8.00 PM. THE TIME AT WHICH THIS WARRANT EXPIRES IS MIDNIGHT AT THE END OF THE SEVENTH DAY AFTER THE DAY ON WHICH THE WARRANT IS ISSUED" In its unexecuted form, it then continued: "GIVEN under my hand at ......... in the State of ..................... this ......... day of ..................... .......................................... A Magistrate in and for the State of ........................" 48 The way in which the original Birchgrove warrant was completed by the issuing officer is described in [19] above. 74 The purpose of s 3H(1) has not been the subject of much judicial discussion. Nor was its purpose explored in the Review of Commonwealth Criminal Law: Fourth Interim Report , Canberra, November 1990 (the Gibbs Committee Report) which presaged the introduction of Part 1AA into the Act by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth). (The history of Part 1AA is discussed by the Full Court in Harts Australia Ltd v Commissioner, Australia Federal Police (1997) 75 FCR 145 at 147-148.) In Wright v Queensland Police Service [2002] 2 Qd R 667, Holmes J at [30] referred to the ability of an occupier to whom a copy of a search warrant is made available being able "to ascertain the scope of the authority conferred by [the warrant] or the jurisdiction by which it was issued". That approach also is consistent with the approach of Spender J in Seeter 210 ALR 47.


case_outcome: referred to

case_text: It is unclear whether the failure to attach the privilege notice constituted a breach of the Act. There is no requirement under the Act that a s 3E warrant contain a notice regarding an occupier's right to claim privilege over documents the subject of the warrant. In Saunders v Commissioner, Australian Federal Police (1998) 86 FCR 51, French J held that a search warrant issued pursuant to the Act was not invalid for failing to expressly limit its scope to documents the subject of legal professional privilege. The applicant nevertheless maintains that if the AFP chooses to include the privilege notice in the original warrant it must, pursuant to s 3H(1), be included in the occupier's copy.


case_text: I am not persuaded, in the circumstances, that the privilege notice was not "made available" to Mr Oke as part of the copy of the warrant. Section 5H(1) does not prescribe how or when the copy of a search warrant is to be made available. Whether it has been made available is a question of fact. Ideally, the copy should be made available at one time, and as early as possible. But having regard to the purpose of s 5H(1), if there were some delay in the commencement or progress of the search authorised by a search warrant, the copy might be made available at a later point in time if the purpose were not thereby frustrated. And, one can readily imagine, a page or pages of a copy might accidentally become removed from the copy prepared for presentation. In such a case, assuming the page or pages were otherwise significant (in the way identified above), the delay in providing them might not mean that they were not provided as part of the copy made available. If, upon inspecting the copy made available, the occupier noticed and drew attention to the fact that pages were missing, and they were then provided, I think s 5H(1) would have been satisfied. There are obviously many other possible circumstances. Having regard to the observations of Kirby J in Ousley v The Queen [1997] HCA 49 ; (1997) 192 CLR 69 ( Ousley ) at 144, whether there has been compliance is a matter of fact and degree. On the evidence in this matter, I find that the privilege notice was provided to Mr Rydon at a sufficiently early point in the process of the execution of the Birchgrove warrant that its earlier absence had not affected adversely any claim for legal professional privilege Mr Oke made or the way in which his claim for legal professional privilege was treated. I therefore find that the provision of the privilege notice in the circumstances completed (in that respect) the making available of the Birchgrove warrant. 72 Moreover, subs 3E(5), (6) and (7) specify what the legislature considers must appear in a warrant. Those provisions appear to exhaustively state the matters the warrant must disclose to make it valid (see e.g. Ousley 192 CLR at 111). In general terms, they also define the extent of the authority conferred (see e.g. per Gaudron J in Ousley 192 CLR at 94), although s 3F then enlarges upon the extent of that authority. 73 Section 3E does not expressly require the name of the issuing officer to be included in the warrant. However, s 3H(5) indicates that the issuing officer will have signed the search warrant and by implication that the name of the issuing officer will appear on it. 80 In reaching that view, I am mindful that if the Birchgrove premises were unattended, the execution of the Birchgrove warrant may have proceeded lawfully even though the copy intended to be provided was incomplete. I do not think that consideration affects my conclusion. Kirby J in Ousley 192 CLR at 144 observed that "Courts properly tend to take a practical rather than an unduly technical view of challenges to warrants permitting intrusion into the property and privacy of those subject to them". The fact that, in different circumstances, the Birchgrove warrant might have been lawfully executed, or indeed the fact that the Birchgrove warrant itself was available to be provided to Mr Oke (but was not made available to him), does not diminish the significance of the non-compliance with s 5H(1) in the particular circumstances. 81 I am mindful that Federal Agent Capaldo had in her possession the Birchgrove warrant and could have made it available to Mr Oke. She did not however do so, but only provided a copy of the Birchgrove warrant in the form referred to above. 82 The omission of the privilege notice (assuming contrary to my view that, in this respect also, s 5H(1) was not complied with), does not have the same consequence. Its absence does not affect the capacity of Mr Oke to be satisfied of the nature of the authority being exercised or its extent. The copy of the Birchgrove warrant initially made available included the note quoted in [20] above. The fact that Mr Oke may have claimed legal professional privilege was therefore identified.


case_title: Arno v Forsyth (1986) 9 FCR 576

case_text: It was submitted alternatively on behalf of Mr Oke that the later provision of the privilege notice meant that the Birchgrove warrant was not executed reasonably, and so was invalid, relying on Arno v Forsyth (1986) 9 FCR 576. The same findings lead me to conclude that there was not such unreasonableness in the execution of the Birchgrove warrant as to lead to its invalidity. 63 The failure to provide a complete copy of the original Birchgrove warrant (subject to s 3H(5)) amounted to a breach s 3H(1). There is nothing in the Act to suggest that the AFP can selectively determine which parts of a search warrant it will make available to the occupier, and which parts it will not. However, it does not necessarily follow that the effect of that breach is to invalidate the entire search.


case_text: The majority of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 (McHugh, Gummow, Kirby and Hayne JJ) said at 388-9, [91]: "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."


