Forbes v Heffernan - [2019] FCCA 1916

FEDERAL CIRCUIT COURT OF AUSTRALIA

FORBES v HEFFERNAN & ORS

[2019] FCCA 1916

Catchwords:
ADMINISTRATIVE LAW – Invalidly issued warrant – third respondent concedes warrant invalid – improperly obtained evidence – applicant seeking orders directing relevant agencies to indicate how seized goods have been destroyed or quarantined – potential forensic advantage in any subsequent prosecution proceedings – nature of controversy between parties – costs.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss.5, 6

Australian Crime Commission Act 2002 (Cth) ss.2, 22, 28

Federal Circuit Court of Australia Act 1999 (Cth) ss.3, 14, 16, 79

Federal Circuit Court Rules 2001 rr.21.02, 21.10

Cases cited:
Bunning v Cross (1978) 141 CLR 54
Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (No 4) [2016] FCA 867
Puglisi v Fisheries Management Authority & Ors (1997) 148 ALR 393
Strickland & Ors v Director of Public Prosecutions (Cth) (2018) 361 ALR 23

Applicant:

LISA FORBES

First Respondent:

TIMOTHY JAMES HEFFERNAN

Second Respondent:

ROSS DANIEL PERKINS

Third Respondent:

COMMONWEALTH OF AUSTRALIA

File Number:

ADG 381 of 2018

Judgment of:

Judge Brown

Hearing date:

17 May 2019

Date of Last Submission:

17 May 2019

Delivered at:

Adelaide

Delivered on:

17 July 2019

REPRESENTATION

Counsel for the Applicant:

Mr Doyle

Solicitors for the Applicant:

Patsouris & Associates

Counsel for the First Respondent:

No appearance

Solicitors for the First Respondent:

Not applicable

Counsel for the Second Respondent:

Ms Maharaj QC

Solicitors for the Second Respondent:

Australian Government Solicitor

Counsel for the Third Respondent:

Ms Maharaj QC

Solicitors for the Third Respondent:

Australian Government Solicitor

ORDERS

The application is allowed.
The search warrant issued by the First Respondent under s 22 of the Australian Crime Commission Act 2002 (Cth) on 25 June 2018, in respect of the premises at 8 Hunt Avenue, Morphettville, South Australia, is invalid.
The third respondent pay the applicant’s costs fixed in an amount of three thousand two hundred and ninety-seven dollars ($3,297.00.)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 381 of 2018

LISA FORBES

Applicant

And

TIMOTHY JAMES HEFFERNAN

First Respondent

And

ROSS DANIEL PERKINS

Second Respondent

And

COMMONWEALTH OF AUSTRALIA

Third Respondent

REASONS FOR JUDGMENT

Introduction

This case concerns what should be the practical consequences, arising from the seizure of documents and various pieces of electronic equipment – such as smartphones, computers and the like – which contain them, after it has been conceded by the law enforcement agency concerned that that in so doing it acted in excess of the legal authority conferred upon it.
In broad terms, the applicant seeks orders from the court, which would result in the Commonwealth, in the form of various agencies, which it administers, particularly the Australian Crime Commission, having to provide definitive schedules delineating precisely to whom the illegally obtained material was disseminated and what was done with it, by those agencies and the relevant individuals within them.
The applicant also seeks orders directing the relevant agencies to indicate precisely how the illegally seized documents have either been destroyed or, in the case of electronically stored material, which for technical reasons, cannot be totally expunged from its databases, have been quarantined from future access by other Commonwealth agencies.
In the absence of such orders, the applicant contends that there is a risk that, unbeknown to her, she may be the subject of prosecution by some Commonwealth agency or instrumentality, on the basis of illegally obtained evidence, which would be unfair to her and contrary to the public interest.
On the other hand, the Commonwealth, while conceding it acted unlawfully in seizing documents from the applicant, contends that such orders would be both oppressive and unnecessary, given the concessions it has provided and the disclosures it has made concerning the documents so seized, particularly in terms of what has happened to them.
These concession are that the documents have been either destroyed or quarantined, as far as it is possible to do so, with uploaded documents and the material seized kept within the purview of the agency to whom the unlawful warrant was issued in the first place.
In these circumstances, the Commonwealth contends that the orders sought by the applicant would serve no utility. It being the case that any issue regarding the unauthorised use of such documents can only be determined if and when the applicant is subject to prosecution or some other form of attention from a Commonwealth agency.
On the other hand, the applicant contends that without the orders and assurances which she seeks, she will not be in a position to know and so argue before an appropriate court that she has been subject to a prosecution based on illegally obtained evidence, which may prevent her having a fair trial and which may theoretically entitle her to a stay of prosecution.
The disadvantage to which she alludes is that, as matters currently stand, she is not in a position to know how widely the illegally seized material has been disseminated and to whom. In addition, for all she currently knows, there may have been some inadvertent or unconscious distribution of this material.
In such circumstances, she contends she is entitled to some greater protections than the current status quo provides her. Essentially, she contends that she will be at a significant forensic disadvantage, in the event of any future prosecution brought against her, if she is not granted the orders sought by her.

