Williams v Keelty

Case [2001] FCA 1301

FEDERAL COURT OF AUSTRALIA

Williams v Keelty [2001] FCA 1301

SEARCH WARRANTS – validity of search warrants – whether the issuing officer had power to issue warrants under the Crimes Act (1914) Cth – whether there was power for members of the Australian Federal Police to act as executing officers in relation to the warrants – whether an offence against the Corporations Law is deemed to be an offence against the Commonwealth – whether the Crimes Act is, in relation to the Corporations Law of NSW, applied by force of NSW law as a law of that state

Whether the warrants issued are bad on their face – whether a failure to identify the offence to which the warrant relates invalidates the warrants – whether a failure to attach “Attachment A” listing “HIH and its subsidiaries” for the purpose of the second condition to the warrants results in invalidity – whether the invalid portions of the warrant can be severed – whether warrants are invalid for lack of clarity

Whether the issuing officer had “reasonable grounds for suspecting” that there were in existence things which would afford evidence of the commission of the offences for which the warrants were sought; and for suspecting that there was evidential material at the premises the subject of the warrant – whether the issuing officer took into account irrelevant considerations in deciding whether or not to issue the warrant – whether the issuing officer acted mechanically or under dictation

Whether warrants were issued for an improper purpose – improper purpose must be the “initiating and abiding purpose” – improper purpose can be established by inference – onus of proof in circumstances where the issue of search warrants is challenged on administrative law grounds – whether warrants were issued to obtain material for use by the applicant for the warrant in civil proceedings, which could not have been obtained by discovery – whether there was a duty of disclosure imposed on the applicant for the warrant to disclose the imminence and nature of the civil proceedings to the issuing officer – in circumstances where there has not been a misrepresentation – whether documents seized in the process of executing the warrants can be used for a purpose collateral to that for which they were issued – whether the warrants sought to obtain information in general, rather than documents that were pertinent to the specified offences – whether warrants were issued for the purpose of generating publicity for the Australian Securities Investment Commission – whether the issue of the warrants constitutes a contempt of court on which the applicants can base an application for injunctive relief – existence of undertaking proffered by ASIC

Documents seized pursuant to warrant were given by AFP to ASIC – whether Crimes Act authorises the AFP to relinquish custody of documents – whether natural justice requires that the applicants be given notice that the statutory power would be exercised

Whether copying of computer records was lawful

Whether service of section…

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Williams v Keelty [2001] FCA 1301
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[2001] FCA 1301
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CaseChat Overview and Summary

In Williams v Keelty, the dispute centred on the execution of search warrants by the Australian Securities and Investment Commission (ASIC) at various premises, including the homes of Mr Williams and Mr Adler, the business premises of Mr Williams’ accountant, and the offices occupied by Adler Corporation. The case involved allegations that ASIC acted beyond the scope of the warrants, particularly regarding the date restrictions and specific conditions outlined in the warrants. Mr Williams argued that ASIC, through its agents, seized documents outside the scope of the warrants, including documents that were not relevant to the investigation and those that were beyond the specified date range.

The legal issues before the court were whether ASIC’s actions during the execution of the search warrants were within the bounds of the warrants issued and if there was any disregard for the specified conditions. The court had to determine whether Mr Dunlop, an ASIC investigator, acted in complete disregard for the date restrictions and the third condition of the warrant, as alleged by counsel for Mr Adler. Additionally, the court needed to assess whether the execution of the warrants at Adler Corporation’s premises was conducted in accordance with the warrant’s terms, particularly given the objections raised by Mr Glass, a lawyer observing the execution.

The court examined the evidence provided by the parties and found that while Mr Dunlop may have had an overly expansive view of the warrant’s scope, there was no clear evidence that he acted in complete disregard of the warrant’s terms. The court was not persuaded that Mr Dunlop intended to seize documents outside the warrant's scope, despite his potentially broad interpretation of it. Regarding the execution at Adler Corporation’s premises, the court noted that while there were objections to the manner of execution, including the seizure of certain documents, the arrangement to seal the documents and allow for later challenges indicated an attempt to respect the legal objections raised.