case_outcome: considered

case_text: The construction of the Act, and particularly of s 3H, was considered (in a different context) by the Full Court of this Court in Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 ; (2002) 124 FCR 384. Relevantly, the Court said: "[64] The construction of statutes authorising the search of premises and the seizure of things from them begins with the ordinary meaning of the words considered according to their context and the legislative purpose... [65] The purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them: Rogers v Moore (1992) 39 FCR 201 at 217 per French J. Recognition of that purpose may yield a construction of the legislative words that is not necessarily narrowly defined. Remaining ambiguity or doubt whether of meaning or application will, in accordance with authority, be resolved in favour of the rights and freedoms of the subject... [68]...[E]ffect must be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of criminal offences. Where the language of the statute authorising their use offers choices between one construction requiring fine legal judgments in the issue and/or execution of warrants and another which is more likely to be consistent with operational realities then the latter construction is generally to be preferred ..."


case_title: Lawrie v Muir [1950] SLT 37

case_text: In their analysis of the competing policy considerations underpinning the Act, their Honours relied upon the following passage from the judgment of Lord Cooper in Lawrie v Muir [1950] SLT 37 (at 39-40): "From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interests of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods." 67 The invasion of premises without the consent of the occupier is authorised by a warrant issued under s 3E of the Act. The validity of such a warrant necessarily depends upon the fulfilment of the conditions governing its issue. The legislative imposition of those conditions reflects the balance struck between the desirability of an effective and efficient investigation of suspected criminal offences and the need to protect the right of an individual to enjoy that person's privacy and property.


case_text: The High Court in George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 said at 111: "... the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation." (my emphasis) It must be recognised that that case concerned the validity of the issue of a search warrant, and not the validity of the execution of a validly issued search warrant, although the underlying principles referred to by the High Court would appear to me to apply equally in the case of the execution of a warrant. 69 The consequence of the failure to comply with such statutory conditions may lead to the invalidity of the search warrant itself. George v Rockett is an example. Counsel for Mr Oke also relied upon certain observations in Woodroffe v National Crime Authority [1999] FCA 591 at [14] - [15] , but I do not consider that case advances Mr Oke's position simply because it concerned an application by the National Crime Authority to summarily dismiss a challenge to the validity of a search warrant and to the manner of its execution. Consequently, the Court was called upon only to determine whether the grounds of the challenge were arguable. The copy of the search warrant made available to the person challenging the validity of the execution of the search warrant was assumed not to have included the privilege notice.


case_text: The consequence of the failure to comply with such statutory conditions may lead to the invalidity of the search warrant itself. George v Rockett is an example. Counsel for Mr Oke also relied upon certain observations in Woodroffe v National Crime Authority [1999] FCA 591 at [14] - [15] , but I do not consider that case advances Mr Oke's position simply because it concerned an application by the National Crime Authority to summarily dismiss a challenge to the validity of a search warrant and to the manner of its execution. Consequently, the Court was called upon only to determine whether the grounds of the challenge were arguable. The copy of the search warrant made available to the person challenging the validity of the execution of the search warrant was assumed not to have included the privilege notice.


case_text: The purpose of s 3H(1) has not been the subject of much judicial discussion. Nor was its purpose explored in the Review of Commonwealth Criminal Law: Fourth Interim Report , Canberra, November 1990 (the Gibbs Committee Report) which presaged the introduction of Part 1AA into the Act by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth). (The history of Part 1AA is discussed by the Full Court in Harts Australia Ltd v Commissioner, Australia Federal Police (1997) 75 FCR 145 at 147-148.) In Wright v Queensland Police Service [2002] 2 Qd R 667, Holmes J at [30] referred to the ability of an occupier to whom a copy of a search warrant is made available being able "to ascertain the scope of the authority conferred by [the warrant] or the jurisdiction by which it was issued". That approach also is consistent with the approach of Spender J in Seeter 210 ALR 47.


case_text: The purpose of s 3H(1) has not been the subject of much judicial discussion. Nor was its purpose explored in the Review of Commonwealth Criminal Law: Fourth Interim Report , Canberra, November 1990 (the Gibbs Committee Report) which presaged the introduction of Part 1AA into the Act by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth). (The history of Part 1AA is discussed by the Full Court in Harts Australia Ltd v Commissioner, Australia Federal Police (1997) 75 FCR 145 at 147-148.) In Wright v Queensland Police Service [2002] 2 Qd R 667, Holmes J at [30] referred to the ability of an occupier to whom a copy of a search warrant is made available being able "to ascertain the scope of the authority conferred by [the warrant] or the jurisdiction by which it was issued". That approach also is consistent with the approach of Spender J in Seeter 210 ALR 47. 77 In Wright [2002] 2 Qd R 667, Holmes J concluded that providing a copy of a search warrant (secured by urgent telephone application) which did not contain the name of the issuer or the date and time of issue did not invalidate the warrant, because in the circumstances the absence of that information could not have affected the ability of its recipient to ascertain the scope of the authority it conferred or the jurisdiction by which it was issued (at [30]). It appears at [22] however that, in the circumstances, such information was required in a "prescribed authority form" prepared by the applicant for the warrant and that the search warrant itself contained all the information prescribed by s 73 of the Police Powers and Responsibilities Act 2000 (Qld). In other respects, the copy of the search warrant provided apparently had some indication as to its authenticity: see at [17]. 78 There is a further significance in the omission of the information about the execution of the Birchgrove warrant from the copy. Because the Birchgrove warrant expressed the time by which that warrant expired (so as to satisfy s 3E(5)(e) and s 3E(5A)) by reference to the date of issue, the copy made available to Mr Oke did not enable him to know that the Birchgrove warrant had not expired. The requirement that the issuing officer of a search warrant state in the warrant the time at which it expires reflects the seriousness of the intrusion which the search warrant permits. The issuing officer must be satisfied under s 3E(1) that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, evidential material at the premises. The need to express an expiry time results from that legislative condition upon the issue of the warrant. Moreover, the warrant during its life, also authorises in circumstances the seizure of evidential material relating to other offences than those the subject of the issuing officer's satisfaction, and also authorises in certain circumstances the physical search of a person at or near the premises: s 3F(1)(d)(ii) and s 3F(1)(f). 79 In my view, because the omissions from the copy of the Birchgrove warrant made available to Mr Oke did not give him as the occupier any capacity to be satisfied that the Birchgrove warrant had in fact been issued, or that it was current, the purpose of s 3H(1) has not been met. The omissions from the copy of any detail of the issuing officer or the status of the issuing officer or of the date and place of its issue, therefore, in the particular circumstances, lead me to the conclusion that the execution of the Birchgrove warrant did not proceed lawfully. The consequence is that the "seizure" of the laptop computer was not lawful and it should be returned to Mr Oke. That is so although Federal Agent Capaldo told Mr Oke the date the Birchgrove warrant was issued. Section 5H does not reduce the consequences of non-compliance by allowing the oral supplementation of the document. I do not accept that orally telling Mr Oke the date of issue of the Birchgrove warrant means that the breach of s 3H(1) in the very respects which it is intended to secure means its breach should have no consequences. Moreover, the "operational realities" in which search warrants are executed do not suggest any reason why the copy of a search warrant made available under s 3H(1) should not fulfil the purpose of that provision.


