Harts Australia Ltd v The Commissioner, Australian Federal Police

[1996] FCA 1075

IN THE FEDERAL COURT OF AUSTRALIA       No QG 162 of 1996
QUEENSLAND DISTRICT REGISTRY  
GENERAL DIVISION  

BETWEEN:HARTS AUSTRALIA LIMITED ACN 010 765 392

HARTS PTY LTD ACN 010 093 663

First Applicants

AND:STEVEN IRVINE HART

ROBERT THOMAS ADCOCK

ASTION PTY LTD

Second Applicants

AND:THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE

First Respondent

AND:MICHAEL JOHN MORRIS

Second Respondent

AND:WILLIAM JOSEPH McKAY

Third Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:  Drummond J
DATE OF ORDER:  29 November 1996
WHERE MADE:  Brisbane

UPON the first and second applicants by their counsel undertaking:

(a)to lodge a Notice of Appeal from the decision herein within seven days from the date hereof;

(b)to prosecute the appeal with all reasonable expedition and due
diligence;

(c)to cause their legal advisers to lodge written submissions in support of the appeal by the end of January 1997.

AND UPON the first and second respondents undertaking until seven days after the determination of the appeal herein or further earlier order not to copy or otherwise deal with (save for the purpose of transporting, storing, preserving or securing the same or complying with the orders made hereunder) the documents which have been seized in reliance on the warrants referred to in the affidavit of Steven Irvine Hart filed 11 September 1996 PROVIDED THAT the first and second respondents shall be at liberty to provide originals or copies of original documents seized to the applicants, and to other persons whose documents have been seized upon a request in writing being made by those persons, for the purpose of returning those originals or providing those copies and the first and second respondents shall be at liberty to take and retain copies of any such documents but must hold such copies subject to their undertaking set out above.

1. THE COURT HEREBY DECLARES that the warrant issued by the third respondent on 6 September 1996:

   (a)complies with the formal requirements of Part 1AA of the Crimes Act 1914 (Cth); and

   (b)is valid on its face.

2. THE COURT ORDERS the applicants to pay the costs of the first and second respondents of the hearing of 16 September 1996 and orders that all other costs be reserved.

3. THE COURT GRANTS the applicants leave to appeal from the above judgment.

4. THE COURT FURTHER ORDERS THAT:

   (a)the first respondent be at liberty to proceed with the cataloguing of the documents in his possession arising from the execution of the warrant, the subject of these proceedings;

   (b)the first respondent is to permit one or more representatives of the applicants to be present when the cataloguing of the documents takes place, provided that no more than three such representatives shall be present at any time;

   (c)during the cataloguing procedure referred to above the first respondent by himself or such of his servants or agents comprising the second respondent, Graham Anthony Leary, Peter Bodel and Alexander Rudolph Tea, shall be authorised to examine all the documents for the purpose of preparing a
   catalogue of same and only to the extent so necessary and in addition where relevant the Federal Agent identified as the officer responsible for the location of the document in the fourth column of the property seizure record relating to that document shall be authorised to examine that document;

   (d)during the cataloguing procedure the applicants and the first and second respondents are to agree or attempt to agree (on the assumption that the warrant is valid on its face):

   (i)documents which were lawfully seized; and

   (ii)documents whose seizure was not authorised at law;

   (e)the catalogue so produced must clearly record in relation to each document or discrete class of documents:

   (i)whether it is agreed as being lawfully seized;

   (ii)whether it is agreed that its seizure is not authorised by law;

   (iii)whether dispute exists;

   (f)as to those documents, if any, the seizure of which it is agreed was not authorised at law the same shall be returned to the applicants or the person from whom they were seized forthwith;

   (g)as to those documents about which dispute exists they shall be examined to the extent permitted by the provisions of the Crimes Act 1914 (Cth) and if the first and/or second respondents consider it appropriate they may take legal advice on same;

   (h)as to those documents about which dispute exists the parties are to prepare a schedule of the same describing such documents and in the form of a Scott’s Schedule on which they shall list their opposing contentions as to why same is or is not the subject of lawful seizure;

   (i)the first and second respondents shall limit the number of catalogues and schedules they create to the computer copy and four paper copies one of which paper copies shall be delivered to the applicants’ solicitors and the other three paper copies shall remain under the control at all times of the Federal Agents named in paragraph 4(c) of this order and one or more of such copies may be provided to the legal representatives of the first and second respondents;

   (j)the first respondent shall, on the written request from the solicitors for the applicants, take a copy of any such document or documents as may have been seized from the applicants as may be requested and provide same to the applicants;

   (k)that in so far as cataloguing of any material that has been seized from a person not a party to this application and who has not authorised the applicants to have a representative present during cataloguing is concerned, the first and second respondents are to treat those documents in the same way as they treat those documents seized from the applicants unless the person from whom they were seized otherwise approves or directs in writing;

   (l)in the event the applicants’ appeal succeeds:

   (i)all such catalogues and/or schedules and/or copies thereof prepared in accordance with the above directions (including all computer records) together with copies of any documents seized are to be destroyed;

   (ii)all the documents of the applicants or any other person are to be returned to them;

   (iii)the obligations set out in sub-paragraphs (i) and (ii) shall be completed forthwith and verified on oath or affirmation by one of the Federal Agents named in paragraph 4(c) of this order.

