Unlimited Business Consultants (Qld) Pty Ltd ACN 098 523 490 v; Commissioner, Australian Federal Police
[2003] FCA 706
•17 JUNE 2003
FEDERAL COURT OF AUSTRALIA
Unlimited Business Consultants (Qld) Pty Ltd ACN 098 523 490 v
Commissioner, Australian Federal Police [2003] FCA 706UNLIMITED BUSINESS CONSULTANTS (QLD) PTY LTD ACN 098 523 490, FLYING FIGHTERS PTY LTD ACN 067 895 005, FLYING FIGHTERS MAINTENANCE & RESTORATION PTY LTD ACN 087 084 197 and FLYING FIGHTER ADVENTURES PTY LTD ACN 065 734 198, AVIATION WELDING AUSTRALIA PTY LTD ACN 010 374 428 AND GEOFF KLOOGER AND ASSOCIATES v THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE, R. QUINLAN, MICHAEL CHARLES PETTY, KIM JANELLE DWYER, MICHELLE GEAR AND MICHAEL JOHN HAWTHORNE
Q 73 OF 2003
DOWSETT J
17 JUNE 2003
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 73 OF 2003
BETWEEN:
UNLIMITED BUSINESS CONSULTANTS (QLD) PTY LTD ACN 098 523 490
FIRST APPLICANTFLYING FIGHTERS PTY LTD ACN 067 895 005, FLYING FIGHTERS MAINTENANCE & RESTORATION PTY LTD ACN 087 084 197 and FLYING FIGHTER ADVENTURES PTY LTD ACN 065 734 198
SECOND APPLICANTSAVIATION WELDING AUSTRALIA PTY LTD
ACN 010 374 428
THIRD APPLICANTGEOFF KLOOGER AND ASSOCIATES
FOURTH APPLICANTAND:
THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE
FIRST RESPONDENTR. QUINLAN
SECOND RESPONDENTMICHAEL CHARLES PETTY
THIRD RESPONDENTKIM JANELLE DWYER
FOURTH RESPONDENTMICHELLE GEAR
FIFTH RESPONDENTMICHAEL JOHN HAWTHORNE
SIXTH RESPONDENTJUDGE:
DOWSETT J
DATE OF ORDER:
17 JUNE 2003
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The application for interlocutory relief be refused.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 73 OF 2003
BETWEEN:
UNLIMITED BUSINESS CONSULTANTS (QLD) PTY LTD ACN 098 523 490
FIRST APPLICANTFLYING FIGHTERS PTY LTD ACN 067 895 005, FLYING FIGHTERS MAINTENANCE & RESTORATION PTY LTD ACN 087 084 197 and FLYING FIGHTER ADVENTURES PTY LTD ACN 065 734 198
SECOND APPLICANTSAVIATION WELDING AUSTRALIA PTY LTD
ACN 010 374 428
THIRD APPLICANTGEOFF KLOOGER AND ASSOCIATES
FOURTH APPLICANTAND:
THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE
FIRST RESPONDENTR. QUINLAN
SECOND RESPONDENTMICHAEL CHARLES PETTY
THIRD RESPONDENTKIM JANELLE DWYER
FOURTH RESPONDENTMICHELLE GEAR
FIFTH RESPONDENTMICHAEL JOHN HAWTHORNE
SIXTH RESPONDENT
JUDGE:
DOWSETT J
DATE:
17 JUNE 2003
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an application for judicial review of decisions of a Stipendiary Magistrate to issue four warrants pursuant to s 225 of the Proceeds of Crime Act 2002 (Cth) (the “Act”). There is also an application to review certain decisions and/or conduct by officers of the Australian Federal Police in the execution of those warrants. It is alleged that the various officers went beyond the ambit of the warrant in what they did in such execution.
Numerous computer programs and documents were seized in the course of the execution and are presently held by the Australian Federal Police. Counsel has made clear, in the course of the hearing, that such documents will be made available for inspection and copying by any of the applicants who may be entitled to have access to them, at no cost. The balance of my reasons proceed upon that basis.
