Grog Systems Pty Ltd v Hayket Pty Ltd
[1988] FCA 84
•9 Mar 1988
C A T C H W O R D S
TRADE PRACTICES - mlsleadlng or deceptive conduct claim - clam
for goods sold and delivered and work done - interlocutory
relief to strike out whole applicatlon on basls of no genulne
federal element - no evldence to establish federal clalm - whether the Court has ~urlsdiction to hear the matter - insubstantiallty of federal issue.
Trade Practlces Act 1974, 5 . 5 2 Groq Systems Ptv Ltd
v. Havket Pty Ltd h Annr
Qld G83 of 1987
DINCUS J.
BR I SBANE
9 !%-CH 1 9 8 8
IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) QLD G83 of 1987
GENERAL DIVISION ) BETWEEN: GROG SYSTEiiS PTY LTD
Applicant
AND: HAYKET PTY LTD
First Respondent
AND: LEO MENKENS
Second Respondent
MINUTES OF ORDER
PINCUS ORDER: MAKING ZUDGE J.
DATE OF CIRDER: 9 MARCH 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. the prlnclpal application be struck out;
2. the appllcant pay the respondents' costs of and
incldental to the proceedlngs, to be taxed.
NOTE: Settlement and entry of orders is dealt wlth In Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY
) QLD G83 of 1987 GENERAL DIVISION ) BETWEEN: GROG SYSTEMS PTY LTD
Applicant
ANTI: HAYKET PTY LTD First Respondent
AND: LEO MENXENS
Second Respondent
PINCUS J . 9 MARCH 1988 FEASONS FOR JUDGMENT
I have before me a clalm sald to be made under 5 . 5 2 of
the Trade Practlces Acr; 1374 . The respondents, by way of Interlocutory rellef, ask that the whole dppllcatlon be struck Dut
on the ground that It has never included any genuine federal
element. The appllcant urges me not to dlsmlss the whole
appllcatlon, but elther to let the case proceed to trlal or to transfer It to the District Court.
The applicatlon was filed on 23 May 1937, and asked for
relief of two kinds.
It sought $34,539 for "goods sold and delivered and work
and labour done, together with interest thereon", and also clalmed
_ I ,
unspecified damages for contraventions of "s.51" of the Trade Practices Act; it is clear that 5.52 was meant. A statement of claim was filed which alleged that there
was a contract for the supply of certain computer equipment for
$38,963, subsequently reduced to $34,539. The pleadlng said that
the applicant carrled out its contract and it claimed the prlce.
It also alleged that:(i) the second respondent represented to one Dawes, on behalf of the proprietor of the Kuraby Hotel, that
the system Inscalled by the applicant was no good and
that the first respondent was golng to throw It out;
(11) a slnllar representation was made to an employee of
Inslght Computers;(iii) a slmllar representatlon was made to an employee of Cleveland Computers.
At the flrst dlrectlons hearlng, I remarked that the
substantlal dlspute related to a clam for debt, and that the
misleading conduct alleged appeared to be unrelated to the
non-payment of the price. It was then intlmated, on behalf of the applicant, that the question of jurisdiction would be consldered.
A defence was filed which added a cross-claim for
$1,500; that was based upon misrepresentation and contract.
I .
i \ At a subsequent directions hearlng, dates were fixed for
the filing of affidavits. However, subsequently one D.J. Millward, on behalf of the applicant, filed an affidavlt saylng
that none of the people to whom the alleged misleading statements had been made was prepared to make an affldavit.
A Mr Britton, a director of the applicant, has sworn
that he was told "by an employee whose name 1 s not presently known to me of Cleveland Computers" and a similar employee of Insight Computers that equipment Installed by the applicant was belng removed from the flrst respondent's premlses because it dld not
work. He clalms to have had a slmllar conversation with one
Dawes, an employee of the Kuraby Hotel. Mr Dawes has made an
affldavit to the effect that he once made enqulrles about
Installing some computer equipment. One of the people he spoke to
was the second respondent, who explained that he was not happy
with the appllcant's system and was going to take it out. There is a suggestlon, rather frivolous as it seems to
me, that the respondents have cost the appllcant numerous sales,
and profits of over half a mllllon dollars.
The appllcant's solicitor, when the matter was last
before me, sald in effect that he had no evldence available on the
s.52 claim. The respondents' sollcitor, discussing the proposal to transfer the matter to the Distrlct Court, argued that the
application should be dismissed, or alternatively, the Trade
Practices aspect struck out. If the latter course were taken, the
federal element would be removed.
. 1 '
1- , L
It is my opinion that the applicant has never had any
substantial clam under 5.52 of the Trade Practices Act. All it appears to have had was a faint hope that, by calllng witnesses who had not been proofed, it might be able to establish such a claim.
In Stack v. Coast Securlties (No. 9) Proprletarv Limited
(1983) 154 C.L.R. 261, in the judgment of Mason, Brennan and Deane
JJ., it is said that s.86 of the Trade Practices Act: ' I . .. confers jurisdlction on the Federal Court to
determine the non-federal aspects of a slngle
justiclable controversy of which the issues raised under the Act form an integral part."
In thelr reasons, dealing with the case of Barsal Ptv Ltd v. Force in the same report. thelr Honours sald at p.298:
" . . . ~t may appear that the federal issue is so insubstantlal or removed from the non-federal issues that the Supreme Court should proceed. wlth
the determmation of those issues.''
That was sald In relatlon to a controversy, aspects of whlch were
proceeding In the Supreme Court and aspects of whlch were
proceeding in the Federal Court. Here, the matter is in thls Court only, but the reference to Insubstantiality 1 s material.
On the face of it, the respondents' claim to have the
proceedmgs struck out may be contended to be a rather impractlcal one. The case has proceeded some considerable distance here. There has been dlscovery and a number of affidavits have been . I 1
.. filed in pursuance of the order referred to above. On the other
hand, all those steps were taken after the applicant's attention was speclfically drawn to the jurisdictional problem facing it.
Now that it has come to appear that the original appearance of insubstantiality truly reflected the nature of the federal claim,
I can see no reason, in fairness or common sense, why the
respondents should be denied what is, prima facie, their right. It is true that it appears a llttle inconvenient to strike out a
claim m the pursult of which an amount of money has been spent; but the simple fact is that the federal claim turns out to have been a makeweight or gesture, presumably advanced for tactical
reasons. What would otherwise have been simply an action for the prlce of goods sold and work done was attempted to be compllcated
by assertions of mlsleading conduct (causing vast losses),
assertions whose nebulous character is now plalnly revealed. It would not be rlqht, as it appears to me, for the Court to hold
that it has jurlsdiction in the matter, simply because the
applicant has only now confessed that it has never had evidence
avallable which could possibly establlsh Its 5 . 5 2 claim. In the result, the principal application will be struck
out and with costs. v Associate
CATCHWORDS
ADMINISTRATIVE LAW - Search warrant authorisinu search of barrister's chambers and seizure of leual opinions and other
memoranda therein - whether warrant bad on its face - whether invalidated bv failure to recounize leual professional privlleae
- whether invalidated bv failure to specifv with sufficient
particularitv the offences alleued to have been committed. or the thlnus of which seizure was authorlsed. Judiciary Act 1 9 0 3 s.39B
Crimes Act, 1914 (C'th) s.10
Federal Court Rules 0 .29 r.Z(a) LIANE FRNO & ORS. v. NEIL HARRY MARK FORSYTH
N0.17G 280 Of 1985
C m : Fox, Lockhart & ,Jackson ,JJ. 20 March 1986
Svdney
Baker v. Campbell (1983) 153 C.L.R. 52 cons.~ ~~
Bunninu v. Cross (1978) 111 C.L.R. 54 ref’d to The Oueen 77. Bell (19801 146 C.L.R. 141 ref‘d to
Bullivant v. Attornev-General for Victoria C19011 A.c. 1 9 6 r-f’d
to
Frank Truman Export Ltd. v. Metropolitan Police Commissioner
C19771 1 Q . B . 952 ref’d to The Oueen v . Cox & Railton (1884) 14 Q.B.D. 153 ref‘d to
Entick v. Carrinston 11765) 2 Wils. 275 ref‘d to
Stanford v. Texas (1965) 379 [J.S. 476 ref‘d toAustralian Broadcastinu Corporation v. Cloran (1984) 4 F.C.R. 151
ref’d to
The Oueen 77. Tillett: ex parbe Newton (1969) 14 F.L.R. 101 ref’d to Auckland Medical Aid Trust v. Tavlor (1975) 1 N.Z.L.R. 728 ref’d
to
IN THE FED= COURT OF ATJSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No.VG 280 of 1985
| DIVISION | GENERAL | ) |
| ON APPEAL from a single judqe | ||
| ||
| Australia | ||
|
Appellants
A D : NEIL HARRY MARK FORSYTH
Respondent
MINWl'E OF ORDER
,JUDGES MAKING ORDER: Fox. Lockhart & Jackson JJ. DATE OF ORDER: 20 March 1996 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The appeal be dismissed.
