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Baker v. Campbell.

Judges: Gibbs CJ

Mason J
Murphy J
Wilson J
Brennan J
Deane J
Dawson J

Court:
High Court of Australia

Judgment date: Judgment handed down 26 October 1983.

Mason J.

This case which has been stated by Wilson J. pursuant to sec. 18 of the Judiciary Act 1903 (Cth.), as amended, raises a question as to the availability of legal professional privilege in answer to a search warrant.

According to the facts recited in the case the plaintiff retained Mr. O'Connor, who is a member of Stone, James & Co., Barristers and Solicitors, of Perth, as solicitors to advise him in relation to aspects of a scheme which he had devised with a view to minimizing his liability to sales tax. It was a term of the retainer that the firm would not disclose to any other person any information or documents obtained by him in confidence while acting for the plaintiff. It was agreed between the parties that it was the duty of the firm not to disclose to any other person, unless compelled by law or upon the instructions of the plaintiff, any information or documents provided to the firm in confidence for the purpose of tendering legal advice to the plaintiff.

On 6 July 1982 a magistrate issued a search warrant to the defendant, who is a member of the Federal Police, pursuant to sec. 10 of the Crimes Act 1914 (Cth.), as amended. The search warrant authorized the seizure on premises occupied by Stone, James & Co. of the original or copies of the following documents: ``correspondence, prospectuses, notes, opinions of Counsel, contracts, agreements, and other documents and instruments all of which have been produced or held by, for, or in respect of,'' the plaintiff and/or certain other named persons, companies and a trust. The warrant recited that there were reasonable grounds for suspecting that the documents would afford evidence as to the commission ``of any offence'' against sec. 49 of the Sales Tax Assessment Act (No. 1) 1930 (Cth.), in itself and as applied by Sales Tax Assessment Acts (No. 2-9) 1930 (Cth.) respectively, by the plaintiff and the persons named in the warrant jointly or severally, and offences against sec. 86(1)(b) and (e) of the Crimes Act by the plaintiff and the persons already named ``in any combination and with any other person or persons unknown''.

On 7 July 1982 the defendant, acting pursuant to the search warrant, attempted to seize the documents held by Stone, James & Co. The documents held by that firm were all brought into existence for the purpose of obtaining or giving legal advice, and included opinions given by the plaintiff's solicitor and senior counsel. They included documents created solely for the purpose of tendering legal advice to the plaintiff otherwise than in relation to then existing or contemplated civil or criminal proceedings. Stone, James & Co. held no documents relating to any particular transaction entered into.

On or about 5 October 1982 the plaintiff was charged with the following offences:

  • (1) Conspiring with others to defraud the Commonwealth contrary to sec. 86(1)(e) of the Crimes Act;

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  • (2) Conspiring with others to prevent or defeat the execution or enforcement of a law of the Commonwealth, namely sec. 9 of the Sales Tax Assessment Act (No. 3) 1930, contrary to sec. 86(1)(b) of the Crimes Act; and
  • (3) Conspiring with others to prevent or defeat the execution or enforcement of a law of the Commonwealth, namely sec. 9 of the Sales Tax Assessment Act (No. 7) 1930, contrary to sec. 86(1)(b) of the Crimes Act.

The plaintiff contends that the documents held by Stone, James & Co. are the subject of legal professional privilege and cannot properly be made the subject of a search warrant or seized under it.

The defendant contends that legal professional privilege does not attach to the documents by reason of the purpose for which the plaintiff consulted the firm and also contends that in so far as it may attach to them they may lawfully be seized under the warrant.

The question asked in the case stated is:

``In the event that legal professional privilege attaches to and is maintained in respect of the documents held by the firm respect of the documents held by the firm can those documents be properly made the subject of a Search Warrant issued under sec. 10 of the Crimes Act?''

Having regard to the importance of the question presented by the case stated the Court granted leave to the plaintiff to present a case which in some respects at least might prove to be inconsistent with the recent decision of the Court in
O'Reilly & Ors. v. Commr. of the State Bank of Victoria & Ors. 82 ATC 4671 ; (1982) 57 A.L.J.R. 130 , and might require a reconsideration of the correctness of that decision. It will be recalled that in O'Reilly the Court by majority ( Gibbs C.J., Mason and Wilson JJ., Murphy J. dissenting) held legal professional privilege was not available in answer to a notice issued under sec. 264 of the Income Tax Assessment Act 1936 (Cth.), as amended, requiring production of documents to a designated officer of the Australian Taxation Office.

