Road Transport Historical Society Inc v Martin
[2020] SADC 67
•1 June 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ROAD TRANSPORT HISTORICAL SOCIETY INC v MARTIN
[2020] SADC 67
Decision of His Honour Judge Burnett
1 June 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DETENTION, INSPECTION AND PRESERVATION - SEARCH ORDERS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - PRIVILEGE - TENDENCY TO INCRIMINATE AND EXPOSURE TO PENALTY
On 23 March 2020, on the application of the plaintiff, I made a search order over four specified premises, at and around Port Pirie, for the plaintiff to search and remove documents that the plaintiff reasonably believed to be its property. The search order prohibited the defendant until the Return Date [25 March 2020] from advising any person about the existence of the search order, except for the purposes of obtaining legal advice.
The search order was carried out on 23 and 24 March 2020.
The plaintiff contends that there is a real possibility that some of the documents had been removed from one of the properties during the course of the carrying out of the search order. The plaintiff has submitted that there is evidence to suggest that the removal of documents occurred as a consequence of a telephone communication between the defendant and her partner, Mr Kent.
The plaintiff, by interlocutory application dated 5 May 2020, sought a further order that the defendant deliver up to the independent computer expert her mobile phone and that the records of the usage of the phone during the period of the search be downloaded by the independent expert. The plaintiff sought that order for the purpose of fulfilling the objectives of the search order.
The defendant opposed the application on two grounds: first, it was only speculation on the part of the plaintiff that a communication had been made and the documents removed (the fishing objection); secondly there was no utility in making the order in that if there had been any communication, it was obvious that the privilege against self-incrimination would apply and be invoked by the defendant.
The argument advanced by the defendant that the application was a fishing expedition is rejected. There was evidence, for the purposes of this interlocutory application, to support an inference that there was communication between the defendant and Mr Kent for the purpose of the removal of documents from the properties specified in the search order. Only one thing, the mobile telephone, was sought by the application and it would not be oppressive for the defendant to comply with the application.
However, I find that there is no utility in making the order. The application is based on the premise that there was communication between the defendant and Mr Kent. It is obvious that if any communication occurred between the defendant and Mr Kent, the defendant was entitled to and would exercise her privilege against self-incrimination in relation to the production of the mobile telephone. The plaintiff, quite properly, has conceded that this is the case. In these circumstances, the application would not assist in fulfilling the purposes of the search order. The plaintiff accepts that the privilege applies but says that an order should be made in any event and the privilege then claimed. In the circumstance where only one thing was sought to be produced and it was accepted by the parties that the privilege would apply and be claimed by the defendant in respect of that production, the order should not be made in the first place. Further, the very claiming of the privilege (if an order were made) might set in train a process which might lead to incrimination.
Held: Application for the production of the mobile telephone of the defendant to an independent expert is refused.
District Court Rules 2006 (SA) r 148; Associations Act 2003 (NT) s 93(2), referred to.
AJ Bekhor & Co Ltd v Bilton [1981] QB 923; [1981] 2 All ER 565; A v C [1981] QB 956; [1980] 2 All ER 347; Z Ltd v A-Z [1982] QB 558; [1982] 1 All ER 556 ; Turner v Universal Home Loans Pty Ltd [2004] NSWSC 200; RAC Limited v Allsop unreported 3 October 2984; Cobra Golf Inc v Rata [1998] Ch 109; [1997] 2 All ER 150; Microsoft Corp v Goodview Electronics Pty Ltd [2000] FCA 1852; Dale v Clayton Utz (a firm) (No 2) [2014] VSC 517; Reid v Howard (1985) 184 CLR 1; Sorby and Anor v Commonwealth of Australia and Ors [1983] HCA 10; (1983) 152 CLR 281; Pyneboard Pty Ltd v Trade Practices Commission and Anor [1983] HCA 9; (1983) 152 CLR 328; Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (1979) 42 FLR 204; Trade Practices Commission v Abbco Ice Works Pty Ltd [1994] FCA 1279; (1994) 52 FCR 96; Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (a firm) (No 3) [2018] FCA 1107; (2018) 357 ALR 695; Rank Film Distributors Ltd v Video Information Centre [1982] AC 380; [1981] 2 All ER 76; Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201; Meneses v Directed Electronics OE Pty Ltd [2019] FCACF 190; (2019) 373 ALR 624; BPA Industries Ltd v Black (1987) 11 NSWLR 609; Tate Access Floors Inc v Boswell [1991] Ch 512; [1990] 3 All ER 303; Den Norske Bank ASA v Antontos [1999] QB 271; [1998] 3 All ER 74; Proude v Visic [2012] SASC 184; Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136; R v Saleam (1989) 16 NSWLR 14, considered.