2. The appellants pay the respondent's costs of the appeal.
Note: Settlement and entry of orders is dealt with In
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF ATJSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No.VG 280 of 1985 )
GENEFAL DIVISION I ON APPEAL from a sinule judae
of the Federal C o u r t of Australia
EETNEEN :
Appellants
A N D :
NEIL PARRY MARK FORSYTH
Respondent
C m : FOX, LOCKHART .S JACKSON J J .
D=: 20 MARCH 1996
FEASONS FOP JUDGMENT
FOX J. These proceedlnus were brouuht to challenqe the valldltv
nf search warrants. whlch were uranted by a Justice of the Peace In Victoria to the appellants. who are members of the Australian
Federal Pollce force. The warrants were issued under 5.10 of the Crimes Act, 1914 (Cth). and purported to authorise the search snd
seizure of documents in the chambers and at the residence of the
respond ent Mr. Neil Forsvth O.C. of Victor ia. (In aruument it
was stated tha,t a third warrant was issued. to be executed at the
premises of his clerk.) The proceedinus 'were commenced in
reliance on s.39B of the Judiciarv Act, 1903. The case has
proceeded in relation to the warrant respectina Mr. Forsvth's chambers. and I shall refer to it only. .-
The further amended statement of claim asserts several
arounds of invaliditv. includinu one as to the sufficiencv of the evidence before the .Justice nf the Peace. We have not seen that
evidence. It was decided to deal with or.: issue. namely whether the warrant was "bad on its face". as a separate issue under Order 29 r.Z(a) of the Rules of Court. and a .Sudue of the Court
(Sweenev J.) held that it was. on various urounds. One uround was that the warrant failed "to recounlze and crive effect tD the
doctrine of leual professional prlvlleue". Another around
related to the failure of the warrant to disclose wlth sufficlent particularitv the offences allecred to have been committed. The
parties then aureed that a final declaration to that effect be
made in the proceedinus. which were treated as havinu thus been brouuht to an end. We have nevertheless been told that If we are
of a contrarv view. the matter will have to be referred back tothe Judue. to deal wlth the other issues.
The warrant is lcnuthv. but should be set out, with the
omisslon of a list of names:
~~CDMMONWEUTH OF AUSTRALIA
CRIMES ACT 1914
SEARCH EIARRANT
TO : Liane ARNO
Alan Richard, BRADLEY Richard Denls O'DONOVAN
Maior Patrick EATON
Phillp Georae CURRY
Peter James BUTTERFIELD
Australian Federal Police Officers attached to the Office of the Director of Public Prosecutlons, Maior Fraud Division. 200 Oueen Street. Melbourne In the State of Victoria.
WHEREAS. I BRYAN JOSEPH CLOTHIER. a Justice of the Peace within the meanlnu of that expression in Section 10 of the Crimes Act. 1914. beinu satisfied bv information on oath placed before me
this dav that there is reasonable around for suspectinu that
there are in a place beina the chambers of Ne11 H.M.Forsvth.
Oueen's Counsel. situated at Room 45. 11th floor. Latham rhambers, 500 Bourke Street. Melbourne. in the State of Victoria,
certain thinus, beinci: lecral opinions and a vices and
correspondence. conference notes. appointment books. telephone
messaue bookz, notes of fees. accounts. fee slips, diaries. files. minutes, notes and records relatina to leual opinions and
advices prepared bv the said Neil H.M. Forsvth durina the periodJulv 1st 1976 to June 30th 1982 m relation to the implementation
of tax avoidance schemes associated with the followina persons and entities:
( 3 7 names were then set out) ....
and with other persons and entities associated wlth the implementation of tax avoidance schemes as to which there are
reasonable mounds for believina that the same wlll afford evidence as to the commission of the followlna offences: and in
respect to which there are reasonable mounds for bellevlnu thatthe followma offences have been committed;
(a) offences auainst Section R6(l)(a) of the Crlmes Act. 1914, a law of the Commonwealth, khat is to sav, conspiracies to commlt an
offence aaainst a law of the Commonwealth. to wlt. Section 231 of the Income Tax Assessment Act, 1936:
(b) Offences aaainst section 86(l)(b) of the
Crimes Act. 1914. a law of the Commonwealth, that is to sav. conspiracies to prevent or defeat t ;he execution or enforcem
.ent of a la1 2 of-- the Commonwealth, to wit the Income Tax Assessment Act. 1936.
( c ) Offences auainst section R6(l)(el of the
Crimes Act. 1914. a law of the Commonwealth. that is to sav, conspiracies to defraud the
Commonwealth.
(d) offences auainst Section 29A of the Crimes Act. 1914. a law of the Commonwealth. that is to say. falsely pretendinu with intent to defraud, and thereby obtaininu a benefit from the Commonwealth or causinu a beneflt to b e uiven bv the Commonwealth.
( e )
Offences aaainst section 231 of the Income Tax
Assessment Act,. 1936. a law of the
Commonwealth, that is to sag avoidinu or attemptinu to avoid assessment or taxation bv
any wilful act, default or nealect. or bv an
CsicIl fraud, art or c~i,t~;~dnce whatever.
YgrJ ARE HEREBY AUTHORISED, with such assistance as you think
necessarv. to enter at any time the said premises. if necessarv by force. and to seize the said thinus more fullv described above
which vou map find in the sald place. as to which there are
reasonable urounds for believinu that the same will afford evidence as to the commission of the sald offences. and In
respect to which is suspected on reasonable arounds that the said
offences have been committed. and for so doinu this shall be vour sufficient warrant. GIVEN under mv hand at Melbourne in the State of Victoria this
18th dav of .June 1985
B. J. CLOTHIER A Justice of the Peace and a Stipendiarv Mauistrate in and
for the State of Vlctoria"
( A second warrant was in the same terms and authorised search of
Hr. For syth' S home )
It was souuht to execute the warrant on the same dav. search and seizure was also made on behalf
18
June. and an ex par te appl ication for an iniunction to restrain
of the respondent on
that day, and uranted. The documents are at present held neutrally. awaitinu the outcome of the litiuation.
Several urounds have been submitted in support of the
view that the appeal should succeed. It was aruued that no assumption should be made that any particular document covered bv %he warrant was the subiect of leual professional privileue. and
that it could not therefore be said to be Invalid. It was put
that the issue was one to be decided at the time of execution.
To a point I think this submission is sound. The
matters to be considered bv the Justice before he issues a warrant pursuant to s.10 are those set out in the section. He would not. of course, knowlnulv issue a warrant if it were plain
on the materlal submltted to him that the thinus souuht were thesubiect of leual professional privileae. This would however not
necessarilv be so even where the warrant is souuht aualnst a
lemal practitioner in respect of documents concernmu a client. because the question whether or not privlleue attaches is subiect to a number of consideratlons. not least of which is the attltude
of the cllent of the leual practitioner. It is %he privileue of
the cllent. The Justice of the Peace mav In a particular case be
able to take the matter further: the affldavlt ln support of theissue of the warrant should inform him on as much as is known
relevant o the topic. In the present case. there were
'apparentlv a larue number of clients. Mr. Forsvth was probably under a dutv to claim privileue in the first instance. but the
attitude of his clients i s the primarv determinant. What was decided in Baker v. Campbell (1983) 153 C.L.R.
52 was that the doctrine of leual professional privileue applied to documents the subiect of a search warrant issued under s.10. It was aureed or at least assumed. that privileue of the nature applicable in a court of law attached to the documents. The case
was not directlv concerned with the powers o duties of a Justice
of the Peace asked to issue a search warrant under s.10. The case proceeded on the footinu that the warrant considered there
was valid. The scope of the powers uiven under the warrant were however treated as limited.