O'Reilly recognized that the privilege extends to the protection in judicial and quasi-judicial proceedings of communications between lawyer and client made in contemplation of litigation and for legal advice. O'Reilly also recognized that the privilege reflects as an underlying policy the perceived value of promoting the public interest by assisting the administration of justice in ``facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline'' (
Grant v. Downs (1976) 135 C.L.R. 674 at p. 685 , per Stephen, Mason and Murphy JJ.). At an earier stage of its development the privilege applied only to communications made in relation to the litigation in which the privilege was claimed. had the development stopped at this point the privilege might well have reflected a more acceptable balance between the two competing public interests - one supporting the privilege, the other favouring the availability of all the relevant documents for use in litigation. Subsequently the privilege was extended so as to apply to communications made in relation to actual or prospective litigation generally. Then the limited policy on which the privilege was based was that of promoting freedom of consultation between lawyer and client for the purpose of representation in, and conduct of, legal proceedings. The later extension of the privilege to cover communications relating to advice unrelated to legal proceedings, actual or prospective, entailed a declaration that the underlying policy was more broadly based - that it involved the promotion of freedom of consultation generally between lawyer and client.

Despite this, the majority in O'Reilly considered that the privilege was not available outside the realm of judicial and quasi-judicial proceedings - proceedings in which, generally speaking, the rules of evidence are applied - because the privilege is a rule of evidence and because the underlying policy which it serves did not demand such an extension.

Notwithstanding strong judicial assertions of the value of the public interest said to be promoted by the privilege - for the most part assertions made a century ago - of which
Greenough v. Gaskell (1833) 1 My. & K. 98 at p. 103; 39 E.R. 618 at p. 621 , is an example, it is by no means self-evident that the value of this public interest is greater than

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the public interest in facilitating the availability of all relevant materials for production in litigious disputes. If we nonetheless continue to accept that the privilege applies to communications in aid of litigation and communications made for the purpose of obtaining and giving legal advice, an evaluation of the competing considerations which lurk beneath the surface of the privilege indicates that the application of the privilege should not be extended outside the area in which it has thus far been recognized in Australian law.

It is one thing to say that the privacy or secrecy of lawyer-client communications made in aid of litigation, especially in aid of the litigation in which the privilege is claimed, shall prevail over an obligation to produce or disclose all materials relevant to the issues in the litigation. To take but one example: to compel the parties to disclose such communications made in the conduct of that litigation would be unfair to them, hamper the preparation of their cases and protract the determination of the litigation. But it is quite another thing to say that communications for advice, the purpose of which is unrelated to actual or prospective litigation, shall prevail over an obligation to produce or disclose materials relevant to the issues in litigation. Why such communications should be privileged, when communications for advice between client and accountant or marriage counsellor, which have taken place with litigation in view, are not privileged, does not admit of convincing explanation. There is also the striking contrast between the privileged lawyer-client communications made for the purpose of obtaining and giving advice and the non-privileged doctor-patient and priest-penitent communications. Each of the three relationships is highly confidential and in each the need for candour is a necessary element. The need for preservation of doctor-patient and priest-penitent confidentiality seems to be as strong as the need for preservation of lawyer-client confidentiality in the area of advice. Consequently the public interest in preserving the secrecy of the latter seems to be no stronger than the public interest in preserving the secrecy of the former.

When we move beyond the arena of curial proceedings to the realm of administrative and investigatory procedures the desirability of preserving the confidentiality of lawyer-client communications is not opposed by the public interest in facilitating the production of relevant materials in litigation, except in those cases (a) in which the investigatory procedures are designed as a preliminary to litigation, and (b) in which the disclosure of the communications in the administrative or investigatory procedures would impair the exercise of the privilege in pending or future litigation. However, other countervailing considerations then arise. The nature and force of these considerations depend on the object and purpose of the procedures for which the relevant statute makes provision. But it may be deduced from the very existence of the statutory obligation to answer questions, provide information or produce documents that there is a strong public interest in obtaining the materials the provision of which is the object of the statute.