case_text: The "blanket" claim to legal professional privilege was made for the reasons discussed above. But whether the laptop computer contains only legal privileged documents, or any legal privileged documents, is not yet resolved. If it contains only legally privileged documents (a position I did not understand senior counsel for Mr Oke to contend on his behalf), then it has not been validly seized under the Birchgrove warrant. If it contains some legally privileged documents, then it has been validly seized but only to the extent that it contains documents not legally privileged. I am using the term "documents" as explained in ss 25 and 25A of the Acts Interpretation Act 1901 (Cth), and as discussed in Australian Federation of Air Pilots v Australian Airlines Ltd (1991) 28 FCR 360.


case_text: It is apparent that the privilege notice does not readily address documents stored electronically. Section 3K(2) is one means of dealing with such material, but that power was not exercised in this instance. It is also clear that the guidelines in the privilege notice are not mandatory; they are expressed as providing a procedure "to the extent to which it is possible" to follow it. The note about legal professional privilege in the Birchgrove warrant itself also stipulates that the guidelines in the privilege notice be followed as far as is reasonably practicable. Indeed, attempts to agree upon and implement an efficient and effective procedure to identify which, if any, contents of the laptop computer are in fact the subject of legal professional privilege, and so are not capable of being seized under the Birchgrove warrant, have to date been unsuccessful. See also the discussion of Spender, Madgwick and Finkelstein JJ in JMA Accounting Pty Ltd v Commissioner of Taxation [2004] FCAFC 274 ; (2004) 139 FCR 537 at [6] - [12] concerning the power of search and seizure under s 263 of the Income Tax Assessment Act 1936 (Cth). 110 In JMA Accounting the seizure of materials was so indiscriminate, in some instances, as to lead the Court to conclude that no reasonable effort was made to distinguish between the relevant and the irrelevant. That is not the submission presently being considered. Mr Oke's submission is that the laptop computer could not have been lawfully seized under the Birchgrove warrant because there was a blanket claim for legal professional privilege with respect to it. I have separately found that Federal Agent Capaldo did have the belief required to entitle her (subject to claims of legal professional privilege) to seize the laptop computer. 111 As to the present contention, the Full Court in JMA Accounting said at [13]-[14]: "This does not mean that an officer is prevented from conducting his s 263 search until all claims for privilege have been resolved. The resolution of such claims might take weeks or even months; it is inappropriate for the search to be delayed for that amount of time. To put the matter in its proper perspective it is necessary to recall the purpose for legal professional privilege. It is to keep secret communications between a lawyer and his client, and where the communication is written, it is to prevent the document containing the communication from being read. Accordingly, the mere seizure of a document without it being read will not infringe the privilege: Allitt v Sullivan [1988] VR 621 at 640; Solosky v The Queen (1979) 105 DLR (3d) 745 at 758. A good deal of JMA's argument on this aspect of the appeal depended upon acceptance of the proposition that legal professional privilege will be infringed if a copy of a privileged document is taken, whether or not the original or the copy is read. That proposition is simply wrong." 112 I consider their Honours' conclusion is consistent with the decision in Baker v Campbell [1983] HCA 39 ; 153 CLR 52. In Baker v Campbell the documents the subject of the search warrant were assumed to be privileged from disclosure or production on the ground of legal professional privilege. In that event, they could not be the subject of a search warrant under the Act. So, here, if the laptop computer and all its contents were to be so protected, it could not have been the subject of the Birchgrove warrant and its seizure would not have been authorised. The approach of the Full Court in JMA Accounting addresses the circumstances where there is a contested claim to such privilege and the practicality that it cannot be immediately resolved (and where s 3K(2) has not been availed of). 119 There has been some judicial and academic comment to the effect that the guidelines, contrary to their objective, do not preserve legal professional privilege: see Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 at 537 (Gaudron J); Suzanne McNicol, "Unresolved Issues Arising From the General Guidelines Between the AFP and the Law Council of Australia" (1998) 72 Australian Law Journal 137. I note, however, that the law with respect to waiver of legal professional privilege has since been further refined by the High Court. It is now accepted that "it is inconsistency between the conduct of the client and the maintenance of the confidentiality which effects a waiver of the privilege": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [28] . Mr Oke's conduct in objecting to the seizure of documents at his house was wholly consistent with the maintenance of their confidentiality. It seems unlikely that any waiver of privilege should be imputed in such circumstances. Furthermore, French J held in Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 that legal professional privilege is not necessarily waived even where the occupier fails to claim privilege at the time of execution of the warrant. His Honour said, at 473: "As in the present case circumstances can arise in which the question whether legal professional privilege exists is not able to be answered by simple inspection of the documents or within a timeframe consistent with the exigencies of the investigative process." See also the comments of the Full Court of this Court in JMA Accounting [2004] FCAFC 274 ; 139 FCR 537, quoted above at [111].


case_title: Commissioner for Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501

case_text: There has been some judicial and academic comment to the effect that the guidelines, contrary to their objective, do not preserve legal professional privilege: see Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 at 537 (Gaudron J); Suzanne McNicol, "Unresolved Issues Arising From the General Guidelines Between the AFP and the Law Council of Australia" (1998) 72 Australian Law Journal 137. I note, however, that the law with respect to waiver of legal professional privilege has since been further refined by the High Court. It is now accepted that "it is inconsistency between the conduct of the client and the maintenance of the confidentiality which effects a waiver of the privilege": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [28] . Mr Oke's conduct in objecting to the seizure of documents at his house was wholly consistent with the maintenance of their confidentiality. It seems unlikely that any waiver of privilege should be imputed in such circumstances. Furthermore, French J held in Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 that legal professional privilege is not necessarily waived even where the occupier fails to claim privilege at the time of execution of the warrant. His Honour said, at 473: "As in the present case circumstances can arise in which the question whether legal professional privilege exists is not able to be answered by simple inspection of the documents or within a timeframe consistent with the exigencies of the investigative process." See also the comments of the Full Court of this Court in JMA Accounting [2004] FCAFC 274 ; 139 FCR 537, quoted above at [111].