The questlon whether there is privileue, and its extent,
falls to be dealt wlth when it is souuht to execute %he warrant. Before a Justice could decide a question of leaal professional
privileue there would be the hopeless matter of seeinu the
documents %o which it relates, how, and for what purpose, thev came into existence and between whom the relevant confidences
lav.
If documents the subiect of privileue are examined or
removed. those doinu so wlll be liable to an action at law (in
some cases, possibly criminal proceedinus) and their admissibllitv in anv subsequent leual proceedlnus will be sublect
to the rules respectinu documents illeuallv obtained (Bunninq v.
Cross (1978) 141 C.L.R. 5 4 ) . The documents may also be excluded
from admissibilitv proceedinus in before administrative tribunals.
These sanctions may not be adequate so far as concerns
the person whose premlses are to be searched or whose documents thev are. or for that matter satisfactory to the police. There mav be a failure on the part of the police officers to advert to
the problem. either uenerallv or in a particular case. and thev
will probablv. in anv event. have an insuperable problem in determlninu iust what is privileued and what is not. On the
other hand. in order to effectuate the purpose of 5.10, and the public Interest it represents, it mav not be desirable to uive an
opportunitv to the person whose premises are in question to
remove or tamper with documents before anv clalm of privileue canbe determined.
It is not easv to determine what practice should be
followed to deal with this dllemma. The whole matter mav have to be the subiect of leulslation. The solutlon will be found In aureement or by recourse to iudiclal proceedinus. There 1 s an
exlstinu requlrement that the execution of a warrant be carrled
out "reasonably". This requirement should take full account of the factors concerninu the posslbllitv of documents beinu the
subiect of leual professional prlvileue.
R
It is unnecessarv for me. in this case, to attempt to
prescribe what course is best to be adopted. An important step.
as it seems to me, will be for the matter to be dealt with
adequately in police reuulations or instructions. These will
have to make provision for the uivinu of prlor notice (of ureater or less extent, dependinu upon the circumstances) to persons who mav have documents (or other "thlnus") in respect of which it appears that prlvileae mav reasonablv be claimed. The result mav
well be that these are,immediatelv placed in neutral custodv. pendinu a decision, or aureement. respectinu thelr status. In some cases. the police officers rnav not have any desire to
Inspect or seize anv documents. the subiect of the warrant, to *Jhich prlvlleue does attach. In the present case. the warrant related to the chambers
Q € a leual practitioner who miuht reasonablv be expected to have
manv copies of leual oplnlons in his files. Some of these would
not be the subiect of the warrant and. assuminu a valid warrant.
thev would have to be seurenated. As to others, the pollce officers. even without an appllcation for an iniunction, would
plalnlv be on notice that they mav be the subiect of privllerre. In mv new. sublect to a matter I will mention, it would have heen improper for them to have entered Mr. Forsvth's chambers
without first consultlna with hlm. or other persons havinu
control of the chambers €or the time beinu.
Leaal professional privileae is not available where
advice is souuht in order to facilltate a crime or fraud. or even
a civil offence (see The Oueen v. Bell (1980) 146 C.L,R.141 at
pp.145, 152-3, and 161-2: Bullivant v. Attornev-General for
Victorla (1901) A.C. 196: Frank Truman Export Ltd. v.
Metropolitan Police Commissioner 11977) 1 Q.B. 952). The matter
is discussed at some lenuth in The Oueen v. Cox and Railton
(1884L.14- Q.B.D. 153, a decision of the Court for Crown Cases Reserved, comprisinu 10 iudues (see also Baker, at pp.86, 107 and
112). As the status of the documents in the present case is
still undetermined, I will say no more of the ::Sit of this
exclusion from privileue. Suffice to mentlon that in relation to a warrant under s.10 of the Crimes Act there may be limited scope for the application of the prlvileqe.
There is the further complication in this case that an
22 July. after the initial execution of the warrant. the
respondent was charued on two counts of conspiracv under 5.86 of the Crimes Act with five of those named in the warrant. and two of incitmu them. contrary to s.7A of that Act. It has not been put to us from either side that the intended search was for the purpose of ascertainmu the complicltv of the respondent.
In mv view. therefore the warrant is not invalid because
it authorises search and seizure of documents which mav prove to
be the subiect of leual professlonal privileae.
What does concern me more is another around taken bv the
respondent, namely the width of the warrant. and the uncertaintv
of its scope. What it does is to recite that there are
reasonable urounds for suspectinu that there are (a) leual
opinions and advices prepared by Mr. Forsvth. (b) correspondence, notes. etc. relatinu to leual opinions and advices prepared bv Mr. Forsvth. (c) durinu a six-year period. (d) in relatlon to the
implementatlon of "tax avoidance schemes". ( e ) "associated wlth"
(the 3 7 named persons and entities) and (f) "with other persons
and entities associated with the implementatlon of tax avoidance
schemes", (ul "as to which there are reasonable urounds for
believinu that the same will afford evidence as to the commission of the followinu offences" (see s.lO(b)), (h) "and in respect to
which there are reasonable urounds for believinu that the
followlna offences have been committed"' (see s.lO(a)). The persons said to have commltted the offences are not named. but the first three offences are conspiracies, under, respectively parauraphs (a).(b) and (c) of s.86(1) of the Crimes Act and the
remaininu two are specific offences under. in the one case the
Crimes Act, and In the other, the Income Tax Assessment Act,
1936.
It seems to me that a warrant under s.10 must, indlcate
the "thinas" to which it relates by reference to some characteristic other than the offence which it is said to
constitute or evidence. In the present case there 1s a qeneral description of documents but thev are to be those "in relation to
the implementation of tax avoldance schemes". This is quite
indefinite. The tax avoidance schemes referred to are those "associated with" the named persons and entities. This loose coniunction makes the indication of the documents even more
vauue. The implementation of the tax avoidance schemes is not however limited to the 37 persons and entities in question but
relates also to "other persons and entities associated with the implementation of tax avoidance schemes".
This seems to me to make the warrant hopelessly wide and
obscure. It approximates a ueneral warrant. The recipient of
the warrant cannot be expected to uo throuuh the exercise of
decidinu whether there are reasonable arounds for believincr that the documents will afford evidence or that there are reasonable urounds for believinu that the offences have been committed. The
offences m fact cover a wide uround. three of them relatinu to conspiracies between unnamed persons.
I am of the view that the warrant is excessivelv wide
and uncertain and 1 s bad for this reason. I auree with the
reasons of his Honour on this aspect of the case.
IN THE FEDERAL COURT OF AUSTRALIA
) )
VICTORIA DISTRICT REGISTRY ) No. VG 280 of 1985 )
GENERAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWFEN: LIANE ARNO, ALAN RICHARD
BRADLEY, RICHARD DENIS
0 DONOVAN, MAJOR PATR I CK
~ i O N - PHiLLiP ~~~~~~ L--"-~RY PETER JAMES BUTTEXFIELD
Appellants
AND: NEIL HARRY MARK FORSYTH Respondent
CORAM: FOX, LOCKHART and JACKSON JJ. DATE: 20 MARCH 1986
REASONS FOR JUDGMENT
LOCKHART J.
This appeal concerns the valldity of a search warrant issued
on 18 August 1985 by a Justice of the Peace authorislnq six offlcers
of the Australian Federal Police to enter the chambers in Melbourne f
the respondent, one of Her Majesty's Counsel, and to seize certain documents. On the same day the police offlcers proceeded to execute the
warrant, but In the course of the day the respondent applled to this
Court, pursuant to S . 39B of the Judlciarv Act 1903, for an interlm
injunction to restrain the execution of the warrant. The learned primary Judge ordered, by consent, that any documents seized pursuant
to the warrant were to be handed to the Registrar of this Court and to be held by him until further order. This was done. Subsequently the parties agreed before the primary Judge that the Court should decide
in the first Instance the question of the validity of the warrant onits face and to this end his Honour directed, by consent, pursuant to
Order 29 rule 2(a) of the Court's Rules, that this question be decided separately from any other questlon In the proceedings. Hls Honour heard the matter and later made an order declaring that the warrant was bad on Its face and was therefore vold. It is from that order of hls Honour that this appeal is brought.
