Streaky Bay Marine Products Pty Ltd v Minister for Agriculture Food & Fisheries for the State of SA - [2007] SADC 33

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
STREAKY BAY MARINE PRODUCTS PTY LTD & ORS v MINISTER FOR AGRICULTURE FOOD & FISHERIES FOR THE STATE OF SA & ORS
[2007] SADC 33
Judgment of His Honour Judge Lovell
28 March 2007
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS
Pre Action Discovery.
Plaintiff seeking documents standing behind the issue of warrants – whether application reached threshold test – discussion of direct relevance.
Held: Application not based on mere hope or speculation – appealed dismissed.
Fisheries Act 1982 s 28; District Court Act 1991 s 43(2)(a); District Court Rules r 58A.03, 58A.04, 60.01, 97.01, referred to.
Southern Equities Corporation Ltd (In liquidation) v Arthur Anderson and Co (No 8) [2002] SASC 20; Kinross v South Australian Health Commission (1995) 182 LSJS 167; Szumylo v Ixia Pty Ltd [2001] SASC 262, applied.
Police v Cadd (1997) 69 SASR 150; State Bank of South Australia v Hellaby (1992) 59 SASR 304; George v Rockett (1990) 170 CLR 104; Manning v Brecknock & Associates (Australia) Pty Ltd (1974) 65 LSJS 396; Gerard Industries Pty Ltd v Wee (1986) 43 SASR 562, considered.

STREAKY BAY MARINE PRODUCTS PTY LTD & ORS v MINISTER FOR AGRICULTURE FOOD & FISHERIES FOR THE STATE OF SA & ORS
[2007] SADC 33

The Plaintiffs (Respondents) are members of the Edmunds family and related companies involved in abalone fishing and fish processing. The First Defendant (Appellant) is the Minister responsible for the administration of the Fisheries Act 1982 (“the Act”); the other Defendants (Appellants) are officers of the Department for Primary Industries and Resources (“PIRSA”).
On 21 February 2005, Fisheries officers raided the premises of Streaky Bay Marine Products Pty Ltd (First Plaintiff), a registered fish processor, and Dadeeton Pty Ltd (Second Plaintiff), the holder of a registered abalone authority (W17). Warrants had been obtained pursuant to s 28 of the Act to enter those premises. Documents and other items were seized during the raid.
The Plaintiffs assert, inter alia, that the warrants were improperly obtained and executed; therefore the entry onto the properties was tainted with illegality. It is also asserted that the various officers improperly exercised their powers of seizure under s 28(1)(b) of the Act.
Before the Learned Master the Plaintiffs sought pre-action discovery of various documents related to, but not restricted to, what led to the warrants being obtained and what information was put before Ms Spriggs the Justice of the Peace who issued the warrants. They were successful and the Defendants have appealed that decision.
Nature of the Appeal
This appeal is instituted pursuant to s 43(2)(a) of the District Court Act 1991 and r 97.01 of the District Court Rules, and is by way of rehearing. The Court may exercise its own discretion without regard to the manner in which it was exercised by the master[1].
[1] Police v Cadd (1997) 69 SASR 150 at 189
Evidence
Before the Master was an affidavit from Damon Edmunds, one of the Plaintiffs, and also from Ms Fiona Stevens, solicitor for the Plaintiffs. The Defendants relied on an affidavit of Ms Yolande Dodd, one of the Defendants. I have the same information; it was not suggested that there was any new evidence to be taken into account.
The documents sought are listed in paragraph 4 of the Amended Inter Partes Summons filed on 23 August 2005. The documents sought generally relate to the information obtained by the Defendants prior to the obtaining of the warrant(s) and a list of documents actually seized and the documents retained.
The Respondents suggest that the causes of action against the Appellants would include:
1.    trespass;
2.    negligent performance of a statutory duty;
3.    wrongful retention of documents;
4.    misfeasance in a public office;
5.    wrongful interference with their rights of business and commercial operations.
Issues
The Appellant argues that the application brought by the Respondent should not have been granted by the Learned Master as it:
1.    Fails to specify a cause of action each Plaintiff/Respondent may have against any and which Defendant/Appellant.
2.    Fails to lay a sufficient basis for the exercise of the judicial discretion particularly in relation to documents relevant to the issuing of the warrant(s).
3.    Is simply a “fishing” expedition in that the Plaintiffs/Respondents hope to turn up something in the documents which may give them an arguable cause of action.
Law
Rule 60.01 states (relevantly):
(1)   Orders for discovery against a non party and before action. The Court may make an order for disclosure and production of documents:
(a)…
(b)by any person seeking such an order against another person where both are likely to be parties to subsequent proceedings.