ROAD TRANSPORT HISTORICAL SOCIETY INC v MARTIN
[2020] SADC 67Introduction
This is an application by the plaintiff consequent upon the execution of a search order that was obtained pursuant to r 148 of the District Court Rules 2006 (SA) (DCR).
The search order was made on 23 March 2020 and entitled the plaintiff to enter four specified premises in and near Port Pirie and search and remove documents that the plaintiff reasonably believed to be its property. The search order also permitted the plaintiff to seize any electronic devices on which the plaintiff’s documents might be stored.
Pursuant to the search order, the plaintiff conducted the search of the specified properties on 23 March and 24 March 2020. The plaintiff seized a considerable number of documents which are listed in the report of the independent solicitor who attended upon the execution of the search order.
The plaintiff submitted there was a real possibility that some documents of the plaintiff that were at the specified premises were removed by the partner of the defendant, Mr Kent, during the course of the execution of the search order.
The plaintiff therefore by interlocutory application dated 5 May 2020 seeks an order that the defendant deliver to the independent computer expert, Mr Jean Pierre du Plessis, her mobile telephone and that Mr du Plessis download data from that telephone and provide a report as to text messages and phone calls made or received by the defendant during the period between 11.50am on 23 March 2020 and 5.00pm on 24 March 2020. The records that are sought to be obtained are therefore very limited in scope.
The application is brought for the purpose of the fulfilment of the objectives of the search order, namely securing the documents of the plaintiff.
The defendant opposes the application on two grounds. First, the defendant submits that the plaintiff is fishing in the sense that the order would not facilitate the locating of documents of the plaintiff. The defendant further submits that the plaintiff is only speculating that documents may have been removed from the specified premises during the course of the execution of the search warrant. Secondly, the defendant submits that there is no utility in making the order. The basis of this submission is that it is obvious, on the premise of the plaintiff’s application, namely that there was communication between the plaintiff and Mr Kent during the course of the execution of the search order, that the defendant is entitled to invoke the privilege against self-incrimination to refuse to hand over her mobile device for the purpose of downloading the records and in fact, will exercise that privilege if an order is made.
The plaintiff, quite properly, has conceded it is apparent that the privilege against self-incrimination applies to the production by the defendant of her mobile telephone and that the defendant would be entitled to claim the privilege against self-incrimination and refuse to produce the mobile telephone to Mr du Plessis. However, the plaintiff submits that it is appropriate to make an order for production and then for the defendant to claim the privilege to refuse to produce the mobile telephone.
Background
On 3 November 2017, the Northern Territory Government commenced an investigation into the operations and management of the plaintiff pursuant to s 93(2) of the Associations Act 2003 (NT).
As a result of that investigation, Ms Rosemary Batt was appointed as the statutory manager of the plaintiff on 22 July 2019.
As at that date, the defendant was the CEO, Chair of the Board of the Committee and Public Officer of the plaintiff.
Although the premises of the plaintiff were at 1 Norris Bell Avenue Alice Springs, it became apparent to Ms Batt in her role as statutory manager of the plaintiff, that many of the records of the plaintiff remained with the defendant in her home in Port Pirie, where she resides with her partner, Mr David Kent.