The parties chose to conduct the case before the primary
Judge and this Full Court on the footing that the questlon of the warrant's validity on its face should be determined without reference
to the information on oath w ich was before the Justice when he lssued the warrant. Hence the information is not and has not been before the Court at any stage. This course was deliberately taken by the parties
but it has certaln unsatisfactory features. The cases show that questions of validity of search warrants are generally decided with
the information before the Court and often turn on the terms of the information itself. More than one question argued before us would, I
think, be difficult. if not impossible, to declde without knowledge of
the contents of the information. I sound thls cautionary note as a gulde to future litlgants in cases of this nature.
The primary Judge found the warrant was invalid on its face
on the following grounds:
“1. it fails to disclose wlth any sufficient particularity the offences alleged to have
been committed; - 2. it fails to identlfy the things which may be
seized in a way which makes It practlcable
for the person whose premises are being
searched to form an opinion as to whether the
~ e l z u i - e of a paftlculai thing is ~ u t h ~ ~ i ~ e d by it;
3 . its operative clause lays down a test whether in respect to the goods to be selzed ‘It is suspected on reasonable grounds that the said
offences have been committed’ which depends
upon the state of mind of the individual
respondent who is the searcher and whlch may
vary from respondent to respondent and is accordingly uncertain;
- 4 . the application of that test may. because of the state of mind of the partlcular searcher,
cover a wider class of things than that setout in the recital;
5. that test is a departure from the test set
out in the recital, ‘in respect to which there are reasonable grounds for believing
that the offences have been committed’, as to which the Justlce was said to have been
satisfied by information on oath;
5. the warrant fails to recognize and glve effect to the doctrine of legal professlonal
pr ivl lege. “
HIS Honour re~ected an argument that it was possible to
overcome the defects in the warrant by severance In accordance wlth para. 46(b) of the Acts Interpretation Act 1901. . . ..
4 .
The search warrant is in the followmg terms:- “COMMONWEALTH OF AUSTRALIA
CRIMES ACT 1914
SEARCH WARRANT
TO: Llane ARNO
Alan Richard BRADLEY
Richard Denis O‘DONOVAN Ma~or Patrick EATON Philip George CURRY Peter James BUZTERFIELD
Australian Federal Police Officers attached to the
Direccor of Publlc Prosecuclons, major Fraud Divlslon, 200 Queen atreet, Melbourne in the State of Victoria.
WHEREAS, I BRYAN JOSEPH CLOTHIER, a Ju-L-ir: of the Peace wlthin the meanmg of that expression In Sectlon 10 of the Crimes Act, 1914, being satisfied by information on oath placed before me this day that there is reasonable ground for
suspecting that there are in a place being the chambers of Neil H.M. Forsyth, Queen‘s Counsel, situated at Room 45, 11th
Floor, Latham Chambers, 500 Bourke Street, Melbourne, in the
State of Victoria, certain things, belng; legal opmions and
advices and correspondence, conference notes, appointment
books, telephone message books, notes of fees, accounts, fee slips, diarles, files, minutes, notes and records elatmg to legal opinions and advices prepared by the said Neil H.M.
Forsyth during the period 1st July 1976 to 30th June 1982 In
relation to the lmplementatlon of tax avoldance schemes assoclated with the following persons and entlties:
Eonald Brookes LOCKYEX
Winis Trading Pty Ltd Famlti Pty. Ltd Commercial Tax Servlces Ptv Ltd - John Michele VEREKER Tan Douglas SWANSSON
Leslie Edward LITHGOW
Stephen Gerard CONNELL
Damlen John NOLAN
John Terence BROWNGeoff rey George MANNERS
Kappa Pty formerly Ltd known as
Metropolican Taxation Services (Aust) Pty Ltd.
Robert HOWES
Michael OADES
Stephen TIEN-PING SU . ~~
~~
Garry ALL&
Leopold R O S W W
S .
. . .
p r e d i t ( xix) Corporation (Aust 1 Pty Ltd.
(xx) Transia Corporation Ltd
(xxi ) Colin Halley COGHILL ( xxii ) Ian David Stafford COLLIE
(xxiii) John Francis EDWARDS
(xxiv) Garrlck Lewis GRAY ( xxv ) Kiev Ltd
(xxvi ) Kampala Airways Ltd
(xxvii 1 Freeman Brothers Ltd
(xxviii) Westminster Corporatlon Ltd. (xxix)
Reginald Keith KNIGHT
( xxx ) Peter DUNN ( xxxi 1 Peter BRIGGS
(xxxii ) Ian Patrick CORNELIUS
I ___.___. , J b I,- _ L ~- 7 _I - - 1AAALJ.11 Y Y C J L L a L l b l l r"iilaIlcia1 SEK-v;ceS Ttj' Ltd
(xxxiv) Brian James MAHER
( xxxv ) John Patrick DONNELLY
~ ~~~~ ~ ~
( xxxvi ) Lee Gabriel HURLEY ( xxxvi i ) Grant Anthony DITFORT (XXXVlii) Ralph Willlam MERELL
and with other persons and entities associated with the implementation of tax avoidance schemes as to which there are
reasonable grounds for believing that the same wlll affordevidence as to the commission of the following offences; and
In respect to which there are reasonable grounds for believing that the following offences have been commltted;
offences against Section 86 (1) (a) of the Crimes Act, 1914, a law of the Commonwealth, that 1s to
say, conspiracies to commit an offence against a law of the Commonwealth, to wit, Section 231 of the Income Tax Assessment Act, 1936; Offences against section 86 (1) (b) of the Crimes Act, 1914, a law of the Commonwealth, that 1s to
say, conspiracies to prevent or defeat he
execution or enforcement of a law of the
Commonwealth, to wit the Income Tax Assessment Act, 1936. Offences against section 86 (1) (e) of the Crimes Act, 1914, a law of the Commonwealth, that 1s to say, consplracies to defraud the Commonwealth.
offences against Sectlon 29A of the Crlmes Act,
1914, a law of the Commonwealth, that is to say,
falsely pretending with Intent to defraud, and
thereby obtaining a benefit from the Commonwealth
or causlng a beneilt o be given by the Commonwealth.
(e) Offences against section 231 of the Income Tax Assessment Act, 1936, a law of the Commonwealth,
that 1s to say avoiding or attempting to avoid
assessment or taxation by any wilful act, default or neglect, or by an fraud, art or contrivance what eve r .
YOU ARE HEREBY AUTHORISED, with such assistance as you thlnk
necessary, to enter at any time the said premises, if necessary by force, and to seize the-said things more fully
described above which you may find in the said place, as towhich there are reasonable grounds for believing that the
same wlll afford evidence 2s to the commission of the sald
offences, and in respect to which it is suspected on
reasonable grounds that he said offences have been
committed, and for so doing this shall be your sufficient warrant.
GIVEN under my hand at Melbourne
in the State of Victorla this 18th day of June 1985 B.J. CLOTFIIER A Justice of the Peace and a Stipendiary Maglstrate In and
for the State of Victoria"
Section 10 of the Crimes Act was relled on as the source of
authorlty for the Issue of the warrant. It provides:
"10. If a Justice of the Peace is satisfied by
lnformatlon on oath that there 1s reasonable ground for suspecting that there is In any house, vessel, or place -
(a) anything wlth respect to whlch any
offence agalnst any law the of Commonwealth or of a Territory has been,
or is suspected on reasonable grounds tohave been, commltted;
(b) anything which to as t ere are reasonable grounds for believlng that it
wlll afford evldence the to as
commission of any such offence; or
(c)
anything as to which there is reasonable ground f o r believing that it is Intended to be used for the purpose of committing
any such offence;
he may grant a search warrant authorizing any constable named therein, wlth such assistance as he thinks necessary, to enter at any tlme any house, vessel, or place named or described in the warrant,
if necessary by force, and to seize any such thing which he may find in the house, vessel or place."
I propose to turn to the question whether the warrant 1 s bad
on Its face for faiiure to recognlse and give effect to the doctrlne of legal professional privilege. It is well establlshed that a search
warrant should disclose jurisdlctlon on Its face: E. v. Tillett,
parte Newton C19693 14 F.L.R. 101 and cases cited therein by Fox J..
Counsel for the respondent contended that the failure of the Justiceof the Peace who issued the warrant to make it clear in some fashion
on its face that privilege did not attach or that it was llkely that privilege did not attach to the documents mentioned in the warrant
lnfrlnged this rule.
