Williams v Keelty - [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 30 notice at time of the execution of the search warrants was lawful
WORDS AND PHRASES – “reasonable grounds for suspecting”, “make things available”, “relating to”, “of”
Corporations Law ss 180, 181, 182, 184, 1317FB, 1317FP, 1317N
Australian Federal Police Act 1979 (Cth)
Australian Securities and Investment Commission Act 1989 (Cth) s 11(7), 13, 30, 63(1), 33
Corporations (Commonwealth Authorities and Officers) Regulations, Reg 3(1)(d), (1)(h)
Corporations (NSW) Act ss 29(2), 31, 58
Corporations (WA) Act ss 29, 31
Corporations Act 1989 (Cth) ss 5, 45(1), 40, 47, 3(1), 5(a), 3(3)
Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth)
Crimes Act 1914 (Cth) ss 3F(5), 3, 3C, 3D(3), 3C(1), 3E(1), (3), (4), (5)(a), (c), 3ZV(1), 3L(2), (3), 3F(1), 3ZT
Acts Interpretation Act (1901) (Cth) s 38(1), 22(3)
Australian Capital Territory (Self-Government) Act 1988 s 23(1)(h)(i)
Australian Competition & Consumer Commission v J McPhee & Son (Aust) Pty Ltd (No 2) (1997) 148 ALR 601 applied
Australian Securities Commission v Burns (1993) 41 FCR 407 applied
Beneficial Finance Corporation Ltd v Australian Federal Police Commissioner (1991) 31 FCR 523 applied
Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 32 ALR 328 applied
Carmody v MacKellar (1997) 76 FCR 115 referred to
Challenge Plastics Pty Ltd v Collector of Customs (No 2) (1994) 49 FCR 541 distinguished
Chong v Schultz (2000) 112 ACrimR 59; [2000] FCA 582 referred to
Coward v Allen (1984) 52 ALR 320 referred to
Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570 considered
Dunesky & Bay Wool Pty Ltd v Elder (1994) 54 FCR 540 cited
Esso Australia Ltd v Federal Commissioner of Taxation (1998) 157 ALR 652 referred to
Federal Commissioner of Taxation v De Vonk (1995) 61 FCR 564 applied
Flanagan v Federal Commissioner of Taxation (1996) 60 FCR 149 cited
George v Rockett (1990) 170 CLR 104 applied, cited
Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 cited
Grollo v MacAuley (Commissioner of the Australian Federal Police) (1995) 56 FCR 533 cited
Hammond v The Commonwealth (1982) 152 CLR 188 applied
Harts Australia Ltd v Australian Federal Police (2001) 46 ATR 338; [2001] FCA 175 referred to
Harts Australia Ltd & Harts Pty Ltd v Commissioner Australian Federal Police (1997) 75 FCR 145 cited
Johns v Australian Securities Commission (1992) 178 CLR 408 distinguished
Shaaban Bin Hussien v Chong Fook Cam [1970] AC 942 cited
Joye v Beach Petroleum NL & Cortaus Ltd (in liq) (1996) 67 FCR 275 referred to
Karina Fisheries Pty Ltd v Mitson (1990) 96 ALR 629 referred to
Kazar v Deuus (1998) 88 FCR 218 cited
Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 applied
Lord (Liquidator of Dallhold Investment Pty Ltd (in liq)) v Commissioner of Australian Federal Police (1997) 74 FCR 61 cited
Malubel Pty Ltd v Elder (1998) 88 FCR 242 referred to
Malubel Pty Ltd v Elder (No 2) (1999) 73 ALJR 269 referred to
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
Ousley v R (1997) 192 CLR 69 cited
Ozzy Tyre & Tube Pty Ltd v Chief Executive Officer of Customs [2000] FCA 891 referred to
Parker v Churchill (1985) 9 FCR 316 applied
Parker v Churchill (1986) 9 FCR 334, referred to
Plenty v Dillon (1991) 171 CLR 635 referred to
Love & Peters v Attorney General (NSW) (1998) 84 ALR 319 cited
Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 applied, cited
Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 cited
R v Hughes (2000) 171 ALR 155; [2000] HCA 22
Refrigerated Express Lines Australasia Pty Ltd v Australian Meat & Livestock Corp (1979) 42 FLR 204 referred to
Smiles v Commissioner of Taxation (1992) 35 FCR 405 applied
Spratt v Hermes (1965) 114 CLR 226 cited
Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 referred to
Warringah Shire Council v Pittwater Provisional Council (1992) 26 NSWLR 491 cited
Welfare v Birdon Sands Pty Ltd (1997) 79 FCR 220 applied
Gollan v Nugent (1988) 166 CLR 18 referred to
RAYMOND REGINALD WILLIAMS v MICHAEL JOSEPH KEELTY, COMMISSIONER OF AUSTRALIAN FEDERAL POLICE, AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION AND PAUL GERARD GARDINER
N 1010 OF 2001
RODNEY STEPHEN ADLER AND ADLER CORPORATION PTY LIMITED v PAUL GERARD GARDINER, THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE AND AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
N 1014 OF 2001
HELY J
13 SEPTEMBER 2001
SYDNEY