Background

The applicant in these proceedings is Lisa Forbes. At relevant times, she was a bookkeeper for a business known as Floral Image. She worked at her home, located at 8 Hunt Street, Morphettville. The first respondent, Timothy Heffernan is a Judge of the Federal Circuit Court, eligible to issue search warrants pursuant to section 2 of the Australian Crime Commission Act 2002 (Cth).
On 25 June 2018, Judge Heffernan issued such a warrant in favour of the second respondent, Ross Perkins, who is a staff member of the Australian Crime Commission. The warrant purported to authorise Mr Perkins to enter Ms Forbes’ home in Morphettville to search and seize the following:
·electronic communication devices, including blackberry handsets;
·originals and copies, including those stored on computers or other electronic devices, of records, including bank and accounting details, relating to 21 individuals; and
·passwords and related information required to access such documents.
The warrant was executed on 26 June 2018. On this occasion, officers of the Australian Crime Commission seized an apple phone; a macbook pro laptop computer; an apple computer; and another mobile phone from Ms Forbes’ home.
The power to issue a warrant of the kind granted to Mr Perkins is set out in section 22 of the Australian Crime Commission Act 2002 (Cth). Amongst other things, the warrant must specify the particular Australian Crime Commission operation/investigation to which the warrant in question relates. The Commonwealth concedes that the warrant in this matter did not comply with this requirement and therefore it was unlawfully issued.
On 29 June 2018, the relevant officer of the Australian Crime Commission returned the laptop, computer and two mobile phones which had been seized from Ms Forbes. The period between the seizure of the items and their return would have provided sufficient time for the information contained on each of these devices to be extracted.
On 24 July 2018, Ms Forbes’ solicitor, Harry Patsouris, wrote to Chis Bonnici, the Australian Crime Commission’s solicitor, requesting a copy of the warrant; a copy of the receipt issued to Ms Forbes; and the video of the search itself. Two days later, Mr Patsouris advised Mr Bonnici that he was instructed to challenge the validity of the warrant.
On 30 July 2018, Mr Patsouris wrote to Mr Bonnici advising him of his view that the relevant warrant had been invalidly issued. On this basis, he requested that the Australian Crime Commission desist from examining items seized from Ms Forbes.
On 31 July 2018, Mr Bonnici advised Mr Patsouris in writing of his view that the warrant was potentially invalid and on this basis he would direct Commission staff not to access any of the seized material, which needed to be destroyed or completely quarantined from access and use.
The applicant commenced these proceedings on 21 September 2018. She seeks the following orders:
“An order that the Warrant was invalid.
An order that the Second and Third Respondents committed a trespass on the premises of the Applicant in purportedly executing the Warrant.
A declaration that the seizure of things by the Second and Third Respondents pursuant to the Warrant was unlawful.
A declaration that the examination of any of the things seized by the Second and Third Respondent pursuant to the Warrant was unlawful.
An order that the Second and Third Respondent deliver up the things seized under the Warrant to the Applicant.
An order that any copies of any material taken from the seized things be destroyed.
Costs.”
On an interlocutory basis, she sought the following orders:
“That the Second and Third Respondents provide by way of discovery all documents which show a complete audit trail of the way they dealt with the things seized until now including providing details of the personnel who have accessed, analysed, inspected, disseminated and otherwise dealt in any way with the things seized or anything on them.
That until the final determination of these proceedings the Second and Third Respondents be injuncted from dealing with the material seized from the search warrant in any way other than to comply with the orders of this Court.”
Bernard Andary, a solicitor employed by the Australian Government Solicitor (AGS), has deposed an affidavit setting out correspondence passing between him and Mr Patsouris since the instigation of the proceedings. Mr Andary is the solicitor for Mr Perkins and the Commonwealth and thus for the Australian Crime Commission and the Australian Federal Police.