The argument has its genesis In the decision of the High
Court In Baker v. Campbell C19831 153 C.L.R. 5 2 . It had long been thought in Australia that the doctrine of legal professlonal privilege
was confined to judicial and quasi-judicial prQceedings and was
restricted to compulsory disclosure in the course of such proceedings. The doctrine was regarded as being only a rule of evidence, a rule
that did not extend to administratlve proceedlngs and to extra
~udicial processes of search and selzure. It was argued before a Full Court of this Court in Crowlev v. Murphv C19811 5 2 F.L.R. 123 that the doctrine may have a wider application but the Court held unanimously
that he doctrine applied only in judicial or quasl-~udicial
proceedings and did not prevent a policepfflcer, acting under the
authority of a warrant issued pursuant to S . 10 of the Crlmes Act
1910, from making a reasonable search of the office of a solicltor and seizing documents relating to the affairs of clients notwlthstanding
that the documents would be privileged from production in legal
proceedings. "his view was confirmed by the High Court by a majority
ln O'Feillv v- 7he Commissioners nf the S t a t P Rank of Victor ia C19833
153 C.L.R. 1 (Gibbs C.J., Mason and Wilson JJ; Murphy J. dissenting).
The High Court held that legal professicnsl privilege was relevant only to ~udicial or quasi-judlcial proceedings.
O'Reillv's Case was argued before the Hlgh Court in March
1982 and judgment was glven on 16 December 1983; but in Baker v. Campbell (Murphy, Wilson, Deane and Dawson JJ.; Glbbs C.J., Mason and
Brennan JJ. dissenting) the Hlgh Court constltuted by a Full Court of
seven Justices granted leave to the plaintiff to present a case which might require reconsideration of the correctness of O'Rellly's
Baker v. Campbell was argued before the Hlgh Court m February 1983. Case.
Baker v. Campbell came before the Full Bench of the High Court as a
case stated by a single Justice of the High Court pursuant to S . 18 of
the Judlciarv Act 1903 asklng the Court to answer the following
question: "In the event that legal professlonal prlvilege attaches to and 1 s maintained In respect of the documents held by the firm
(ie.
the firm of solicitors In question). can those documents be properly made the subject of a search warrant issued under S . 10 of the Crlmes m?'' The question was answered in the negatlve.
It was assumed in Baker v. Campbell that legal professional
privilege attached to the documents in question and the judgments must
be read in thls light. It was not directed to a case like the present where there is a real contest as to whether the doctrine of legal .. . professional privilege does apply to render the relevant documents
immune from search and seizure. There are indications In the reasons
for judgment of some members of the Court who constituted the majoritythat questions of professional privilege would usually be tested after
the issue of a search warrant and before or during its execution; but I do not think that the authorlty of the decision can be treated as going no further. The judgments of the majority attach a qualitatlve bar to documents covered by legal professional privilege falllng
wlthln the scope of S. 10 whlch, in my view, must necessarily involve
the Justice who issues the search warrant considering the question ofprivilege In approprlate cases.
The Justices who constituted- the minority of the Court
recognised that the extension of the doctrine of legal professional privilege to extra judiclal searches and seizures could glve rlse to
insurmountable practical difficulties. The majorlty ~udgments,however, whilst recognising that practical difficulties would arise,
did not regard them as msurmountable. The present case provldes a very good example of the considerable practical difficulties that can
arlse once the wlder notion of legal professlonal privilege 1s
accepted; and it is for this Court to seek to give some guidance for
the solution of them.
It is tlmely to restate the principles for which Baker v.
Campbell is authority. Notwithstanding some divergence in approach
.. between the Justices who constituted the ma~orlty, the case 1s authority f o r the following proposltions:
- the doctrine of legal professlonal privilege is not confined
judicial to nd quasi-~udlcial proceedings but extends to administrative proceedings and to the extra judicial proce-sses of
search and seizure;
- the doctrine IS not merely a rule of evidence, but is part of the federal cammon law attaching to federal statutory powers of search
and seizure unless excluded expressly or by necessary implicatlon;
- section 10 of the Crimes Act evinces no intention to exclude the common law rule;
- section 10 should be construed as not Including, in the
things which it authorises to be inspected or selzed, documents whose confidentiality would be protected in the courts by the doctrine of legal professional prlvilege.
Once the law recognises that the doctrine of legal
professlonal privilege extends to extra judicial search and seizure
the question Immediately arlses as to when and how questlons of
privilege are to be raised. Sometlmes the prlvilege question wlll be
raised at the stage of execution of a search warrant rather than at
the time of its issue. A search must be conducted reasonably in order
to be lawful and the requlrement of reasonableness has inflnitely variable application. In some cases the police officers conducting
the search may. in order to conduct a reasonable search, be obliged to
communicate with the person whose premises are to be searched or the
person whose documents are expected to be found in the premises(whether they are his premises or not) either before or after entry
and allow him the opportunity to obtain legal advice. The methods of
search and seizure may also require discussion. There w e numerous possibilities. But the searcher must remember that he is authorised by the warrant issued under S. 10 to do what otherwise would be a
trespass. In the present case it was after the search warrant had been issued, but before execution of the warrant had been completed,
that the matter of privilege was brought before a single Judge of thls Court.
Nevertheless in my opinion it would be contrary to the
reasonlng of the ma~ority in Baker v. Campbell for thls Court to hold
that it 1s only at the stage of executlon of a search warrant that
questions of legal professlonal privilege require consideration.
Section 10 must, it seems to me, be now construed as excluding from the "things" which it authorises to be inspected or selzed, documents
whose confidentiallty would be protected in the courts by the doctrlne
of legal professional privilege. A s I said earlier, a qualitative bar
is attached to documents covered by that privilege falling within the
scope of s.10. The protection afforded by the common law rule of
immunity recognised in Baker v. Campbell would be set at nought or at
least seriously eroded if Justices were able to pay no regard to the
question of legal professional privilege and leave it to be determined
solely in connection wlth the later processes of search ... . and seizure.
The proposition that the warrant should issue wlthout any consideration being given by the Justice of the Peace to the question
of professional privilege and that the prlvilege question should only
be dealt with later by litigation or otherwise is untenable. The duties of Justices, when issuing search warrants, cannot
be stated in rigid or Inflexible terms or indeed even comprehensively. Where there is nothing on the face of the material before the Justice to suggest that prlvileged documents may be the sublect of the
proposed search then the Justice is In no different position from that
which applies with respect to other documents or things. In such a
case it will be left to the process of search to deal with the questlon whether any documents which come to the attention of the
searcher may be prlvileged.
Cases may arise where material before the Justice suggests
the real possibility of privlleged documents bemg discovered on the
search. It is impossible to lay down any hard and fast rules to guide Justices in those circumstances.
It may be sufficient in some cases
if the Justice makes a note or enters an endorsement on the warrant
that the searcher must not seize privileged material, thus leavlng It 'to the process of search to deal with any question of privilege. As I said earlier a search must be conducted reasonably. It may be possible in some cases for the Justice to lay down
procedures in conjunction with the police officers who are to conduct
the search relating to the conduct of that search in . - a way that
affords reasonable opportunity for the person whose premises are to be searched or whose documents are involved to obtain legal advice and thus in a sense combine the functions of issue and execution of the
warrant. Whether S. 10 or other sources of power would authorise the
Justice in taking thls courze is perhaps a matter of debate; but if
the doctrine recognised In Baker v. Campbell is to be effectively worked out in a sensible way some such view must, I thlnk, be tenable.
Rather than himself establishing some procedure for safeguarding rights of the persons affected the Justice may in some cases only
issue the warrant If an affidavit is sworn by the police officer
responsible for the proposed search stating the steps which he
proposes to take to safeguard the rights of interested persons. A n appropriate note or endorsement may then be placed on the warrant to
alert the reader to the prohibition imposed on seizing privlleged
documents.
A Justice cannot, consistently wlth Baker v. Campbell, ignore
altogether the possibility of immunity attaching to documents that on
the face of thelr descriptlon In the sworn informatlon before him would appear to attract legal professional privilege. Whether the
Justice satisfies himself that it is llkely that privllege does not render the documents immune from search and seizure but places a note or endorsement on the warrant that privileged material must not be
14..
searched and seized or establishes a procedure of the kind mentioned earlier and places a note or endorsement on the warrant of the kind just mentioned will depend upon the circumstances of each case.