case_title: Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469


case_text: A more difficult question is whether or not the applicant has established a prima facie case in this matter. Mr Philp directed my attention to Caterpillar Inc v John Deere Limited and Others [1999] FCA 1503 ; (1999) 48 IPR 1 , where the Full Court considered the meaning of " prima facie case" in the context of O 8 r 3(2). It is clear from such decisions as Caterpillar [1999] FCA 1503 ; (1999) 48 IPR 1 and earlier decisions of the Full Court (including Sydbank Soenderjylland (A/S) v Bannerton Holdings Proprietary Limited (1996) 68 FCR 539 at 549) that in order to establish a prima facie case for the purposes of O 8 r 3(2), the court does not call for a substantial inquiry. The court requires only that there be material before the court, from which inferences are open and which, if translated into findings of fact, would support the relief claimed.


case_title: Sydbank Soenderjylland (A/S) v Bannerton Holdings Proprietary Limited (1996) 68 FCR 539


case_text: Counsel for the respondents properly raised the question whether the decision of Lander J was an interlocutory decision or a final decision. If the latter, no leave to appeal from his decision was necessary. If the former, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) provided that no appeal lay from that decision without leave. Leave to appeal may be given by a single judge: s 25(2)(a). Under O 52 r 10 of the Federal Court Rules leave to appeal is given in accordance with principles discussed in Décor Corp Pty Ltd & Anor v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , in particular having regard to two main considerations, namely, whether in all the circumstances the decision is attended with sufficient doubt to warrant its reconsideration by the Full Court, and whether substantial injustice would result if leave to appeal were refused supposing the decision to be wrong.


case_text: Counsel for the respondents drew attention to Paramasivam v Flynn [1998] FCA 1711 ; (1998) 90 FCR 489 ( Paramasivam ). That case involved an application for an extension of time to commence an action for damages in tort and for compensation for breach of fiduciary duty in relation to a series of sexual assaults upon that appellant against his guardian. The appeal from the dismissal of an application for an extension of time within which to have commenced those proceedings was dismissed, in essence because there was no real prospect of the claim succeeding. However, the Full Court (Miles, Lehane and Weinberg JJ) at 493 said that an order refusing an application to extend time to issue after the expiry of a limitation period may or may not be regarded as interlocutory since it may or may not finally determine the rights of the parties in respect of the subject matter of the action. The order appealed from did not simply refuse an application for an extension of time within which to issue proceedings, but it also entered summary judgment for the respondent. Consequently, the Full Court at 493 concluded that the orders were final in nature. 6 I do not consider that decision dictates that the decision of Lander J in the present matter was a final order so that no leave to appeal is necessary. That is because this proceeding, unlike the proceeding in Paramasivam , did not seek to enforce an existing alleged cause of action which had become statute barred by the elapse of time. In other words, there was no claimed legal right which Mr Ferdinands was seeking to enforce. His application was for an extension of time within which to apply for an order to show cause why the termination decision should not be set aside. It was necessary for him, even had he applied for such an order within time, to satisfy a Justice of the High Court (or if the matter were remitted to this Court, a judge of this Court) that it was appropriate for an order to show cause to be issued. Moreover, as McHugh ACJ, Gummow and Heydon JJ said in Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at [4] : the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order. (original emphasis, citations omitted)


case_text: I do not consider that decision dictates that the decision of Lander J in the present matter was a final order so that no leave to appeal is necessary. That is because this proceeding, unlike the proceeding in Paramasivam , did not seek to enforce an existing alleged cause of action which had become statute barred by the elapse of time. In other words, there was no claimed legal right which Mr Ferdinands was seeking to enforce. His application was for an extension of time within which to apply for an order to show cause why the termination decision should not be set aside. It was necessary for him, even had he applied for such an order within time, to satisfy a Justice of the High Court (or if the matter were remitted to this Court, a judge of this Court) that it was appropriate for an order to show cause to be issued. Moreover, as McHugh ACJ, Gummow and Heydon JJ said in Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at [4] : the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order. (original emphasis, citations omitted)


case_text: I do not consider that decision dictates that the decision of Lander J in the present matter was a final order so that no leave to appeal is necessary. That is because this proceeding, unlike the proceeding in Paramasivam , did not seek to enforce an existing alleged cause of action which had become statute barred by the elapse of time. In other words, there was no claimed legal right which Mr Ferdinands was seeking to enforce. His application was for an extension of time within which to apply for an order to show cause why the termination decision should not be set aside. It was necessary for him, even had he applied for such an order within time, to satisfy a Justice of the High Court (or if the matter were remitted to this Court, a judge of this Court) that it was appropriate for an order to show cause to be issued. Moreover, as McHugh ACJ, Gummow and Heydon JJ said in Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at [4] : the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order. (original emphasis, citations omitted) 7 Earlier in that decision their Honours referred with approval to the remarks of McHugh, Kirby and Callinan JJ in Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 230 in the following way at [9]: An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action. See also Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423. The refusal of the application for extension of time within which to apply to show cause was interlocutory in nature as the legal effect of the judgment was not final. Further, Lander J dismissed the application on the basis that the application was, inter alia, an abuse of process and did not disclose a reasonable cause of action.


case_text: Earlier in that decision their Honours referred with approval to the remarks of McHugh, Kirby and Callinan JJ in Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 230 in the following way at [9]: An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action. See also Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423. The refusal of the application for extension of time within which to apply to show cause was interlocutory in nature as the legal effect of the judgment was not final. Further, Lander J dismissed the application on the basis that the application was, inter alia, an abuse of process and did not disclose a reasonable cause of action.


