FEDERAL COURT OF AUSTRALIA

CRIMINAL PROCEDURE - mutual assistance in criminal matters - request to foreign country for assistance in criminal investigation - validity of request - application to restrain examination of applicant and further use of documents already obtained - operation and interaction of Mutual Assistance in Criminal Matters Act 1987 and mutual assistance treaty - executive government’s power of inquiry and investigation.

ADMINISTRATIVE LAW - application for judicial review - no time stipulated for making of application - discretion to dismiss application if not made within reasonable time - factors relevant to exercise of discretion.

Mutual Assistance in Criminal Matters Act 1987 (Cth)          ss 3, 6, 7, 10, 12, 14, 40

Mutual Assistance in Criminal Matters (Switzerland) Regulations 1994 (Cth)          reg 4

Administrative Decisions (Judicial Review) Act 1977 (Cth)   s 11(4)

Treaty between Australia and Switzerland on Mutual Assistance in Criminal Matters  Art 1

Clough v Leahy (1904) 2 CLR 139 applied

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 considered

Riley v The Commonwealth  (1985) 159 CLR 1 discussed

Ousley v R (High Court of Australia, 20 October 1997, unreported) considered

Barton v The Queen (1980) 147 CLR 75 considered

Commonwealth v Riley (1984) 5 FCR 8 considered

Winkler v Director of Public Prosecutions (1990) 25 FCR 79 considered

Henderson v Henderson (1843) 3 Hare 100 at 115; 67 ER 313 applied

Bennion on Statutory Interpretation (2nd ed, 1992)

Extradition Australian Law and Procedure E P Aughterson (1st ed, Law Book Company, 1995)

JURG BOLLAG & ALAN BOND v THE ATTORNEY-GENERAL OF THE COMMONWEALTH & THE DIRECTOR OF PUBLIC PROSECUTIONS OF THE COMMONWEALTH & THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE

No VG 466 of 1997

MERKEL J

MELBOURNE

30 OCTOBER 1997

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicants pay the respondents’ costs of and incidental to the application.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

Jurg Bollag ("Bollag") and Alan Bond ("Bond") have issued proceedings in the Court seeking to restrain the examination, in Switzerland, of Bollag in relation to his dealings with Bond; and

the further use of documents already obtained by the Swiss authorities for the purposes of that examination.

The respondents to the proceedings are the Attorney-General of the Commonwealth of Australia ("the Attorney-General"), the Director of Public Prosecutions ("the DPP") and the Commissioner, Australian Federal Police who is, in substance, being sued as representing officers of the Australian Federal Police ("the AFP") who are engaged in the investigation of the dealings between Bollag and Bond. 

The examination is being conducted and the documents have been obtained by the relevant Swiss authorities as a result of two requests for assistance (“the requests”) made by a delegate of the Attorney-General pursuant to s 10 of the Mutual Assistance in Criminal Matters Act 1987 (Cth) ("the Act"). 

The central issue in the proceeding relates to whether the requests are beyond the power conferred on the Attorney-General under the Act with the consequence, so it is said, that there is no lawful basis for the proposed examination of Bollag or the further use of the documents obtained in Switzerland.  The issue raises questions concerning the power of the executive government to request, and obtain the benefit of, the use of coercive and other investigatory powers by foreign countries to aid the conduct of criminal investigations and proceedings in Australia.

BACKGROUND

On 16 September 1994 a delegate of the Attorney-General made a request for assistance to the competent authority of Switzerland pursuant to s 10 of the Act.  The request, which was made on behalf of the DPP and the AFP, stated that it:

"... has been framed in conformity with the Treaty between Australia and Switzerland on Mutual Assistance in Criminal Matters which came into force on 31 July 1994."

The purpose of the request was stated as follows:

"The request seeks the assistance of the Swiss authorities in:

(i)        obtaining bank records in relation to accounts held and operated at the Uberseebank, Zurich and the Zuger Kantonalbank;

(ii)       arranging the issue and execution of search warrants upon the premises of Jurg Bollag ("Bollag"), a Swiss national;

(iii)      summonsing Bollag for the purposes of having him examined on oath in relation to his dealings with Alan Bond, the Australian businessman to whom this request relates."

More precise detail of the nature of the assistance sought was set out later in the request.  The request recites that the assistance was sought in furtherance of an investigation which was described in the following terms:

"The DPP and the AFP are responsible for the coordination of the investigation of Alan Bond for the alleged offence of perjury and other offences under the Bankruptcy Act 1966.  Alan Bond was born in the United Kingdom on 22 April 1938 and migrated to Australia in 1950.  He presently resides at 4 Hawkstone Street, Cottesloe in the State of Western Australia.  On 14 April 1992, with debts totalling $A1,215,850,449, Bond was declared bankrupt.  Mr Ramsay of Bird Cameron Partners, Chartered Accountants ("the Trustee"), was appointed as trustee of Bond's estate.  Prior to his bankruptcy, Bond was a well known Australian business identity.

As the result of enquiries conducted by officers of the AFP, Australian authorities have reason to believe that since 1978 Bond has caused his agents in Jersey and Switzerland to form, through a series of complex business arrangements, various corporate structures located in different parts of the world to act as conduits and repositories for his personal assets.  It is believed that in 1987 control of these assets was transferred to Bollag, a Swiss national.

The crux of the investigation is whether Bond had or has assets in Switzerland and Jersey which he either failed to disclose to his trustee in bankruptcy (which is an offence against the Bankruptcy Act 1966) or subsequently lied about when giving evidence on oath during an examination of his financial affairs by his trustee pursuant to the provisions of the Bankruptcy Act 1966 (which is an offence against the Crimes Act 1914).”

After setting out the basis for the belief of the Australian authorities that Bond had misled his trustee in relation to his assets, the request recites the offences allegedly committed by Bond as follows:

"The investigation to which this request relates concerns the alleged commission of the following offences by Alan Bond:

(a)       failing to the best of his knowledge and belief, to fully and truly disclose to the trustee all his property and its value, contrary to Section 265(1)(a) of the Bankruptcy Act 1966.

(b)       failing to the best of his knowledge and belief, to fully and truly disclose to the trustee such information about any of his conduct and examinable affairs as the trustee requires, contrary to Section 265(1)(ca) of the Bankruptcy Act 1966.

(c)        failing to tell the trustee where the books (including the books of his associated entities) relating to his examinable affairs may be found, contrary to Section 265(1)(d) of the Bankruptcy Act 1966.

(d)       Omitting material particulars from a statement relating to his examinable affairs, contrary to Section 265(1)(f) of the Bankruptcy Act 1966.