TABLE OF CONTENTS
The decision to apply for search warrants........ ........ ........ ........ ........ ........ ........ ....... 3
Australian Federal Police (“AFP”) become involved........ ........ ........ ........ ........ ...... 6
The application for the search warrants........ ........ ........ ........ ........ ........ ........ ........ .. 7
The issue of the warrants........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 8
The tactical briefing........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 11
The execution of the warrants........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 13
The standstill agreement........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 14
Mr Williams – Mosman premises........ ........ ........ ........ ........ ........ ........ ........ ........ ... 14
Mr Williams – the accountant’s premises........ ........ ........ ........ ........ ........ ........ ....... 15
Mr Adler – Bellevue Hill premises........ ........ ........ ........ ........ ........ ........ ........ ........ .. 16
Adler Corporation Pty Limited premises........ ........ ........ ........ ........ ........ ........ ........ . 18
The involvement of Ms Redfern in the execution of the warrants........ ........ ........ 21
Discussion re s 30 notice........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 22
The s 30 notice........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 23
Events subsequent to execution – admissions........ ........ ........ ........ ........ ........ ........ 23
Events subsequent to execution – discovery in the Supreme Court........ ........ ...... 25
Events subsequent to execution – Ms Balding........ ........ ........ ........ ........ ........ ....... 25
The release of the documents to ASIC........ ........ ........ ........ ........ ........ ........ ........ .... 26
Lack of power to issue the warrants........ ........ ........ ........ ........ ........ ........ ........ ........ 27
Deemed offences under Commonwealth law........ ........ ........ ........ ........ ........ ........ ... 28
Deemed offences under State law........ ........ ........ ........ ........ ........ ........ ........ ........ ... 30
Potential problems with s 31........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 31
Corporations Law 2001........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 37
Whether the warrants are bad on their face........ ........ ........ ........ ........ ........ ........ .... 37
Identification of the offence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 37
Non-attachment of Attachment A........ ........ ........ ........ ........ ........ ........ ........ ........ .... 43
Lack of clarity........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 45
Reasonable grounds to suspect the commission of offences........ ........ ........ ........ .. 47
Did the issuing officer take into account irrelevant considerations?........ ........ ..... 59
Suspicion that evidential material is at the premises to be searched........ ........ .... 60
Acting mechanically or under dictation........ ........ ........ ........ ........ ........ ........ ........ .... 60
Improper purpose and contempt
           Improper purpose – some principles........ ........ ........ ........ ........ ........ ........ .... 61
Multiple purposes........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 65
Onus of proof........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 65
A duty of disclosure?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 66
Contempt of Court........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 67
Were the warrants issued to obtain documents for the Supreme
           Court proceedings?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 69
Ms Redfern’s credit........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 73
Were the warrants sought to obtain information in general, rather than
documents that were pertinent to the offences specified in the
           third condition?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 74

Were the warrants applied for for the purpose of generating publicity
for ASIC........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 76

Release of the documents to ASIC........ ........ ........ ........ ........ ........ ........ ........ ........ .. 78
Copying the computer records........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 81
Section 30 notice to Peter H Hunt & Associates........ ........ ........ ........ ........ ........ .... 83
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 85

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1010 OF 2001

BETWEEN:

RAYMOND REGINALD WILLIAMS
APPLICANT

AND:
BETWEEN:
AND:

MICHAEL JOSEPH KEELTY, COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
FIRST RESPONDENT

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
SECOND RESPONDENT

PAUL GERARD GARDINER
THIRD RESPONDENT

N 1014 OF 2001

RODNEY STEPHEN ADLER
FIRST APPLICANT

ADLER CORPORATION PTY LIMITED
(ACN 054 924 373)
SECOND APPLICANT

PAUL GERARD GARDINER
FIRST RESPONDENT

THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE
SECOND RESPONDENT

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
THIRD RESPONDENT

JUDGE:

HELY J

DATE:

