TLC Pty Ltd v White (B-03) CHH

[2003] HCATrans 628

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B14 of 2003

B e t w e e n -

TLC CONSULTING PTY LIMITED

Applicant

and

PAUL MICHAEL WHITE

Respondent

Application for a stay

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 21 MARCH 2003, AT 3.05 PM

Copyright in the High Court of Australia

MR R. RICHTER, QC:   If your Honour pleases, I appear for the applicant with my learned friends, MR M.P. AMERENA and MR M.O. PLUNKETT.  (instructed by Tanya Cirkovic & Associates)

MR M.J. GRIFFIN, SC:   May it please the Court, I appear with my learned friend, MR B.J. THOMAS, for the respondent.  (instructed by Crown Solicitor for the State of Queensland)

HIS HONOUR:   Thank you, Mr Richter.

MR RICHTER:   Your Honour, just before the luncheon break today the Court of Appeal entered judgment in a case in which the applicant was respondent to an appeal.

HIS HONOUR:   I have had a very quick glance at the papers.  The question is whether the respondent, in effect, exceeded its powers under the Fair Trading Act, is it not?

MR RICHTER:   Yes, indeed.  What happened was that he seized a server which ‑ ‑ ‑

HIS HONOUR:   With a great deal of information ‑ ‑ ‑

MR RICHTER:   ‑ ‑ ‑ by agreement contained information relating to 20,000 people not ‑ ‑ ‑

HIS HONOUR:   Including probably privileged legally ‑ ‑ ‑

MR RICHTER:   Yes, and including material that had no relevance to the investigation on any view because it relates to a restaurant and things like that.  So that it is an important question because it may require ultimately the revisitation of Rossminster’s Case in which an interest of revisitation has been expressed in some quarters and it may require a number of other things, including revisitation of Campbell v Baker and various cases relating to legal professional privilege. 

We sought a stay pending an application for special leave to appeal.  The Court of Appeal refused, ordered the immediate return of the copy of the hard drive and what excited our interest was that in so doing the court ordered that the mirror copy of the hard drive be immediately returned – it is in the hands of the registrar at the moment – to the relevant officers of the appellant – that was the appellant in the Court of Appeal – and if the officers of the appellant identified documents in respect of which legal professional privilege could reasonably apply, they will not further examine those documents, which we found, to say the least, absurd, to allow the determination of what may or may not be privileged to be in the hands of those who have seized the documents or the disputed item.

HIS HONOUR:   And, of course, you did not have any opportunity to make a claim of legal professional privilege.

MR RICHTER:   No, which is why we thought that we were obliged to invoke the Court’s inherent jurisdiction to grant an interim stay lest the subject matter of the litigation disappear.

HIS HONOUR:   Let me just understand what has happened procedurally.  Did it go before Justice Mullins first?

MR RICHTER:   Yes, and she upheld ‑ ‑ ‑

HIS HONOUR:   Which was an administrative review, is that right?

MR RICHTER:   It was a review in front of Justice Mullins.

HIS HONOUR:   And you failed before her.

MR RICHTER:   We succeeded.

HIS HONOUR:   You succeeded before her Honour?

MR RICHTER:   Yes.  She said that the computer server was not a record within the Act.

HIS HONOUR:   Right.  Then what happened?

MR RICHTER:   There was an appeal by the Office of Fair Trading, by the inspector, to the Court of Appeal.  The Court of Appeal held that the computer server was a record for the purposes of the Act.

HIS HONOUR:   Who constituted the Court of Appeal?

MR RICHTER:   The Chief Justice and Justices Atkinson and Davies.

HIS HONOUR:   Was that unanimous?

MR RICHTER:   It was.

HIS HONOUR:   Then you applied to that court for a stay, did you?

MR RICHTER:   Yes.

HIS HONOUR:   And that application was rejected today, was it?

MR RICHTER:   That is right.  There was an order for the immediate return of the server, subject to the court ordering that the appellant identify, that is Fair Trading – that if the appellant identifies documents on the server in respect of which legal professional privilege could reasonably apply, they will not further examine those documents.  Yes, it is the hard drive – the server has actually gone, but there is the hard drive.