(e)        Concealing or removing any part of his property to the value of $20 or more after the presentation of a petition on which, or by virtue of the presentation of which, he becomes a bankrupt, namely, Section 265(4)(a) of the Bankruptcy Act 1966.

(f)        Knowingly giving false testimony in a judicial proceeding contrary to section 35 of the Crimes Act 1914.

Each of the offences listed at paragraphs (a) to (e) are punishable upon conviction by imprisonment for a term of up to one year.  The offence referred to in subparagraph (f) is punishable upon conviction by imprisonment for a term of up to five years."

In relation to procedures to be followed the request states, inter alia,

"As the investigation is ongoing and concerns a complicated series of transactions, it is requested that the Swiss authorities consent to direct liaising between the Swiss authorities responsible for executing the request and the officers in the AFP and the DPP responsible for the investigation.  The liaising would extend to arranging the travel of officers from the AFP and the DPP to Switzerland for the purpose of assisting in the examination of Bollag and any other persons examined pursuant to this request."

A supplementary request for mutual assistance was made by the delegate of the Attorney-General to the competent authority of Switzerland on 24 November 1994.  The supplementary request, which substantially followed the form of the initial request, provided details of further requested assistance which was described as follows:

"This supplementary request asks that the Swiss authorities, when executing the search warrants sought in the initial request, seize additional documents to those that were asked to be seized in the initial request."

More precise detail of the assistance sought is set out in the supplementary request. 

The requests were duly accepted by Paul Kuhn (“Kuhn”) a Public Prosecutor for the Canton of Zug, Bollag’s place of residence.  Pursuant to the requests orders were made by Kuhn for search warrants to be executed in relation to Bollag, for Bollag to attend for questioning before Kuhn and for documents to be produced by the Zuger Kantonalbank and the Uberseebank Zurich.  The Zuger Kantonalbank voluntarily produced the documents sought from it but the Uberseebank did not have any of the documents sought.

Thereafter Bollag and Bond issued numerous challenges in Switzerland to the exercise of coercive power in relation to the conduct of the investigation in Switzerland.  The challenges were as follows:

·      Bollag appealed to the Swiss Federal Court against Kuhn’s decision to execute the requests;  that appeal was dismissed on 23 April 1995;

·      Bond applied to public prosecutor Kuhn for reconsideration of his decision to execute the requests on 1 June 1995;

·      following Kuhn’s dismissal of that application on 20 July 1995, Bond appealed to the Justice Commission;

·      when the appeal to the Justice Commission was dismissed on 29 September 1995, Bond appealed to the Swiss Federal Court;

·      Bond’s appeal to the Swiss Federal Court was dismissed on 10 January 1996;

·      Bollag appealed to the Justice Commission against Kuhn’s order (dated 9 February 1996) that documents be transmitted to Australia, pursuant to the requests;

·      following the Justice Commission’s dismissal of that appeal on 10 May 1996, Bollag appealed to the Swiss Federal Court;

·      on 29 August 1996, the Swiss Federal Court dismissed that appeal;

·      following Bollag’s refusal to answer questions on 7 April 1997 and Kuhn’s issue of a decree on 15 April 1997, Bollag appealed to the Justice Commission;

·      that appeal was dismissed on 3 June 1997.

Bond challenged the validity of the requests in the Federal Court in a proceeding commenced by him on 22 June 1995.  Bond claimed that the requests for assistance were ultra vires and an abuse of power and sought injunctions restraining the DPP and the Commissioner of the AFP from pursuing their investigation and the requests.  In his amended statement of claim, Bond claimed that:

“In the circumstances, the requests for assistance made by the Attorney General are not authorised by the Mutual Assistance in Criminal Matters Act and are ultra vires, unauthorised by law and an abuse of the powers of the Attorney General.”

The claim in the present proceedings is substantially the same and based on substantially the same facts although new grounds are now put forward in support of it.  Two grounds were put forward in support of the original claim.  The first was that the requests were not competent as a consequence of the annulment of Bond’s bankruptcy on 27 February 1995.  The second was that the alleged offences were not “criminal matters” within the meaning of the Act.  The latter ground was not pursued at the final hearing.  On 13 February 1996 Sundberg J dismissed Bond’s application:  see Bond v Rozenes (1996) 134 ALR 583.  The Full Court dismissed Bond’s appeal from the decision of Sundberg J on 13 June 1996:  see Bond v Rozenes  (1996) 67 FCR 122.

The various proceedings resulted in substantial delay in the conduct of the investigation.  Finally, a further summons was issued requiring Bollag to appear before Kuhn on 3 November 1997.  However, in May 1997 counsel for Bollag and Bond informed counsel for the DPP and the AFP that this proceeding was being prepared.  The proceeding was finally issued on 7 August 1997.

THE MUTUAL ASSISTANCE ACT

The parties are in agreement that the validity of the requests is to be determined on the basis of the Act prior to its amendment by the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 (Cth).  Accordingly, all references are to the Act as it operated prior to the amending Act.

Prior to the enactment of the Act, mutual assistance in criminal matters was rendered informally through Interpol and was limited to investigations:  see Second Reading Speech of the Attorney-General, House of Representatives, Debates, 22 October 1986, Vol HR 151 at 2558.  The Act was to provide a legislative framework for the provision and obtaining of international assistance in criminal matters. 

The Explanatory Memorandum to the Act stated that the Act will:

“provide legislative authority for Australia to give effect to obligations which it will be undertaking with other countries in the area of mutual assistance.  When Australia concludes arrangements with other countries those countries will be obliged under international law to render assistance at the request of Australia.”

Securing the performance of mutual treaty obligations was central to the Act’s objects.  In his Second Reading Speech at 2559 the Attorney-General said:

“The Bill’s real function is to provide a legislative basis for Australia to honour the obligations it will be assuming in treaties and arrangements, thereby ensuring that other countries will honour their obligations to Australia.”

The objects of the Act were set out in s 5:

“5.       The object of this Act is to facilitate the provision and obtaining by Australia of international assistance in criminal matters, including:

(a)       the obtaining of evidence, documents or other articles;

(b)       the provision of documents and other records;

(c)        the location and identification of witnesses or suspects;

(d)       the execution of requests for search and seizure;

(e)        the making of arrangements for persons to give evidence or assist investigations;

(f)        the forfeiture or confiscation of property in respect of offences;

(g)       the recovery of pecuniary penalties in respect of offences;

(h)       the restraining of dealings in property, or the freezing of assets, that may be forfeited or confiscated, or that may be needed to satisfy pecuniary penalties imposed, in respect of offences;

(j)        the location of property that may be forfeited, or that may be needed to satisfy pecuniary penalties imposed, in respect of offences; and

(k)       the service of documents.”