Quite apart from the force of these considerations there is the problem which I mentioned in O'Reilly (at ATC pp. 4682-4683; A.L.J.R. pp. 138-139) and Brennan J. referred to in
Pyneboard Pty. Ltd. v. TPC (1983) 45 A.L.R. 609 at p. 629 , that of imposing upon unqualified persons the task of deciding difficult questions of legal professional privilege. Their decision of such a question would not be conclusive. A decision of a Court (a) on a prosecution for contravention of the statutory obligation, or (b) in proceedings for a declaration as to the existence of the privilege, would be required in order to provide a conclusive answer.

In this respect it is scarcely to be supposed that Parliament, when it imposes the obligation to furnish information, intends that the course of an administrative inquiry or investigation should be delayed or interrupted by the necessity to obtain a final decision of a Court on the question whether a claim for legal professional privilege can be sustained in relation to a particular answer or particular documents. This, of course, would be relevant to the existence of a statutory intention to abrogate the privilege, assuming it to be otherwise inherently available. None the less, it is a material factor to be considered in deciding whether the privilege is capable of being claimed in administrative or investigatory procedures. The

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determination of a claim for privilege in curial proceedings stands in sharp contrast because it entails no similar delay or interruption.

It was for the reasons outlined above that I concluded in O'Reilly that the privilege is a rule of evidence which is available in judicial and quasi-judicial proceedings only.

An unqualified acceptance of the values which are said to sustain the privilege might well have led to a different result in O'Reilly. In conformity with the approach adopted in the United States, to which I shall shortly refer, it may be said that logic demands that the policy basis of the privilege, as it is now recognized, requires the protection from involuntary disclosure of lawyer-client communications in all administrative and investigatory procedures for two reasons: (1) in order to give effect to the policy of promoting freedom of consultation between client and lawyer; and (2) to foreclose the possibility that the benefit of the privilege in judicial proceedings would be destroyed by an antecedent disclosure of the relevant communications in administrative or investigatory procedures. And, as we have seen, in procedures of this kind the policy of promoting freedom of consultation is, subject to the exceptions already mentioned, not at odds with the object of facilitating the availability of relevant materials for production in litigious disputes, though it will be opposed by other countervailing considerations.

In considering the question which arises we now have the advantage, which we lacked in O'Reilly, of an extensive examination of the judicial decisions in Canada and in the United States so far as they relate to claims of legal professional privilege in proceedings which are not curial proceedings.