Mr Andary has deposed that the seized material was quarantined from Australian Crime Commission operation staff on 19 October 2018. The AGS further advised Mr Patsouris that the seized material had only been disseminated to the Australian Federal Police, which had destroyed it on 5 December 2018. In these circumstances, Mr Andary deposed as follows:
“In the period between 31 July 2018 (when the direction was given to quarantine the seized material) and 19 October 2018 the seized material was accessed by operational staff, for the purpose of actioning the request to quarantine the material.”[1]
[1] See affidavit of Bernard James Andary filed 16 May 2019 at [13.7]
On 5 December 2018, the AGS was instructed to concede the application, brought by Ms Forbes, on the following terms:
·The application would be allowed;
·A declaration that the search warrant issued on 25 June 2018 was unlawful;
·The Commonwealth would cause to be destroyed or quarantined forthwith all copies of records obtained as a result of the execution of the warrant; and
·Costs.
It provided a copy of these orders, to Mr Patsouris, in writing.
The matter received its first directions hearing, before the court, on 14 December 2018. At that stage, as I recall, I was told that it was accepted that the warrant in question had been unlawfully issued but what precise orders should be made remained controversial. In this context the case was adjourned until 31 January 2019.
On 17 December 2018, the AGS wrote to Mr Patsouris again indicating that the documents obtained from the various electronic devices seized had only been disseminated to the Australian Federal Police and copies of that material had been destroyed. However, for what were described as technical reasons, it was said that it was not possible to delete all electronic records of this material.
In this context, the AGS went on to indicate that the material had been quarantined, which would prevent it being further disseminated, including for use in any examination conducted pursuant to the provisions of section 28 of the Australian Crime Commission Act.
It is apparent from the relevant correspondence detailing the situation in respect of the documents concerned that the position of the Australian Crime Commission had not changed since early December and it accepted the warrant should not have been issued and, as such, it was not able to utilise any of the materials obtained by it.
The parties were not able to agree a precise form of orders to be made on 31 January 2019. The third respondent, however formally conceded that the warrant had been illegally issued. It provided a minute to the court in similar terms to that proposed in its correspondence to Mr Patsouris of 5 December 2018.
In these circumstances the court made directions to fix the hearing of the parties’ competing applications, in this regard, for 17 May 2019. Each party was directed to provide the other with comprehensive minutes of the orders sought.
In this context, the AGS is critical that Mr Patsouris did not respond to their formal request for compliance with this direction on 11 and 22 February 2019. Mr Patsouris did file an affidavit on behalf of his client, Ms Forbes, on 18 March 2019. In this affidavit, Ms Forbes provided evidence to the following effect:
·She did not know what happened to the material seized from her premises, other than her solicitor had been informed it had been quarantined;
·In this context, she had not been given any details as to what the respondents actually did with the documents;
·She had been subject to an audit by the Australian Tax Office;
·Her business had been visited by the Australian Federal Police;
·As a consequence, she was concerned that material seized from her:
·Had been used to commence some form of investigation or line of inquiry;
·The material had been disseminated beyond the Australian Crime Commission to the AFP and ATO; and
·She had been subject to the attention of the AFP.
Notwithstanding the filing of this affidavit, the AGS continued to be concerned that they had not been provided with a comprehensive proposal as to what orders were sought by Ms Forbes. It is currently the Commonwealth’s position that due to this default no orders should be made in respect of costs.