The Act was not to limit the provision or obtaining of mutual assistance by means other than those provided under the Act.  Section 6 provided:

“6.       Nothing in this Act prevents the provision or obtaining of international assistance in criminal matters otherwise than as mentioned in this Act or otherwise than pursuant to a treaty or other arrangement between Australia and a foreign country.”

Regulations provided for the Act to apply to foreign countries subject to modification in accordance with treaty arrangements.  Section 7 provided:

“(1)     The regulations may provide that this Act applies to a foreign country specified in the regulations.

(2)       The regulations may state that this Act applies in relation to a foreign country subject to limitations, conditions, exceptions or qualifications referred to in the regulations in accordance with subsections (2AA) and (2AB):

(2AA)   The limitations, conditions, exceptions or qualifications in relation to a foreign country may be referred to in the regulations as being any one or more of the following:

(a)        the limitations, conditions, exceptions or qualifications that are necessary to give effect to a bilateral mutual assistance treaty in relation to that country a copy of which is set out in the regulations;

.......

(2AB)   The limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty in relation to a foreign country may be expressed in the form that this Act applies to that country subject to that treaty.

...

(3)        Where the regulations state, or make provision to the effect, that this Act applies as mentioned in subsection (2) or (2A), or in both of those subsections, this Act applies accordingly.”

In explaining the Act’s operation in respect of treaties the Explanatory Memorandum said in respect of s 7:

“Assistance pursuant to the Act may only be granted if the Act has been applied to a foreign country by regulations (Part II of the Act is the exception).

Sub-clause 2 permits the Act to be applied to foreign countries subject to modifications.  Pursuant to paragraph (a), where there is a bilateral mutual assistance treaty, the Act can be applied in such a way as to give effect to that treaty.”

Section 10, which is relied upon by the respondents as the source of the power of the Attorney-General to make the requests, provides:

“Requests by Australia for international assistance in criminal matters may be made by the Attorney-General.”

Section 40 authorises the delegation by the Attorney-General of his powers, inter alia, under s 10.

The Explanatory Memorandum said, in respect of s 10:

“This clause makes it clear that requests by Australia for assistance from foreign countries may be made by the Attorney-General.  Requests can in fact be made by the Attorney-General’s delegate pursuant to the delegation power in clause 40 of the Bill.  A Central Office within the Attorney-General’s Department will be established to process and monitor all requests made by and of Australia.”

Part II of the Act provides for assistance by or to Australia in relation to the taking of evidence and production of documents and other articles.  Section 12 provides:

“The Attorney-General may, in his or her discretion, request an appropriate authority of a foreign country to arrange for:

(a)       evidence to be taken in the foreign country; or

(b)       documents or other articles in the foreign country to be produced;

for the purposes of a proceeding in relation to a criminal matter in Australia.”

A request under s 12 can only be made for “evidence” and “documents or other articles” for the purposes of a proceeding;  it cannot be made for the purposes of an investigation.  Section 3 provides, inter alia, that in the Act, subject to a contrary intention, “criminal matter” includes:

“(a)     a criminal matter relating to revenue (including taxation and customs duties);

(b)       a criminal matter relating to foreign exchange control;

(c)        a matter relating to the forfeiture or confiscation of property in respect of an offence;

(d)       a matter relating to the imposition or recovery of a pecuniary penalty in respect of an offence; and

(e)        a matter relating to the restraining of dealings in property, or the freezing of assets, that may be forfeited or confiscated, or that may be needed to satisfy a pecuniary penalty imposed, in respect of an offence;

whether arising under Australian law or a law of a foreign country;”

The definition is an inclusive one.  The reference to the specific categories of criminal matters referred to in sub-paragraphs (a) to (e) removes the doubt that might otherwise exist as to whether those matters were criminal matters for the purposes of the Act.  In doing so the definition overcomes the problem of determining whether certain regulatory and other offences might properly be described as “criminal matters”:  see Gapes v Commercial Bank of Australia Ltd (1979) 27 ALR 87 at 112 and Brown v Members of the Classification Review Board of the Office of Film & Literature (1997) 145 ALR 464 at 477.  Accordingly, the definition expands, rather than limits, the meaning that might otherwise be given to the words “criminal matters”.  Contrary to the contentions of the applicants it is clear that the investigation the subject of the requests is in relation to criminal matters.

Part III of the Act relates to assistance in relation to search and seizure.  Section 14 provides:

“(1)     This section applies to a proceeding or investigation relating to a criminal matter involving a serious offence against an Australian law if there are reasonable grounds to believe that a thing relevant to the proceeding or investigation may be located in a foreign country to which this Act applies.

(2)       Where this section applies to a proceeding or investigation, the Attorney-General may, in his or her discretion, request an appropriate authority of the foreign country to obtain a warrant or other instrument authorising a search for a thing relevant to the proceeding or investigation and, if such a thing, or any other thing that is or may be relevant to the proceeding or investigation, as the case may be, is found pursuant to such a search, authorising the seizure of that thing.

(3)       A request shall be accompanies by an affidavit by a person verifying the grounds on which the request is made.”

An “offence” and a “serious offence” are defined in s 3 as follows:

“offence” includes an offence against a law relating to taxation, customs duties or other revenue matters or relating to foreign exchange control;”

“serious offence” means an offence with maximum penalty for which is death, or imprisonment for not less than 12 months;”

As with the definition of a “criminal matter” the inclusive definition of “offence” is intended to expand, rather than limit, the category of conduct which might constitute an “offence” for the purposes of the Act.  In doing so the definition ensures that revenue and regulatory offences are included within the purview of the Act and in particular s 14.  Contrary to the contentions of the applicants it is clear that the investigation, the subject of the requests, is in relation to a criminal matter involving serious offences.

In explaining the reason for limiting search and seizure requests to serious offences the Explanatory Memorandum states:

“The clause is limited to serious offences since it is not considered appropriate to seek such assistance for minor offences.”

Notwithstanding the provisions of s 14 and that statement of legislative purpose it is significant that the Act does not prohibit such requests in respect of minor offences otherwise than under s 14 although, in practice, foreign countries may be reluctant to use coercive power without some specific legislative or treaty authorisation for its use.