In
Solosky v. The Queen (1979) 105 D.L.R. (3d) 745 at pp. 755-756 , Dickson J. (with whom the other members of the Supreme Court of Canada concurred), after briefly summarizing the history of the privilege, quoted the well-known remarks of Lord Brougham L.C. in Greenough v. Gaskell (1 My. & K. at p. 103; 39 E.R. at p. 621):

```... it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources. Deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case.'''

Speaking of the current situation in Canada Dickson J. said (at p. 757):

``Privilege is no longer regarded merely as a rule of evidence which acts as a shield to prevent privileged materials from being tendered in evidence in a courtroom. The Courts, unwilling to so restrict the concept, have extended its application well beyond those limits...''

Rejecting the notion that the privilege was a rule of property, he cited various decisions in which the solicitor-client privilege has been held to be available in pre-prosecution procedures, viz. in response to a search warrant and to compulsory disclosure. He suggested that the judgments could be rationalized ``as merely shifting the time at which the privilege can be asserted'' (p. 758).

One such judgment was
Re Director of Investigation & Research & Shell Canada Ltd. (1975) 55 D.L.R. (3d) 713 , where the Director of Investigation and Research was authorized by sec. 10(1) of the Combines Investigation Act 1970 (Can.) to enter into premises on which he believed there might be evidence relevant to matters being inquired into and to examine anything on those premises. The Federal Court of Appeal held that legal professional privilege was applicable to investigations by the Director. Jackett C.J. (with whom the other members of the Court agreed) considered that the value of the privilege would be impaired if its operation were confined to judicial proceedings and if disclosure and confidential communications were permitted outside judicial proceedings. His Honour said (at p. 722):

``I fully realise that the protection of the confidentiality of the solicitor-and-client relationship has, heretofore, manifested itself mainly, if not entirely, in the privilege afforded to the client against the

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compulsory revelation of communications between solicitor and client in the giving of evidence in Court or in the judicial process of discovery. In my view, however, this privilege is a mere manifestation of a fundamental principle upon which our judicial system is based, which principle would be breached just as clearly, and with equal injury to our judicial system, by the compulsory form of pre-prosecution discovery envisaged by the Combines Investigation Act as it would be by evidence in Court or by judicial discovery.''

Recently, in
Descoteaux v. Mierzwinski (1982) 141 D.L.R. (3d) 590 , the Supreme Court considered the effect of legal professional privilege in relation to the issue of a search warrant pursuant to sec. 443(1)(b) of the Criminal Code (Can.). Lamer J., who delivered the judgment of the Court, said (at pp. 604-605) that the Court in Solosky v. The Queen implicitly recognized that the right to confidentiality, which had given rise to the rule of evidence that confidential communications passing between a client and his legal adviser may not be disclosed in a judicial proceeding without the client's consent, had also given rise to a substantive rule which would apply in all circumstances where such communications were likely to be disclosed without the client's consent. That rule requires that, in the absence of contrary provisions, any conflict between the right of a client to have his communications with his lawyer kept confidential and the right of a person to interfere should be resolved in favour of protecting confidentiality. Where legislation does give a person authority to do something which might interfere with confidentiality, the decision to do so and the choice of the means of exercising that authority should be determined with a view to interfering with confidentiality only to the extent absolutely necessary in order to obtain the end sought by the legislation. Moreover, any legislation which may infringe confidentiality must be interpreted restrictively.

Applying this analysis to sec. 443(1)(b), Lamer J. said that the rule of evidence deprived a justice of the peace of jurisdiction to order the seizure of documents that would not be admissible in evidence in Court on the ground that they are privileged. In this connexion he quoted Southey J. in the Supreme Court of Ontario in
Re Borden & Elliott & the Queen (1975) 70 D.L.R. (3d) 579 at pp. 583-586 , to the effect that if privilege could not be invoked it would lead to the absurd result that the Crown would be free to seize and examine any of the documents in the defence files in a criminal case leaving the rule against the introduction of those documents into evidence of little comfort to the accused. Where, however, jurisdiction to authorize the search exists because, for example, the relevant documents fall within an exception to the rule of evidence, the substantive rule will require a justice of the peace to satisfy himself that there is no reasonable alternative to the search and, when issuing the warrant, to attach terms designed to protect the right of confidentiality of the lawyer's clients as much as possible.

In the United States it is firmly established that the privilege is available in administrative proceedings and in investigatory procedures in the absence of legislation abrogating the privilege. Thus the privilege is available in investigations by the Internal Revenue Service (
Colton v. United States (1962) 306 F. 2d 633 ;
United States v. Summe (1962) 208 F. Supp. 925 at pp. 926-927 ;
United States v. Schmidt (1973) 360 F. Supp. 339 at p. 350 ;