The current positions of the parties

The applicant filed a minute of the orders sought by her, together with supporting submissions, on 16 May 2019. She seeks the following orders:
“The application is allowed.
The search warrant issued by the First Respondent under s 22 of the Australian Crime Commission Act 2002 (Cth) on 25 June 2018 ('the warrant'), in respect of the premises at 8 Hunt Avenue, Morphettville, South Australia ('the premises'), was invalid.
The Second and Third Respondents committed a trespass on the premises by executing the warrant on 26 June 2018.
A declaration is hereby made that the seizure by the Second and Third Respondents of all the items described in Australian Crime Commission Property Seizure Record No 07519 ('the items') pursuant to the warrant was unlawful.
A declaration is hereby made that any examination by the Second and Third Respondents of any of the items was unlawful.
A declaration is hereby made that the dissemination by the Second and Third Respondents to any person or entity including but not limited to the Australian Federal Police either directly or indirectly of any of the items or any information obtained from an examination of the items was unlawful.
Within 14 days of the date of this order the Third Respondent provide a schedule to the Court detailing which individuals had access in any way whatsoever to any of the items since they were unlawfully seize and providing details about the date of such access, what was accessed and what such individual did as a result of such access.
The Third Respondent, the Commonwealth of Australia, cause to be destroyed forthwith the items or any copies of the items or any material created as a result of the examination of the items and that an account of such destruction be provided to the Court.
The Third Respondent pay the Applicant's costs of, and incidental to, the application filed on 10 September 2018.”
The Commonwealth filed its submissions and a minute of the orders sought by it on the same date. The Commonwealth seeks the following orders:
“The application is allowed.
The search warrant issued by the First Respondent under s 22 of the Australian Crime Commission Act 2002 (Cth) on 25 June 2018, in respect of the premises at 8 Hunt Avenue, Morphettville, South Australia, is invalid.
Each party bear their own costs.”
The proceedings are intended to resolve the controversies arising between the parties and determine what should be the appropriate orders to finalise the proceedings instituted by Ms Forbes, in the light of the concession that the search warrant, issued on 25 June 2018, was invalid.
The applicant’s position remains that the orders sought by it are appropriate given that she remains concerned that she has not been provided with a comprehensive audit trial as to who precisely did what with each document seized.
It is Ms Forbes’ submission that she is entitled to be given details enabling her to identify the individuals to whom seized documents were disseminated and the organisations with which those individuals were connected, particularly if they were extraneous to the Australian Crime Commission. As such any order for destruction should also apply to such agencies.
It remains her position that the necessity for her to bring these proceedings stem directly from the omissions of the Australian Crime Commission and therefore the Commonwealth should be held to its earlier indication that it accepted it was liable to pay costs.
On the other hand, it is the Commonwealth’s position that the court should not, in effect, rule on controversies which have not as yet and may never arise between the parties by the provision of the extensive declaratory relief sought by the applicant.
In addition, the Commonwealth contends that it made early concessions to resolve the case appropriately, which concessions were either ignored or rebuffed. In these circumstances, it is the Commonwealth’s position that each party should bear their own costs.

The applicable legal frame work

The application is brought pursuant to the provisions of sections 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)[2] which empower the court to review administrative decisions and the conduct relating to those decisions, including in circumstances where the person making the decision did not have the power to make the decision in question.
[2] Hereinafter referred to as the ADJR Act
Pursuant to provisions within the Federal Circuit Court of Australia Act 1999 (Cth) this court is conferred with jurisdiction under the ADJR Act. In particular, pursuant to section 14 the court is authorised to grant any order either absolutely or on such terms and conditions as the court considers just in respect of all remedies to which a party is entitled.
Pursuant to section 16, the court may make binding declarations of right, whether or not any consequential relief is or could be claimed. Accordingly, it is clear that the court is authorised to make the various declarations sought by Ms Forbes.

