Dunesky, P.E. v Commonwealth of Australia

[1995] FCA 393

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No.  NG 249  of  1995
  )
GENERAL DIVISION                 )

BETWEEN:PETER ERIC DUNESKY and BAY WOOL PTY LIMITED

Applicants

AND:COMMONWEALTH OF AUSTRALIA

Respondent

26 APRIL 1995

REASONS FOR JUDGMENT
LOCKHART J.
On 27 September 1991 certain search warrants, which had been issued under s 10(1) of the Crimes Act 1914 (Cth) were executed by members of the Australian Federal Police. The Police, in executing the warrants, took into their custody various documents, and they have remained in the custody of the Australian Federal Police at their Eastern Regional Headquarters since then. Proceedings were commenced by the applicants Peter Eric Dunesky and Bay Wool Pty Limited in this Court for judicial review of the decisions made to issue the relevant search warrants.

Those proceedings culminated in a judgment of a judge of the Court on 7 April 1994 which found in favour of the respondents.  An appeal was brought by the present applicants from the judgment to a Full Court of this Court which was determined on 20 December 1994 with judgment in favour of the
respondents.  There has since been an application for special leave to appeal to the High Court from the Full Court's judgment, the Court consisting of five judges, Black CJ, Beaumont, Hill and Lindgren JJ and myself, the Chief Justice dissenting.  The High Court recently refused the grant of special leave.

On 19 April last the applicants commenced the present proceeding under s 39B of the Judiciary Act 1903 and s 32 of the Federal Court of Australia Act 1976. Having in the earlier proceeding failed to set aside the issue of the warrants, the applicants now seek to recover the documents seized by the Australian Federal Police on the basis that, although the warrants were validly issued, the execution of them was unlawful. The proceeding, having only recently been commenced, has reached the stage where the application has been filed together with a statement of claim and certain affidavits on behalf of the applicants.

The applicants seek today, by way of interlocutory relief, injunctions restraining the respondents until the determination of this proceeding from inspecting, copying or removing from the Property Room of the Eastern Region Headquarters of the Australian Federal Police any of the documents seized during the execution of the warrants well over three years ago.  The interlocutory relief is opposed. 

There has been discussion between the parties in the course of the day with a view to trying to resolve either the whole or part of the interlocutory proceeding.  It has not succeeded in resolving that, but it would seem from what I have been told by counsel that the documents which are in the custody of the Australian Federal Police may fall into three categories:  first, documents in respect of which the applicants assert a claim for legal professional privilege; secondly, documents which the applicants claim may fall outside the scope of the warrants in that, so it is said, they were seized willy-nilly by the officers executing the warrants without regard to whether or not they in fact fell within the umbrella of the warrants, and third, the rest of the documents.  The respondents do not seek to inspect the documents over which a claim for legal professional privilege is made until the determination of the current proceeding, but they do resist any restraint being imposed upon them with respect to their inspection or use of the other documents.

In support of the motion for interlocutory injunctive relief I have read affidavits of the solicitor for the applicants.  The claims made by the applicants in the proceeding may be summarised as follows:  that the documents seized in 1991 were not authorised by the search warrants because the officers executing the warrants did not, so it is alleged,execute them in good faith in that they did not make a genuine or reasonable attempt to determine whether the documents seized, all of them, fell within the terms of the warrants.  In the alternative it is said that the seizures were unlawful because certain of the respondents to this proceeding, namely the fifth, sixth and seventh respondents, were not authorised by the warrant to be present at the execution of them, or alternatively, to seize goods under them.

A further claim is made, in addition or in the alternative, that the respondents seized documents which fell outside the terms of the relevant search warrants.  It is also said that certain of the documents seized were those to which legal professional privilege attaches, and that the seizure of them was therefore not authorised and is unlawful.  On any one of the combination of these various grounds the applicants rely to have the execution of the warrants declared to be unlawful either in whole or in part. 

The relief sought in this principle proceeding by the applicants is for orders restraining the respondents from inspecting, copying or removing from their present whereabouts the relevant documents that were seized in 1991 and consequential orders.  They also seek damages on the basis that the respondents, or certain of them, have unlawfully interfered to the applicants legal right to the immediate possession of the documents, a claim which as I understand it is based essentially upon the tort of conversion. 
     Counsel had estimated that it may take approximately one day for the final hearing of this matter but of course a deal of effort has to be put in to the preparation of the case in the meantime, including the preparation, filing and serving of affidavits.  The respondents will, of course, have to file a defence to the proceeding, but all parties have indicated that they wish to have the matter disposed of as soon as possible.  It is a matter with a reasonable degree of urgency and in my view it should be brought on for hearing as soon as is reasonably practicable consistent with of course other matters that are urgent in the Court's list. 

