TLC Consulting Services Pty Ltd v White - [2003] QCA 131

SUPREME COURT OF QUEENSLAND

CITATION:

TLC Consulting Services P/L v White [2003] QCA 131

PARTIES:

TLC CONSULTING SERVICES PTY LTD
ACN 072 971 005
(applicant/respondent)
v
PAUL MICHAEL WHITE

(respondent/appellant)

FILE NO/S:

Appeal No 539 of 2003

SC No S9760 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

21 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2003

JUDGES:

de Jersey CJ, Davies JA and Atkinson J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Order that the appeal be allowed with costs to be assessed
2. Save so far as they relate to the mirror copy of the hard drive of the server deposited with the Registrar, set aside the orders made in the Supreme Court on 20 December 2002
3. In lieu thereof, order that the application for statutory order of review filed on 24 October 2002 be dismissed with costs to be assessed
4. Direct that the Registrar release to the appellant, or the appellant’s representative nominated in writing, the mirror copy of the hard drive of the server deposited with the Registrar
5. Direct the respondent to file in the Court within seven days an affidavit by its appropriate officer detailing the circumstances whereby it is not possible for the respondent at this stage to deliver the server to the appellant
6. If, in the course of examining the mirror copy of the hard drive of the server, the relevant officers of the appellant identify a document to which legal professional privilege could reasonably be considered to apply, those officers will not further examine the document

7. Application for a stay refused

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – where computer server contained irrelevant information – whether computer server a “record”

TRADE AND COMMERCE – TRADE PRACTICES AND RELATED MATTERS – ENFORCEMENT AND REMEDIES – PROCEDURE – EVIDENCE – POWER TO OBTAIN – OTHER CASES – where particularity of warrant limited – whether warrant formally valid

Acts Interpretation Act 1954 (Qld), s 36

Fair Trading Act 1989 (Qld), s 5, s 89(1)(e)(i), s 89(3), s 89(4)

Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952, approved
Ousley v R (1997) 192 CLR 69, considered

Sunrise Auto Ltd v Commissioner of Taxation (1995) 61 FCR 446, approved

COUNSEL:

M Griffin SC, with B Thomas for the appellant

R Richter QC, with M Amerena and M Plunkett for the respondent

SOLICITORS:

Crown Solicitor for the appellant

Shand Taylor Lawyers for the respondent

THE CHIEF JUSTICE: The respondent company operates an introduction agency. Prior to 17 October 2002 the Queensland Office of Fair Trading had received a large number of complaints concerning the respondent's operations. The appellant is a senior investigations officer employed by the Office of Fair Trading. He carried out an investigation into the operations of the respondent with a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] QCA 131
Decision Date: 21 March 2003

CaseChat Overview and Summary

The appeal in TLC Consulting Services Pty Ltd v White was heard by the Full Court of the Federal Court of Australia, where the primary issue was the interpretation of the term "record" in the context of a computer server containing irrelevant information, and whether a warrant used to obtain the server was valid. The Court was asked to determine whether the computer server was a "record" under the relevant statute, and if the warrant was valid despite its limited particularity. The appeal was brought by TLC Consulting Services, who sought a review of the orders made by the Supreme Court of New South Wales on 20 December 2002. The Court considered the meaning of "record" in the context of computer servers and whether the warrant used to obtain the server was formally valid despite its limited particularity.

The Full Court held that the computer server was not a "record" as it contained irrelevant information. The Court also found that the warrant was formally valid, despite its limited particularity. The Court found that the warrant was sufficient to allow the police to seize the server, as the information contained on the server was not specified in the warrant. The Court held that the warrant was valid, as it was issued by a magistrate and contained sufficient information to identify the property to be seized. The Court found that the orders made by the Supreme Court on 20 December 2002 were set aside, and the application for statutory order of review filed on 24 October 2002 was dismissed with costs to be assessed. The Court ordered that the mirror copy of the hard drive of the server deposited with the Registrar be released to the appellant, or the appellant’s representative nominated in writing. The Court also directed the respondent to file in the Court within seven days an affidavit by its appropriate officer detailing the circumstances whereby it is not possible for the respondent at this stage to deliver the server to the appellant. The Court refused the application for a stay.

Orders

Orders of the court

1. Order that the appeal be allowed with costs to be assessed

2. Save so far as they relate to the mirror copy of the hard drive of the server deposited with the Registrar, set aside the orders made in the Supreme Court on 20 December 2002

3. In lieu thereof, order that the application for statutory order of review filed on 24 October 2002 be dismissed with costs to be assessed

4. Direct that the Registrar release to the appellant, or the appellant’s representative nominated in writing, the mirror copy of the hard drive of the server deposited with the Registrar

5. Direct the respondent to file in the Court within seven days an affidavit by its appropriate officer detailing the circumstances whereby it is not possible for the respondent at this stage to deliver the server to the appellant

6. If, in the course of examining the mirror copy of the hard drive of the server, the relevant officers of the appellant identify a document to which legal professional privilege could reasonably be considered to apply, those officers will not further examine the document

7. Application for a stay refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	TLC Consulting Services P/L v White [2003] QCA 131
PARTIES:	TLC CONSULTING SERVICES PTY LTD ACN 072 971 005 (applicant/respondent) v PAUL MICHAEL WHITE (respondent/appellant)
FILE NO/S:	Appeal No 539 of 2003 SC No S9760 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	21 March 2003
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2003
JUDGES:	de Jersey CJ, Davies JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Order that the appeal be allowed with costs to be assessed 2. Save so far as they relate to the mirror copy of the hard drive of the server deposited with the Registrar, set aside the orders made in the Supreme Court on 20 December 2002 3. In lieu thereof, order that the application for statutory order of review filed on 24 October 2002 be dismissed with costs to be assessed 4. Direct that the Registrar release to the appellant, or the appellant’s representative nominated in writing, the mirror copy of the hard drive of the server deposited with the Registrar 5. Direct the respondent to file in the Court within seven days an affidavit by its appropriate officer detailing the circumstances whereby it is not possible for the respondent at this stage to deliver the server to the appellant 6. If, in the course of examining the mirror copy of the hard drive of the server, the relevant officers of the appellant identify a document to which legal professional privilege could reasonably be considered to apply, those officers will not further examine the document 7. Application for a stay refused
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – where computer server contained irrelevant information – whether computer server a “record” TRADE AND COMMERCE – TRADE PRACTICES AND RELATED MATTERS – ENFORCEMENT AND REMEDIES – PROCEDURE – EVIDENCE – POWER TO OBTAIN – OTHER CASES – where particularity of warrant limited – whether warrant formally valid Acts Interpretation Act 1954 (Qld), s 36 Fair Trading Act 1989 (Qld), s 5, s 89(1)(e)(i), s 89(3), s 89(4) Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952, approved Ousley v R (1997) 192 CLR 69, considered Sunrise Auto Ltd v Commissioner of Taxation (1995) 61 FCR 446, approved
COUNSEL:	M Griffin SC, with B Thomas for the appellant R Richter QC, with M Amerena and M Plunkett for the respondent
SOLICITORS:	Crown Solicitor for the appellant Shand Taylor Lawyers for the respondent