HIS HONOUR:   You will have to help me with computers, I am afraid.

MR RICHTER:   Yes, absolutely.

HIS HONOUR:   I know what the hard drive is.

MR RICHTER:   The server is the box.

HIS HONOUR:   Right, and the hard drive is the heart of it and ‑ ‑ ‑

MR RICHTER:   It is the repository of the electronic ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ there is a theory that you can never get rid of the shadow unless you dump it in the sea or something, is that right?

MR RICHTER:   Yes, but what happened in this instance is that after we won in front of Justice Mullins there was an order for the return of the server, which included the hard drive.  As part of the process of appeal, there was a mirror image of the hard drive made, a copy of it, which was lodged with the registrar pending the appeal outcome.

HIS HONOUR:   To be preserved by the registrar?

MR RICHTER:   Yes.  The box itself, the shell, its hard drive was then returned to the applicant in this Court.

HIS HONOUR:   So do you have anything to enable you to access all your information and records now?

MR RICHTER:   Yes, we have.

HIS HONOUR:   Because you have the server?

MR RICHTER:   That is right.  We have the server, except for one thing:  we do not have the server any more.  The server has actually been stolen from the offices of some solicitors, but the information that they were after is retained in the hard drive, so we can stick the hard drive in another server.

HIS HONOUR:   So you have the hard drive and there is another hard drive, is there, with the registrar?

MR RICHTER:   That is right.

HIS HONOUR:   So they are duplicates?

MR RICHTER:   That is right, mirror images so they call it.

HIS HONOUR:   All right.  Now, as I understand it, my associate told me that there had been an agreement with respect to a week, is that so?

MR RICHTER:   Yes.

MR GRIFFIN:   Your Honour, there are issues that, of course, we raise about the likely success of any application.

HIS HONOUR:   Of course, yes.

MR GRIFFIN:   Issues concerning the examination of the documents and whether that is anything other than ordinary in the course, where documents which are seized are authorised to be examined by officers and we will be submitting, should this matter continue, that there is nothing unusual about the perusal of electronically‑kept information for it is the same as those officers who would search literally files in filing cabinets to determine what is ‑ ‑ ‑

HIS HONOUR:   That might not be Mr Richter’s only ground of appeal.

MR GRIFFIN:   No, that may well be so and the point of concern for us ‑ ‑ ‑

HIS HONOUR:   There may be other construction points.  I do not know whether there are but ‑ ‑ ‑

MR GRIFFIN:   I have every anticipation that Mr Richter will be as inventive as he was today.  So the point really is that we have concerns that there should be a properly articulated document in the proper form, which is the application for special leave which sets out the point which is of general principle and concern and so on, as your Honour will know.

HIS HONOUR:   I am sure Mr Richter knows that and I was going to say that myself.

MR GRIFFIN:   Yes.  So, your Honour, we agree on that basis that the matter should be adjourned to give the applicant time to properly articulate his argument and for us to consider it and make what we expect to be a proper answer to it.

HIS HONOUR:   Yes.  Mr Griffin, how urgent is this?

MR GRIFFIN:   There is some urgency in this sense, that if the files are not put to use by those inspectors, this investigation, which commenced quite some time ago and has been in abeyance since October of last year, will continue ‑ ‑ ‑

HIS HONOUR:   Is that because of these proceedings?

MR GRIFFIN:   Because of these proceedings and the preceding proceedings before the Supreme Court in Justice Mullins.  There are time limits, of course, in respect of this matter in respect of potential complaints being laid.

HIS HONOUR:   What is the time limit?

MR GRIFFIN:   The time limit, in fact, in these cases is three years but, of course, this is at an investigative stage of the whole process at a very early stage and so time is ticking away, if I may use that phrase.

HIS HONOUR:   The regulatory authorities ought to get on to it and I must say that the idea that people can have hanging over their head for months or years the possibility of prosecution is a fairly forbidding prospect.