I was satisfied, for the purposes of the application for the search order, that despite promises to do so, the defendant failed to provide the records of the plaintiff to Ms Batt.
As statutory manager of the plaintiff, Ms Batt was responsible for lodging audited financial reports of the plaintiff. There was evidence that there had been no audited financial reports of the plaintiff lodged for the financial years ending 2016, 2017, 2018 and 2019.
For these reasons, the plaintiff sought and obtained the search order on 23 March 2020. The search order permitted the plaintiff to enter and remove documents from four premises including, relevantly, the house property where the plaintiff and Mr Kent resided at 2 Springwood, Road, Risdon Park (the House Property) and the property at 196 Warnertown Road, Solomontown (the Museum).
The search order also prohibited the defendant from advising any person about the search order, except for the sole purpose of obtaining legal advice. The search order provided:
Except for the sole purpose of obtaining legal advice, you must not, until 4.30pm on the Return Date [being 25 March 2020], directly or indirectly inform any person of this proceeding or the contents of this order or tell any person that a proceeding has been or may be sought against you by the applicant.
The primary relief sought by the plaintiff was the return of its documents.
As I have said earlier, the search order was executed on 23 and 24 March 2020.
The report of the independent solicitor, Mr David Gardner, who was present throughout the search, stated that the search order and related documents were served by him on the defendant at 12.10pm on 23 March 2020 at the Museum. During the course of serving the defendant, the independent solicitor explained the prohibition on the defendant of advising others, except her lawyer, about the search order.
The evidence of the independent solicitor suggests that shortly after 12.10pm, the defendant made a short telephone call of no more than 30 seconds. The phone call was made in private. The evidence of the independent solicitor was that the defendant advised him that someone had rung her.
At about 12.40pm, the defendant spoke by telephone to her lawyer.
At about 12.47pm on 23 March 2020, Mr Kent and another person arrived in a van at the House Property. They had a brief discussion with one of the search party who was waiting outside that property. Mr Kent and the other person left after about 10 minutes. The member of the search party did not observe them getting into their vehicle and therefore whether they were removing any documents.
At about 12.50pm, the defendant asked the independent solicitor for permission to go to the toilet. Contrary to the request of the independent solicitor, the defendant took her mobile phone with her. The independent solicitor did not hear any telephone call being made. The defendant was in the toilet for about one minute.
At about 12.57pm, the independent solicitor observed the defendant and her partner exchanging text messages in which they arranged for Mr Kent to come to the Museum for lunch. Mr Kent arrived shortly thereafter and had lunch with the defendant until about 1.24pm.
At 1.30pm Mr Kent arrived at the House Property for a second time. Members of the search party observed Mr Kent and another person arrive and heard loud noises coming from the house for between one to three minutes. Mr Kent and the other person then left at 1.35pm.
At about 3.30pm the white van driven by Mr Kent returned to the House Property for a third time. The independent solicitor and the defendant arrived shortly thereafter. The independent solicitor observed that there was a very large pile of documents scattered across the dining room table. The search of the House Property was then conducted and continued until about 7.30pm.
One of the lawyers who was conducting the search observed in the carport area that there were documents, folders and boxes scattered on the floor and on the table. There were a number of lever arch folders marked “RTHS” which were empty. The same lawyer observed, when conducting the search in the study area of the House Property, that there was on one of the desks, two computer monitors and a keyboard, but no hard drive. Again, there were documents strewn across the floor.
At 4.30pm a medium size white bus arrived at the museum. The driver of that vehicle unlocked the gates to the Museum and entered that property. A short time later, Mr Kent arrived in a white van. One of the search party observed the driver of the white bus emerging from behind the museum carrying a brown satchel and placing that satchel in the van and then getting into the passenger seat of the van and leaving with Mr Kent.