THE TREATY

On 25 November 1991 the Treaty between Australia and Switzerland on Mutual Assistance in Criminal Matters (“the Treaty”) was entered into.  The Treaty came into force on 31 July 1994. Article 1 provides:

“Article 1

Scope of Application

1.         The Contracting Parties shall, in accordance with this Treaty, grant to each other assistance in investigations or proceedings in respect of offences the punishment of which falls or would fall within the jurisdiction of the judicial authorities of the Requesting State.

2.         Such assistance shall consist of:

(a)       taking of testimony and statements of persons;

(b)       production, preservation and handing over of documents or material;

(c)        location and identification of persons;

(d)       execution of requests for search and seizure, as well as requests for the tracing, freezing, confiscating and returning of the proceeds or profits of crime;

(e)        making persons available to give evidence or to assist in investigations;

(f)        service of documents; and

(g)       other assistance consistent with the objects of this Treaty mutually acceptable to the Contracting Parties.”

Article 7 sets out detailed requirements for the contents of a request for assistance.  The Treaty provides for assistance to be given, including the exercise of coercive power in Australia and Switzerland, in terms which are substantially wider than those provided for under the Act.  By way of example, the prerequisites set out in ss 12 and 14 in the Act are not prerequisites for a request under Article 1 of the Treaty which, inter alia, provides for assistance relating to evidence and search and seizure. Accordingly, a request might be made by the Australian authorities under Article 1 of the Treaty for the “taking of testimony and statements of persons” for the purposes of a criminal investigation whereas a request might only be made by the Australian authorities under s 12 of the Act for “evidence” for the purposes of a proceeding in respect of a criminal matter.  Similarly there is no prerequisite in Article 1 for search and seizure to be employed only for serious offences as is provided for by s 14.

Other provisions of the Treaty deal essentially with procedural matters to give effect to the primary obligations in Article 1.  In the present matter the Swiss authorities have treated the requests as having been made under the Treaty and proceeded accordingly.  Indeed, Article 11, which provides for a right to decline to give evidence, was relied upon by Bollag in his examination before Kuhn.  Ultimately that was of no avail to Bollag as the requisite certificate was provided by the Australian authorities pursuant to Articles 11 and 12. 

It is not necessary to set out further details of the Treaty save to add that the Treaty contains “limitations, conditions, exceptions and qualifications” in relation to the manner and circumstances in which the obligations under it are to be carried out by Australia and Switzerland.

The Mutual Assistance in Criminal Matters (Switzerland) Regulations 1994 (Cth) (“the Swiss Regulations”) applied the Act to Switzerland as from 31 July 1994 which was the same day as the Treaty came into force.  Regulation 4(1) of the Swiss Regulations provided:

“The Act applies to Switzerland subject to such limitations, conditions, exceptions, or qualifications as are necessary to give effect to the Treaty between Australia and Switzerland, Mutual Assistance in Criminal Matters done at Berne in Switzerland on 25 November 1991.”

Accordingly by reason of s 7 of the Act, the Act applies to Switzerland subject to the “limitations, conditions, exceptions or qualifications that are necessary to give effect to” the Treaty.

THE APPLICANTS’ CASE

The main submissions put on behalf of the applicants were that:

·      the Act constitutes a code in relation to the provision or obtaining of international assistance in criminal matters;

·      the requests and the conduct engaged in or proposed to be engaged in by the Swiss authorities in pursuance of requests were not authorised by the Act and in particular, ss 12 and 14;

·      the requests did not comply with s 12 as they did not relate to a criminal matter and were for the purposes of an investigation and not a proceeding;

·      the requests did not comply with s 14 as they did not relate to a criminal matter involving a serious offence;

·      section 10 is an enabling provision empowering the Attorney-General to make a request under the Act;  the section does not confer any power on the Attorney-General additional to that conferred elsewhere under the Act;

·      the requests, lacking the requisite statutory authority, were ultra vires and void;

·      the examination of Bollag, the search warrants and the obtaining of documents in pursuance of the requests, lacking the requisite statutory authority, are unlawful;

·      Bond and Bollag are entitled to appropriate declaratory and injunctive relief to restrain the examination of Bollag on 3 November 1997 and the further use of the documents obtained in reliance upon the requests.

For reasons I have already set out I do not accept the contention of the applicants that the investigation does not relate to a criminal matter involving a serious offence.  However I do accept the contention of the applicants that at the time the requests were made they were for the purposes of the investigation and not for the purposes of a proceeding.

THE RESPONDENTS’ CASE

The main submissions of the respondents were that:

·      demonstrably, the Act is not a code:  see s 6;

·      the requests were authorised by s 10 which both enabled and empowered the Attorney-General, or his or her delegate under s 40, to make the requests;

·      alternatively, the application of the Act to Switzerland under s 7, pursuant to the Swiss Regulations, provided statutory authorisation for the requests made under s 10 provided that they conformed to Article 1 and any other requirements of the Treaty (which the requests  clearly did);

·      alternatively, the application of the Act to Switzerland under the Swiss Regulations subject to the “limitations, conditions exceptions or qualifications that are necessary to give effect to ... [the Treaty]” resulted in the operation of s 12 of the Act being expanded to enable requests to Switzerland for assistance for the purposes of an investigation or a proceeding in accordance with Article 1 of the Treaty;  in substance it was said that by reason of the Swiss Regulations the Treaty amended the Act by expanding its operation to accord with the Treaty;

·      the requests, the examination and the seizure or obtaining of documents in pursuance of the requests are in accordance with the Treaty, are lawful and are authorised by the Act.

Finally, the respondents submitted that the delay of the applicants in bringing this proceeding was unexplained, unreasonable and had the propensity to seriously prejudice the conduct of the investigation with the consequence that relief should be refused on discretionary grounds or as a matter of course under s 11(4) of the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”).

THE EXECUTIVE GOVERNMENT POWER OF INQUIRY AND INVESTIGATION

In general, absent a treaty, a request on behalf of the executive government of Australia to a foreign country to obtain testimony or to seize or obtain documents in that foreign country to assist an investigation into a criminal matter in Australia is entirely a matter for the executive governments of Australia and the foreign country. The conduct the subject of such a request is to be carried out in the foreign country.  Accordingly, if the authorities of that country accede to the request, in the usual course, any legal rights of an Australian citizen or resident which might be affected or interfered with by the carrying out of the request in the foreign country will be governed by the law of that country. To the extent that the request might involve or result in the use of coercive or any other power in the foreign country the legality of the use of that power is to be determined in accordance with the law of that country.  Ordinarily, as such a request does not involve the use of coercive power in Australia it does not require any specific legislative authorisation under Australian law.  Accordingly, if no Australian law forbids or prohibits the making of such a request by the Australian authorities it is a lawful request.  Further, if the conduct engaged in in a foreign country in pursuance of the request is carried out in accordance with the law of that country that conduct will be lawful irrespective of its legality under Australian law had it occurred in Australia .