It seems that a person by the name of Hart has been the subject of investigations, leading to proceedings being commenced against him. In anticipation of a pecuniary penalty order being made against him in those proceedings, orders have been obtained restraining him from disposing of certain assets, and also providing for investigation and examination concerning his asset position. These orders were made by Brabazon DCJ. The relevant order refers to various other parties, including the present applicants. They appear to be either companies or, in one case, a firm of solicitors. In the proceedings before Brabazon DCJ, it must have been demonstrated that such persons were relevantly associated with Mr Hart and/or his assets. In the proceedings for issue of the warrants, these various persons must again have been shown to be associated with Mr Hart. There is no other sensible basis upon which either Brabazon DCJ or the Magistrate could have made the orders in question. Whether there is evidence before me of any such association is of marginal relevance for present purposes.
Documents were obtained from each applicant pursuant to the warrants. I am presently concerned with an application to restrain the various respondents other than the second respondent from having access to those documents pending the final resolution of the applicants’ challenge to the validity of the original warrants and complaints about the way in which they were executed.
The warrants are all in much the same form. In effect, they authorize the relevant officers to enter premises and search for material defined in the Act as “evidential material” and identified in the warrant by reference to three cumulative conditions. The first condition requires that the documents be one of a catalogue of described classes of document. The second condition requires that each document relate to one or more of a number of persons, including Mr Hart, and, amongst others, some of the present applicants. The third requirement is that the relevant documents or other material be “[t]hings as to which there are reasonable grounds for suspecting that they will afford evidence of property, real or personal, owned by Steven Irvine Hart or property registered in the names of other entities that are under the effective control of Steven Irvine Hart”.
The relevant statutory provisions are to be found in s 225 et seq of the Act. In particular, par 227(1)(a) provides that a warrant must state “…the nature of the property in respect of which action has been or could be taken under this Act; …”. Such “action” appears to include proceedings pursuant to s 17, which provides for restraining orders. Section 225 authorises the issue of a warrant to search premises if the Magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that there is at the premises, or will be within the next seventy-two hours, tainted property or evidential material. “Tainted property” is not relevant for present purposes. “Evidential material” is defined in s 338 to mean evidence relating to:
(a)property in respect of which action has been or could be taken under this Act; or
(b) benefits derived from the commission of an indictable offence; or
(c) literary proceeds.
Only par (a) is relevant for present purposes. Relevant action has been taken with respect to some of Mr Hart’s property, but not all. Clearly, s 17 would have authorized such action with respect to all such property. For present purposes the definition of “evidential material” includes evidence relating to both property in respect of which the action has been taken and all of Mr Hart’s other property. The applicants complain that par 227(1)(a) requires that the warrant identify specific property, not merely all of the property of a particular person.
The formula adopted in these warrants is as follows:
The nature of the property in respect of which action has been or could be taken under the Proceeds of Crime Act 2002 is property owned by Steven Irvine Hart or property in his effective control.
It is said that the reference to the “nature of the property” in par 227(1)(a) and the content of par 227(1)(h) of the Act indicate that what is required is a clear identification of specific items of property. I am willing to concede for present purposes that there may be an arguable question as to the adequacy or otherwise of the warrant in this regard. I do not consider the argument to be a strong one.
An alternative argument is also put in this regard. It is said that quite apart from the provisions of the statute, the common law has long turned its face against search warrants in general terms. In this regard, Mr Sofronof sought to apply by analogy decisions concerning warrants authorising the search of premises for the purpose of obtaining evidence for criminal prosecutions. The common law and relevant statutes have long required that such a warrant identify a specific offence.
