Brewer, Richard James v Castles, Shane Francis

[1984] FCA 44

’ . CATCHWORDS

Practice and procedure - Jurisdiction of Federal Court

to quash search warrant and restrain seizure of documents

thereunder - Accrued jurisdiction.

Administrative Decisions (Judicial Review) Act, 1977 s.5

Judiciary Act, 1903 s.39B

RICHARD JA.PIES BREWER v. SHAEE FRANCIS CASTLES, BRETT JACKSON,

PATRICK QUINN, CARLO GRASER and JOHN

CHARLES LEVETT

No. 658 of 1984 -

. .

Beaumont, J.

9 March, 1984.

Sydney.

I

i

i

IN THE FDERAL COURT OF AUSTRALIA	1 1
NEW SOUTH m E S DISTRICT REGISTRY	1
1
GENERAL DIVISION	) No. 658 of 1984

BETWEEN:

RICHARD JAMES BREWER

Applicant

Respondents

. ..

. ORDER.-. . -. . -. . ..

Judge making order:	Beaumont, S.
Date order made:	9 March, 1984.
Where made:	Sydney

1. Declare that the Court has jurisdiction, to

entertain the claims for relief made against all

respondents.

IN THE FEDERAL COURT OF AUSTRALIA	1
)
NEW SOUTH WALES DISTRICT REGISTRY	) )

GENERAL DIVISION ) No. 658 of 1984

BEXbIEEN:

RICHARD JAMES BREWER

Applicant

m:

SHANE F'RANCIS A TLES

BREIT JACKSON

PATRICK OUINN

CARLO GRASER

JOHN CHARLES LEXEtT

Respondents

CORAM: Beaumont, J.

DATED: 9 March, 1984.

: .

REASONS FOR JUDGMENT

In this application for judicial review under the Administrative Decisions (Judicial Review) Act, 1977 ("the

Judicial Review Act") and pursuant to s.39B of the Judiciarv

m, 1903, a preliminary question has arisen as to the

jurisdiction of the Court to entertain the application, or

at least part of the application.

In his-statement -of claim;. the. applicant says- that,

at all material times he has occupied -certain- --premises -

2.

situated at 15th Floor, 111 Elizabeth Street, Sydney; that on 13 February, 1984, the fifth respondent issued a search warrant pursuant to s.10 of the Crimes Act, 1914 addressed to the first respondent in these terms:

“hIHEREAS I, John Charles Levett A Justice

of the Peace within the meaning of that

expression in Section 10 of the Crimes Act

1914 of the Commonwealth of Australia,

being satisfied by information on oath

placed before me this day that there are

reasonable grounds for suspecting that

there are in a place being the premises

situated at 15th Floor, 111 Elizabeth

Street, Sydney being premises occupied by

NORWOOD & WALLIS, Solicitors, things being

the original of copies of:

correspondence, prospectuses, company

records, opinions of counsel, purchase

orders, - sales -- invoices, receipts,

journals, ledgers, accounting records,

bank statements, cheque butts, diaries,

books, contracts, agreements, memoranda of

understanding, mortga es, leases

microfilm copies of documents, computer

..-	assignments of debt, powers of attorney
card and print-outs, common seals,
and documents referring to or quoting
Sales Tax Certificate of Registration
numbers, and other documents and
instruments all of which ave been
produced or held by, for, or in respect of, Leonard Noel BRIOT andlor other persons namely:
(There follows a long list of names of
individuals, firms of solicitors and
accountants and companies)
As to which there are reasonable grounds
for- believing that the same will afford
evidence as to the commission of any
offence against a law of the Commonwealth -
namely: - - - _- - . . . . - - . - . _ _ . - - .- -

i. Sec t-i.n-. 8.6 ( 1) of the Crimes Act

. - . - -. - - . 1914, to wit, conspiracy to commit

an offence against a law of the

3.

Commonwealth, to wit, Section 49 of

the Sales	Tax Assessment Act	No. 1,
19 30.

ii. Section 86(l)(e) of the Crimes Act

1914, to wit, conspiracy to defraud

the Commonwealth.

iii. Section 49 of the Sales Tax

Assessment Act No. 1, 1930, to wit,

by any wilful act, default or

neglect, or by any fraud, art of contrivance whatsoever, avoids or attempts to avoid taxation.

By the aforesaid Briot, and the aforesaid named persons in any combination and with any otherperson or persons unknown.