The question is what to do in the meantime in relation to inspection of the documents.  Doing the best I can on the material that I presently have before me, I am satisfied that there are serious questions to be tried on the hearing of this matter.  One must look at the balance of convenience and the adjustment of the rights of the parties in the meantime.  Certainly, the applicants ought to have access at all reasonable times to all or any of the documents that were seized and that are presently located with the Australian Federal Police.  There is no dispute about that question.  The question is, should any of the respondents or their solicitors or counsel have access to any or all of the documents seized in the meantime.  Any access until the determination of this proceeding by the respondents or their solicitors or counsel should in my view be access which is solely for the purposes of conducting their defence to this proceeding.

It is difficult at this stage to determine quite what the ultimate issues for trial will be and any order which I make today can always of course be the subject of an application to vary it pending the final determination of this matter in the light of the facts as they unfold from time to time.  I am not persuaded that it is appropriate at this stage for the respondents to have access to any of the documents that have been seized and that are presently in their custody but under certain security arrangements of which I have been informed, but I am satisfied that counsel and solicitors for the parties ought to have access to the documents, all or any of them, so that they may shape their case and determine the appropriate defence to be filed and affidavits to be put on.

If it emerges in the course of that inspection by the counsel and solicitors for the respondents that they need to obtain instructions from other persons, including any of the respondents, then failing agreement with the applicants they can always bring the matter back to the Court for an appropriate order and variation.  The access which in my view counsel and solicitors for the respondent should have should be on the basis that they may inspect the documents and that they may take copies of them for the purposes solely of preparing their defence and the copies must of course be kept intact, secure, so that they can be either destroyed or returned to the applicants.

I also would impose an important proviso to the order namely that the counsel and solicitors should sign appropriate undertakings not to disclose any of the information or documents to any other persons and to be used solely for the purposes of the case.  Normally I do not like extracting written undertakings from counsel or solicitors, I prefer to rest upon the good trust that exists within the profession, but this is a case where there is a reasonably high feeling, not on the part of the lawyers but engendered by the issues in the case, and I think it would be in the interests of counsel and the solicitors themselves if the written undertakings were provided in the way I have indicated, as a protective measure to themselves.

There may be some degree of problem with certain of the respondents, namely the second to the seventh respondents, in that they are represented not by the Australian Government Solicitor but by solicitors in the employ of the Commonwealth Director of Public Prosecutions.  In my view it is desirable that the solicitors for those respondents (and indeed also for the first respondent, the Commonwealth of Australia, that is the Australian Government Solicitor) who are acting in this matter should not be involved in the actual prosecution of any persons that may arise from the inspection of the documents concerned.  It is sometimes referred to by the slightly unfortunate expression of "erecting Chinese walls" within the offices of the solicitors and I use it because it is well understood, but for no other reason.  That is a matter to be judged best by the solicitors and counsel themselves, as no doubt they will do. 

Upon the applicants by their counsel giving the usual undertakings as to damages, the Court would order: that the applicants and their counsel and solicitors have unlimited access to all the documents seized pursuant to the search warrants the subject of this proceeding and located at the Eastern Region Headquarters of the Australian Federal Police between the hours of 8.30 am and 5.00 pm on business days until the determination of this proceeding or further order;  that the respondents be restrained until the determination of this proceeding or further order from inspecting, copying or removing from the Property Room of the Eastern Region Headquarters of the Australian Federal Police any documents or other items or goods seized during the execution of these search warrants in 1991, except that the counsel and solicitors for the respondents may inspect or copy the said documents or any other of them, provided the copies are kept intact and safe by the solicitors for the respondents to abide the further order of the Court, and provided further that the counsel and solicitors for the respondents first sign written undertakings to the Court to not disclose the documents or their contents to any other persons than the counsel and solicitors for the respondents; that the respondents use the documents and their contents and information gained therefrom solely for the purposes of this case, the form of the undertakings to be as agreed between the parties and failing agreement as determined by the court.  Liberty to apply should be reserved to any party on three days' notice.

They are the orders I would propose subject, of course, to the directions about getting the case ready for hearing.  I would have thought costs should be costs in the proceeding.

I direct that any particulars on the statement of claim that may be requested by the respondents should be sought by letter to the solicitors for the applicants and the letter to be sent on or before Monday, 1 May 1995 and the particulars to be furnished by Monday, 8 May 1995 and the respondents to file and serve their defences on or before Monday, 15 May 1995.  The evidence at the trial is to be primarily by affidavit evidence subject to cross-examination.  The applicants are to file and serve further affidavits on or before Monday, 22 May 1995.  The respondents are to file and serve affidavits by 5 June 1995.  The applicant's affidavits in reply, if any, are to be filed and served by 19 June next.  The matter would be adjourned for further directions to the 22 June next when

subpoenas and notices to produce may also be made returnable. 

I certify that this and the preceding nine (9) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated:  26 April  1995

Counsel for the Applicants   :    Mr D H Bloom QC
  Mr M A Wigney

Solicitors for the Applicants     :    Freehill Hollingdate & Page

Counsel for the Respondent   :    Mr G T Johnson

Solicitors for the Respondent     :    Australian Government Solicitor

Date of Hearing             :    26 April 1995

Date of Judgment            :    26 April 1995