MR GRIFFIN:   That is absolutely so and, of course, the delay in this, although we do not attribute any blame, is to the application made by the now applicants to the Supreme Court, our response to the incorrectness or error in the primary judge’s finding, and so there is every desire by the respondent, the Fair Trading Office and its officers, to have this matter disposed of but, of course, that has been out of the hands ‑ ‑ ‑

HIS HONOUR:   I will tell you why I ask, Mr Griffin.  The proposal I understand is that it come back before me on Friday, is that right, or is it ‑ ‑ ‑

MR GRIFFIN:   Yes.

MR RICHTER:   If that meets your Honour’s convenience, yes.

HIS HONOUR:   Well, I could deal with it on Friday but I am just wondering whether everybody might not be better off and better served if it

were a little longer than that, simply because that would enable the affidavits to be filed and the application for special leave, but also, in particular, it might give Mr Richter’s solicitors an opportunity of identifying the different categories of material on the hard drive, including, in particular, any legally professionally privileged documents because – and I do not know anything about the case yet – there may be categories of documents that you would be entitled to and others that you would not be.  For a start, anything that is legally professionally privileged, you would not suggest, I would not think, that you are entitled to that.

MR GRIFFIN:   Absolutely not.

HIS HONOUR:   We might need to identify them.  There may be other categories.  Mr Richter has mentioned one category of document which hardly seems likely to be within the ambit of your investigation.  In a very quick look at the papers I saw something about liquor records or a liquor licence or something of that kind.

MR GRIFFIN:   There were certainly documents that relate to a restaurant, as I understand it.

HIS HONOUR:   That seems a rather unpromising subject for investigation by your client.  It may or may not be.  All I am saying is that there seems to be a great variety of material and it would be helpful, I would think, if we knew exactly what the different categories are.  What I am thinking of is simply three or four weeks rather than one.  Now, I can do it next Friday, but then the following fortnight we are sitting in Canberra and then there are some problems – I would have to check on dates after that but I am sure we would be able to get a date within that period.  So I am really suggesting perhaps three weeks rather than a week, although, Mr Richter, you might think you can identify the – do you not think that would be a useful exercise anyway?

MR RICHTER:   I think it would be a useful exercise, your Honour.  In particular, one of the things that arose in the hearing below and then in the Court of Appeal in the materials is the investigation relates to 39 named people and apparently there is a reference to some historical investigation or reference to 196 complainants.  Now, there are 20,000 people ‑ ‑ ‑

HIS HONOUR:   I saw that.  Just excuse me a moment.  Sorry, Mr Richter, you go ahead.

MR RICHTER:   I am sorry, your Honour, I am just told that it is going to be very difficult for us to do that because the only mirror copy of the hard drive is in the court in the registry and we do not have the one because it was stolen, the one that was returned to us with the server.

HIS HONOUR:   And I suppose you do not want to print out 20,000 documents unless you have to.

MR RICHTER:   No.

HIS HONOUR:   It would be quite expensive apart from anything else.

MR RICHTER:   No, but, your Honour, we could identify matters in principle and negotiate about them.  For example, if I was to say to my learned friend, by way of an example, “Look, there are 20,000 customers.  I mean, are you going to go on a fishing expedition and go to all of those and say, ‘Have you got any complaints?  Did you get married?  Did you have a nice date?’”, which is ‑ ‑ ‑

HIS HONOUR:   It is an introduction agency, is it?

MR RICHTER:   Yes.  TLC I suspect stands for tender loving care.

HIS HONOUR:   Also, there would be a lot of people’s records and information that would be very private.

MR RICHTER:   Precisely.  That is the point that we were making.  There are 20,000 people’s lives there.  They have 39 complaints plus historically 196, most of which were settled and resolved.  So if they tell us what they want, we – could I tell your Honour this ‑ ‑ ‑

HIS HONOUR:   You can well understand why some people might express some discontent in this emotional area after an introduction has been a disappointment.

MR RICHTER:   Yes, I think so.  Not speaking from experience, but just from hearsay, that is undoubtedly the case.  I suspect statistically most people are disappointed.  Could I say this, that at the time of the raid with the search warrant the people running the place offered to print out the files of the 39 people and I am sure that if the 196 were named – the officer did not bring the names of those – they would have printed those out as well.  That would have made it a bit easier.  But what was wanted was the whole server because we thought there was a different exercise going on.

