Dunesky, Peter Eric v Commonwealth of Australia

[1995] FCA 1090

CATCHWORDS

PRACTICE AND PROCEDURE - warrants - notices to admit facts - application for leave to present an information seeking the issue of a fresh warrant for the use of documents the subject of the principal proceeding, but which are not contested in that proceeding - circumstances in which leave should be granted - whether special circumstances.

Crimes Act 1914: s. 10(1)

PETER ERIC DUNESKY and BAY WOOL PTY LIMITED v COMMONWEALTH OF AUSTRALIA, DAVID KING, EVARNA HART, RUSSELL DEAN McRAE, ROBERT FITTON, ANTHONY SMITH, PAUL DEVINE, SAM SAVVAS
G 249 of 1995

LOCKHART J.
SYDNEY
19 DECEMBER 1995

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

BETWEEN:PETER ERIC DUNESKY

First Applicant

BAY WOOL PTY LIMITED

Second Applicant

AND:COMMONWEALTH OF AUSTRALIA

First Respondent

DAVID KING

Second Respondent

EVARNA HART

Third Respondent

RUSSELL DEAN McRAE

Fourth Respondent

ROBERT FITTON

Fifth Respondent

ANTHONY SMITH

Sixth Respondent

PAUL DEVINE

Seventh Respondent

SAM SAVVAS

Eighth Respondent

JUDGE MAKING ORDER:     LOCKHART J.
             WHERE ORDER MADE:       SYDNEY
             DATE ORDER MADE:        19 DECEMBER 1995

MINUTE OF ORDER

THE COURT ORDERS THAT:

1. The notice of motion filed by the first respondent on 6 September 1995 is dismissed.

1. The notice of motion filed by the respondents on 11 September 1995 is dismissed.

1. The costs of each motion shall be the applicants' costs in the proceeding.

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

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

BETWEEN:PETER ERIC DUNESKY

First Applicant

BAY WOOL PTY LIMITED

Second Applicant

AND:COMMONWEALTH OF AUSTRALIA

First Respondent

DAVID KING

Second Respondent

EVARNA HART

Third Respondent

RUSSELL DEAN McRAE

Fourth Respondent

ROBERT FITTON

Fifth Respondent

ANTHONY SMITH

Sixth Respondent

PAUL DEVINE

Seventh Respondent

SAM SAVVAS

Eighth Respondent

19 December 1995

REASONS FOR JUDGMENT
LOCKHART J.
     Before the Court are two motions; one by the first respondent, the Commonwealth of Australia, seeking the following orders:

'1.Leave be granted to the Commonwealth (including its officers) to draft, execute and present to a Justice an information seeking the issue of a
warrant authorising officers of the Australian Federal Police (not being any of the officers who are respondents in the present proceedings) to seize such documents previously taken from the premises of the applicants, or from the premises of Brian Edney and Associates, as are NOT the subject of any claim in the present proceedings that they:-

(i)are subject to legal professional privilege, or

(ii)fall outside the warrants previously issued and referred to in the affidavit of Andrew Wells filed and served herein,

such documents being listed in Schedules JCH 3 and JCH 6 to the affidavit of Justin Charles Hewitt affirmed on 29 August 1995 and filed herein by the applicants.

2.The Commonwealth (including its officers) be released from the interlocutory orders made by his Honour Justice Lockhart on 26 April 1995 and, if necessary, be granted leave, to bring to the Sydney Registry of the Court the documents which are the subject of those interlocutory orders, so that such further warrant may be executed in the said Registry by the officer or officers named in that further warrant.

3.The Commonwealth (including its officers) be released from the interlocutory orders made by his Honour Justice Lockhart on 26 April 1995 to enable such documents as fall within the said further warrant to be seized and then inspected or used by the Australian Federal Police (or the DPP) for the purposes of the further investigation or prosecution of either of the applicants or of Brian Edney.

4.Such further order as the Court finds fit to enable documents which are not the subject of any claim for legal professional privilege, or of any claim that they fall outside the previous warrants referred to in the affidavit of Andrew Wells, to be seized pursuant to the said further warrant.

5.Such further or other order as the Court find fit.

6.Costs.'

The second notice of motion was filed by the respondents seeking the following orders:

'1.The Respondents be released from the interlocutory orders made by his honour Justice Lockhart on 26 April 1995 so as to be able to respond to the Applicants' notices to admit facts served on the Respondents on 31 august 1995.

2.Alternatively and in the event relief under Order 1 is not granted, either

(a)the notices to admit be set aside; or

(b)that no costs penalty will be incurred by the Respondents only by reason of the Applicants proving any fact not admitted by the Respondents in response to such notices.