On 24 March 2020, the search at the House Property continued. The search party observed a garbage bag that contained, inter alia, ripped up emails, handwritten board meeting notes and petty cash receipts.
The plaintiff’s position is that there is an ‘irresistible deduction’ that the defendant communicated with Mr Kent by text message at around 12.10pm and 12.50pm and that communication caused Mr Kent to go to the House Property. The plaintiff further contends that there is a ‘reasonable inference’ that there were documents in the empty folders described above and that Mr Kent had removed those folders when he attended the House Property as set out above.
The plaintiff also refers to the defence filed in related proceedings where the defendant describes the records of the plaintiff that were kept at Port Pirie by the defendant. The records described in that defence as being kept at Port Pirie were much less voluminous than the records that were found at Port Pirie on the execution of the search order. The plaintiff submits that this is relevant to the credit of the defendant in that it demonstrates that the defendant has not been candid about the whereabouts of the documents.
The plaintiff considers that the defendant has under her control additional documents that were not seized as part of the execution of the search order and it is for this reason that it seeks the mobile phone records of the defendant during the period of the execution of the search (i.e. between 11.50am on 23 March 2020 and 5.00pm on 24 March 2020). This may lead to the plaintiff obtaining further information about the documents and potentially bringing another application to locate more documents.
Legal principles
Applications in aid of a search order
The court may make further orders in aid of the search order, if it forms the view that there is evidence to suggest that the purpose of the search order had not been fully fulfilled in that some of the documents were not able to be seized. The further orders may be sought to enable the plaintiff to obtain knowledge of the whereabouts of these documents.
For example, in AJ Bekhor & Co Ltd v Bilton,[1] the Court of Appeal held that the court had power to make all such ancillary orders as appeared to be just and convenient to ensure that the exercise of the jurisdiction (in that case the making of a Mareva injunction) was effective to achieve its purpose. Accordingly, the court in that case ordered the defendant to provide information about his assets. However, the Court of Appeal held that a disclosure order which is sought for the purpose of ascertaining whether a previous disclosure order has been breached (and therefore for the purpose of incriminating and ultimately punishing the defendant for contempt) goes beyond the jurisdictional basis for making for making such an order and will not be made.[2]
[1] [1981] 2 All ER 565; [1981] QB 923 at 940; see also A v C [1981] QB 956 and Z Ltd v A-Z [1982] QB 558 at 577.
[2] AJ Bekhor & Co Ltd v Bilton 1981] QB 923; [1981] 2 All ER 565 at 586; Turner v Universal Home Loans Pty Ltd [2004] NSWSC 200.
In RAC Limited v Allsop,[3] the Court examined the rationale for the making of ancillary orders in the context of Anton Piller or search orders in the following passage which was cited with approval in Cobra Golf Inc v Rata.[4] In RAC v Allsop, Peter Gibson J said:[5]
On the assumption that the court has the power to order cross-examination, the question remains whether it is appropriate in the particular circumstances of each defendant to make an order for cross-examination. It is clear that on the assumption the court has a discretion, it is of proper concern of court that its order should be fully complied with. It cannot be right that a person who is ordered to swear an affidavit giving certain information should be able to disclose to whatever he pleases without any fear that the evidence can be challenged effectively. Further, a principal object of the order for disclosure where Anton Piller relief is granted is to give to the plaintiff knowledge of the sources and whereabouts of illicit goods so that the plaintiff can take further proceedings against such sources and seize such supplies. As I see it the court should be ready to further that purpose. But in this area the court should proceed with caution. The object of the application must, I apprehend, truly be to obtain the further information which it believed is in the possession of the person the subject of the order but which the person has failed to disclose notwithstanding the earlier order. The object of the application must not be to enable contempt proceedings to be brought so as to punish the person served with the order. Further, it must not be to obtain information which is to be used for the purpose of the action when the action comes to trial. Inevitably if cross-examination is ordered and information is elicited there is likely to be some information which will go to questions of contempt and to the subject matter of the litigation. The court, must, I think, be alive to the dangers that an order for cross-examination brings. Mr Platts-Mills [Counsel] accepted that the court should not make an order for cross-examination unless satisfied that there was a reasonable likelihood that the person sought to be cross-examined had information which should have been disclosed pursuant to the order for disclosure and which would lead to the fulfilment of the purpose of the order, that is to say disclosure of sources and ascertaining the whereabouts of illicit goods. In my judgment Mr Platts-Mills [counsel] was plainly right to accept that there was a proper limitation in the court’s power to order cross-examination. It cannot be right to allow a plaintiff the opportunity of a roving cross-examination merely because the plaintiffs harbour suspicion that the person sought to be made the subject of the order has not been entirely open in his disclosure.