Serlous consequences may ensue if Justlces do not consider
the question of professlonal privilege. The person whose premises are
to be searched may be absent from them at the time of executlon or
otherwlse unaware of execution taklng place or unable for a variety of
TEBSOES to aijijisaeh the ~ a u i t s L - U f55liiaiil '-'- LIE - exeiui iot i ui tile
warrant. The person who has property in the documents may similarly
be unaware of the execution taklng place or unable to approach the courts to restrain executlon of the warrant. These are but some of
many instances one can readily vlsualisc? that couid OCCUL in practlce. But they illustrate the point that to confine the raisl.rlg of the question of legal professlonal privilege to events after the issue of the warrant could in certain cases render nugatory the doctrine of
immunity recognised in Baker v. Campbell. Indeed, for a Justice to leave the whole question of privllege to be sorted out on search and
selzure by police officers 1 s to abrogate hls function and to delegate it to others.
The doctrine of professlonal privilege gives rlse to a -.
dilemma. It 1 s lmpossible for questions of professional prlvllege to
be definltively determined otherwlse than by the courts In the course of litigation between persons who seek to assert and resist claims of privllege. The processes of search and selzure of documents pursuant to search warrants do enable the courts In certaln cases, like the ..
15.
present, to deal with these difficult questions; but it must in many
cases be quite imposslble for Justices of the Peace to be satlsfled that documents to whlch professional privllege would ordlnarily attach
and which are mentioned in the information on oath before them are
--.. - - -.
likely not to be privileged. But to say that a Justlce may lgnore these questions is in my view to deny the very proposition for which
Baker v. Campbell is authority. These difficulties reinforce the view, if reinforcement is needed, expressed by me in Crowley v. Murphy
et p. l42 that Jnstices of the peare s!-e 2 fllJmeronS and e r l e r t l c class
of persons in Australia without any requirement of legal tralning a d,
although they doubtless perform valuable public functlons, the dangers
inherent in investing them with powers of thls klnd are obvlous.
Faced with a case where the Information on oath suggests that
documents which would normally be xpected to attract legal professional privllege may be the subject of the proposed search the
Justice may adopt one of the courses to which I have already referred.
In other cases he may be able to satisfy himself that it 1s likely that legal professional prlvilege does not render the documents immune
from search and selzure. In the present case we do not know what was sald In the lnformation on oath before the Justlce of the Peace; but
it is clear from the terms of the warrant itself, especially the description of the documents, that the materlal before him must have put him on notice that the documents which the Federal Police sought
to inspect and seize were of a klnd to whlch legal professlonal
privllege would ordlnarlly attach. A fortlori smce the premlses to be searched were the chambers of a barrister. It is not suggested in this case that the Justice took any steps, whether by arrangements
with the Federal Police or otherwise, to ensure that the processes of search and seizure were carried out with due regard to the rights of the respondent whose premises were to be searched or the rights of his
clients whose privilege was Involved. Indeed, it 1s plain from the evidence and the curial history of this matter that no such course was taken.
in the circumstances of thls case and In the iignt of hKer
v. Campbell in my opinion the Justice who issued the warrant should
not have done so unless he was satisfied either that procedures would
be adopted to safeguard the rights of the respondent and of hls clients in relation to documents to which professlonal privilege would
be expected to attach or that it was likely that professional privilege did not render the documents immune from search and seizure.
In either case the warrant should have been appropriately endorsed.
If the Justice had been satisfied that it was likely that the
documents were not immune from search (eg. belng documents in furtherance of criminal or fraudulent activity of the kind appearing
in the offences described in paras. (a) to (e) of the warrant) he should in my opinion have made that clear on the face of the warrant.
There are various forms in which this could have been expressed but
the warrant is completely sllent on the matter. It was not enough inmy opinion in the circumstances of this case for the warrant to merely
state on Its face that the Justice was satlsfled of the partlcular matters mentioned in S. 10 itself.
Of course, if the Justice did not consider the question of
professional privilege at all in relation to the documents which must have been described in the information then plainly the warrant would be bad. Regrettably, these are matters of which we have no knowledge
as the lnformation was not In evidence.
In my opinion the warrant is bad because the failure to state
the matters relatlng to legal professional prlvilege to which i have referred amounts to a failure to disclose jurisdiction on the face of
the warrant. Generally it will be sufficient for a warrant to recite that the Justice was satisfied by information on oath concerning the
matters mentioned in para. (a), (b) or (c) of S. 10 but in the clrcumstances of this case and In light of the authorlty of Baker v.
Campbell the omlssion from the face of the warrant of anything to lndlcate that the question of prlvilege was considered by the Justice
or the likelihood that the documents described in the warrant were notImmune from search and seizure vitiates the warrant.
Counsel for the respondents submltted that the warrant was
bad on another ground, namely, that It was too general in that it d1d not describe with sufficient particularity the thlngs to be seized, -- the offences alleged to have been commltted and the facts constituting
the alleged offences. .This argument was put independently of the questlon of legal professlonal privilege.
It is necessary to sound a cautionary note when considering
this question. When investigations are proceeding into alleged tax
evasion on a large scale it may be impossible to define documents in search warrants other than in rather general terms. If the terms are SO general or vague as to suffer from the vice of a general warrant then plainly it is bad; but it must be remembered that the time the
warrant is issued the matter is obviously at an investigatory stage and there will not be sufficient evidence in a form admissible at a
m. . L1
C K L I U ~ I I ~ t r , i a i LW PCOVC tile ;rileged uiirricis. L I l r puipas i ul' L r r e
search is to obtain such evidence. It is necessary to reconcile the two competing public interests that offences involving tax frauds
should be detected and punished on the one hand and the right of the
individual to protection of the law from un~ustified interference with
his privacy and property on the other. It is In the public interest
that those who commit offences involving fraud In relation to tax should be brought t o justice. It is at least equally in the public interest that individual llberty should be protected by the courts
whose function it is to protect indivlduals from abuse of power by the
Executive arm of government. The balancing of the claims of the due administration of justice and those of the cltizen whose rlghts must
be jealously protected is not determined in a sterlle vacuum but with
due regard to the legislation involved and crimmal activity
suspected. The complexity of taxation frauds which often lnvolve
numerous persons and entities, and the concomitant difficulties assoclated with the gathering of documentary evidence to support the
laying of charges highlights the dangers of too readily strlking down
warrants on the ground of generality in cases of this kind: see
-
19.
generally B. v. Inland Revenue Comissioners, ex parte Rossminster Limited C19801 A.C. 952, especially per Lord Diplock at p. 1010.
The warrant in this case however goes too far. It authorlses
the seizure of an extremely wide range of documents:- “Legal opinions and advices and correspondence,
legal opinions and advices prepared by the said conference notes ... notes and records relatlng to
Neil H.M. Forsyth during the period July 1st. 1976
to June 30th, 1982 in relation to :he implementatlon of tax avoidance schemes associated
with (37 named persons and corporations) and with
other persons and entities assoclated with the implementatlon of tax avoidance schemes as to whlch there are reasonable grounds for believing that the same will afford evidence as to the commission of
the following offences; and In respect to which
there are reasonable grounds for believing that the
following offences have been committed ... ‘ I
There follows five classes of offences expressed in wlde terms.
It is difficult to imagine a wider range of documents that
may be seized. Also they cover a period of six years and are defined
with reference to a very broad descriptlon: “the lmplementation of tax
avoidance schemes”. It 1s arguable whether that expresslon means
schemes for avoldlng assessment or taxation wlthln the meanlng of S. 231 or tax avoidance schemes as ordlnarily understood by lawyers,
accountants and others familiar with the law and practice of taxation. I respectfully agree with the primary Judge that the latter meaning
should be ascrlbed to the expresslon I the warrant.
The warrant is so general in its terms that it leaves it to
the Federal Police officers who are to execute It to determine In their absolute discretlon what documents they may seize within the
very broad class of documents described in the warrant. Although thewarrant names thirty-seven persons and corporatlons alleged to be
associated with tax avoidance schemes it extends thls class to
infinlty by going on to say: "and with other persons and entities associated with the implementation of tax avoidance schemes". The warrant does not identify the persons alleged to have committed the
offences and the description of the alleged offences is itself
exceedingly wide; three of them are conspiracies. These are all
natters which must be considered in deciding whether a warrant is bad
for generality. Of course, the existence of any of those matters
taken in isolation, does not necessarlly lead to the conclusion that the warrant is defective. In each case the warrant must be looked at as a whole and all of its provisions taken into account.