The general legal position was simply and eloquently stated by Griffith CJ in Clough v Leahy (1904) 2 CLR 139 at 156-157.

“The power of inquiry, of asking questions, is a power which every individual citizen possesses, and, provided that in asking these questions he does not violate any law, what Court can prohibit him from asking them?  He cannot compel an answer;  and, if he asks a question and gets an answer which is defamatory of anybody else, and the circumstances are such that the occasion is not privileged, the person who utters the words is liable to the consequences of an unlawful publication of defamatory matter.

We start, then, with the principle that every man is free to do any act that does not unlawfully interfere with the liberty or reputation of his neighbour or interfere with the course of justice.  That is the general principle.  The liberty of another can only be interfered with according to law, but, subject to that limitation, every person is free to make any inquiry he chooses;  and that which is lawful to an individual can surely not be denied to the Crown, when the advisers of the Crown think it desirable in the public interest to get information on any topic.  And it seems impossible, from this point of view, to draw a line beyond which an inquiry will be necessarily unlawful.

It is not unlawful for me to make the most impertinent inquiry into my neighbour’s affairs.  It is very undesirable, but it is not unlawful.  It cannot be suggested that the Crown would do such a thing, but, if it did, it would be no more unlawful for the Crown to make such an inquiry than for an individual.  If I make impertinent inquiries as to my neighbour’s private affairs, I may bring down upon myself the censure of right-thinking people.  If the Crown makes an inquiry into the affairs of private persons, the advisers of the Crown may incur the censure of public opinion.  They may also incur the censure of Parliament.  Any and every person is equally free to form an opinion as to the propriety of the inquiry, but it would be a strange thing if Courts of Justice were to assert the right to inquire into the propriety of executive action - whether it was a thing which, according to rules of action commonly received in the civilisation in which we live, ought to be done.  That is a question which a Court of Justice has no right to inquire into.  It is for a Court of Justice to inquire whether the law has been transgressed.”

The Act provides a legislative framework for international assistance in criminal matters but does not forbid, limit or circumscribe the requests for such assistance which may be made by the executive government.  Indeed s 6 expressly provides that nothing in the Act prevents the provision of such assistance otherwise than as mentioned in the Act or otherwise than pursuant to a treaty.  Accordingly, the mere fact that requests for assistance of the kind which are the subject of ss 12 and 14 are made otherwise than under or in accordance with those sections does not have the consequence that the requests are unlawful.  Of course such a request will not have a specific legislative authorisation under s 12 or s 14 and that may have some bearing on how it is responded to by the foreign country, particularly if there is no relevant treaty between that country and Australia.

The situation changes if a request is made under a treaty to the foreign country.  For example, the Treaty created obligations in international law between Australia and Switzerland which did not previously exist.  A request which conforms to the Treaty will create an obligation in international law on the recipient state to comply with it in accordance with the Treaty.  It is well established that a treaty does not form part of Australian law unless its provisions have been validly incorporated into our municipal law by statute:  see Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286-7, 304, 315. 

To the extent that compliance with a treaty obligation involves the use of coercive power in Australia neither the executive government nor any member of it has the automatic right to exercise such power otherwise than pursuant to the mandate of some Act of the Parliament:  see Riley v The Commonwealth  (1985) 159 CLR 1 at 15 per Deane J.  Sections 13 and 15 of the Act provide the necessary statutory mandate for coercive power to be used in Australia to provide assistance to a foreign country.  Whether, and if so, to what extent, the Swiss authorities can lawfully use coercive power to comply with their obligations under the Treaty is to be determined in accordance with Swiss law.  In these circumstances the fact that coercive investigative power, which might not be able to be exercised in Australia under Australian law, may be exercised in Switzerland in accordance with a request under the Treaty cannot, of itself, make the use of such investigative power unlawful.  There may be circumstances where a power, exercised lawfully by a foreign country to obtain evidence as a result of a request for assistance whether under a treaty or otherwise, might offend public policy in Australia.  If the evidence was improperly obtained in the foreign country or if its reception would be unfair to the accused then the criminal trial court has ample discretion to exclude such evidence on those grounds, which are not limited to unlawful conduct:  see Foster v R (1993) 67 ALJR 550, 554;  Pollard v R (1992) 176 CLR 177 at 196 and Bunning v Cross (1978) 141 CLR 54, 64, 74-5.  In such circumstances the potential accused may have no basis for challenging the investigative power employed in the foreign country but that does not prevent the later objection to the use of its fruits in Australia.

Putting aside the provisions of the Act for the moment, applying the above principles to the present case:

·      the requests do not contravene Australian law;

·      the requests have been accepted by the Swiss authorities as complying with the Treaty with the consequence that those authorities have provided and are continuing to provide the assistance sought in accordance with the Treaty;

·      insofar as Bond and Bollag have alleged that their rights have been infringed under Swiss law they have had those allegations determined against them by the relevant judicial authorities and processes in Switzerland; and

·      Bond and Bollag have not demonstrated that any right that they might have under Australian law has been infringed by the requests or the requested conduct in Switzerland.

As pointed out above these conclusions cannot be affected by the provisions of the Act, as nothing in the Act forbids or prohibits the requests that have been made to the Swiss authorities. To the contrary, s 6 specifically provided that the Act is not to have such an effect.

SECTIONS 10, 12 AND 14 OF THE MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT

However, it is necessary to consider the operation of the Act as the respondents have relied upon s 10 as the source of the authority and power of the Attorney-General, or his delegate pursuant to s 40, to make the requests.  As I have already pointed out no statutory authority or power is necessary for a request for international assistance in a criminal matter by Australia to a foreign country.  However, ss 10, 12 and 14 of the Act provide sources of statutory authority and power for such requests.  In substance, the Act affords a statutory basis for requests under those sections, or, subject to s 7, under a treaty.  Sections 12 and 14 expressly confer authority and power on the Attorney-General, “in his or her discretion”, to request the assistance provided for in those sections.  Section 40 enables the delegation of that power.  In these circumstances it is difficult to see how s 10 can have any role whatsoever in relation to requests under ss 12 or 14 as s 10 adds nothing to that which is already provided for in the two sections.  Clearly, s 10 must have some further or other purpose and role. 