3.Such further or other order as the Court finds fit.

4.Costs.'

The notices of motion arise in the course of the conduct of a case that is part of a long curial history.

In September 1991, three search warrants were issued under s. 10(1) of the Crimes Act 1914 (Cth) to named members of the Australian Federal Police, authorizing entry onto premises of the appellant, Mr Dunesky, and another, and seizure of certain things. The warrants were executed on 27 September 1991. The validity of the warrants was challenged by the issue of an application for an order of review which sought to set aside the decision to issue the warrants. The proceeding was heard by a single judge of the Court who gave judgment on 7 April 1994, dismissing the applications for review. An appeal was lodged to a Full Court of this Court, the argument was heard on 19 and 20 September 1994, and judgment was given on 20 December 1994 dismissing the appeals (the Full Court's judgment is reported in (1994) 54 FCR 540). Then followed an application for special leave to appeal to the High Court, which was refused on 18 April 1995. Soon thereafter the present applicants commenced the present proceeding, challenging the validity of the execution of the warrants.

Pending the final hearing of the proceeding a regime was established by order of the Court on 26 April 1995 so that the case could be prepared for hearing.  It is important to state the substance of the relevant orders made that day, namely: the applicants by their counsel gave the usual undertakings as to damages and the Court ordered that the respondents be restrained until the determination of the proceeding or further order from inspecting, copying or removing from the place where the documents the subject of the proceeding were being kept (the property room of the East Regional Headquarters of the Australian Federal Police in Sydney), any of those documents, or other items or goods seized during the execution of the search warrants in 1991, except that counsel and solicitors for the respondent could inspect or copy any of the said documents provided the copies were kept intact and safe by the solicitors for the respondents to abide the further order of the Court, and provided further that counsel and solicitors for the respondents first signed written undertakings to the Court not to disclose the documents or their contents to any persons other than counsel and solicitors for the respondent, and to use the documents and their contents solely for the purposes of this case.  The Court also ordered that the form of undertaking should be as agreed by the parties, and failing agreement, as determined by the Court.  Liberty to apply was reserved to any party on three day's notice.

The respondents now seek by their two notices of motion the orders to which reference has previously been made.  The motions are opposed by the applicants.  It is convenient if I deal first with the motion forementioned, namely, that seeking leave for the Commonwealth to obtain the issue of a fresh warrant authorizing officers of the Federal Police to seize the documents taken when the original warrants were executed, but not the documents the subject of any claim in this case of legal professional privilege, nor those claimed to fall outside the prior warrants.

The Court heard argument on these motions on 6 December 1995, and I reserved my decision.  It is important that the judgment be given now so that the parties may know where they stand and may prepare their case accordingly for final hearing.  I specially fixed the case for final hearing to commence on 1 April 1996.  It is a case which the parties say should take some two weeks to hear.  Whether this is accurate or not is not a matter on which I shall comment presently. In any case, I propose to give directions in the first week of the new law term in 1996 designed to have the case conducted as speedily as possible consistent with the interests of justice.  These reasons for judgment shall be brief because they raise matters that are essentially of an interlocutory nature.

Written submissions have been filed, and oral argument was addressed to them.

Fundamentally, the respondents say that while the challenge to the execution of the original warrants remains pending, a fresh warrant should be allowed to be issued to enable the respondents to inspect the uncontroversial documents: those for which there is no claim of legal professional privilege, and those against which there exists no claim that they fall outside the terms of the prior warrants.  They say there is nothing in relevant legislation to prohibit the issue of a fresh warrant, and that it would not be an abuse of power for this course to be taken in the present circumstances.  The motion was described by counsel for the respondents as a purely pragmatic step to avoid delay in police dealing with this third category of uncontested documents.  Counsel referred to the decided cases in support of the proposition that a new warrant may be sought, issued and executed, even if an earlier warrant had not been lawfully issued or executed (although the respondents do not concede that there was any illegality in the execution of the warrants here).

Counsel for the applicants submits essentially that the course suggested by the respondents is objectionable on two bases: first, because they seek to use evidence filed for the purposes of this application for an extraneous purpose; and secondly, because it would render nugatory the relief sought in the principal proceeding, as well as the interlocutory orders made by the Court on 26 April 1995, by a collateral challenge to the substance of those interlocutory orders.

There is a public interest in avoiding unnecessary delay in the conclusion of criminal investigations.  This proceeding has not itself taken a long time to reach the present stage, but when taken in conjunction with the earlier proceeding, a long time has elapsed and more time will continue to elapse before the Commonwealth and its police officers know the fate of the execution of the search warrants of 1991.  I take this matter into account as an important consideration in deciding what should be done in the exercise of the Court's discretion in these circumstances. 