There is an independent ground for strlking down the warrant,
though the circumstances upon which it relies overlap wlth the considerations mentioned above. A search warrant should identlfy wlth
sufflcient partlcularlty the "thlngs" within the meaning of S. 10 which are authorised to be searched for and selzed: Tillett's Case at
p. 113; Trimboll v. Onlev C19811 37 A.L.R. 38 at pp. 46-47; and Australian Broadcastins Corporation v. Cloran C19843 4 F.L.R. 151. The warrant in the present case falls far short of this standard. The documents to be searched for and seized are descrlbed ln very general
terms over a s1x year period. Their ambit is sought to be conflned by
the requirement that they be "in relation to the implementation of tax
avoidance schemes", itself a most general concept. Those tax avoidance schemes are then identified as being associated with the
thirty-seven named persons and corporations and with "other persons
and entities associated wlth the implementation of tax avoidance schemes". This description has the vice already mentioned.
In my opinion the warrant is far too wlde and vague. It is
akln to a general warrant and is bad for uncertainty.
I would dismlss the appeal with costs.
. . .
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA D STRICT REGISTRY ) No. VG 280 of 1985
| DIVISION | GENERAL | ) |
ON APPEAL FROM A JUDGMENT OF A SINGLE-JUSTICE OF THE FEDERAL COURT Between:
LIANE ARNO, ALAN RICHARD BRADLEY,
RICHARD DENIS O'DONOVAN, MAJOR PATRICK EATON,PHILLIP GEORGE CURRY, PETER JAMES BUTTERFIELD
Appellants
-and -
NEIL HARRY MARK FORSYTH
Respondent
CORAM: FOX, J., Lockhart J. and Jackson J. - DATE : 20 March 1986
REASONS FOR JUDGMENT
JACKSON J.
On 18th June 1985 the appellants, officers of the
Australian Federal Police, attended at the chambers of the respondent, a Queen's Counsel practlsing at 50 Bourke Street, Melbourne In order to execute a search warrant which ad been
. . .
- 2-
granted that day for that purpose by a Justice of the Peace purporting to exercise the powers conferred upon him by s.10 of
the Crimes Act 1914. On the same day the respondent, (and other persons whose
interests were said to be affected by the warrant) instituted the
present proceedings in the Court pursuant to s.39B of the Judiciary Act 1903. After various interim orders were made on that day and later, the proceedings continued as proceedings in which the present respondent was the only applicant. The parties then agreed that in order to seek to save tune and expense the
Court should first decide the question, as the primary judge put
it, of "the validity or otherwise of the warrant on its face". Accordingly, it was ordered by consent pursuant to Order 29, that the questlon whether the search warrant (and another search
warrant not now in issue) was "void and of no effect" should be trled separately.
The primary ludge answered that question by finding that
"the warrant was bad on its face", stating his reasons for dolng so as being:- "The defects in the warrant on its face are:
1. it fails to disclose wlth any sufficient particularity the offences alleged to have been committed;
2 . it falls to identify the things which may be seized In a way which makes it practlcable for the person whose premises are being searched to form an opinion as to
whether the seizure of a particular thing 1 s authorised by it:
- 3-
3 . its operative clause lays down a test whether in
respect to the goods to be seized "it is suspected on reasonable grounds that the said offences have been
committed" which depends upon the state of mind of the
indlvidual respondent who is the searcher and which may vary from respondent o respondent and is
accordingly uncertain;
4 . the application of that test may, because of the state of mind of the particular searcher, cover a wider class of things than that set out in the recital;
5. that test is a departure from the test set out in the recital, "in respect o whlch there are reasonable grounds for belleving that the offences have been committed," as to which the Justlce was said to have been satisfied by information on oath;
6 .
t h e warrant fai1.s to rerocnizcz and g ive effect tcr t h e doctrine of legal professional privilege."
He held also that 'le terms of the warrant were not such as to attract the operation of any principle of severance.
Each of the bases adopted by the primary judge is put in issue by the appellants, and it is convenient before turnlng to
those bases to set out the terms of the warrant in question. They are :-
"WHEREAS , I BRYAN JOSEPH CLOTHIER, a Justice Of the Peace wlthin the meaning of that expression In Section 10 of the Crlmes Act, 1914, being satlsfied by information on oath placed before me this day that there is reasonable ground
for suspecting that there are in a place belng the
chambers of Neil H.M. Forsyth, Queen's Counsel, situated
at Room 4 5 , 11th floor, Latham Chambers, 500 Bourke
Street, Melbourne, In the State of Victoria, certaln
thlngs, being; legal opinions and advlces and
correspondence, conference notes, appolntment books,telephone message books, notes of fees, accounts, fee
slips, diaries, files, minutes, notes and records relatlng to legal opinions and advices prepared by the said Ne.1 H.M. Forsyth during the period July 1st 1976 to June 30th 1982 In relation to the implementation of tax avoidance
schemes associated wlth the following persons and
entities:Donald Brookes LOCKYER Winis Trading Pty Ltd Famiti Pty 'Ltd
Commercial Tax Services Pty Ltd
Geoffrey George MANNERS
John Michele VEREKER
Ian Douglas SWANSSON
Leslie Edward LITHGOW
Stephen Gerard CONNELL
Damien John NOLAN
John Terence BROWN
(xii) Kappa Pty Ltd formerly known as Metropolitan
Taxation Services (Aust) Pty Ltd
(xiii) Robert HOWES
(xiv) Michael OADES
(xv) Stephen TIEN-PING SU
(xvi) Garry ALLEN
(xvii) Leopold ROSENTHAL
(xviii) ...
(xix)
Euro-Asia Credit CorpordLlon (Aust) Pty Ltd. (xx) Transia Corporation Ltd
(xxi) Colin Halley COGHILL
(xxii) Ian David Stafford COLLIE
(xxlii) John Francls EDWARDS
(XXIV) Garrick Lewis GRAY
( xxv 1 Kiev Ltd (xxvi) Kampala Airways Ltd
(xxvi i) Freeman Brothers Ltd
(xxvili) Westminster Corporation Ltd ( XXVlX) Reginald Keith KNIGHT (xxx) Peter DUNN
(xxxi ) Peter BRIGGS
(xxxii) Ian Patrick CORNELIUS (xxxiii) Westralian Flnancial Servlces Pty Ltd (xxxiv) B r i m James MAHER ( xxxv John Patrick DONNELLY
(xxxvi) Lee Gabriel HURLEY (xxxvi i ) Grant Anthony DITFORT (xxxviil) Ralph William MERELL
and with other persons and entities associated with the
implementation of tax avoidance schemes as to which there arereasonable grounds for believing that the same wlll afford
evidence as to the commission of the followlng offences: and In respect to which there are reasonable grounds for believing that the following offences have been committed:
(a) Offences against Section 86 (l)(a) of the Crimes
Act, 1914, a law of the Commonwealth, that 1s to say, conspiracies to commit an offence agalnst a
law of the Commonwealth, to wit, section 2 3 1 of
the Income Tax Assessment Act, 1936;
Offences against section 86(l)(b) of the Crimes
Act, 1914, a law of the Commonwealth, that is to say, consplracies to prevent or defeat the
execution or enforcement of a law of the
Commonwealth, to with the Income Tax Assessment
Act, 1936.
Offences against section 86(L)(e) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to defraud the Commonwealth.
Offences against Section 29A of the Crimes Act,
1914, a law of the Commonwealth, that is to say, falsely pretending with intent to defraud, and
thereby obtaining a benefit from the Commonwealthor causing a benefit to be given by the Commonwealth.
Offences against section 231 of the Income Tax Assessment Act, 1936, a law of the Commonwealth, that is to say avoiding or attempting to avoid assessment or taxation by any wilful act, default or neglect, or by any fraud, art or contrivance whatever.