[3] Unreported 3 October 1984, but reproduced in [1998] Ch 109 at 133.
[4] [1997] 2 All ER 150; [1998] Ch 109 at 133.
[5] Hytrac Conveyors Ltd v Conveyors Ltd [1983] 1 WLR 44.
The court will not allow a search order to conduct a fishing expedition to find out what claims might be made by a plaintiff against a defendant.[6] In those circumstances, the court will not be satisfied that the requirement that there is a real possibility that the defendant would destroy or remove documents has been satisfied.[7] In Microsoft Corp v Goodview Electronics Pty Ltd,[8] Branson J held:
The Court, must in my view, be careful to avoid the extraordinary jurisdiction of the Court to make an Anton Piller order from being subverted to a mere investigatory tool for the applicants, or indeed, from being used for any purpose other than the preservation of vital evidence pending the hearing and determination of a proceeding.
[6] Microsoft Corp v Goodview Electronics Pty Ltd [2000] FCA 1852 at [24]-[26].
[7] Ibid at [25].
[8] Ibid at [26].
It follows, in my view, that an ancillary order of the type sought by the plaintiff must satisfy the same requirements. That is, the ancillary order must only be made if there is a real possibility that it will assist the plaintiff in recovering the documents sought.
Privilege against self-incrimination
The privilege for self-incrimination can be stated as follows:
No witness, whether party or stranger is, excepting in cases hereinafter mentioned, compellable to answer any question or to produce any document the tendency of which is to expose a witness (or the wife or husband of the witness) to any criminal charge, penalty or forfeiture.[9]
[9] Dale v Clayton Utz (a firm)(No 2) [2014] VSC 517 at [67] citing Argyle, Phipson on Evidence (Sweet & Maxwell, 10th ed, 1963) 264 [611].
Gibbs CJ in Sorby & Anor v Commonwealth of Australia & Ors[10] held:
It has been a firmly established rule of the common law, since the seventeenth century, that no person can be compelled to incriminate himself. A person may refuse to answer any question, or to produce any document or thing, if to do so ‘may tend to bring him into the peril and possibility of being convicted as a criminal.
[10] [1983] HCA 10; (1983) 152 CLR 281 at 288.
The privilege is a fundamental human right.[11] The privilege is unqualified, except by statute or waiver, and is a complete answer to an application for production.[12] It applies to direct evidence of incrimination and also to indirect or derivative incrimination where the production of a document sets in train a process of investigation.[13]
[11] Reid v Howard (1985) 184 CLR 1 at 14.
[12] Ibid.
[13] Ibid at 6.
The plaintiff faintly raised an argument that the power to grant an injunction by s 30 of the District Court Act 2006, (SA) abrogated the privilege, but did not develop that submission in any detail. It is clear that the terms of s 30 do not abrogate the privilege.
The privilege arises in pre-trial procedures and in connection with an Anton Piller order.[14]
[14] Dale v Clayton Utz (a firm)(No 2) [2014] VSC 517 at [68] citing John Dyson Heydon, Cross on Evidence (LexisNexis Butterworths, 8th ed, 2010) [25075].