case_text: In his reasons for judgment, Ferdinands v Chief of Army [2008] FCA 1865 , Lander J refused to grant the extension of time sought because no proper explanation had been offered for the delay and because there was no prospect of Mr Ferdinands succeeding in obtaining an order setting aside the termination decision: at [41]. 4 Counsel for the respondents properly raised the question whether the decision of Lander J was an interlocutory decision or a final decision. If the latter, no leave to appeal from his decision was necessary. If the former, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) provided that no appeal lay from that decision without leave. Leave to appeal may be given by a single judge: s 25(2)(a). Under O 52 r 10 of the Federal Court Rules leave to appeal is given in accordance with principles discussed in Décor Corp Pty Ltd & Anor v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , in particular having regard to two main considerations, namely, whether in all the circumstances the decision is attended with sufficient doubt to warrant its reconsideration by the Full Court, and whether substantial injustice would result if leave to appeal were refused supposing the decision to be wrong. 6 I do not consider that decision dictates that the decision of Lander J in the present matter was a final order so that no leave to appeal is necessary. That is because this proceeding, unlike the proceeding in Paramasivam , did not seek to enforce an existing alleged cause of action which had become statute barred by the elapse of time. In other words, there was no claimed legal right which Mr Ferdinands was seeking to enforce. His application was for an extension of time within which to apply for an order to show cause why the termination decision should not be set aside. It was necessary for him, even had he applied for such an order within time, to satisfy a Justice of the High Court (or if the matter were remitted to this Court, a judge of this Court) that it was appropriate for an order to show cause to be issued. Moreover, as McHugh ACJ, Gummow and Heydon JJ said in Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at [4] : the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order. (original emphasis, citations omitted) 8 Accordingly, I consider that Mr Ferdinands correctly approached the matter on the basis that he required leave to appeal from the decision of Lander J. 9 Mr Ferdinands made detailed written submissions about why leave to appeal should be granted. In essence, he said it was in the interests of justice to grant leave. He briefly developed them orally. However, his submissions really amounted to no more than a way of describing the nature of his claim. They did not pay sufficient attention to the particular circumstances. I invited him to indicate where he contended Lander J had fallen into error in his consideration of that application for an extension of time to apply for the order to show cause. In my view, Mr Ferdinands was unable to indicate any such error either in the description of the history relevant to consideration of that application, or in identifying the grounds advanced by Mr Ferdinands in support of it, or in his Honour's consideration of those grounds. I shall advert to them again shortly. 10 There are two additional matters which Mr Ferdinands raised, apparently for the first time on this application. The first is his assertion that Crennan J had no power to remit the matter to this Court for hearing and determination. He had not objected to the remittal order when it was made, nor had he raised that point before Lander J. He did not develop any argument in support of the proposition. It is plainly wrong: see s 44 of the Judiciary Act 1903 (Cth). Secondly, he argued that the delegate of the Chief of Army had no power to terminate his employment in the way that had been done because ss 5 and 10 of the Defence Force Discipline Act 1982 (Cth) were "involved". Again, that matter had not been raised in his original application, nor before Lander J. No notice of that matter had been given to the respondents, other than in a generic way in his draft proposed notice of appeal exhibited to his affidavit sworn on 8 December 2008 where it is said that: That section 10 of the Defence Force Discipline Act 1982 Application of the criminal code is declared invalid in law, and all associated subsections are declared invalid including section 162 , 163 and 165A . No detailed argument was developed in support of the contention. As it was not raised previously, it is unfair to the respondents to have been confronted with it only on this application, and more importantly, as it was not raised before Lander J, it cannot provide a basis for demonstrating that his Honour's reasoning was erroneous and that leave to appeal from it should be given. 11 I return to the matters which were argued before Lander J. 12 Mr Ferdinands orally suggested in a general way that the history recorded by Lander J, and the description of the matters or grounds upon which the application to show cause was made were misunderstood by his Honour. Closer questioning of Mr Ferdinands indicated that he did not identify any particular respect in which his Honour misunderstood either of those aspects of his claim. I will not refer to the detail of them. He was unable to demonstrate any arguable error in those respects. 13 It became apparent in the course of his oral submissions on this application, that the thrust of Mr Ferdinands' complaint is that he was wrongly convicted in the Adelaide Magistrates Court of assault, and wrongly convicted by a Defence Force Magistrate of a separate assault upon a service personnel. He argued that the delegate of the Chief of Army was wrong to have taken into account those convictions in deciding to terminate his employment. As Lander J said at [8] in essence, "he seeks to use the proceeding to show cause to overturn those convictions". Moreover, as Lander J pointed out at [38], the proposed proceeding is an attempt to quash the decision by a collateral attack upon the conviction by the Defence Force Magistrate. 14 Mr Ferdinands was convicted by a Defence Force Magistrate of one charge of assault upon an inferior officer on 4 November 1999. He belatedly sought to appeal from that decision on 17 April 2001. The President of the Defence Force Disciplinary Appeal Tribunal on 15 August 2001 refused to grant an extension of time to appeal. He appealed from that decision also. On 16 August 2002, that Tribunal extended the time for filing of an appeal but dismissed the appeal. Mr Ferdinands then appealed to this Court from that decision. That appeal was dismissed on 11 February 2003: Ferdinands v Chief of Army [2003] FCAFC 10. He applied to the High Court for special leave to appeal from that decision. That application was deemed to be abandoned for failure to comply with the High Court Rules on 1 October 2003. As Lander J said, his application for an extension of time to apply for an order to show cause should not be granted when it was, or to the extent that it was, seeking to make a collateral attack upon that conviction. 15 The fact that Mr Ferdinands was seeking collaterally to attack the Defence Force Magistrate's conviction was reinforced by his complaints about the conduct of that hearing, in particular that certain witnesses had not been called and certain documents had not been produced which he claimed ought to have been produced on that hearing. 16 Mr Ferdinands raised an additional point on this application for leave to appeal, apparently for the first time, that he could not have been terminated by a decision of the delegate of the Chief of Army because, following that conviction, the prosecuting officer had asked for the termination of his employment, but the Defence Force Magistrate had imposed a lesser penalty. Hence, he said, the Defence Force Magistrate had decided that termination of his employment as a member of the defence force was not an appropriate penalty for the conviction, and the Chief of Army could not then reach a different view or impose an additional penalty. The proposition oversimplifies the grounds upon which the decision to terminate his employment was made. The material before the Court indicates that the facts and circumstances relating to the reason for terminating his service were that conviction, a conviction for assault in the Adelaide Magistrates Court on 27 February 2001, together with evidence about Mr Ferdinands' character then provided relative to penalty in that Court, the termination of his civilian employment on 21 November 2001, and more generally his attitude towards others and towards authority. The evidence does not support Mr Ferdinands' assertion. As the point was not raised before Lander J, even if it were correct, it could not show arguable error at first instance. And the proposition, even if correct, inappropriately conflates the punishment imposed for an offence with the assessment of suitability to remain in particular employment. 17 Mr Ferdinands also criticised the approach of Lander J in deciding whether there was an adequate explanation for the delay in making the primary application. His Honour properly identified the principles, as discussed by McHugh J in Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 at 480. In my view, nothing was identified to suggest that his Honour has misunderstood or misapplied them. He recognised the disadvantage applicable to Mr Ferdinands by reason of his impecuniosity and by reason of his need to be self-represented. 18 So far as I can determine, although not dealt with in the draft proposed notice of appeal, the only other matter advanced on this application for leave to appeal was an assertion that Lander J had incorrectly struck out an affidavit of Mr Ferdinands of 4 May 2007 as an abuse of process. His Honour ruled that he would not receive paras [1]-[35] of that affidavit, but received the remainder of that affidavit. It was entirely proper to have rejected those paragraphs of that affidavit. They did not relate to any issue relevant to the primary application. They contained a series of unrelated and offensive allegations against persons who were not parties to it. The balance of that affidavit comprises matters which his Honour regarded as potentially relevant to the application which he was considering. 19 I have therefore come to the view that Mr Ferdinands' application must be refused. He has not identified any matter in which Lander J might have fallen into error, even arguably so. He has not advanced any matter which specifically explains the delay between the making of the decision which he wishes to attack and the application for an extension of time to have made the application. In those circumstances, neither of the principles upon which an extension of time might be granted has been activated. 20 The application is therefore refused with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 20 January 2009 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondents: Ms D Forrester Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 22 December 2008 Date of Judgment: 20 January 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/22.html