The regime established on 26 April 1995 was reached after hearing of submissions by counsel for the parties.  Not until 7 September 1995 were steps taken by or on behalf of the respondents to inform the applicants that the respondents foresaw difficulty with the conduct of the proceeding pursuant to the regime established on 26 April.  It seems to me that until at least then the parties conducted this case upon the basis that the regime established on 26 April would continue until the final hearing of the case.  The Court will not allow its processes to be used for a purpose collateral to that of a proceeding.  So here, the Court will not allow access by the respondents to some of the documents seized under the original warrants for the purpose of issuing a fresh warrant in relation to them: see, for example, Holpitt Pty Limited v Varimu Pty Limited (1991) 29 FCR 576 per Burchett J. at 578-579; Sweetman v Australian Thoroughbred Finance Pty Limited, Lockhart J., unreported, 23 July 1992; Springfield Nominees Pty Limited v Bridgelands (1992) 38 FCR 217 per Wilcox J. at 225; and Complete Technology Pty Limited v Toshiba (Australia) Pty Limited (1994) 53 FCR 125 per Hill J. at 133.

Although there has been the passage of a long time since the warrants were issued, I note that the alleged offences to which the warrants relate concern the period from November 1984 to January 1989, and that the first applicant and his accountant were interviewed by officers of the Australian Taxation Office on 6 March 1989.  It is not clear why there were some two-and-a-half years' delay in seeking the warrants from the point where the investigation of the first applicant was sufficiently advanced for the authorities to conduct interviews.  This is not said critically at all, but it serves to illustrate that the passage of time is not confined solely to the period after the issue of the warrants.  It demonstrates the real swiftness of its passage, from a practical point of view.  I say this because as counsel for the respondents has said, they are simply seeking a practical solution to the present problem, which may not see a resolution for some time, especially as the hearing of this case will commence on 1 April next year, it was predicted to be of some length, and there may or may not be appeals from the resultant judgment, whichever party is unsuccessful.

Nevertheless, on balance I am not persuaded that it is appropriate to vary the orders of 26 April 1995.  The regime should continue.  By fixing the date for trial as 1 April 1996, I gave this case a degree of priority which it would not have had were it not for its lengthy curial history.  The interests of justice are best served by allowing the status quo to continue until then. 

I should add that I was referred to George v Rockett (1990) 170 CLR 104 at 122 by counsel for the applicants as authority contrary to the course which the respondents seek. I am not persuaded that the course proposed is contrary to what was said by the High Court in George v Rockett, but it is not necessary for me finally to decide this here.

I turn now to the motion of the respondents concerning the notices to admit facts.  The notices to admit facts so far as presently relevant require the respondents to admit for the purpose of the proceeding that certain documents which are particularized in various schedules:

(a)were seized from the premises of the applicants; or

(b)attract legal professional privilege; or

(c)fall outside the terms of the search warrants.

It was argued that a long time has passed since the date of the execution of the warrants and that it cannot be reasonable to expect that any of the respondents or other officers engaged in the execution of the warrants would retain any knowledge of the documents which they saw; a proposition which in my view is plainly reasonable.
     The notices to admit facts are designed to reduce the time to be taken at the trial, in particular, in relation to the proof of many documents.  Counsel and solicitors for the respondents have the right to inspect and take copies of the relevant documents provided they are used only for the purpose of this proceeding, and that they or their contents are not disclosed to other persons.  It seems to me that the notices to admit facts can be dealt with by the respondents, and answered, following inspection of the documents by the counsel and solicitors for the respondent.  They can determine whether the documents are appropriately classified in the notices to admit facts, and then how their clients should answer the notices.  The advantage of this course is demonstrated by the fact that even if the respondents themselves were to see the documents, then I would be surprised if they would do other than act on the legal advice which they may be given by their legal advisers.

In all the circumstances, the Court declines to grant the relief sought in the second notice of motion.

The Court orders that each notice of motion is dismissed; and that the costs of each motion shall be the applicants' costs in the proceeding.

I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

AssociateDated:  19 December  1995

Counsel for the Applicants    :        Mr D H Bloom QC

Mr N J Williams

Solicitors for the Applicants :        Freehill Hollingdale & Page

Counsel for the Respondents   :        Mr B Shaw QC

Mr G T Johnson

Solicitors for the Respondents:        Australian Government Solicitor

Date of Hearing             :        6 December 1995

Date of Judgment            :        19 December 1995