The subject matter of s 10, “international assistance in criminal matters” is significantly wider than that of s 12 (the taking of “evidence” and the production of “documents or other articles”) and s 14 (the search and seizure of “a thing”).  International assistance is not defined but the width of its content can be discerned from s 5 (a)-(h) inclusive, where different categories of “international assistance” are described including evidence (s 5(a)) and search and seizure (s 5(d)).  Accordingly, if a request is to be made for international assistance of a kind described in s 5, I see no reason why ss 10 and 40 should not operate to authorise and empower the Attorney-General or his or her delegate to make such a request on behalf of the executive government of Australia. 

Treaties stand in a special position under the Act by reason of s 7.  As was explained in the Explanatory Memorandum the Act was to provide legislative authority to give effect to Australia’s treaty obligations in the area of mutual assistance.  Section 7 and the Swiss Regulations applied the Act to Switzerland subject to the “limitations, conditions, exceptions or qualifications” necessary to give effect to the Treaty.  One consequence of the Regulations is that the Act applies to Switzerland by reason of s 7 but subject to the limitations, etc, necessary to give effect to the Treaty.  Some of the limitations, conditions, exceptions or qualifications relate to the requirements for a request.  Accordingly, a request, under the Treaty, for assistance from Switzerland made in reliance on s 10 must comply with the limitations, conditions, exceptions and qualifications in the Treaty.  In that way s 10 affords a statutory authorisation and power to the Attorney-General to request international assistance under the Treaty.  Any such request must comply with the Treaty by reason of s 7 and the Swiss Regulations.  In these circumstances the request will be made under and for the purposes of both the Act and the Treaty.

Although Article 1 of the Treaty uses language which is different to that set out in s 5, in substance the categories of assistance set out in Article 1 appear to fall within the categories set out in s 5 which is not exhaustive of conduct constituting “international assistance”.  Accordingly, ss 10 and 40 provide statutory authorisation and confer power on the Attorney-General, or his or her delegate, to make a request on behalf of “Australia”, or more precisely, the executive government of Australia, for international assistance in accordance with the Treaty.

The operation I have given s 10 accords with its terms and the objects of the Act as discerned from it and confirmed in the passages of the Explanatory Memorandum and the Second Reading Speech to which I have referred earlier in these reasons:  see sub-ss 15AB(1) (2)(e) and (2)(f) of the Acts Interpretation Act 1901 (Cth). It is also consistent with the explanation of s 10 in the Explanatory Memorandum.

The main argument against the operation I have given to s 10 is that my construction allows the executive government to circumvent the preconditions placed on the use of the power to make a request under ss 12 and 14 by using s 10 when the preconditions for ss 12 and 14 cannot be met.  Bennion on Statutory Interpretation (2nd ed, 1992) at 725 states:

“A construction will not be allowed which would enable persons charged with a statutory power or function to act in such a way as to truncate or otherwise modify what the legislature intended.”

However, as I pointed out in Wang v Minister for Immigration and Multicultural Affairs (13 February 1997, unreported at 15,) the real point being made in the passage from Bennion is that where a judge concludes that the legislature could not have intended that a statute could operate in a manner which defeats its manifest object or purpose, then an alternative interpretation must be preferred:  see Cooper Brookes (Wollongong) Pty Ltd v Commission of Taxation (Cth) (1981) 147 CLR 297, 311, 320-321 and Saraswati v The Queen (1991) 172 CLR 1 at 22.

The legislative intention, as expressed in s 6, is quite clear;  the Act does not prevent international assistance being obtained or provided otherwise than under the Act or a treaty.  Further, it is the manifest intention of the legislature that the Act be applied to give effect to, rather than frustrate, the operation of mutual assistance treaties:  see s 7 and the passages from the Explanatory Memorandum and the Second Reading speech to which I have referred.  As soon as it is recognised that the legislative intention is to provide additional sources of power under the Act for requests for international assistance, and not to limit the power to make such requests, it can be seen that the Act is not a code, ss 12 and 14 are not a code and the construction contended for by the applicants must be rejected.

I accept that my construction of s 10 results in a limited operation for ss 12 and 14 in the circumstances of the present case.  However, that has occurred by reason of the terms of the Treaty and the Swiss Regulations which provide for the Act to apply to Switzerland subject to the modifications necessary to give effect to the Treaty.  Absent a treaty and therefore any obligation on the part of the recipient country, a request under s 10 is no more than the executive act of making a “request” which is authorised by the Act to be made by the Attorney-General on behalf of the executive government.  Such a request may not have the same standing, in so far as the recipient country is concerned, as a request of the kind which is specifically authorised under ss 12 or 14 of the Act.  That however is a matter for the recipient and does not touch upon the issue of power to make a request.

I add that I have not overlooked the rule of construction which requires clear and unambiguous words before a statutory provision will be construed as displaying a legislative attempt to abolish or modify fundamental rights and principles:  see Bropho v State of Western Australia (1990) 171 CLR 1 at 17-18 and Coco v R (1994) 179 CLR 427 at 437-438.  Gummow J said in Ousley v R, (High Court of Australia, 20 October 1997, unreported) at 37:

“In part, this rule is but an illustration of the general principle that laws diminishing, or authorising the diminution of, the rights of the individual must be clear.  The principle rests upon the presumption, imputed to Parliament, that it will ordinarily respect such rights and derogate from them as little as possible, and then upon strict conditions, and subject to effective protective procedures.  In part, the rule of strictness reflects the particular attitude of the common law to the enjoyment of an individual’s property and privacy.”

It is questionable whether these principles apply to ss 10, 12 and 14 of the Act as these sections do not abolish or modify fundamental rights and principles nor do they authorise or require an intrusion upon any individual’s rights of property or privacy; cf. ss 13 and 15.  A request under ss 10, 12 or 14 may or may not be complied with.  If there is a treaty obligation on the part of the recipient country to comply with the request that obligation does not arise under the Act but arises under the treaty.  Accordingly, the interference with any right occurs by reason of the obligation arising under the treaty and under the law of the foreign country and not the Act.  However, for the reasons I have set out, the intention of the legislature has been made clear, and is not ambiguous, in relation to the operation of the three sections in question.

Finally, in considering the statutory power of the Attorney-General to issue an ex officio information Gibbs ACJ and Mason J said in Barton v The Queen (1980) 147 CLR 75 at 94:

“It is not correct to say that the exercise of every power given by statute is examinable by the courts in the manner suggested by the appellants.  It is correct to say that in cases where a statute confers an administrative discretion which is unlimited in terms, the court must concede to the repository a discretion unlimited by anything but the scope and object of the statute.  As Dixon J. said in Water Conservation and Irrigation Commission (N.S.W.) v Browning, before the court can say that a particular consideration is extraneous to the power “there must be some warrant in the provisions, the nature or the subject matter of the statute”.  See also Swan Hill Corporation v Bradbury.