YOU ARE HEREBY AUTHORISED, with such assistance as you
think necessary, to enter at any time the said premises, if necessary by force, and to seize the said things more
fully descrlbed above which you may find in the said place, as to which there are reasonable grounds for
believing that the same will afford evidence as to the commission of the said offences, and in respect to which
it is suspected on reasonable grounds that the said
offences have been committed, and for so dolng this shall be your sufficient warrant. GIVEN under my hand at Melbourne
in the State of Vlctoria this
18th day of June 1985. A Justice of the Peace and a Stlpendlary Magistrate in and
for the State of Vlctoria. 0,
I turn first to consider the finding of the primary judge
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that the warrant failed to disclose with sufficlent particularity
the offences in relation to which it was issued, and also the finding that it failed sufficiently to identify the things which might lawfully be seized pursuant o it, i.e. the defects referred to by the primary judge as 1 and 2 in the passage which I have quoted above.
As the observatlons of McCarthy P. In Auckland Medlcal Aid
Trust v. Taylor (1975) 1 N.Z.L.R. 728 at 733 and of Fox J. in - The
Queen v. Tillett, Ex parte Newton (1969) 14 F.L.R. 101 at 113-114
show, lt is clear that provisions such as s.10 of the Crimes Act are not to be construed as authorizing something akin to the
"general warrant" condemned by the House of Commons inconsequence of Entick v. Carrington (1765) 2 Wils. 275 (see XVI
Hansard's Parliamentary History of England at 207) and specifically prohibited in the United States by the Fourth
Amendment to the Constitution (see the dlscussion in Stanford v. Texas (1965) 379 U.S. 476). More specifically, the requirement that the warrant:-
"descrlbe the particular offences In relation to which the seizure 1s authorised so as to enable the persons to whom
they are addressed and the persons whose premises are to be searched to know the exact object of the search"
(per Lockhart J. in Australran Broadcasting Corporation v. Cloran
(1984) 4 F.C.R. 151 at 153) has been insisted upon. See - The
Queen V. Tiliett, Ex parte Newton (supra) at 163, Crowley v.
Murphy (1981) 34 A.L.R. 4 9 6 at 5 1 5 , Brewer v. Castles (No.2)
(1984) 1 F.C.R. 55 at 60-61 and Australian Broadcastlng
Corporation v. Cloran (supra) at 153-154. Similar views have
been taken in New Zealand (see Auckland Medical Aid Trust v.
Taylor (supra) at 737, 743, 744-745, Rosenberg v. Jaine (1983) N.Z.L.R. 1 at 5 and in Canada (Alder v. Attorney-General of Alberta (1977) 5 W.W.R. 132 at 146-147). A further aspect of the need for particularity, a need
brought about by similar considerations, is that the warrant should identify sufficiently specifically what items are
authorized to be searched for and seized (The Queen v. Tillett,
Ex parte Newton (supra) at 113, the Canadian and N e w Zeslznc!
cases there referred to, Australian Broadcastlng Corporation v. Cloran (supra) at 154, Auckland Medical Aid Trust v . Taylor
(supra) at 743, Rosenberq v. Jaine (supra) at 5, 6-7 and Trimboli
v. Onley 1981 37 A.L.R. 38 at 46-47). As Lockhart J. observes In this case, the practical
application of these requirements will vary, of course, from
instance to instance but I think that it is plaln that the search
warrant in this case does not satisfy those requirements either
in relation to the way in which the documents whlch are to be thesubject of the seizure are defined, or in relation to the way in which the offences In question are also defined.
The search warrant commences by enumerating a number of
types of documents as being the "certain thlngs" to which it refers and were it not that the range of those documents as so _.
._ . - - 8- stated is qualified by the words:-
avoidance schemes associated with the following ".. in relation to the implementation of tax persons and entities:
( the names of 37 persons and companies then follow) and with other persons and entities associated with
the implementation of tax avoidance schemes".
the warrants should be sufficiently wide to cover all legal
opinions and advices given by the respondent - on any topic during a period of six years.
The words which I have quoted above, however, do not
confer the required degree of particularity. They fail to do so because, despite the initial reference to the 37 named persons and companles, the addition of the words "and with other persons
and entities associated wlth the lmplementatlon of tax avoidance
schemes" means that the warrant authorizes the seizure of - all
opinions, advices etc given by the respondent in relation to the implementation of tax avoidance schemes during the six year
perlod in question.
It is then contended for the appellants that the
generality of the warrant is reduced by the presence of the
words : - "as to whlch there are reasonable grounds for believing
that the same will afford evidence as to the commisslon of
the following offences; and in respect of which there are
reasonable grounds for believing that the following
offences have been committed;"I am not able to accept that contention. Indeed I think
that the manner in which the offences are stated in the warrant shows vividly that not only is the warrant insufficiently -
particular in relation to the documents the subject of it, but
also that it is insufficiently particular in relation to the
matter of statement of the offences in question. In this regard the warrant does not refer to the possible commission of a particular offence or of particular offences, What is contained In the warrant is an allegation that "offences" against various provislons of the specified enactments may have
been committed by persons not further identified (but, as was made clear in argument, at the time of grant of the warrant not
including the respondent) at times, places and in each case in amanner not in any way specifled.
In these circumstances, I do not regard the warrant as
being sufficiently partlcular in either of the respects to which I have referred, and I think that the primary judge was correct
in treating lt as not authorlzed by s.10. I would for this reason dismiss the appeal.
At the hearing of the appeal, however, the Court was urged
to express a vlew in any event upon the issue of legal
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professional privilege which was before the primary judge. I am not inclined to do so but I think that I should state my reasons f m the adoption of that course.
The competing contentions before us on the issue of legal
professional prlvilege relate to the effect to be given to the decision in Baker v. Campbell (1983) 153 C.L.R. 52.
The appellants contend that the effect of that decislon is
that a search warrant may lawfully be qranted under s.10 in respect of a document to which leqal professional privilege
attaches, but that the document may not lawfully be seized under
the warrant if the privilege still attached at that point. To put it shortly, legal professional privilege is relevant at the time of seizure under, not at the time of the grant of, the search warrant. The respondent, on the other hand, contends that the effect of Baker v . Campbell (supra) is that a search warrant may not validly be granted in respect of a document to whlch
legal professional privilege attaches, i.e. the existence of legal professional privilege in respect of a document should be treated as a limltation upon the class of documents which may be
the sub~ect of an exercise of the power conferred by s.10. The
respondent also contends that a search warrant is "bad on its face" if the documents, the selzure of which it authorizes, are
documents which usually would attract legal professional
privilege (such as "counsel's opinions") and if the warrant
contains "on its face" no statement showing that legal
It does not seem to me that the Court in Baker v. Campbell
(supra) was seeklng to resolve the precise question whether the
fact that the legal professional privilege attaches to a document
should be treated-as a limitation upon the ambit of the power to
grant the warrant (and ln consequence to search f o r and seize under it) or as a limitation only upon the power to search for
and seize documents thereunder. The form of the question stated
to the Court In that case. which related to documents to which privilege attaches "and is maintained", suggests that the Court
was dealing only with the position at the time of attempted seizure and was not dealing wlth the position at the time of grant of the warrant.
Assuming, however, that the existence of legal
professlonal prlvilege respect of a document should be treated as meaning that a search warrant may not lawfully be granted in
respect of such a document, I do not think that the lssue whethera warrant has lawfully been granted in respect of such a document
is to be determined slmply by the fact that the descriptlon of the document in the search warrant is such that it would normally indlcate a document to whlch legal professional prlvilege would
attach.
It seems to me that in such clrcumstances the question
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- .. - whether privilege attaches is one to be determined by matters
dehors the warrant itself and I note that In Brewer v. Castles
(No.3) - (1984) 52 A.L.R. 583 when Beaumont J. struck out of a search warrant a reference to "opinions of counsel" as being beyond power, he did so only after referring (at 583) to the fact that there was no suggestion in the evidence that the documents
-had lost the status of being the subject of legal professional
privilege.
In the present case it is clear on the pleadings, and it
was made clear by counsel before us, that the issue whether the documents were originally, or remained, privileged was a live issue, which yet remained to be determined, if the attack on the warrant on other grounds failed. In these circumstances I do not think that it could be sald at this stage of the proceedings that the warrant was "bad on its face" because It referred to
documents which might ultimately be held to be the subject oflegal professional privilege.
As I have sald, however, I prefer to decide the case on
the issue of the degree of particularity of the search warrant
and on that basls I would dlsmiss the appeal.
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