case_text: Mr Ferdinands also criticised the approach of Lander J in deciding whether there was an adequate explanation for the delay in making the primary application. His Honour properly identified the principles, as discussed by McHugh J in Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 at 480. In my view, nothing was identified to suggest that his Honour has misunderstood or misapplied them. He recognised the disadvantage applicable to Mr Ferdinands by reason of his impecuniosity and by reason of his need to be self-represented.


case_text: 21(1) relevantly provides that within 15 days of the magistrate's determination of eligibility under subs 19(9) of the Act, a person may apply to this Court 'for a review of the order'. The review is by way of rehearing, rather than the more restricted function the Court exercises when engaging in judicial review in the strict sense: see Brock v United States of America [2007] FCAFC 3 ; (2007) 157 FCR 121 per Black CJ at [20] [31], Jacobson J at [45] [47] and Rares J at [73] [90]. Subsection 21(2) relevantly provides that the Court may, by order, either confirm the order of the magistrate, or quash the order and direct a magistrate to order the release of the person. Pursuant to subs 21(6)(d), the court to which the application is made shall have regard only to the material that was before the magistrate.


case_title: Davies v Flackett [1973] RTR 8

case_text: relation to the application of each of these provisions to the relevant conduct, the applicant made the following submissions: Dual Criminality of Category One Section 178BA Crimes Act 1900 (1) Section 178BA requires the accused to have practised a deception. According to the translated copy of the Arrest Warrant, the co-accused, El-Najarin, signed the contract with Mobilcom. There is no allegation that the applicant had any personal dealings with Mobilcom, that could be considered to have been deceptive. Thus, there is no allegation that the applicant practised a deception. (2) For s 178BA to be satisfied, there must be a causal connection between the deception practised and the advantage obtained. There is no issue that a financial advantage was obtained but whether it be the 15 euros advance commission or the 20 euros discount in respect of the purchase price, they were both obtained prior to the registration of the SIM cards, and for that reason there can be no causal connection between the two. (3) The registration of the SIM cards under false names could not constitute a relevant deception because registration occurred using a computer system called maui. The registration of the SIM cards occurred not through an employee of Mobilcom; where no person is deceived but rather a computer system, no criminal liability can attach: see In re Holmes [2005] 1 WLR 1857, 1862 1863 at [11] [12] per Stanley Burnton J; Davies v Flackett [1973] RTR 8 per Bridge J; Kennison v Daire (1985) 38 SASR 404 per O'Loughlin J ('a machine cannot be the subject of deception'), cited with approval R v Baxter [1988] 1 Qd R 537, 539 per Connolly J and R v Fischetti (2003) 192 FLR 119, 124 at [22] per Gray J. In this context, the respondent may not place reliance upon the extended definition of deception in s 178BA(2)(b) of the Crimes Act because there is no suggestion that the applicant or his co-accused were not authorised to register SIM cards. On the contrary, it appears to have been the very purpose of the contract with Mobilcom. Therefore, the registration of the SIM cards was not a relevant deception for the purposes of s 178BA , even if the data entered was 'false'. Section 178A Crimes Act (4) In the alternative, the respondent submitted that the relevant conduct would be punishable under s 178A Crimes Act . The respondent relied upon the receipt of what are termed 'advance commission payments'. However, there is no suggestion in the copy of the arrest warrant or indeed in any document whatsoever, that the applicant was to apply such advance commission payments in any particular way, that being a requirement of s 178A. Overall, not one of the documents discloses the purpose of the advance commission payments. Although there is reference to such payments, the purported terms upon which such payments were purportedly made are not specified in any supporting document. Thus, there is insufficient information, upon which this Court could determine whether the conduct would also be punishable in New South Wales. (5) Moreover, there is no allegation that the applicant collected, or even received, any moneys. Since the terms of the contract are not set out in any detail whatsoever, it may, for example, have been that Mobilcom was contractually bound to pay at a particular point in time. Where moneys have not in fact been received, there can be no liability under s 178A Crimes Act . Section 179 Crimes Act (6) The respondent next contended that dual criminality is satisfied in respect of s 179. However, this argument suffers from the same defect as that relating to s 178BA. Firstly, the respondent suggests that the false pretence was the 'fraudulent registration' of the mobile telephones. However, there is no suggestion whatsoever that the act of registration was done in order to obtain the telephones; and nor could it be, since they were all obtained much earlier. Indeed, such a suggestion would be absurd, since the phones would have to have been already in the possession of Pluscall, before they could be registered. For liability to attach, the false pretence must occur before the property is obtained: R v Steels (1867) 32 JP 309. (7) Insofar as the respondent relies upon the concluding of the contract with Mobilcom, this too cannot found the basis for criminal liability, since there is no allegation that the applicant made any false pretence. Furthermore, there is no allegation that the respondent 'obtained any property' as required by s 179. At best, the company, Pluscall, obtained the property. Again, there could be no conviction pursuant to s 179 for the conduct alleged. Section 176A Crimes Act (8) Where a person is charged with an offence contrary to s 176A , 'the prosecution [must] prove that the [accused] used dishonest means to prejudice the rights of such a person in his or her dealings with [the body corporate]': Spies v The Queen [2000] HCA 43 ; (2000) 201 CLR 603 , 631 at [81] per Gaudron, McHugh, Gummow and Hayne JJ. As set out in respect of s 178BA , there is no allegation that the respondent employed such dishonest means. Accordingly, double criminality would not be satisfied in respect of s 176A. Dual Criminality of Category Two (9) In relation to the final offence, the respondent again relies upon s 178BA of the Crimes Act . However, as before, there is absolutely no allegation that the applicant dealt with MCI, except in relation to the alleged provision of purportedly false bank 'bail bonds', a translation that is patently incorrect and inadequate. The word used in the original German document is 'Bürgschaft', which correctly translates into English as 'guarantee'. Notwithstanding that, and any other possible errors, absent an allegation that the applicant practised a particularised deception upon MCI, upon which it relied, the applicant could not be guilty of an offence contrary to s 178BA. (10) Reliance is also placed upon the fact that minutes were transferred to a company in Germany by Star.Way.Com. However, there is no allegation that this fact would in any way have impacted upon MCI's willingness to provide telephone minutes, upon condition that it is paid. Thus, this act cannot be said to be causal in respect of the granting of a financial advantage. (11) Thus, the only conduct, which might be said to be relevant, would appear to be the provision of the forged guarantees. However, the purported copy of the arrest warrant, and of course its translation, is, once again, inadequately vague. It merely states, 'The accused person as well as Houggati and Mohamed Kazzaz then provided as a security for the present and future demands of MCI from Star.Way.Com a forged bail bond ...' Once again, here the word 'demands' is quite misleading. The word 'Förderungen' in the original German correctly translates to 'claims', in the sense of legal claims. Apart from that, the warrant fails to disclose the precise conduct, which is alleged against the respondent. Did the applicant, in fact, provide the guarantee? Did he provide the guarantee to someone else, who, in turn, provided it to MCI? In particular, there is no allegation whatsoever that the applicant knew that the guarantee was forged. Compare Linhart v Elms (1988) 81 ALR 557 , 588 per Foster J: Although sub-subpara (c) clearly does not require that the whole of the available evidentiary material be laid before the magistrate in Australia, it does, in my view, at least require that precise allegations of the 'manner and means' of the making of the basic fraudulent representations be provided. (12) Section 474.2(1) of the Criminal Code suffers from the same problems. Additionally, the offence would not apply, had the same conduct occurred in Australia. In order to satisfy the provision, the person must obtain a gain from a 'carriage service provider'. That term is, in turn, defined by s 87 of the Telecommunications Act 1997 (Cth) to include persons providing a 'listed carriage service', a term defined by s 16 of the Act. These provisions demonstrate that there must be at least one point of connection with Australia. Since, the warrant does not allege that MCI had any connection with Germany, the conduct would not fall within s 474.2(1).


