Nufarm Australia Ltd v Pammenter

[2002] FCA 902

FEDERAL COURT OF AUSTRALIA

Nufarm Australia Ltd v Pammenter [2002] FCA 902

NUFARM AUSTRALIA LTD (ACN 004 377 780) and OTHERS v DAVID JAMES PAMMENTER and ANOTHER

V 466 OF 2002

SUNDBERG J
18 JULY 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 466 OF 2002

BETWEEN:	NUFARM AUSTRALIA LTD (ACN 004 377 780) and OTHERS APPLICANTS
AND:	DAVID JAMES PAMMENTER and ANOTHER RESPONDENTS

JUDGE:	SUNDBERG J
DATE:	18 JULY 2002
PLACE:	MELBOURNE

EX‑TEMPORE REASONS FOR JUDGMENT

1. HIS HONOUR:   This application for interlocutory relief came on in very urgent circumstances.  No application has been filed and no affidavits have been filed.  I heard evidence from the applicants’ solicitor, Ms Sylvia Miller, in which she deposed to discovering in the course of today that a considerable number of Australian Federal Police persons were executing a search warrant at the premises of the applicants.  She gave evidence of her discussion with two of the persons who were executing the warrant, one of whom is the first respondent.

2. The time at the court's disposal, in light of the fact that the execution of the warrant is proceeding at this very time, necessitates a somewhat broad approach to the issues that have been put to me.  The two main grounds on which counsel for the applicants rely are these:  first, that the terms of the warrant are too wide, the width being tested against the investigation that has taken place or is taking place in the United States.  It was put that some of the documents that are being boxed up and taken away are outside any possible scope of the investigation in the United States, and on that ground are not properly removable.  Ms Miller gave evidence as to the existence of such documents and enumerated some of the categories of them.

3. The second ground relates to the manner in which the warrant is being executed.  It appears that documents already in boxes have in some cases simply been uplifted and taken away.  Other documents, according to the evidence of Ms Miller, are her own documents.  As I have said, she is the applicants’ solicitor, and some of her documents relate to the very investigation the subject of the warrant and are privileged.

4. Ms Miller gave evidence as to the types of documents that are being removed that would seem to have had no relevance to the investigation.  On the basis of her evidence it was submitted that imaging the entire contents of a computer, without the searchers satisfying themselves as to what was contained in that data, could not constitute “reasonable grounds for suspecting” within the terms of the various categories in the warrant.  The same would apply to the uninspected boxed documents.  Ms Miller gave evidence that Mr Pammenter said it was not possible to itemise the documents or to inspect each and every one of them because there simply was not time.

5. In my view, there is a serious question to be investigated as to both points, the width of the warrant, and the manner in which it has been executed.  I have been handed a draft order through which I have been taken, but I would like to more closely inspect its terms before I make any order, so I will just take a moment to read it through again. 

6. MR SHAVIN:   Your Honour, my attention has been drawn to one matter on the minute on the second page in (b) of our undertaking.  In the parenthesis at the foot, there is the word "accounting" after the word "computerised".  Could that word "accounting" be deleted?  Obviously the records of the company - it's a public company - are being dealt with on a daily basis, as they must be. 

7. HIS HONOUR:   Yes.  The order begins by giving the usual undertaking as to damages and then gives a further undertaking that the applicants, and each of them, will ensure that pending the hearing and determination of the proceedings herein, all documents falling within the scope of the warrant that are within their possession, custody, power or control will be preserved and maintained within their possession, custody, power or control and not tampered with or altered, save that the computerised records of the company may continue to be operated in the ordinary course of the company's business.  That appears to me to be a very appropriate undertaking in the circumstances and gives me additional comfort that the order sought is proper to be made.

8. I will accordingly make an order in the terms of paragraphs 1 and 2.  The remaining orders are of a procedural nature. 

   3.The applicants are directed to cause an application to be filed herein and served on the respondents on or before 19 July 2002.

   4.The applicants are directed to cause an affidavit to be sworn by Sylvia Miller, which amongst other things, incorporates the substance of the evidence given by her viva voce this day.

   5.This application for interlocutory relief be adjourned to 10.15 on 24 July before the duty judge.

   6.Liberty to apply.

   7.Reserve costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:
Dated:            19 July 2002

Counsel for the Applicants:	D Shavin QC and D Sheales
Solicitor for the Applicants:	Sylvia Miller & Associates
No appearance for the Respondents
Date of Hearing:	18 July 2002
Date of Judgment:	18 July 2002