(2)   Affidavit in support. Such order may be made:
(a)before commencement of proceedings, on a summons, with the person against whom the order is sought made a defendant to the summons:
(b)…
(3)   With the summons or application shall be filed and served a supporting affidavit, specifying the documents sought and their relevance to the proceedings or proposed proceedings.
As has been recognised applications under this rule often involve a plaintiff pursuing what appears to be conflicting lines of arguments. A plaintiff has to establish under paragraph (1)(b) that the order is against a person who is “likely to be a party in subsequent proceedings” whilst at the same time asserting that production of documents is necessary to assist in the determination of whether a good cause of action exists.[2] However as Burley J[3] stated, in a properly made application a plaintiff may be genuinely uncertain as to the course to be pursued although there is a likelihood that litigation will be commenced.
[2] Kinross v South Australian Health Commission (1995) 182 LSJS 167 at page 169.
[3] Kinross (supra) page 169
In determining what documents may be discoverable the test to be applied is that applicable to discovery generally as set out in r 58A.03; that is documents “which are directly relevant to any issue arising on the pleading”.[4] In Southern Equities Corporation Ltd (In liquidation) v Arthur Anderson and Co Bleby J recognised the difficulties in applying the test in r 58A.03 where proceedings have not been issued. His Honour thought that the provisions of r 60 would “require some flexibility in approach and in the identification, as far as possible, of the issues likely to be raised in any such intended proceedings”.[5] It may be that r 58A.04 will be of assistance in some cases.
[4] Southern Equities Corporation Ltd (In Liquidation) v Arthur Anderson and Co (no 8) [2002] SASC 20 and followed in Channel Seven Adelaide Pty Ltd v Lane and Hurley [2004] SASC 177 (Full Court)
[5] paragraph 15
A pre-condition of the making of an order for pre-action discovery is that the person seeking disclosure and the person against whom it is sought are “both likely to be parties to subsequent proceedings”. “Likely” should be given its natural meaning which is “probably”.[6]
[6] State Bank of South Australia v Hellaby (1992) 59 SASR 304 at p 312 per King CJ
In addition to those matters discussed, when considering whether to make an order pursuant to r 60.01 the following principles are applicable:
1.    It is sufficient if the discovery sought is relevant for the fair conduct of a party’s case or for the saving of costs.
2.    The Court must balance fairly the cost of what is sought to be done against the benefit to be achieved.
3.    The discovery need only be of assistance in determining whether a genuine basis of claim exists and is not decisive of it.
4.    There must be some ground for the application, i.e. some foundation that discovery is necessary, and not a mere speculation and a hope that there might be a cause of action. An arguable case must be shown.[7]
[7] Szumylo v Ixia Pty Ltd [2001] SASC 262; Kinross v SA Health Commission (ibid)
Plaintiffs’/Respondents’ Arguments
To be able to enter the premises (in the circumstances) a warrant had to be obtained. The procedure for obtaining a warrant is set out in s 28(2) of the Act.
Section 28(2a) states that the justice must “not issue a warrant under subsection (2) unless satisfied, by information given on oath, that the warrant is reasonably required in the circumstances”. Nowhere on the warrant does Ms Spriggs assert that she was satisfied by information given on oath that the warrant was “reasonably required in the circumstances”.
The affidavit evidence and the warrants themselves establish that Ms Dodd (Third Defendant/Appellant) attended before Ms Spriggs JP to obtain the warrant(s). The warrant(s) (which appear to be identical in their terms) state that Ms Spriggs was satisfied on the application by information given on oath by Ms Dodd that Ms Dodd “reasonably suspects that the premises situated at ... is being/has been/or is intended to be, used for, or in connection with an activity regulated by or under the Fisheries Act”. The wording generally follows s 28(1)(a) of the Act. The Act does not state that it is a requirement that Ms Spriggs be satisfied of the matters contained in s 28(1)(a) or that Ms Dodd held any relevant suspicion.
I do not have to decide whether the warrant(s) should have contained an assertion by Ms Spriggs that she was satisfied that the warrant was “reasonably required in the circumstances”. However, it is certainly arguable that the warrant itself should indicate that the statutory requirements for the granting of the warrant have been complied with.[8] The assertion that she was satisfied that Ms Dodd held the relevant suspicion under s 28(1)(a) may not be sufficient in light of the requirements of s 28(2).
[8] George v Rockett (1990) 170 CLR 104 at 111.
Clearly however Ms Spriggs had to be so satisfied whether it is acknowledged in the warrant or not. It is a fundamental requirement of the issue of a warrant. That matter can only be assessed on the material that was presented for her consideration. Whether the warrant(s) were validly issued is a matter that the Plaintiffs have clearly made an issue. If the warrants were not validly issued then arguments about the legality of the entry and seizure must inevitably follow.