The general principle against self-incrimination in relation to discovery was discussed by the High Court in Pyneboard Pty Ltd v Trade Practices Commission and Anor[15] where the Court considered the statements made by Deane J (as a justice of the Federal Court) in Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation[16] (Refrigerated Express) and held:
It is well settled that “a ...party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, forfeiture, or ecclesiastical censure” to use the words of Bowen L.J. in Redfern v Redfern. See also Martin v Treacher, Earl of Mexborough v Whitwood Urban District Council, R v Associated Northern Collieries. Indeed, in a civil action brought merely to enforce a penalty the rule is that neither discovery nor interrogatories will be allowed (In re A Debtor, Associated Norther Collieries). See generally the discussion by Deane J in Refrigerated Express Lines (A/asia Pty Ltd v Australian Meat and Livestock Corp). There his Honour drew a distinction between discovery in a mere action for a penalty and discovery in an action which was not for a penalty, the result of which might be used to establish a party’s liability to a penalty in other proceedings. In the first situation the court should, in the absence of a statutory provision to the contrary, refuse to make any order for discovery, production of documents or the provision of information for the reason that the intended consequence of the discovery, production of documents or provision of information is the imposition of a penalty, this being the object of the action…
But in the second situation the order will be made and a party against whom the order is made may object to the production of particular documents or to the provision of particular information on the ground that it expose him to a penalty.
[15] [1983] HCA 9; (1983) 152 CLR 328 at 335-337.
[16] (1979) 42 FLR 204 at 207-8.
Deane J in Refrigerated Express referred to further authorities and held that they plainly established that a party to civil proceedings, not for a penalty, ought ordinarily not be excused in limine from giving discovery or answering interrogatories, but should be left to object to particular questions on the ground that such production or answer might tend to expose him to a penalty.[17]
[17] Ibid at 21; Trade Practices Commission v Abbco Ice Works Pty Ltd [1994] FCA 1279; (1994) 52 FCR 96 at [6]; Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (a firm) (No 3) [2018] FCA 1107 at [97].
There is however a distinction between a search order and the discovery of documents. The purpose of the search order is the preservation of evidence and not the immediate discovery and production of documents.[18] The distinction suggests that the rule enunciated by Deane J in Refrigerated Express may not always be applicable to cases involving search orders.
[18] Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201 cited in Meneses v Directed Electronics OE Pty Ltd [2019] FCAFC 190 at [82].
Although the usual procedure in search orders will be for the claim of privilege to be made at or subsequent to the time of the removal of the documents, there are instances where the court may refuse to make an order or set aside an order because of the privilege. This would arise, for example, where all the documents seized would be subject to the privilege.
Thus, in Rank Film Distributors Ltd v Video Information Centre,[19] Templeman LJ held:
In my judgment, an order ex parte or otherwise for discovery or interrogatories under threat of committal for disobedience should not be made if it is obvious that compliance with the order will involve the danger of self-incrimination
[19] [1982] AC 380 at 419.
In BPA Industries Ltd v Black,[20] Waddell CJ in Eq set aside an order requiring the defendants to file affidavits which were ordered upon the granting of an Anton Piller order on the ground that to invoke the claim of privilege might tend to incriminate them. Waddell CJ in Eq followed the decision of the House of Lords in Rank Film Distributors (which upheld the decision of the Court of Appeal referred to above) that the claiming of the privilege might set in train a process which might lead to incrimination.[21]
[20] (1987) 11 NSWLR 609 at 611.
[21] Ibid.
Further examples of courts setting aside an Anton Piller or search orders because of effect on the claim of the defendant of the privilege against self-incrimination are provided by Tate Access Floors Inc v Boswell[22] and Den Norske Bank ASA v Antontos.[23] In the latter case, Waller LJ held that an Anton Piller order should not be made where it will require the defendant to incriminate himself.
[22] [1991] Ch 512 at 530D per Browne-Wilkinson VC.
[23] [1999] QB 271 at 289G.