United States v. Schenectady Sav. Bank (1981) 525 F. Supp. 647 at p. 654 ). The discussion in the cases has been complicated by another problem which has no relevance for us, that is, whether the privilege is grounded in State or federal law (see, for example
Bouschor v. United States (1963) 316 F. 2d 451 ). However, it is clear enough that the availability of the privilege rests at bottom on the statement of principle expressed by Wigmore on Evidence, McNaughton rev. (1961) vol. 8 para. 2291 p. 545, in these terms:

``In order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by the legal advisers must be removed; hence the law must prohibit such disclosure except on the client's consent.''

I am not persuaded by the Canadian and United States authorities that we should now depart from the majority decision in O'Reilly. There are theoretical problems in

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drawing or holding the line at the point where legal professional privilege is treated as a rule of evidence available only in judicial and quasi-judicial proceedings. But the problems of policy and practice in extending the privilege beyond its accepted role in proceedings of this kind are to my mind altogether too formidable. Adherence to the rule adopted in O'Reilly will produce greater certainty than the adoption of a case by case approach in which the Court seeks to balance opposing public interest considerations in the quest for a statutory intention to abrogate the privilege. In some instances the O'Reilly rule may result in the effective loss of the benefit of the privilege which would otherwise be claimed in litigation, but this is unlikely to be of frequent occurrence.

According to authority, it seems that the availability of the claim for privilege is lost once the document passes into the possession of another who may then tender it in evidence (
Waugh v. British Railways Board (1980) A.C. 521 at p. 536 ). The same holds true for a copy (see generally
Bell v. David Jones Limited (1948) 49 S.R. (N.S.W.) 223 at pp. 227-228 ;
Kuruma v. The Queen (1955) A.C. 197 at pp. 203-204 ;
Calcraft v. Guest (1898) 1 Q.B. 759 ). These rules have been criticized and the decisions on which they are based may perhaps require some qualification, particularly in relation to documents obtained by illegal means or by deception (see
I.T.C. Film Distributors Ltd. v. Video Exchange Ltd. (1982) 3 W.L.R. 125 at pp. 132-133 ; G.L. Peiris, ``Legal Professional Privilege in Commonwealth Law'', The International and Comparative Law Quarterly , vol. 31 (1982) 609 esp. at pp. 630-633; Polyvios G. Polyviou, Search & Seizure (1982) pp. 325 et seq.). And in a very recent decision the New Zealand Court of Appeal has held that a third party who overhead a communication made between a solicitor and an accused person for the purpose of giving or obtaining legal advice or assistance in confidence should not be allowed to give evidence of it unless the client waived the privilege (
R. v. Uljee (1982) 1 N.Z.L.R. 561 ). In arriving at its decision the New Zealand Court of Appeal, acknowledging that Calcraft v. Guest seemed to point in a contrary direction, held that no valid distinction could be drawn between oral and documentary evidence in this context. However, it is not necessary for us to resolve all these difficulties in the present case.

Legal professional privilege stands well apart from the privilege against self-incrimination, which rests on a more enduring foundation, one which has a pervasive presence in our system of criminal justice. There is, therefore, a strong reason for treating the privilege against self-incrimination differently and regarding it as inherently available outside the arena of judicial and quasi-judicial proceedings (cf. Pyneboard at p. 617).

The question which remains is whether consistently with O'Reilly we should regard the search and seizure of documents under a search warrant as having such a close relationship with, and impact upon, any subsequent trial arising out of the investigation in which the search and seizure takes place that any claim to legal professional privilege which would be available at the trial is available as an answer to the search warrant or to search and seizure under a warrant. In this respect the circumstance that the issue of the warrant has been considered to be a judicial act (
R. v. Tillett ; Ex parte Newton (1969) 14 F.L.R. 101 ;
Bridgeman v. Macalister (1898) 8 Q.L.J. 151 at p. 152 ;
Hope v. Evered (1886) 17 Q.B.D. 338 at p. 340 ;
Bowden v. Box (1916) G.L.R. (N.Z.) 443 at p. 444 ;
Mitchell v. New Plymouth Club (Inc.) (1968) N.Z.L.R. 1070 at p. 1073 ;
Seven Seas Publishing Pty. Ltd. v. Sullivan (1968) N.Z.L.R. 663 at p. 666 ; see also
Ex parte Qantas Airways Ltd .;
Re Horsington (1969) 71 S.R. (N.S.W.) 291 ) means no more than that the justice has a duty to act judicially. To characterize the ex parte application for the warrant as a quasi-judicial proceeding does not advance the matter for the question is whether the justice has jurisdiction to issue his warrant in relation to privileged documents and, if so, whether privilege is an answer to the warrant.

Likewise, search and seizure under the authority of a warrant is not a form of discovery in an action; nor is it a proceeding ancillary to the trial in the sense in which an interlocutory application is a proceeding ancillary to the action itself.

The search warrant has been described as ``part of the investigative pre-trial process of

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the criminal law, often employed early in the investigation and before the identity of all of the suspects is known'' (
A.-G. of Nova Scotia v. MacIntyre (1982) 132 D.L.R. (3d) 385 at p. 397 , per Dickson J.). Its function is to authorize a search and seizure of materials which will implicate a person in the commission of the offence. The search and seizure which it authorizes is designed, among other things, to yield evidence which can be tendered by the prosecution in the subsequent trial of a person for the offence described in the warrant.