It seems that there is at least an arguable issue concerning the warrants themselves and what occurred between Ms Dodd and Ms Spriggs. It is at least arguable that Ms Spriggs may not have directed her mind to the statutory scheme laid out in the Act for the issuing of the warrants.
The Plaintiffs point to further matters. The evidence before the Learned Master and before me indicates that the warrants (or at least most of them) authorized a time for entry that was not adhered to by the holders of the warrants. Thus the question that the warrants were not executed in accordance with their terms is raised. In turn that raises the question of the legality of the entry onto the premises named in the respective warrants. If there was an illegal entry arguably any subsequent seizure was illegal.
Further the evidence suggests that some 3000 or so documents were seized during the raid. It is asserted that the seizure was not in accordance with the statutory regime set out in s 28 of the Act. The officers did not need a warrant to exercise the power of seizure pursuant to s 28(1)(b). They needed the warrant to enter the premises lawfully.
However to seize the documents they had to satisfy the relevant criteria in s 28(1)(b). The reasonable suspicion, it was argued, had to attach to each particular document. What is asserted here is that the officers seized documents with the intention of sorting through them later to determine whether they were of any relevance.
Further it was argued that the reasonable suspicion relating to the seizure must be related to the same “suspected offences” for which the warrant was obtained.
The Plaintiffs argue that they need access to the documents referred to in the application to assist in determining the issue about whether the documents were lawfully seized under this section. Given the argument relating to the issue of the warrants and their execution it could not be said that the issues relating to seizure are not arguable.
It is not necessary for me to decide whether the arguments are correct. The Respondents must demonstrate an “arguable” case. It is clear that the obtaining, the issue and the execution of the warrants is a directly relevant matter to the potential causes of actions. Further whether the seizure of documents was lawful is also directly relevant. I am satisfied that there are grounds for the application and they are not based on mere speculation or hope.
Defendants’/Appellants’ Arguments
Mr Holland who appeared on behalf of the Appellants, forcefully argued that the application by the Plaintiffs/Respondents was not made with enough specificity. He submitted that the Respondents did not specify the basis of the “likely … further proceedings” and further, given the causes of actions suggested by the Respondent, it was clear that not all Plaintiffs could avail themselves of all causes of actions. In the circumstances Mr Holland submitted that the Plaintiffs should be ordered to file a draft statement of claim.
Reference was made to Manning v Brecknock & Associates (Australia) Pty Ltd.[9] Mr Holland acknowledged that the case dealt with an earlier rule of Court. The rule under consideration in that case required the issues upon which the discovery of the documents were sought to be defined as precisely as possible and if practicable, by reference to an actual or a draft pleading. It was submitted however that whilst there were differences in the rules and the current rule had relaxed the requirements this was still a case where the application was so vague that the Court should require a draft statement of claim.
[9] (1974) 65 LSJS 396
It was also submitted that evidence tendered and arguments put forward by the Respondents demonstrated that the application was only a “fishing” expedition and did not pass the threshold test. The Respondents, it was submitted, had to show there were some grounds for the making of the application. The application had to go beyond speculation, hope and unwarranted suspicion.[10]
[10] Gerard Industries Pty Ltd v Wee (1986) 43 SASR 562.
Discussion
I do not accept the arguments of the Appellants. Here there is material that indicates that the warrants may not have been regularly issued by the Justice of the Peace. There is evidence that entry to the premises was not in accord with the times specified by the warrants. There is an argument that s 28(2) of the Act was not complied with when seizure of the documents occurred.
The Respondents have demonstrated that the application for discovery is not merely speculation, hope and unwarranted suspicion. Further it is likely that all Plaintiffs will be suing all Defendants in at least some of the causes of action suggested in the affidavit material. True it is that some Plaintiffs would have some different causes of action to other Plaintiffs. For example it is not clear how the natural Plaintiffs would have an action in trespass. However there would be some common causes of action. The obtaining of the warrants and the search are fundamental to all of the causes of action suggested. There is sufficient specificity in the application. The argument would not be advanced by the Respondents producing a draft statement of claim.
Discovery of the documents is relevant to the fair conduct of the Respondent’s case.
Decision
In my opinion the Learned Master was correct in her approach to the matter. I would not exercise my discretion any differently.
Taking into account the matters relevant to the exercise of the discretion as mentioned in Szumylo v Ixia Pty Ltd[11] I dismiss the Appeal and confirm the orders made by the Learned Master.
[11] (ibid)
Given that there may be an argument relating to “public interest immunity” in relation to at least some of the documents to be discovered I will hear the parties on the orders to be made. I will also hear the parties in relation to the question of costs.