Be that as it may, time will certainly be of an advantage.  We would like to formulate the special leave application properly with properly reasoned and set out argument and all the rest of it.  We only thought of that in case there was an overwhelming urgency.  We cannot see it but if my learned friend says it is urgent, we could be prepared to come back in a week.  It would be preferable if there was more time because these things

need to be formulated very carefully, but we are in the hands of your Honour and our learned friend.  I am not going to resist him if he says it is urgent that they get on with it.  I do not know whether the three‑year time limit impinges on this at all.  He would know.

HIS HONOUR:   The problem is the April sittings in Canberra begin on Tuesday week and that is a fortnight.  I would prefer not to do it on the Monday because there are usually commitments in Canberra.

MR RICHTER:   Could we say this.  As we understand the principles relating to stay, the exceptionality is not going to be a problem to demonstrate because, having read to your Honour the refusal of stay and the conditions of the refusal of stay, that itself is exceptional.  The arguability is not going to be much of a problem given that a Supreme Court justice has found our way at first instance on construction and all the rest of it, so it is arguable.  For the purposes of a stay application pending the determination of the special leave application, we suspect we can make out a case next week.

All we are concerned with is that the stuff not be accessed, stuff to which they have no right of access we say not be accessed, and we are completely happy if it is adjourned for a week or a month or, indeed, if there is a stay until the hearing of the special leave application.  We will file the papers as soon as we can.

HIS HONOUR:   Look, in the circumstances, it might be better just to adjourn it for a week.  If, in fact, there is a problem on that day, we can look at that.  I think availability after that is going to be difficult.

MR RICHTER:   For all of us, I suspect.

MR GRIFFIN:   Your Honour, we would give an undertaking not to access the material contained within the Supreme Court registry.

HIS HONOUR:   Yes, I assumed that.  Well, that is recorded.

MR GRIFFIN:   I can give that undertaking to the Court on behalf of officers of the Office of Fair Trading.

HIS HONOUR:   Thank you, Mr Griffin.

MR GRIFFIN:   I think those terms are sufficient to cover the ‑ ‑ ‑

HIS HONOUR:   Yes, all right.  Then I will adjourn the matter until Friday at 11 o’clock.  Your undertaking is recorded.  I suppose I should make an order that the hard drive presently held by the registrar of the Supreme Court be retained until further order.

MR RICHTER:   Thank you, your Honour.

HIS HONOUR:   Mr Richter, it would greatly assist me if I could have written submissions by, say, Thursday, if that is possible, from you to Mr Griffin.

MR RICHTER:   We will do that, your Honour, yes.  Seeing that we are all here for the day for the Court of Appeal, as I understand it from discussions with my learned friend, there is no need to reserve costs of the day because I do not think there are any additional costs at this stage.

HIS HONOUR:   Let me give you some advice:  you need certification for counsel and I will reserve the costs.

MR RICHTER:   The last thing on earth I want is to be certified and I do not think my friend wants either.

HIS HONOUR:   It depends which way the certification goes, Mr Richter.  There is no other order I need make, is there?

MR RICHTER:   No, your Honour.

HIS HONOUR:   The matter is adjourned until Friday at 11 o’clock.  I have made the order with respect to the retention of the hard drive.

MR GRIFFIN:   Your Honour, perhaps before you go on, could I suppose just for the record mention that the precise way of describing what is held by the registrar is a series of disks which are copies of the hard drive which is now apparently either not in existence or not available.

HIS HONOUR:   By hard drives I intend to mean exactly the material that is held currently by the registrar.

MR GRIFFIN:   Yes.

HIS HONOUR:   Do you need an order for access to that though?

MR RICHTER:   I doubt it very much, your Honour.  I do not think so.

HIS HONOUR:   Not even to ‑ ‑ ‑

MR RICHTER:   Within the time we could not go through 20,000 entries or more, but we will be able to formulate categories.

HIS HONOUR:   There will be utility in that, I am sure.

MR RICHTER:   Yes, your Honour.

HIS HONOUR:   Thank you.

AT 3.25 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 28 MARCH 2003