For present purposes the important characteristics of the search warrant procedure are that its foundation is the making of an order by a judicial officer and that the warrant which issues by virtue of the order authorizes the search and seizure of documents in the possession of another for use in the investigation and in any subsequent trial arising out of the investigation. The end result of the procedure, though it is achieved by different means, is relevantly similar to that of discovery and of the subpoena duces tecum which make available to a party to litigation then on foot documents in connexion with that litigation. For this reason there is a case for saying that a privilege which is available in answer to production on discovery and under a subpoena should likewise be available in answer to a search warrant, even though the procedure which follows the issue of a warrant is in no sense a judicial or quasi-judicial procedure. This argument is much stronger in its application to documents brought into existence for the purpose of any contemplated trial arising out of an investigation in which the search and seizure is an element, not being communications made in furtherance of a criminal offence, because execution of the search warrant in relation to the documents may constitute an interference with the contemplated trial. But in the present case it is not suggested that the claim of privilege applies to documents of this kind.

At this point it is necessary to look to sec. 10(b) of the Crimes Act. This provision enables the justice, if satisfied by information on oath that there is reasonable ground for suspecting that there is in any place ``anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission'' of any offence against a law of the Commonwealth or a Territory, to grant a warrant. The section authorizes the grant of a warrant which extends to the seizure of ``any such thing'' which the person executing the warrant may find. The words ``any such thing'' no doubt refer back to the things referred to in para. (a), (b) and (c) of sec. 10 - see
Auckland Medical Aid Trust v. Taylor (1975) 1 N.Z.L.R. 728 especially at p. 738 , per McCarthy P.; Tillett at p. 112.

I doubt whether the expression ``will afford evidence'' in para. (b) denotes ``evidence which will be admitted at a subsequent trial'' or ``admissible evidence'' in the strict sense of that term. And I reject the view that the expression excludes documents which at a subsequent trial would be protected by legal professional privilege. That would be to ignore the traditional distinction between the concepts of admissibility and privilege.

In approaching the scope of the authority given by the warrant we must keep practical considerations steadily in mind. It is simply impossible for a police officer executing a warrant to make an instant judgment on the admissibility, probative value or privileged status of the documents which he may encounter in his search. Generally speaking, it is in the course of the subsequent investigation following seizure of the documents that informed consideration can be given to the documents and an assessment made of their worth or significance in the respects already mentioned. These considerations suggest that para. (b) and the concluding words of the section, in so far as they relate back to para. (b), are looking to documents as to which there are reasonable grounds for believing that they will in some way implicate the persons named in the warrant, or, if no person is named, someone in the commission of the offence. To say that the section excluded documents the subject of legal professional privilege from the scope of the authority given by the warrant would unduly inhibit the investigation of crime and lead to the institution of legal proceedings before trial which would require a determination of the existence of the privilege because the Crown's right to retain the documents would depend on the resolution of this issue. In the case of

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production on discovery and under subpoena duces tecum there is a Court or tribunal already exercising jurisdiction in the matter which could determine questions of relevance and privilege. It is otherwise in the case of search and seizure under a warrant. This indicates that it was unlikely that Parliament intended to import some limitation of the kind suggested into the authority given by a warrant granted under sec. 10(b).

In the present case the warrant describes the categories of documents as to which there were reasonable grounds for believing that they would afford evidence of the commission of the offences mentioned in the warrant and it authorizes seizure of those documents. In the light of what has already been said the authority given by the warrant, stemming from the statute itself, extends to documents even though they are the subject of legal professional privilege. The claim of legal professional privilege is no answer to the warrant.

Whether legal professional privilege attaching to documents prepared in connexion with a trial for the offence mentioned in the warrant would constitute an answer to a warrant is a question which should be reserved for later consideration. It does not arise for decision in this case.

My attention has been drawn to the decision of the European Court of Justice in
A.M. & S. Europe v. Commission (E.C.J.) (1983) 3 W.L.R. 17 , in which that Court exercised its power to mould procedures for the independent verification of claims to privilege or confidentiality affecting communications relating to legal advice. Section 10 of the Crimes Act makes no provision for such a procedure and this Court has no power to prescribe one.

I would answer the question asked in the affirmative.


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