13 SEPTEMBER 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Mr Williams and Mr Adler were, for a time, directors of HIH Insurance Ltd (“HIH”). HIH and other companies within the HIH Group were placed into provisional liquidation on 15 March 2001. The failure of HIH has resulted in much public comment and concern. It is probably the biggest corporate collapse in Australia’s history. On 18 June 2001 the terms of reference for a Royal Commission into the collapse of HIH were announced by the Australian government. Those terms include an examination of the conduct of directors of HIH, including whether their decisions or actions constituted a breach of the law. The announcement noted that the Australian Securities & Investment Commission (“ASIC”) is also investigating certain matters surrounding the failure of HIH and that there would need to be co-operation between the Royal Commission and ASIC in order to avoid duplication of functions, and other potential disadvantages.
On 27 February 2001 ASIC commenced an investigation pursuant to s 13(1) of the Australian Securities & Investment Commission Act 1989 (Cth) (“ASIC Act”) in relation to suspected contraventions of ss 180, 181 and 182 of the Corporations Law regarding a $10 million payment by an HIH subsidiary to Pacific Eagle Equity Ltd (“PEE”) on or about 15 June 2000. In very general terms, it appeared that PEE used the funds to acquire shares in HIH itself. It also acquired securities of other companies from Adler Corporation Pty Limited.
Thereafter the range of the investigation was extended from time to time to include suspected contraventions of other provisions of the Corporations Law and other occurrences or transactions. In an affidavit (exhibit 10 to affidavit of Leon Zwier of 2 July 2001, tab 5 (LZ 10, T 5)), filed in Supreme Court proceedings to which reference will shortly be made, Jennifer Balding, then a senior lawyer in the Enforcement Program of the ASIC NSW Regional Office, described herself as being responsible for the conduct of at least the initial phase of the investigation. Before me Ms Redfern, then ASIC’s NSW General Counsel, gave evidence (T 210) that in May and June 2001 Glen Unicomb was the principal officer of the HIH investigation, reporting to Alan Turton.
On 22 May 2001 ASIC commenced proceedings in the Supreme Court of NSW against Mr Adler, Mr Williams and Dominic Fodera. In those proceedings, declarations are sought that the payment of $10 million by an HIH subsidiary to PEE on or about 15 June 2000, and the sale of securities by Adler Corporation to PEE resulted in contravention of various provisions of the Corporations Law. Orders are sought that each of the defendants in those proceedings should be disqualified from managing corporations for such period as the Court thinks fit. Orders are also sought for the payment of compensation to HIH, and for pecuniary penalties.
In an outline of submissions lodged with the Supreme Court on 23 May 2001, “dstore”, “Planet Soccer” and Nomad Technologies Ltd were identified as companies in which PEE purchased shares from Adler Corporation. In addition, loans were allegedly made to “Morehuman” Pty Ltd and Pacific Capital Partners Pty Ltd, companies said to be associated with Mr Adler (LZ 10, T 2).
Jennifer Balding had the carriage of the Supreme Court proceedings, under the general supervision of Jan Redfern.
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).