YOU ARE HEREBY AUTHORISED with such

assistance as you think necessary to enter

at any time the said place if necessary by

force and to seize the said:

correspondence, prospectuses, company

records, opinions of counsel, purchase

orders, sales invoices, receipts,

journals,. ledgers, . accounting records,

bank statements, cheque butts, diaries,

books, contracts, agreements, memoranda of

understanding, leases, mortgages,

microfilm copies of documents, computer

tapes, cards and print-outs, .-

assignments of debt, power. of attorney

and documents referring to or quoting

Sales Tax Certificate of Registration

numbers, common seals, and other documents

and instruments as to which there are

reasonable grounds for believing that it

will afford evidence as to the commission

of any such offence and for so doing this

shall be your sufficient warrant."

The statement of claim then alleges that on 14

February, 1984, the first four respondents entered upon the

there-were-no. reasonable grounds for believing that the

.. . . . .

documents enumerated in the warrant were documents which

.. .

would afford evidence as to the commission of any offence

against any law of the Commonwealth. The applicant further

says that a number of the documents comprised in the warrant

were documents which were properly the subject of a claim

for legal professional privilege and are therefore not

properly the subject of a warrant.

The applicant claims an order pursuant to s.39B of

the Judiciarv Act quashing the warrant; or alternatively an

order pursuant to that provision quashing the warrant to the

extent to which it relates to documents the subject of a

claim for legal professional privilege; and an order

restraining the first four respondents from executing the

warrant; or alternatively, an order restraining those

..

respondents from executing the warrant in respect of

documents in respect of which a claim for legal professional

F

privilege is made.

The applicant also says that the decision of the

fifth respondent in issuing the warrant was a decision

within the meaning of s.3(2) of the Judicial Review Act; and

that the decision of the first respondent to execute the

warrant and to seize the documents was also a decision

within the meaning of that provision. The applicant then

says that there was no evidence or other material to justify

the making- of- the- decision to issue. the- warrant; and that in -

making the decision to seize the documents properly- the

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subject of a claim for legal professional privilege, the

first respondent made an error of law. The applicant

claims, pursuant to s.16 of the Judicial Review Act, an

order quashing the decision to issue the warrant; or

alternatively, an order quashing the decision to issue the

warrant insofar as it relates to documents properly the

subject of a claim for legal professional privilege; an

order quashing the decision of the first respondent to

execute the warrant; or alternatively, an order quashing the

decision of the first respondent to execute the warrant

insofar as that decision involved the seizing of documents

properly the subject of a claim for legal professional

privilege; an order directing the first four respondents to refrain from seizing pursuant to the warrant the documents at present held in the Registry of the Court pending the

determination of these proceedings; or alternatively, an

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order restraining the first four respondents from seizing

such documents described in the warrant which are properly

the subject of a claim for legal professional privilege.

It is submitted on behalf of the applicant that

jurisdiction is conferred upon the Court in one of three

ways. First, as to both the issue and the execution of the

warrant, by virtue of 5.5 of the Judicial Review Act;

alternatively, as to the issue of the warrant, by virtue of

that- provision- and as -to-its execution brvir ue- of-s.39B of

-. _. .-.. - -

the Judiciary Act; or alternatively,. as to the execution of

6.

the warrant by virtue of s.39B of the Judiciarv Act and s

to Its issue by virtue of s.32 of the Federal Court Act or

the “accrued“ or “pendent“ jurisdiction of the Court.

Notwithstanding a large measure of agreement

between the parties on the questions now raised, (including

a concession that the first four respondents are officers of

the Commonwealth), since the matter is one of jurisdiction,

these questions should be determined at the outset,

especially in the light of the decision in Baker v. Campbell

(1982) 44 A.L.R. 431 (see Moss v. Brown (1983) 47 A.L.R. 217; Westpac Bankinq Corporation v. Barnes (1983) 47 A.L.R.

431; Appliance Holdinqs Ptv. Ltd. v. Lawson (1983) 1

N.S.W.L.R. 246).

Relief is sought, in the first instance, against

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the fifth respondent as the magistrate who issued the

warrant. Section 10 of the Crimes Act, 1914 provides:

“If a Justice of the Peace is satisfied by

information on oath that there is reasonable

ground for suspecting that there is in any

house vessel, or place-

anything with respect to which any

offence against any law of the

Commonwealth or of a Territory has

been, or is suspected on

reasonable grounds to have been, committed; . ..-

anything - - as to--which-there---are-

reasonable grounds for believing

that it will afford evidence as to

the commission a y such f

offence: or - ..

7.

(C) anything as to which there is

reasonable ground for believing

that it is intended to be used for

the purpose of commltting any such

offence;

he may grant a search warrant authorizing any

constable named therein, with such assistance

as he thinks necessary to enter at any time

any house, vessel, or place named or

described in the warrant, if necessary by force, and to seize any such thing which he

may find in the house, vessel, or place."