case_text: was common ground that what is required is not complete identicality of offences, but in substance, duality of criminality: Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 411; Holt v Hogan (No 2) [1993] FCA 543 ; (1993) 46 FCR 145 at 149 151 per Lee J. The issue is whether the conduct or the equivalent conduct referred to in the subs 19(3)(c)(ii) authenticated statement, if committed in New South Wales, would be a criminal offence with a maximum sentence of imprisonment of at least 12 months: United States v Holt [1994] FCA 1115 ; (1994) 49 FCR 501 at 504; Zoeller v Republic of Germany (1989) 23 FCR 282 at 297 and 299 300.


case_title: In re Holmes [2005] 1 WLR 1857


case_title: Kennison v Daire (1985) 38 SASR 404


case_title: Linhart v Elms (1988) 81 ALR 557

case_text: relation to the application of each of these provisions to the relevant conduct, the applicant made the following submissions: Dual Criminality of Category One Section 178BA Crimes Act 1900 (1) Section 178BA requires the accused to have practised a deception. According to the translated copy of the Arrest Warrant, the co-accused, El-Najarin, signed the contract with Mobilcom. There is no allegation that the applicant had any personal dealings with Mobilcom, that could be considered to have been deceptive. Thus, there is no allegation that the applicant practised a deception. (2) For s 178BA to be satisfied, there must be a causal connection between the deception practised and the advantage obtained. There is no issue that a financial advantage was obtained but whether it be the 15 euros advance commission or the 20 euros discount in respect of the purchase price, they were both obtained prior to the registration of the SIM cards, and for that reason there can be no causal connection between the two. (3) The registration of the SIM cards under false names could not constitute a relevant deception because registration occurred using a computer system called maui. The registration of the SIM cards occurred not through an employee of Mobilcom; where no person is deceived but rather a computer system, no criminal liability can attach: see In re Holmes [2005] 1 WLR 1857, 1862 1863 at [11] [12] per Stanley Burnton J; Davies v Flackett [1973] RTR 8 per Bridge J; Kennison v Daire (1985) 38 SASR 404 per O'Loughlin J ('a machine cannot be the subject of deception'), cited with approval R v Baxter [1988] 1 Qd R 537, 539 per Connolly J and R v Fischetti (2003) 192 FLR 119, 124 at [22] per Gray J. In this context, the respondent may not place reliance upon the extended definition of deception in s 178BA(2)(b) of the Crimes Act because there is no suggestion that the applicant or his co-accused were not authorised to register SIM cards. On the contrary, it appears to have been the very purpose of the contract with Mobilcom. Therefore, the registration of the SIM cards was not a relevant deception for the purposes of s 178BA , even if the data entered was 'false'. Section 178A Crimes Act (4) In the alternative, the respondent submitted that the relevant conduct would be punishable under s 178A Crimes Act . The respondent relied upon the receipt of what are termed 'advance commission payments'. However, there is no suggestion in the copy of the arrest warrant or indeed in any document whatsoever, that the applicant was to apply such advance commission payments in any particular way, that being a requirement of s 178A. Overall, not one of the documents discloses the purpose of the advance commission payments. Although there is reference to such payments, the purported terms upon which such payments were purportedly made are not specified in any supporting document. Thus, there is insufficient information, upon which this Court could determine whether the conduct would also be punishable in New South Wales. (5) Moreover, there is no allegation that the applicant collected, or even received, any moneys. Since the terms of the contract are not set out in any detail whatsoever, it may, for example, have been that Mobilcom was contractually bound to pay at a particular point in time. Where moneys have not in fact been received, there can be no liability under s 178A Crimes Act . Section 179 Crimes Act (6) The respondent next contended that dual criminality is satisfied in respect of s 179. However, this argument suffers from the same defect as that relating to s 178BA. Firstly, the respondent suggests that the false pretence was the 'fraudulent registration' of the mobile telephones. However, there is no suggestion whatsoever that the act of registration was done in order to obtain the telephones; and nor could it be, since they were all obtained much earlier. Indeed, such a suggestion would be absurd, since the phones would have to have been already in the possession of Pluscall, before they could be registered. For liability to attach, the false pretence must occur before the property is obtained: R v Steels (1867) 32 JP 309. (7) Insofar as the respondent relies upon the concluding of the contract with Mobilcom, this too cannot found the basis for criminal liability, since there is no allegation that the applicant made any false pretence. Furthermore, there is no allegation that the respondent 'obtained any property' as required by s 179. At best, the company, Pluscall, obtained the property. Again, there could be no conviction pursuant to s 179 for the conduct alleged. Section 176A Crimes Act (8) Where a person is charged with an offence contrary to s 176A , 'the prosecution [must] prove that the [accused] used dishonest means to prejudice the rights of such a person in his or her dealings with [the body corporate]': Spies v The Queen [2000] HCA 43 ; (2000) 201 CLR 603 , 631 at [81] per Gaudron, McHugh, Gummow and Hayne JJ. As set out in respect of s 178BA , there is no allegation that the respondent employed such dishonest means. Accordingly, double criminality would not be satisfied in respect of s 176A. Dual Criminality of Category Two (9) In relation to the final offence, the respondent again relies upon s 178BA of the Crimes Act . However, as before, there is absolutely no allegation that the applicant dealt with MCI, except in relation to the alleged provision of purportedly false bank 'bail bonds', a translation that is patently incorrect and inadequate. The word used in the original German document is 'Bürgschaft', which correctly translates into English as 'guarantee'. Notwithstanding that, and