The court concluded that the actions of ASIC during the execution of the warrants, while possibly exceeding the narrowest interpretation of the warrants, did not amount to a clear disregard of the warrant's conditions. The final orders of the court would likely focus on affirming the legality of the warrants’ execution within the parameters discussed, possibly with recommendations for more stringent adherence to the warrants’ conditions in future actions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HELY J
On 25 May 2001 Mr Adler participated in a radio interview with Graham Richardson on Radio 2GB. A transcript indicates that the following exchange took place during the course of this interview:“RODNEY ADLER: All that correspondence [relating to HIH] is sitting here in a file waiting for someone to pick it up and I have offered the file to ASIC and to APRA and no one yet has asked for my correspondence between me and the board to date. As I sit here talking to you now, that file remains unopened by any regulatory authority and I am ready to give it to them.GRAHAM RICHARDSON: I find it extraordinary that ASIC, if they’ve gone and got truckloads of documents from HIH couldn’t have sent a cab around to your place to pick up a file.RODNEY ADLER: I’d even send the cab to them and pay for it myself.”I admitted this evidence as proof of the fact of the interview only, and not as to the truth of the statements which Mr Adler made. Ms Redfern denied any knowledge of this interview until after the institution of the present proceedings (T 232). Mr Adler did not give evidence in these proceedings.The decision to apply for search warrants At some stage ASIC decided to apply for search warrants with respect to various premises including the homes of Mr Williams and Mr Adler, the business premises of Mr Williams’ accountant and the offices occupied by Adler Corporation. It is those search warrants, and various decisions taken in association with their issue and execution, which are the main subject of these proceedings. Ms Redfern’s evidence is that the decision to apply for the search warrants was made by Glen Unicomb, the principal investigator of the HIH investigation. That investigation was not divided into civil and criminal components – there was simply one investigation into all aspects of the HIH matter. Neither Mr Unicomb nor Mr Turton was called to give evidence in these proceedings. Nor have any documents been produced by ASIC which record the decision making process with respect to the application for the issue of the warrants. Discovery was required to be given (orders of 5 July 2001) of:“5.Internal notes, memoranda or other documents of [ASIC] relating to the obtaining or issue of the Search Warrants or the use of the material obtained thereunder.”Document 79 was discovered, under a claim of client legal privilege. It comprised a bundle of internal memoranda and notes (LZ 49). On 19 July 2001 ASIC advised Mr Williams’ solicitors that document 79 includes various handwritten notes of Ms Balding. With one exception ASIC indicated a willingness to produce those notes to avoid further arguments about privilege. The exception was said to be a file note of a meeting between Ms Redfern, Ms Balding and counsel which recorded the advice of Mr Wigney of counsel. ASIC was required by notice to produce given on 17 July 2001 to produce:“Documents recording or constituting:(a)the decision of the Australian Securities & Investment Commission or the warrant applicant to make application for the Search Warrants and the reasons for and purpose thereof;”but the response “nothing to produce” was given to that notice (LZ 88).

Ratio Decidendi

Legal Principle Established

Established by: HELY J

Counsel for Mr Adler submitted that I should find that Mr Dunlop acted, and had been told to act, in complete disregard for the date restrictions and the third condition of the warrant. Mr Dunlop denied that this was so and I am not persuaded that I should reject his sworn testimony to that effect. It is clear that Mr Dunlop was aware of the terms of the warrants. In the discussions which he had with Ms Platford, the relevance of the third condition was accepted. The dispute was as to its application in the context of particular documents. I do not think that this was a mere charade designed to cover up an underlying reality that Mr Dunlop intended to seize documents which he knew to be outside the terms of the warrant, and to do so in the full view of Mr Adler’s lawyers. Mr Dunlop may well have had an overly expansive view of the reach of the warrant. The fact that Ms Redfern was against seizure of documents whose seizure Mr Dunlop recommended suggests that this is so. So does his explanation for recommending seizure of CAP1. At times in his cross-examination Mr Dunlop was somewhat defensive when asked to explain why particular documents fell within the scope of the warrant. But the fact that Mr Dunlop may have had an overly expansive view of what the warrant authorised provides an insufficient foundation for the conclusion for which Mr Hammerschlag SC contends. I decline to draw that conclusion.Adler Corporation Pty Limited premises Mr Glass, a partner in Gilbert & Tobin, was present at the premises between about 8.00 am and about 4.30 pm to observe the execution of the warrant. In his affidavit of 4 July 2001 (par 19) Mr Glass said that he observed (inter alia) Jan Redfern removing documents from the Adler Corporation filing systems, reading and tagging those documents. So far as Jan Redfern is concerned, he resiled from that evidence in cross-examination (T 182). Federal Agent Brown was involved in the execution of this warrant. From time to time Mr Glass spoke to her and to ASIC representatives, asserting that particular documents, which were tagged as being intended to be seized, did not fall within the scope of the warrant. In the course of one such discussion, Federal Agent Brown indicated that the decision whether or not to seize a document was hers, but all she needed to have was a reasonable belief that a document fell within the warrant:“I am taking instructions from these two people [motioning to Ms Balding and Mr Unicomb]. I am satisfied that there is reason to believe that this document falls within the warrant.” Mr Unicomb spoke to Ms Redfern at about 2.15 pm on that day, in which he said he was having heated discussions with Mr Glass as to whether particular documents did, or did not, fall within the terms of the warrant. Ms Redfern went to the premises and spoke to Mr Glass. Mr Glass voiced his objections as to the manner in which the warrant was being executed by, amongst others, Federal Agent Brown. There was a discussion between Mr Glass and Ms Redfern as to how best to proceed, which Ms Redfern describes as follows:“I said:‘It’s no use in proceeding in that way. Why can’t we strike an arrangement to preserve your right so we will execute the warrant but put the documents in sealed boxes and allow you a short period of time to challenge the warrant.’Steven Glass said:‘That’s a good idea. It will progress the matter that way. If we do that there is no point with me staying any longer.’I said:‘Well that’s fine so let’s progress that way.’Steven Glass and Colleen Platford then left the room.”That arrangement was recorded in Gilbert & Tobin’s letter of 27 June 2001 to which I have earlier referred.