Golden Editions Pty Ltd v Hoitink, John Robert

[1996] FCA 342

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No.  NG 47   of  1996
  )
GENERAL DIVISION                 )

BETWEEN:GOLDEN EDITIONS PTY LTD

Applicant

AND:JOHN ROBERT HOITINK

First Respondent

S BROWN

Second Respondent

SUSAN ANDREWS

Third Respondent

K DOVER

Fourth Respondent

MICHAEL SPECK

Fifth Respondent

SIMON FENTIMAN GILCHRIST

Sixth Respondent

DANIEL GILBERT, ANTHONY TOBIN, PETER LEONARD, PETER WALTERS, WILLIAM SPAIN, STEPHEN PEACH, MARK O'BRIEN, ALISTER HOOD, DAVID STANDEN, WARREN FISSE, GINA CASS-GOTTLIEB and JOHN WILLIAMSON-NOBLE The Partners of GILBERT & TOBIN

Seventh Respondents

SHARON McTAVISH

Eighth Respondent

5 FEBRUARY 1996

REASONS FOR JUDGMENT
LOCKHART J.

This matter, number G47 of 1996, was commenced in this Court by an application filed on 25 January 1996.  It is related to matter, number G629 of 1993.  The applicant seeks appropriate orders to set aside certain search warrants that were issued recently and executed in January of this year.  The application is based on a variety of grounds: questions going to the form of the warrants, the circumstances surrounding their issue, and the circumstances surrounding their execution.

A discrete question has arisen.  It concerns the roles played by the sixth respondent and the seventh respondents.  For the applicant, it is said by Mr Ireland of Queen's Counsel that for reasons which I shall touch on briefly in a moment, there are reasonable grounds for his client and for clients in litigation of the kind with which the related 1993 proceeding is concerned, to have an apprehension or perception that the solicitors for the opposite party are not fulfilling their tasks fairly and impartially.  In particular, it is said that what happened in the course of the execution of the search warrants here, the revelation of the documents produced, and their subsequent inspection by Mr Gilchrist, gives rise to a reasonable fear that documents gained in the course of the execution of those warrants and seen by Mr Gilchrist, or the information contained in them, may be used against the applicants in the 1993 case.

The position, in short, is that there is an organisation known as The Music Industry Piracy Investigations Proprietary Limited, called by the acronym MIPI, whose task it is to assist in the discovery of piracy in the relevant field with which the copyright issues in the 1993 case are concerned.

The seventh respondents have acted for MIPI, and Mr Gilchrist has been the person closely involved, on behalf of the seventh respondents, with efforts by MIPI to stamp out piracy in the record industry.  It is accepted by Mr Ireland that the extent to which the documents which were revealed to Mr Gilchrist in the course of his inspection would overlap with the documents relevant to 1993 case is slight; but there is, he says, slight though it be, a real risk of overlap.  And in fact, he says, there is some degree of overlap; and that point is not in dispute, as I understand it.

There is, I think, inherent in litigation, a real risk when solicitors act for a law enforcement agency, such as the Australian Federal Police who are involved in the relevant search here, and also act against persons who may be the subject of investigation by the law enforcement authorities, that it could be said in some cases that the solicitors have placed themselves in a position where they have a clear conflict of interests, or indeed of interests and duties.  There is a particular risk where the solicitors act for the very body that causes search warrants to be taken out.

That type of problem is not uncommon in litigation, although in the ideal world, the purist would say, the risk of the conflict should never be allowed to arise.  In many respects, the purist's is not a very practical view.  But nevertheless, there are cases where it can arise, or can be perceived to arise, and it should not occur.

In this case, undertakings have been offered to the Court by Mr Gilchrist and by the seventh respondents.  In essence, they say that they will not use or disclose for any purpose not related to the relevant investigation by the Australian Federal Police, of which the warrants in question in the 1996 case are a part, any information obtained by them as a consequence of their inspection of the documents on 17 January 1996, or thereabouts.  Those undertakings are subject to certain provisos, to which I need not refer.  In short, the respondents say that if anything was gleaned as a result of the inspection of the documents made available on the execution of the search warrants, then they will not be disclosed or used, nor will their contents be disclosed or used, for the purposes of the 1993 case. 

Mr Ireland says that even with the best will in the world, it may not be possible to adhere to such undertakings because, notwithstanding Mr Gilchrist's intent to adhere to them, it will be difficult to keep out of his mind knowledge which he may have obtained in the course of the inspection of the documents available on search.
     The evidence discloses that in this case Mr Gilchrist did inspect some, but not all, of the documents held by the Australian Federal Police following the execution of the search warrants.  He did not inspect any documents of a kind that might be covered by legal professional privilege, nor did he take or was he provided with originals or copies of any documents.  He did make handwritten notes of the types of documents shown to him.  The evidence also shows that none of the seventh respondents, nor any employee of the firm other than Mr Gilchrist, has inspected any of the documents held by the Australian Federal Police.

Mr Cobden of counsel, who appears for the relevant respondents - in this respect Mr Gilchrist and the seventh respondents - said that although it would be inconvenient if the case were to proceed on the basis that Mr Gilchrist is not available to instruct, it nevertheless could occur. 

I do not find this an easy point to resolve, but I think, in the end, the correct approach for this Court to take is to accept undertakings of an appropriate kind from Mr Gilchrist and to allow the case to proceed with his involvement.  I say this based on my examination of the evidence, of which I have referred to only a portion because it is agreed I should only give brief reasons at this stage of the case.  Accordingly, I propose to take that course; but I do point out the inherent risks involved in solicitors acting for those who induce action on the part of law enforcement agencies when they also may have to act against some of the persons who are the subject matter of such action.  Great care should be taken to be sure that possible problems such as those adverted to in this case do not arise. 

I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated:  5 February  1996

Counsel for the Applicants   :        Mr J M Ireland QC

Solicitors for the Applicants     :        Banki Palombi Haddock & Fiora

Counsel for the First and
Second Respondents          :        Mr R B Wilson

Solicitors for the First

and Second Respondents      :        Australian Government Solicitor

Counsel for the Sixth and

Seventh Respondents         :        Mr R Cobden

Solicitors for the Sixth and

Seventh Respondents         :        Gilbert & Tobin

Date of Hearing             :        5 February 1996

Date of Judgment            :        5 February 1996