The provision made by s. 5 is very different from an ordinary administrative discretion conferred by statute.  The section is a self-contained provision the scope of which is unaffected by other provisions in the statute.  It imposes no duty on the Attorney-General to consider whether a prosecution shall be instituted.  All that the relevant part of the section does is to indicate the mode in which a criminal prosecution shall be instituted, i.e. by information in the name of the Attorney-General or other officer duly appointed for the purpose.  The provision does not limit or restrict the Attorney-General in any way in the consideration which he may give to a particular case.  And because the language leaves the Attorney-General at large in deciding what course he shall take, it makes his decision immune from judicial review.”  (footnotes omitted).

Whilst a decision under s 10 is not immune from judicial review (see for example s 5 of the ADJR Act) the nature of the power, the unconfined discretion and the general scope and objects of the Act to which I have referred will severely confine the basis for judicial review.

In my view the conclusions I have reached in relation to the operation of s 10 and the Treaty provide a complete answer to the applicants’ case.  Insofar as Australian law is concerned the requests are authorized under s 10 of the Act and are valid and proper requests for the purposes of Article 1 of the Treaty.  Likewise, insofar as Australian law is concerned the conduct engaged in by Swiss authorities in pursuance of the Treaty has not been demonstrated to be in breach of any of the applicants’ legal rights.  I hasten to add that insofar as Swiss law is concerned the relevant judicial authorities in Switzerland have rejected the challenges by Bollag and Bond to the validity of the decisions made by the Swiss authorities under the Treaty, and to the conduct engaged in by those authorities in pursuance of the Treaty obligations.

DO THE SWISS REGULATIONS MODIFY ss 12 AND 14?

It is desirable that I deal with the respondents’ submission that to the extent that the Swiss Regulations result in the Treaty being applicable by reason of s 7 of the Act, the wider terms of the Treaty, and in particular Article 1, effectively supersede and amend the narrower terms of ss 12 and 14.   Put another way it is contended that s 7 and the Swiss Regulations operate to substitute for the preconditions set out in ss 12 and 14 the provisions of Article 1 of the Treaty.  Senior counsel for the respondents put the submission in a more limited way.  He submitted that a request under s 12 may, notwithstanding the terms of the section, be made for the purposes of an investigation, as well as for a proceeding, as that is provided for by Article 1.  However, I do not accept that it is correct to approach this issue by picking and choosing some parts of Article 1 to extend s 12 but to reject others.  Also, if s 12 is amended to accord with Article 1 so must s 14 and other sections also be amended similarly to accord with Article 1.  That result would treat s 7 and the Swiss Regulations as effectively enacting the Treaty.

In my view there is a short answer to the submission. The Treaty is not enacted into Australian municipal law.  The Swiss Regulations and s 7 only provide for the Act to apply to Switzerland “subject to such limitations, conditions, exceptions or qualifications” as are necessary to give effect to the Treaty.  These are words of restriction:  see Commonwealth v Riley (1984) 5 FCR 8 at 14.  Accordingly, the provisions of the Act are to apply subject to any limiting modifications which are required by reason of s 7(2) and reg 4 of the Swiss Regulations.  The ambit of ss 12 and 14 is not expanded;  the sections remain unchanged in their operation save to the extent that their operation might be read down to accord with provisions in the Treaty which restrict its operation in defined circumstances.  That approach is not inconsistent with a legislative intention to give effect to the Treaty as that is achieved by the interpretation I have given to s 10 where there is a treaty and where s 7 and regulations apply the Act to the foreign country with which the treaty is made.

Further my approach accords with that given to the same words in the Extradition (Foreign States) Act  1966 (Cth).  It has been accepted that a statutory provision such as s 7 can, in effect, provide for an Act to be amended by a treaty.  In Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 90 Wilcox and O’Loughlin JJ said

“As a general proposition it is correct to say that, wherever there is a conflict between the terms of the Act and that of the Treaty, the Treaty is to prevail.  This is the effect of reg 3 making the application of the Act to the United States subject to the Treaty.  Although the notion that the operation of an Act may be limited by the terms of a regulation would normally be heretical, it was a notion specifically countenanced by s 10 of the Extradition (Foreign States) Act.  And this course was often taken in relation to extradition treaties, so that it was commonplace for an extradition treaty to prevail over this Act.”

Their Honours’ observation as to how an Act might be amended by a treaty, did not deal with the question of whether the amendment is one which can only restrict rather than expand the operation of the Act.  In Commonwealth v Riley at 14 the Full Court (Smithers, Sheppard and Wilcox JJ) considered that matter:

“The Extradition (Foreign States) Act 1966 (Cth) provides that where, after the commencement of the Act, an extradition treaty - including an amending treaty - comes into force between Australia and a foreign state, being a foreign state to which the Act applied at the time of the coming into force of that treaty (as was the United States), regulations may provide that the Act applies in relation to that state after that time “subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to that treaty and are specified in the regulations” - see s 10(1).  Such limitations, conditions, exceptions or qualifications may, in relation to a particular foreign state, be expressed in the form that the Act applies in relation to that state “subject to the” relevant “extradition treaty” - see s 10(2).  The effect of such regulations is to make the Act apply in relation to that foreign state subject to any relevant limitations, conditions, exceptions or qualifications:  see s 11.  Although the contrary argument was put on behalf of the Commonwealth, it is clear that the regulations may limit but not extend the scope of the Act.  The words “limitations”, “conditions” and “exceptions” are all words of restriction, not extension, and the eiusdem generis principle requires that, in this context, the word “qualifications” be read in the same way.  This coincides with the view taken in the House of Lords in relation to the collocation of words “limitations, restrictions, conditions, exceptions and qualifications” in the United Kingdom legislation:  see Re Nielsen [1984] 2 WLR 737 at 741.”

Although Riley went on appeal to the High Court ((1985) 159 CLR 1) in my view their Honours did not express any views which were inconsistent with the views of the Full Court on this issue;  cf. Extradition Australian Law and Procedure E P Aughterson (1st ed, Law Book Company, 1995) at 27-28.  Although Professor Aughterson is critical of this narrow approach to the extradition legislation I see no reason for rejecting such an approach to the Act.  As the Act affords additional authority or power under ss 12 and 14 there is no need to expand the operation of those provisions.  In any event, as pointed out earlier, other provisions give effect to the treaty.