Determination of the Application
I do not consider that the application by the plaintiff amounts to fishing. In Proude v Visic,[24] Blue J cited with approval a passage from the Full Federal Court in Bailey v Beagle Management Pty Ltd[25] which observed that often what is criticised as fishing is more a question of oppression in requiring a party to produce a great number of documents.
[24] [2012] SASC 184 at [55].
[25] [2001] FCA 60 at [27]-[32]; (2001) 105 FCR 136, 143-144.
In no way could the present application be described as oppressive: it is extremely limited in what it seeks. Further, the evidence, examined below, demonstrates a legitimate forensic purpose in seeking the documents.[26]
[26] R v Saleam (1989) 16 NSWLR 14 at 18.
The evidence relating to the condition of the premises suggests that it might be the case that documents that were at the House Property had been hurriedly removed around or during the time of the execution of the search order. I refer in particular to (1) the empty lever arch folders; (2) the documents strewn around the study and carport; and (3) the absence of the hard drive with the two computer monitors. The garbage bag that was found on 24 March 2020 to contain ripped emails and other documents of the plaintiff is also capable of giving rise to the inference that the defendant was attempting to prevent documents from being seized.
The evidence also indicates that shortly after being served with the search order at 12.10pm on 23 March 2020, the defendant, with a degree of secrecy, made a telephone call in private. Shortly, after making that telephone call, the defendant’s partner, Mr Kent and a friend, attended at the House Property and had the opportunity to remove documents.
In these circumstances, I consider that the evidence permits a finding on an interlocutory basis that there is a possibility at least (even taking into account that Mr Kent resided at the house property) that he attended the House Property at the request of the defendant and removed some documents. In these circumstances, I do not consider that the application is merely fishing for evidence - there is an evidentiary basis to the contentions being advanced by the plaintiff.
I have given careful consideration to the question whether there is any utility in making the order in circumstances where it is common ground between the parties that the production of the mobile telephone would tend to incriminate the defendant and that the defendant would invoke the privilege against self-incrimination.
I take in account that the statement of principle enunciated by Deane J in Refrigerated Express that in cases involving discovery the ordinary position is that a discovery order will be made, but that documents may not have to be produced if the claim against self-incrimination is invoked.
However, I consider that there are a number of reasons why the ordinary position does not apply in the present case.
First, the application for the production of the mobile telephone records is made because the purpose of the search order has not been fully fulfilled in that some of the documents may not have been able to be recovered on the execution of the search order. The making of the order for production of the mobile telephone will not assist in fulfilling the purpose of the search order in the circumstances of this case where it is accepted that the defendant will invoke the privilege against self-incrimination and the documents will not be produced.
Secondly, in this case only one document is sought (the mobile telephone) and it is known that the privilege against self-incrimination will be claimed in respect of that device. This position can be contrasted with a discovery order or the search order itself where the vast majority of documents may not be subject to a claim of privilege. In such a case, it is reasonable to order the production of all documents and permit the defendant to claim privilege in respect of specific documents. In that case, the order for production would have utility.
Thirdly, an order for the production of the mobile telephone would in the circumstances of this case, be illogical. On the one hand, I would order that the defendant produce the mobile telephone and concurrently with that order, I would order that the defendant be excused from producing the mobile telephone. The better solution is to simply make no order for production.
Fourthly, the order that is sought for production does not directly seek “listed things” (ie the documents of the plaintiff). It is difficult to see how production of the mobile telephone would assist the plaintiff in bringing some other application to recover the “listed things”.
Fifthly, this is a case where the mere claiming of the privilege by the defendant may set in train a process which might lead to incrimination. The defendant can only claim the privilege if there was some communication between her and another party after she was advised of the search order relating to the search order. The claiming of the privilege will confirm that there has been such a communication (in direct breach of the prohibition contained in the search warrant) and may set in train a process of investigation.
Conclusion
For the reasons that I have expressed, I refuse the plaintiff’s application for the production of the mobile telephone records.
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