5. THE COURT ORDERS there be liberty to apply.

6. THE COURT ORDERS costs be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA                 No QG 162 of 1996
QUEENSLAND DISTRICT REGISTRY  
GENERAL DIVISION  

BETWEEN:HARTS AUSTRALIA LIMITED ACN 010 765 392

HARTS PTY LTD ACN 010 093 663

First Applicants

AND:STEVEN IRVINE HART

ROBERT THOMAS ADCOCK

ASTION PTY LTD

Second Applicants

AND:THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE

First Respondent

AND:MICHAEL JOHN MORRIS

Second Respondent

AND:WILLIAM JOSEPH McKAY

Third Respondent

CORAM:Drummond J

DATE:29 November 1996

PLACE:Brisbane

REASONS FOR JUDGMENT

When I published my reasons on 19 November last for upholding the formal validity of the warrants in issue in this case, I declined to incorporate my conclusion in a formal order.  I adopted this approach because of concern that there
are other substantial issues raised in the application by way of challenge to the seizure of the documents which are yet to be litigated and because an intermediate appeal could cause extensive delay to a resolution of that challenge and thus to the investigation.  The applicants now ask that I make an order and give leave to appeal.  The respondents oppose this out of concern for delay to the investigation.

The applicants correctly point out that, if there is a successful appeal, that would make unnecessary the litigation of the substantial issues that still remain. Further, my decision involves questions of construction of the new Part 1AA the Crimes Act 1914 (Cth) and identification of the formal requirements of a valid warrant issued under these provisions. The new Part 1AA is significantly different from the old s 10 the Crimes Act.  This is the first occasion on which judicial consideration has been given to these provisions.  The case is therefore one in which it would be appropriate to grant leave to appeal, if my concern about fragmentation of the litigation and consequent delay to the investigation can be met.

The applicants recognise my concerns by proposing, among other things, that all the many documents seized be catalogued jointly by representatives of the applicants and respondents to the intent that part of the preparation of the remaining challenge is undertaken now.  They say that if there is an appeal and it fails, the second part of the hearing should therefore be able to be brought on promptly and delay to the investigation minimised.

It will be necessary for the respondents, in participating in the
cataloguing proposed, to make some examination of the documents seized. Given this and given that under the new Part 1AA the Crimes Act those executing a warrant are entitled to examine the documents found in the course of executing it to determine whether or not they can be lawfully seized, I consider that, if an intermediate appeal is to be permitted, delay to the finalisation of the action in the event of the failure of the appeal and consequent delay to the investigation can best be minimised by requiring the parties to take this cataloguing exercise a step further than the applicants have proposed.  The parties should, in cataloguing the documents, complete a schedule which makes provision for each side indicating in relation to each document or class of document seized:

(a)whether they agree the document is lawfully seized pursuant to the warrant in s 3F(1)(c) and (d); or

(b)whether they agree the document has not lawfully been seized; or

(c)in the event of lack of agreement:

(i)why the applicants say it has not lawfully been seized; and

(ii)why the respondents say the seizure was lawful. 

I recognise that such a requirement will give the respondents an opportunity to peruse the documents greater than that which they have, in fact, had to date.  But that requirement does not, in my opinion, give the respondents any greater opportunity for perusal of the documents than that to which they are entitled under their statutory rights to examine documents found during the execution of a warrant for the purpose of determining whether or not they can be lawfully seized.

I would, however, be prepared under such a regime to impose on the respondents conditions limiting the number of persons on the respondents' side who can have access to the documents, limiting the extent to which copies or notes of the contents of the documents can be made, and requiring, in the event of a successful intermediate appeal, destruction to be verified on oath by the respondents of any such copies and records.  In the course of argument, I indicated that I was of the view I have now expressed in a more formal way in these brief reasons.  There has been an adjournment and the parties have prepared a draft which generally meets my concerns and makes it appropriate for leave to appeal to be granted from a formal order which I am now prepared to make.

I certify that this and the preceding three
pages are a true copy of the reasons
for judgment herein of the Honourable
Justice Drummond.

Associate:

Date:  29 November 1996