Discussion

Ms Forbes’ position is predicated on the basis that law enforcement agencies, in a modern state, such as Australia, are complex and hydra-headed in nature. Necessarily, because the intelligence which these agencies gather is liable to be amorphous in nature, there will exist many avenues, both formal and informal, for such intelligence to be exchanged and subject to analysis, quite possibly at different and discrete levels of operation, between different law enforcement arms of the Commonwealth.

As such, she submits that it must remain a very real risk, in a case such as the present one, that information illegally obtained, will, either advertently or inadvertently, be diffused across many different agencies operating within the sphere of law enforcement in this country.
She further argues that such diffusion, necessarily subtle in its operation, will be impossible to detect by a person, such as herself, who exists outside the operational sphere of influence of law enforcement agencies, unless the proscriptive orders sought by her are made.
In this context, Mr Doyle, counsel for Ms Forbes, relies on the High Court decision of Strickland & Ors v Director of Public Prosecutions (Cth).[3] It is important to detail the factual situation, which led to the High Court confirming an earlier order leading to a permanent stay of a prosecution against the various appellants concerned, in order to assess the case’s relevance to the current matter.
[3] Strickland & Ors v Director of Public Prosecutions (Cth) (2018) 361 ALR 23
Mr Strickland and some of his associates were employed by a company believed to be involved in serious criminal activities. These alleged activities were referred to the AFP, who elected to interview each of the individuals concerned. Each of those individuals exercised their right not to answer questions put to them by AFP officers.
Thereafter the Australian Crime Commission, which in general terms is conferred with coercive powers, which enable it to question individuals compulsorily, in respect of matters falling within what are designated to be special investigations, elected to examine Mr Strickland and the other persons related to him. An individual subject to such an examination is prohibited from refusing to answer the questions put to him/her by an examiner of the Australian Crime Commission.
Unbeknownst to them, whilst this examination occurred, AFP officers listened to the answers provided from an adjacent room clandestinely. Mr Strickland and the others were then charged with a variety of serious criminal offences by the AFP officers.
At first instance, the court found that the information obtained from the various examinations was used to compile the prosecution brief and to obtain evidence against Mr Strickland and the others, which the AFP would not otherwise have been able to obtain. As such, the AFP had gained a significant forensic advantage unfairly.
Kiefel CJ, Bell & Nettle JJ, characterised this forensic advantage in the following terms:
“…[T]he prosecution derived the forensic advantage, which the examinations were expressly calculated to achieve, of compelling the appellants to answer questions that they had lawfully declined to answer and thereby locking the appellants into a version of events from which they could not credibly depart at trial.
….
The examinee can no longer decide the course which he or she should adopt at trial according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial or to the strength of the evidence led by the prosecution at trial.
…
Moreover, such concerns are not to be sloughed off as captious or overly punctilious…They go to the heart of the accusatorial nature of the criminal justice system. Nor need the court be informed or persuaded of specific respects in which the person's defence will or may be compromised in order to conclude that the forensic disadvantage resulting from the subjection of a person to an unlawful compulsory examination in relation to a matter in respect of which he or she is subsequently charged is significant. For assuming for the sake of argument that the person has given at least one answer in the course of the examination which can arguably be construed as an admission of guilt or otherwise against interest …it must follow that the person has thereby been limited in the conduct of his or her defence in a manner to which he or she should not lawfully have been subjected.
In the particular circumstances of these cases, it is also no answer to the forensic disadvantage thus created to say that it may be overcome by the appointment of prosecutors who know nothing of the examinations… these cases involve an extraordinarily wide-ranging, undocumented dissemination of examination product to AFP officers involved in the investigation process, including to those who would be required to give evidence at trial. The lack of clear records of dissemination makes it extremely difficult to assess how and by whom the examination product has been used to build the prosecution case or how it might inform prosecution witnesses' responses to questions asked in cross-examination at trial.
Furthermore, despite such admissions as the appellants might appear to have made in the course of their examinations, they remain lawfully entitled to put the Crown to proof and so, without advancing any form of positive defence, to throw as much doubt as is honestly possible upon the quality of the Crown case.
…
