CFMEU v Commissioner, Australian Federal Police
[2015] ACTSC 287
•18 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | CFMEU v Commissioner, Australian Federal Police and Ors |
Citation: | [2015] ACTSC 287 |
Hearing Date(s): | 18 September 2015 |
DecisionDate: | 18 September 2015 |
Before: | Robinson AJ |
Decision: | See [15] |
Category: | Interlocutory application |
Catchwords: | EQUITY – Application for interlocutory injunction |
Legislation Cited: | Crimes Act 1900 (ACT), ss 194, 204; division 10.3 |
Parties: | Construction, Forestry, Mining and Energy Union (Plaintiff) Commissioner, Australian Federal Police (First Defendant) Magistrate Lisbeth Campbell (Second Defendant) Glenn James (Third Defendant) Greg Adams (Fourth Defendant) Scott Utteridge (Fifth Defendant) Mark McGruddy (Sixth Defendant) |
Representation: | Counsel Mr Morrisey SC with Mr Whybrow (Plaintiff) Mr Berger (First, Third, Fourth, Fifth and Sixth Defendants) |
| Solicitors Slater and Gordon (Plaintiff) Australian Government Solicitor (First, Third, Fourth, Fifth and Sixth Defendants) | |
File Number(s): | SC 344 of 2015 |
ROBINSON AJ
Ex Tempore
By an originating application filed on 15 September 2015 the Plaintiff, whom I will refer to as the CFMEU, moves the court for relief arising out of the execution of two search warrants at premises at 3 Rosevear Place, Dickson, on 25 August 2015.
Those search warrants were granted to officers of the Australian Federal Police, whom I will refer to as the AFP.
The first search warrant was issued by the Deputy Registrar of the Supreme Court of the ACT on 24 August 2015. It permitted a "search" between the hours of 6 am and 9 pm and was to remain in force until 31 August 2015. The second search warrant was issued by Magistrate Campbell on 25 August 2015 and did not place restrictions on the timing of any search.
I have placed inverted commas around the word "search" only to indicate that what the warrants permitted or did not permit is an issue in the proceedings.
The warrants were issued under division 10.3 of the Crimes Act1900 (ACT).
The evidence to be read at trial, and which was not formally read before me today, reveals that at about 10.15 on 25 August 2015 a large number of officers of the AFP went to the CFMEU's premises at Dickson to execute a warrant. During the course of the day they took away a substantial quantity of materials but had apparently not finished the search as the time approached 9 pm.
In order to continue the search after 9 pm they obtained a second search warrant, to which I have referred above. Whether they were lawfully entitled to do so is an issue in the proceedings. At first blush it appears that the AFP were concerned to finish the search of the premises on that night.
Correspondence and communications commenced between the solicitors for the CFMEU and the AFP after the search. By 28 August 2015 legal counsel for the AFP had sent to the solicitors for the CFMEU, Slater and Gordon, a letter which relevantly stated that the material seized and removed from the Plaintiff's premises had been quarantined, lodged and secured at a police station and that the AFP were ensuring the evidential integrity of the materials was maintained.
There was further correspondence which I need not go into. By application in these proceedings, also filed on 15 September 2015, the CFMEU has moved for an injunction pending the trial to restrain, in substance, the AFP officers from handling, copying, viewing or accessing the materials seized, removed, copied or downloaded from the search and, for the present time, providing for those materials to be kept by the Registrar of this Court.
CFMEU also sought, in their interlocutory process, directions for the further conduct of the case and that the proceedings might be expedited.
After hearing counsel today, I was able to inform the parties that the Court could accommodate a final hearing of the matter on 12 October and, if necessary, 13 October. In those circumstances a number of directions were foreshadowed and the claim that the materials should be moved from their current position in a police station to the custody of the Registrar of this court was not pressed.
The CFMEU, by its counsel, today told me that it was contended there was an arguable case concerning both the issuing of the second warrant and its execution. Counsel also told me that the complaint concerning the first warrant arises in its execution.
In order to appreciate the submissions, when they are fully refined and worked up at trial, it appears to be necessary to consider sections 194 to 204 of the Crimes Act. The foreshadowed submissions largely turn, it appears, on the proper construction of those sections and at least, at the moment, it is not apparent that there will be any factual dispute between the parties.
Counsel for the first defendant, the Commissioner of the Australian Federal Police, has consented to an injunction until further order or until the determination of the originating application in the terms which I will later read out. Accordingly, there is no issue for me to determine today.
Orders
The directions which the parties have made provide for a timetable of evidence and submissions and an outline of argument. I further order that:
(a)The Third, Fourth, Fifth and Sixth Defendants be removed from the proceedings and I direct the plaintiff to file in the Registry a document giving effect to that direction.
(b)I make the directions as to the procedural requirements for the trial as was outlined from the bar table.
(c)I direct that the matter be heard as a special fixture commencing on 12 October 2015.
(d)I reserve the costs of the application.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgement of his Honour Acting Justice Robinson. Associate: Date: |
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