Whilst this may be a salutary rule in that context, I do not see that it has any direct application to legislation of the present kind where the intention is to enable the relevant authorities to obtain evidence as to the available assets of particular persons. See in particular, Div 1 of Ch 3 of the Act. Once again, the point may be arguable, although again, I do not consider it to be a particularly strong point. Thirdly, it is said that the warrants were defective because the authorisation provided in part as follows:
…to search the premises for any evidential material that satisfies ALL of the THREE conditions (modify if needed) specified above and to seize things of that kind found at the premises; ... .
The words “modify if needed” in parenthesis were, it is suggested, apt to mislead and might have suggested to the executing officers that they were not bound by the terms of the warrant and/or that they might vary it to meet their own needs. I doubt very much if any rational person would form that view but again, it is a possible ground of criticism. The words seem to serve no useful purpose. It is likely that they were part of a standard form and should have been deleted. Although I am not persuaded as to the strength of any of the arguments going to the validity of the warrant, nonetheless they are there for what they are worth.
The second attack upon the warrants concerns the way in which they were executed. It is suggested that the relevant officers went to the various premises armed with a computer program to assist them to identify electronic documents to be seized pursuant to the warrants. It is suggested that the program identified documents by reference to the type of document and the name of the associated entity referred to in the second condition but did not address the third condition, namely as to whether there were reasonable grounds for suspecting that the documents would afford evidence of property, real or personal, owned or controlled by Mr Hart.
I am not at all sure that the applicants’ evidence establishes any basis for this suspicion, but I am willing to assume at face value that it is correct. It seems that the various computer programs were designed to reflect the conditions of the warrant. As much appears from Ms Dwyer’s affidavit and from Mr Petty’s affidavit. It may be that it was assumed that documents which satisfied the other two conditions would satisfy the third. This would be a reasonable inference if there were grounds for suspecting that Mr Hart had business dealings with these other entities. It is probable that Brabazon DCJ and the Magistrate found reason to suspect that the various persons named in the second condition in the warrant had dealings with Mr Hart. The orders would not otherwise have been made. Although the inference which I draw from the making of the orders may not be strictly admissible in rebuttal of the case which the applicants presently seek to make, nonetheless in considering the seriousness of the question which is raised for determination in these proceedings, and in considering the balance of convenience, a matter to which I will shortly turn, the fact that these orders have been made should not be ignored. I am willing to infer, for present purposes, that the program used by the police officers was designed, assuming the existence of associations between the various persons and Mr Hart and his property.
I have come to the conclusion that there may be serious questions to be tried, but the applicants’ prospects of success are not substantial.
I turn now to the question of the balance of convenience. As far as I can see, the applicants have not demonstrated any significant prejudice likely to accrue to them as a result of the execution of the warrants or as a result of the respondents having access to the documents pending the resolution of this matter.
If their complaints are subsequently upheld, the applicants’ privacy will have been impinged upon, and they may have been, to some extent, inconvenienced in not having access to their documents and computer records. However I am satisfied that the offer of access made on behalf of the respondents is genuine. It has not been suggested that it is an impracticable way for them to have such access in the interim period, that is between now and the final resolution of this matter.
In those circumstances, it is difficult to see that they are going to suffer any loss at all, let alone a loss for which they cannot be adequately compensated in damages. As against that, it is clear that the respondents are seeking to identify the assets which will be available to satisfy any pecuniary penalty which may be ordered against Mr Hart in due course. That is a purpose which is contemplated by the Act. The balance of convenience does not favour restraining the respondents from the exercise of their duties, given that there appears to be no measurable prejudice to the applicants. I will refuse the application for interlocutory relief.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 23 July 2003
Counsel for the First, Second, Third and Fourth Applicants: W Sofronof QC and L Bowden Solicitor for the First, Second, Third and Fourth Applicants: Hawthorn Cuppaidge & Badgery Counsel for the First, Third, Fourth, Fifth and Sixth Respondents: M Griffin SC Solicitor for the First, Third, Fourth, Fifth and Sixth Respondents: Commonwealth Director of Public Prosecutions Counsel for the Second Respondent:
The Second Respondent did not appear.
Date of Hearing: 17 June 2003 Date of Judgment: 17 June 2003
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