Nor is it an answer to the forensic disadvantage identified to say, as the Court of Appeal considered it to be, that it was incumbent on the appellants to demonstrate the respects in which the prosecution had been thereby advantaged. After all, how were the appellants practically to go about that? Where, as here, there were some tens of millions of relevant documents and no documentary record of the distribution of examination product within the AFP and the Office of the CDPP and the manner in which it was used to inform prosecutorial decision, it would surely have been extremely difficult.
…
In the result, all that can be said with any degree of confidence…is that given the number of AFP officers who attended the examinations and that the examination product was disseminated far and wide within the AFP and the Office of the CDPP, it is practically impossible to try the appellants …without subjecting them to the forensic disadvantages which have been referred to.”[4]
[4] Ibid at 41–44 [75]–[85]
In effect, the High Court found that the prejudice occasioned to each of the accused, arising from the unfair access to the compelled testimony by the AFP, made it close to impossible for them (the accused) to have a fair trial, unless the entire investigation began afresh, with entirely different officers conducting the case.
In these circumstances, the majority of the court held that what it characterised as an extraordinary step – the permanent stay of a criminal prosecution – was justified because, in this particular case, the defect to the integrity and function of the criminal process was so profound.
In his separate judgment, Edelman J noted that although it was an extreme measure to grant a permanent stay of proceedings, such a course was warranted where there was a risk of damage being occasioned to the public confidence in the proper administration of justice. However, as with all such issues, the countervailing consideration to be taken into account is the public’s interest in persons reasonably suspected of having committed a crime being prosecuted.[5]
[5] Ibid at 94 [297]
In Strickland, the relevant examiner, in concert with the AFP, had embarked on a course of conduct in flagrant disregard of proper consideration of probity. In essence, it had been decided that whatever ends would secure a conviction should be adopted. In so doing, the individuals concerned were found to have inflicted an irremediable injury on the integrity of the criminal process.
There is no suggestion, in this case, that either the Australian Crime Commission or the AFP were intent on deliberately flouting proper process in respect of the issue of the warrant in question. In addition, apart from Ms Forbes’ concern there is no concrete evidence to suggest that what the respondents have indicated through their legal representatives is fallacious in any way.
The evidence of the Commonwealth, which has not been subject to any forensic examination, is that the material in question has been isolated, as best it can be, and was only disseminated within the AFP. At this stage, apart from her suspicions, the applicant is not in a position to be able to indicate that, to the contrary, the seized material will be used improperly against her.
In the current matter, there is no suggestion that any prosecution is currently being contemplated so far as Ms Forbes is concerned. As such, in distinction to the facts of Strickland, any forensic advantage, if any, residing in the hands of any particular Commonwealth law enforcement agency is entirely conjectural at this stage.
It cannot be said that the improperly obtained evidence, as was the case in Strickland, is the basis of a prosecution against Ms Forbes. There is currently no such prosecution. It is conceded that the attention of the ATO was unconnected to the activities of the Australian Crime Commission. Accordingly, in my view, the factual situation prevailing in Strickland is to be distinguished from that in the current matter.
The orders sought by Ms Forbes are intended to deal with potential and inchoate incidences of forensic disadvantage, which may arise in future. As such, the orders sought by her are entirely prophylactic in nature, designed to remedy an illegal use of documents which she cannot, as yet, identify and which, indeed, may not occur.
In Strickland, in contrast, the forensic advantage residing with the prosecution was manifest. Without the improperly obtained material, the AFP would not have been able to launch a case. The investigators concerned had the advantage of answers on which to subsequently base their specific prosecution. In this case, there is as yet no prosecution. As such, the forensic advantage said to reside with what must be regarded as a putative prosecution is entirely speculative in nature.
The documents seized existed prior to the actions of the Australian Crime Commission. If Ms Forbes is ultimately charged with any offence, she will be able to cross-examine any witness in respect of the role played by any such document in respect of the decision made to prosecute her.
As such, Ms Forbes will not be forced to adopt any particular forensic position, as a consequence of the prosecution having had unlawful access to any such document. She has not been forced to abandon her entitlement to avoid self-incrimination, as was the case in Strickland. Essentially, Ms Forbes’ ability to rely on the concessions made by the Australian Crime Commission, in these proceedings, remains a potent antidote to any unlawful use of these document in any future case brought against her.
As Hill J pointed out in Puglisi v Fisheries Management Authority & Ors[6] a discretion arises for the court in respect of what specific orders should be made in respect of items illegally seized, particularly in the context of any proceedings, which may or may not have been instituted.
[6] Puglisi v Fisheries Management Authority & Ors (1997) 148 ALR 393 at 405