The applicant concedes that the fifth respondent is

not an officer of the Commonwealth for the purposes of s.39B

of the Judiciary Act, but submits that, in his case, the

jurisdiction of	the Court is attracted	by the Judicial
Review Act.

In Baker v. Campbell, supra, it was held that the

decision of a magistrate to issue a search warrant under

s.10 was not a "decision" within the meaning of the Judicial

Review Act as the decision was of a judicial, rather than

administrative, character. However, in the High Court

proceedings (Baker v. Campbell (1983) 57 A.L.J.R. 749),

Wilson, J., in rejecting an argument that the issue of a

warrant is a judicial act unlike the ministerial act of the

Commissioner of Taxation in O'Reilly's case (1982) 57

A.L.J.R. 130, said (at p.765):

- ""he- second--argument- is-alsa-untenable' because

even though in issuing a search warrant a

Tillett; Ex parte Newton (1969), 14 F.L.R. justice is obliged to act judicially (Res. v.

. . ..

8 .

101), such a description merely describes the

. nature and quality of that particular act. Although the form in which the case stated

' asks the question may on one view be thought

to focus attention on the issue of the

warrant, it is when the warrant comes to be

executed that the question of privilege, if

it can be raised at all, becomes relevant

because that is the time when the claim to

privilege must be made. Clearly, no judicial

or quasi-judicial proceedings are involved in

the execution of the warrant: it	is a purely
ministerial act."

(See also Aston v. Irvine (1955) 92 C.L.R. 353 at

p.363; Electronic Rentals Ptv. Ltd. v. Anderson (1971) 124

C.L.R. 27 at p.39.)

In v. Moss (1983) 49 A.L.R. 533, in a context

not dissimilar from the present, the Full Court of this

Court said (at p.559):

e

"We are clearly of opinion that the fact that

the magistrate was bound to act judicially,

ie justly and fairly, provides no reason why

the conclusion should be drawn that decisions

made or to be made by him in the course of

administrative proceedings were or would be

of a judicial, rather than an administrative,

character for the purposes of the Act. The

decision as to whether there is, or is not, a

prima facie case and, if there is, the

further decision as to whether or not to

commit an accused person for trial are the

central steps in the administrative process

which is involved. To say that a magistrate

hearing committal proceedings is bound to act

judicially is to do no more than to describe

how he must perform his administrative

function. It does not turn his decision into

- .

- --a- judicia1 one,: nor. does -it makerhis-decision -- -

judicial in_-_character. Indeed, this is

clearly established by- authority: see, eg R v Davison (1954) 90 CLR 353, per Kitto J (at

9 .

373); E v Trade Practices Tribunal; Ex parte

. Tasmanian Breweries Ptv Ltd (1970) 123 CLR

361 at 373; Sankev v Whitlam (1978) 142 CLR 1

' at 80."

In my opinion, the decisions in Westpac, supra, and

in Moss v. Brown, supra, together with the observations of

Wilson, J. in Baker v. Campbell, supra, and the reasoning

cited from v. Moss, supra, sufficiently indicate that

the decision of the fifth respondent to issue the warrant

was a decision of an administrative character which is

reviewable under the Judicial Review Act. I therefore hold

that the Court has jurisdiction to deal with the application

for review of the decision of the	fifth respondent to issue
the warrant.

A separate question arises as to the jurisdiction

of the Court to entertain the application made against the first.four respondents to restrain them from executing the

warrant. In Baker v. Campbell (1982) 44 A.L.R. 431 at

p.438, it held that the act of seeking to execute the

warrant was not a decision of an administrative character

within the purview of the Judicial Review Act on the ground

that the Act was not "intended to apply to such an a t by a

police constable pursuant to his duty as such and acting

under a search warrant issued by a justice of the peace"

(see also Ex parte Johnson: Re Macmillan (1947) 47 S.R.

. .

(N.S.W.) 16 at pp.18-19). . . . _ . __ _ . . . . . . . . _ _

10.

In any event, in my view, even if jurisdiction of

the Court is not conferred by the Judicial Review Act or by

s.39B of the Judiciary Act, the Court may entertain the

application for relief against the first four respondents in

the exercise of its jurisdiction under s.32 of the Federal

Court Act, 1976 or alternatively in the exercise of its

"accrued" jurisdiction (see Stack v. Coast Securities (No.

9 ) Ptv. Ltd. (1983) 57 A.L.J.R. 731).

I therefore declare that the Court has jurisdiction

to entertain	the	claims	for	relief	made	against	all
respondents.

, certify that this and :he 9 precedhg I .)ages are a true copy o i the reasons for

.udgment herein cd The Honourable

Mr Justice Beaumont,	9.	-
Associate c

P

Dated 9 Wqr-ck, l?&.