There is a further reason for rejecting an expansive view of the relevant words.  If ss 12 and 14 were to be expanded then other sections such as ss 13 and 15, which relate to the exercise of coercive power in Australia, might also be expanded in their operation to accord with a treaty.  I am satisfied that was not Parliament’s intention when enacting s 7.

OTHER MATTERS

Several other matters were raised by the applicants.  It was said that the voluntary production of documents by Zuger Kantonalbank lay outside the ambit of a request under the Act which only authorizes search and seizure:  see s 14.  The contention is without foundation.  The requests were valid, were made under s 10 and accorded with the Treaty.

It was also said that there was no power to examine Bollag otherwise than “on oath” as set out in the requests.  The requests were that Bollag be examined on oath.  Whether that or some other mode of examination is undertaken is a matter for the Swiss authorities who have acted under and in accordance with the Treaty.  In that regard the examination will be conducted in accordance with the Criminal Procedure Code of the Canton of Zug.  Although the Code does not provide for the answering of questions on oath it does provide sanctions for untrue or false testimony.  As the requests were valid, were made under s 10 and accorded with the Treaty there is no foundation for the submission.  That conclusion also disposes of the applicants’ contention that as the requests were unlawful the certificate under Article 11 of the Treaty was invalid.

DISCRETION

I have formed a clear view that the application should also be dismissed on discretionary grounds.  I will briefly set out my reasons for that conclusion. 

The relief sought by the applicants may be refused if the Court is of the opinion, inter alia, that:

·      the application was not made within a reasonable time after the decision was made:  see s 11(4)(c) of the ADJR Act and Johnson v Holmes & Ors (Federal Court of Australia, O’Loughlin J, 16 October 1997, unreported) at 7-11 or if the applicants have been guilty of unexplained, inordinate and inexcusable delay:  see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 at 535;  Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350 and Johnson  at 7-11.

·      the applicants have previously elected to pursue other remedies or proceedings or have otherwise misused the processes of the Court:  see Re Wilcox at 533-535.

I make the following findings of fact based on the evidence or inferences which I draw from the evidence:

1.         The requests sought to be impugned were made on 16 September 1994 and 24 November 1994.

2.         Bond and Bollag had both issued legal challenges in relation to the requests by 1 June 1995.  Given the obvious association between Bond and Bollag in relation to these challenges I do not place any significance on whether the challenge was by Bond or Bollag.

3.         At all relevant times Bond and Bollag have had access to and received legal advice in relation to the requests and the requested conduct.

4.         Numerous unsuccessful legal challenges were made in relation to the requests and the requested conduct in Switzerland yet it is not apparent that the grounds raised in these proceedings were raised in those proceedings, notwithstanding their apparent relevance.

5.         The Federal Court proceeding by Bond sought to impugn the validity of the requests and seek essentially the same relief to that which is now sought yet Bond did not raise the present grounds, save for one which was subsequently abandoned.

6.         The legal challenges have delayed, fragmented and, to some extent, dislocated the conduct of the investigation.

7.         Substantial information has been imparted by the Swiss authorities to the Australian authorities as a result of the requests.

8.         The examination of Bollag on 3 November 1997 is to be conducted by Kuhn.  Representatives of the DPP and the AFP will assist Kuhn but will not conduct the examination.

9.         Even if, contrary to my findings, the requests were not authorized by the Act it is difficult to envisage how an Australian court could or would grant an injunction restraining the examination of Bollag by Swiss authorities or the use of documents for the purposes of the examination particularly when it has not been established that either the requests or the conduct are prohibited by or contravene any law.

10.       Bollag and Bond made no attempt to offer any explanation for their extraordinary delay in bringing this proceeding.  Each has chosen to remain silent on this issue.  I infer that any explanation they could offer is unhelpful to their case. 

11.       In the light of the history and circumstances set out above I have no hesitation in finding that the applicants’ delay is unexplained, inordinate, inexcusable and unreasonable.

The present application is audacious;  not because it was brought but by reason of when it was brought.  All of the facts relied upon to establish the applicants’ case have been known by them and their legal advisers since some time prior to mid 1995 at the latest. Numerous unsuccessful legal challenges have been brought by both applicants in Switzerland.  Bond unsuccessfully challenged the validity of the requests in the Federal Court.  There is no suggestion that the grounds for the present challenge were not known by the applicants or their legal advisers at the time of those challenges.  On any view the applicants were required to bring forward the whole of their case in the earlier  proceedings.  As was said in Henderson v Henderson (1843) 3 Hare 100 at 115; 67 ER 313 at 319, the Court:

“will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the [earlier] subject in contest ...”.

Whilst the applicants have an undoubted right to challenge the use of coercive power in relation to them they do not have the right to do so as and when they choose by electing, reserving and preserving their points so they can be raised if and when it suits them or their litigation strategy.  Yet that appears to be precisely what Bond and Bollag have done in the present case in order to delay the investigation into their dealings.

Delay of itself has the propensity to cause prejudice to the investigation.  However there is another harm caused by the applicants’ conduct in the present case.  It is harmful to the administration of justice for applicants to challenge the criminal investigation process in a manner that both fragments and dislocates it by raising grounds as and  when it suits them without offering any explanation as to why the grounds were not raised in earlier proceedings for substantially the same relief. The special circumstances of the present case are such that some explanation was obviously called for as to why this proceeding and the claims in it were not brought earlier, but none was forthcoming.  Absent any explanation to the contrary, I infer that the applicants elected not to raise these grounds in their earlier proceedings.  In such circumstances it is a serious misuse and abuse of the litigation process to contest proceedings in that manner. 

These are weighty considerations for refusing the grant of any relief in favour of the applicants in the present application.  They contend that they will suffer prejudice and harm if relief is refused and the investigation proceeds.  Whilst the applicants have not given evidence of any specific prejudice, I accept that the unlawful use of coercive investigative power invades the rights of property and privacy of individuals, which of itself constitutes relevant prejudice and harm.  However, for the reasons set out earlier, in reality the case of the applicants is one of ultra vires in respect of the requests made in Australia, rather than of unlawful use of coercive power against them in Switzerland.  In so far as the applicants have challenged the use of that power in Switzerland, they have not succeeded.  I am not satisfied that any prejudice or harm claimed by the applicants in the present case outweigh the discretionary factors in favour of refusing the relief they seek.

For all of these reasons I would also refuse to grant the relief sought in exercise of the Court’s discretion.

CONCLUSION

I have concluded that

·      the applicants have not made out any of the grounds relied upon by them in their application; and

·      the application should be refused on discretionary grounds.

The application is dismissed with costs.

Associate:

Dated:              30 October 1997