This is a different issue to whether such illegally obtained material should be admitted into evidence, notwithstanding its unlawful provenance, in any related proceedings. The use which can be made of such material being a matter for the judicial officer hearing any such prosecution.[7] I am not that judicial officer and, at the risk of laboring the obvious, there is, as yet, no such prosecution.
[7] See Bunning v Cross (1978) 141 CLR 54
As I understand Ms Forbes’ position, it is that these protections have the prospect of being illusory in nature because she will not be in a position, absent the document audit trail sought by her, to definitively tie an illegally obtained document to any relevant prosecutorial decision potentially affecting her.
In theoretical terms this may be so. Again, this is in distinction to the situation prevailing in Strickland, as this was a case where the forensic advantage residing in the prosecution was both indisputable and significant. Moreover, the advantage had been engineered through prosecutorial underhandedness.
Accordingly, in my view, Ms Forbes’ basis for seeking the orders, which she does, is entirely speculative in nature and she retains her right to object to the use of any evidence illegally obtained pursuant to the considerations set out in Bunning v Cross.
In response, Ms Maharaj, senior counsel for the Commonwealth characterises the exercise proposed by Ms Forbes, as being unnecessarily onerous in the circumstances, particularly given the extent of the undertakings already provided by her client in respect of the material concerned.
Ms Maharaj also relies on the fact that, in practical terms, the items seized from Ms Forbes, cannot be physically returned to her. Having been up-loaded, they remain permanently fixed in digital form on a data base subject to the Commonwealth’s control.
It is clear, from cases such as Puglisi that the court has a discretion as to whether to order the physical return of illegally obtained items. In these circumstances, Ms Maharaj contends that Ms Forbes has no entitlement, as of right, to the orders, which she seeks. Rather they are subject to the exercise of the court’s discretion.
In her written submissions, Ms Maharaj submits that the court should not make unnecessary declaratory orders to resolves issues or controversies which are hypothetical in nature. In this context, she relies on the following passage of Bromich J in Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (No 4):
“It nonetheless remains the case that declaratory relief must focus on the determination of legal controversies, not abstract or hypothetical questions. Declaratory relief is not appropriate for circumstances that have not occurred and might never happen, or if a declaration will produce no foreseeable consequences for the parties.”[8]
[8] Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (No 4) [2016] FCA 867 at [77]
I agree. Whether the illegally seized documents have been or will be utilised to found some form of prosecution against Ms Forbes is entirely conjectural. What will follow from the use of these documents falls within the purview of the judicial officer hearing that prosecution.
The exercise of the court’s discretion regarding the physical possession; destruction; or retention of items found to have been illegally seized, like all discretions, is to be exercised judicially in the light of the overall circumstances surrounding the illegal seizure.
In this case, the Commonwealth has publically acknowledged its omissions and has provided extensive undertakings, publically given, as to what it has done with the documents concerned. There is no evidence of any connivance on its part to gain some unfair advantage in proceedings contemplated by it.
The evidence available to me indicates that the Commonwealth has done its utmost to ensure there is no untoward use of the material concerned and it has been isolated as far as it can be, given its digital nature. In addition, this is a case where the Commonwealth has publically indicated that the material has only been disseminated within the AFP and the Australian Crime Commission.
This indication provides protection, for Ms Forbes, so far as the involvement of other agencies, such as the ATO, in her affairs is concerned. In all these circumstances, I do not propose to exercise the discretion available to me in the manner proposed by Mr Doyle, on behalf of Ms Forbes.
Ms Forbes seeks costs in respect of all the proceedings to date. The Commonwealth contends that this would not be proper, given the concessions made on its behalf in late 2018 and the failure of those representing Ms Forbes to provide exact particulars of the orders sought by her.
In these circumstances, it is the Commonwealth’s submission that the hearing should have been avoided and given it has been vindicated by the court’s decision regarding the lack of utility of the orders sought by Ms Forbes, no order for cost should be made. Otherwise it contends that the costs should be limited to those relating to the institution of the proceedings.
Section 79 of the Federal Circuit Court Act authorises the court to make costs orders, in proceedings before it, at its discretion. As such the court’s discretion to make an order for costs is a wide one. However, the discretion remains one which must be exercised carefully and judicially.
If the court determines to make an order for costs, it has a wide discretion as to the calculation of such costs. Pursuant to Rule 21.02(2) of the Federal Circuit Court Rules 2001:
“In making an order for costs in a proceeding, the Court may:
(a)    set the amount of the costs; or
(b)    set the method by which the costs are to be calculated; or
(c)    refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or