any other possible errors, absent an allegation that the applicant practised a particularised deception upon MCI, upon which it relied, the applicant could not be guilty of an offence contrary to s 178BA. (10) Reliance is also placed upon the fact that minutes were transferred to a company in Germany by Star.Way.Com. However, there is no allegation that this fact would in any way have impacted upon MCI's willingness to provide telephone minutes, upon condition that it is paid. Thus, this act cannot be said to be causal in respect of the granting of a financial advantage. (11) Thus, the only conduct, which might be said to be relevant, would appear to be the provision of the forged guarantees. However, the purported copy of the arrest warrant, and of course its translation, is, once again, inadequately vague. It merely states, 'The accused person as well as Houggati and Mohamed Kazzaz then provided as a security for the present and future demands of MCI from Star.Way.Com a forged bail bond ...' Once again, here the word 'demands' is quite misleading. The word 'Förderungen' in the original German correctly translates to 'claims', in the sense of legal claims. Apart from that, the warrant fails to disclose the precise conduct, which is alleged against the respondent. Did the applicant, in fact, provide the guarantee? Did he provide the guarantee to someone else, who, in turn, provided it to MCI? In particular, there is no allegation whatsoever that the applicant knew that the guarantee was forged. Compare Linhart v Elms (1988) 81 ALR 557 , 588 per Foster J: Although sub-subpara (c) clearly does not require that the whole of the available evidentiary material be laid before the magistrate in Australia, it does, in my view, at least require that precise allegations of the 'manner and means' of the making of the basic fraudulent representations be provided. (12) Section 474.2(1) of the Criminal Code suffers from the same problems. Additionally, the offence would not apply, had the same conduct occurred in Australia. In order to satisfy the provision, the person must obtain a gain from a 'carriage service provider'. That term is, in turn, defined by s 87 of the Telecommunications Act 1997 (Cth) to include persons providing a 'listed carriage service', a term defined by s 16 of the Act. These provisions demonstrate that there must be at least one point of connection with Australia. Since, the warrant does not allege that MCI had any connection with Germany, the conduct would not fall within s 474.2(1). The applicant's submission as to the non-application of s 178BA of the Crimes Act in relation to the Category Two Offence relies on the absence of an allegation that the applicant practised a particularised deception upon MCI. The criticism here seems to be directed at the generality or vagueness of the alleged deception: 'The accused person as well as Houggati and Mohamed Kazzaz then provided as a security for the present and future demands of MCI from Star.Way.Com a forged bail bond ...'. It is said that the Arrest Warrant fails to disclose the precise conduct, which is alleged against the applicant. Did the applicant, in fact, provide the guarantee? Did he provide the guarantee to someone else who in turn provided it to MCI? In particular, it is said that there is no allegation whatsoever that the applicant knew that the guarantee was forged. Reference was made to what was said in Linhart v Elms (1988) 81 ALR 557 , 588 per Foster J. On my reading of the Arrest Warrant, there is no doubt that it alleges that the applicant, together with the others named, provided the bail bond (guarantee) to MCI, and not to some third party that provided it to MCI. It is true that there is no specific allegation that the applicant knew that the bail bond (guarantee) was forged, but the implication is self-evident. I am of the view that the dual criminality requirement of subs 19(2)(c) of the Act in relation to the Category Two Offence is satisfied by recourse to s 178BA of the Crimes Act .


case_title: R v Baxter [1988] 1 Qd R 537


case_title: R v Fischetti (2003) 192 FLR 119


case_title: United States v Holt [1994] FCA 1115 ; (1994) 49 FCR 501


case_title: Zoeller v Republic of Germany (1989) 23 FCR 282


case_text: The appellant noted the Federal Magistrate's comment (at [16]) that it was not clear that any error would have affected the MRT's decision because the appellant was required to continue to satisfy the requirements of the visa at the time of decision. Referring to Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64 (" Xiang "), the appellant submitted that his Honour was in error in this regard. 14 In support of her second ground of appeal, the appellant argued that the MRT wrongly failed to have regard to the subjective aspect of the relevant regulation. Counsel cited Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814 (" Biyiksiz ") and Xiang . In Biyiksiz , Gray J held (at [20]) that "the words 'cannot reasonably be obtained' must be construed by reference to the reasonableness from the point of view of the person requiring assistance, and not only by reference to the reasonable availability of the assistance from other sources." The appellant submitted that the MRT and the learned Federal Magistrate erred by failing to consider whether other sources of assistance were reasonably available from the point of view of the nominator. 18 First, I reject the appellant's submission that the MRT failed to have regard to the subjective element of the regulation. In particular, fairly read, the MRT's decision is consistent with the reasoning of Gray J in Biyiksiz and the Full Court's decision in Xiang . 21 The facts of this case can be distinguished from those in Biyiksiz and there is nothing in Xiang that would suggest error here. In this case, the MRT focussed on the availability of assistance from other family members. Importantly, the MRT noted that, at the time of application, the nominator was living with one of her other children and other children lived nearby. The appellant did not hold a driver's licence and thus another child transported the nominator by car. Also, one of the nominator's other daughters had recently sponsored him for an aged parent visa. In these circumstances, it was plainly open to the MRT not to be satisfied that the requisite assistance could not reasonably be obtained from one or more of his other children in Australia or public services.