(d) set a time for payment of the costs, which may be before the proceeding is concluded.”

Accordingly, the discretion provided by Rule 21.02(2) provides potential different mechanisms, for the awarding of costs, under either the rules of this court or the Federal Court or indeed on a generic discretionary basis. This is reflective of the potential differences, particularly in respect of issues of complexity, which may arise from the nature of the various jurisdictions conducted within the court.
However, Rule 21.10 of the Federal Circuit Court Rules 2001 provides a minimum level of entitlement, in respect of any award of costs, if made by the Federal Circuit Court. The rule provides as follows:
“Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1; and
(b) disbursements properly incurred.”
Rule 21.10 and the schedule under it create a scale of costs by reference to the occurrence of fixed events. The procedure in question is clearly designed to allow the ready calculation of costs incurred following the various procedural stages of litigation from filing to finalisation with judgment.
It is a system which is most amenable, in its application, to less complex forms of litigation. In my view, this mechanism was in keeping with the objects of the Federal Circuit Court as set out in section 3(2) of the Federal Circuit Court Act, which include the following:
·To enable the Federal Circuit Court to operate as informally as possible in the exercise of judicial power; and
·To enable the Federal Circuit Court to use streamlined procedures; and
·To encourage the use of a range of appropriate resolution dispute processes.
I accept that, given the advice she had received, Ms Forbes had no viable alternative other than to issue proceedings on 10 September 2018. This followed the indication from the Australian Crime Commission, provided in late July, that it was of the view that the relevant warrant was only potentially invalid. In such circumstances, it was necessary for Ms Forbes to preserve her position, notwithstanding the indication provided that the relevant material would be quarantined from access and use.
Thereafter the evidence of Mr Andary, which is not subject to challenge, is that the Australian Crime Commission had isolated the material in question from operational staff and the AFP had destroyed or deleted the material in its possession from 5 December 2018 onwards.
Significantly, in my view, it was also on 5 December 2018 that the Commonwealth’s solicitor proposed a compromise of the proceedings on essentially the same lines as will result from these reasons for judgment. In addition, it is also apparent that the applicant did not respond to requests that she delineate, with precision, the orders sought by her.
In all these circumstances, I am of the view that there should be an order for costs but such order should be reflective of party/party costs up until the time the Commonwealth conceded the matter, which was 5 December 2018.

By reference to the applicable schedule, I calculate costs on the basis of the initiation of the application, which included a short affidavit and the hearing fee relating to a short mention. The sum I have arrived at is $3,297.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 17 July 2019