In an affidavit sworn on 23 July 2001 in relation to the notice to produce, Ms Redfern said:
“12. Category 79 comprises:
(a)Notes of meetings, relating to the application for the search warrant attended by ASIC lawyer and officers of the DPP in or about the period 6 June 2001 to 24 June 2001.
...
13.(a) On 6 June 2001 I attended a meeting at which the following were present:
Glen Unicomb and Jennifer Balding of ASIC, Mr Anthony Bannon SC, Mr Michael Wigney and Mr David Stack of counsel. During the meeting ASIC sought the advice of counsel. Document barcoded SBA155664 is Jennifer Balding’s notes of this meeting. These notes reveal the content of legal advice given by Counsel. The notes made by Ms Balding are confidential and were prepared for the dominant purpose of providing ASIC with legal advice.”
The document bar coded as SBA155664 consists of handwritten notes of a meeting held on 6 June 2001, which have been completely blanked out apart from the names of those who attended the meeting (LZ 84). Other notes record that as early as 8 June 2001 Ms Balding was giving consideration to “search warrant issues”. A note by Ms Balding of 15 June 2001 records:
“- Rang Austin
- Review role on warrant.”
“Austin” is Janet Austin, a solicitor employed by the Commonwealth DPP.
Ms Redfern’s affidavits of 18 July 2001 filed in both proceedings contain the following:
“9. I did not settle the applications for search warrants. Nor was I involved in the application for the search warrants. I did not attend the briefings to officers attending the execution of the search warrant. I was not advised on any details as to the execution except that I was told that the execution would occur on Tuesday. I was not asked to be on standby to answer any issues concerning the execution of the search warrant and I did not expect to be consulted or to provide any legal advice.”
Ms Redfern was cross-examined to suggest that at the meeting of 6 June 2001, at which she was present, a decision was made to apply for the search warrants. She denied that to be the case (T 188). Notwithstanding pars 12(a) and 13(a) of her affidavits of 23 July 2001 she denied that the meeting of 6 June 2001 is accurately described as a meeting relating to the application for the search warrants (T 193). She said (T 193) that the meeting was in the nature of a preliminary meeting to discuss the matter prior to a meeting with the DPP later that day to discuss a possible criminal prosecution (T 193). She denied that it was her idea to consider applying for the search warrants as early as 6 June. She also denied that she was now trying to put some gloss or spin on these events, so as to distance herself from the process of applying for the search warrants.
In my view, there is an inconsistency between Ms Redfern’s statements in par 12(a) and 13(a) of her affidavits of 23 July 2001 and her later evidence that the meeting of 6 June 2001 was not a meeting relating to the issue of the warrants. Mr Beach QC launched a direct attack on Ms Redfern’s credit. The inconsistency to which I have referred is but one of the planks on which that attack is based. I will defer an assessment of Ms Redfern’s credibility until all of the grounds upon which it was attacked have been considered.
On 19 June 2001 Simon Temple, a senior investigator with ASIC, notified Glen Unicomb and others within ASIC that they were needed to assist the HIH investigation on 26 June 2001 as “operational team leaders”. They were also notified that they would be required for a briefing on the afternoon of 25 June from 2 pm (LZ 44).
Australian Federal Police (“AFP”) become involved
On 21 June 2001 Simon Temple, by email to Detective Sergeant Hobart of AFP requested that two AFP officers from the ACT act as warrant holder and corroborator in relation to one of the search warrants proposed to be issued (LZ 44). Apparently AFP in Sydney had agreed to act in relation to nine of the warrants, but due to a shortage of personnel they could not handle the tenth. On 22 June 2001 copies of the draft application for a search warrant and a tactical plan, were sent to AFP (LZ 44).
AFP publishes guidelines to provide a practical framework within which requests by agencies for assistance from the AFP in the execution of search warrants, particularly in relation to fraud and general crime related matters, can be properly assessed, and where appropriate, actioned. According to the guidelines, one of the factors which AFP takes into account as part of the assessment process is:
“•whether the Department/Agency has used all other methods reasonably available to it, without success, in an effort to obtain the evidence.”
(LZ 87)
The guidelines also provide for written requests to be made for AFP assistance. Attachment I to the guidelines is a sample request. It indicates, as does Part C Cl 4, that requests for assistance in connection with the execution of a search warrant will need to state that seizure of the evidential material “is wholly for the purposes of a criminal prosecution” and not for the purposes of other kinds of proceedings, including civil proceedings.
There is no evidence before me that any written application of the type referred to in the guidelines was made to AFP. Nor is there any evidence as to how or in what way the assistance of AFP Sydney was sought or secured. There was evidence from Federal Agent Brown that in practice requests made by agencies to AFP are not normally in writing. It is not the usual procedure that AFP requires a request in accordance with the guidelines before it moves (T 338-339).
The application for the search warrants
A number of drafts of the search warrant applications were prepared in the period 12 June 2001 to 24 June 2001 by ASIC investigators “in consultation with Jennifer Balding”. Ms Balding provided legal advice on the terms of the warrants (ASIC letter of 19 July 2001 to Arnold Bloch Leibler, LZ 80). At least one such draft included in the list of entities in the second condition:
Pacific Mentor Pty Ltd (“Pacific Mentor”)
Business Thinking Systems Pty Ltd (“BTS”)
The third condition in the draft included a section headed “Payments to Business Thinking Systems Pty Ltd”. The significance of these facts will later emerge.
On the morning of 25 June 2001 Glendon Michael Unicomb made an application for warrants to search premises under s 3E of the Crimes Act 1914 (Cth) (“Crimes Act”) for search warrants Nos 431 to 442 of 2001. The application was with respect to a “three condition warrant” of the type described in Dunesky & Bay Wool Pty Ltd v Elder (1994) 54 FCR 540 and in Ozzy Tyre & Tube Pty Ltd v Chief Executive Officer of Customs [2000] FCA 891.
It is sufficient for present purposes to note the following, the significance of which will later appear:
-the second condition did not include either Pacific Mentor Pty Ltd or Business Thinking Systems Pty Ltd. The reference to Business Thinking Systems Pty Ltd which appeared in the third condition in an earlier draft was not included in the application as presented.
-The second condition included HIH and “its subsidiaries as detailed in Attachment A”.
-Attachment A was physically attached to the application. It listed companies which were said to comprise the HIH group of companies. The list comprised almost four pages.
-The third condition listed a series of suspected offences against specified sections of the Corporations Law.
-Whilst there were occasional and elliptical references in the application to the Supreme Court proceedings, the application did not disclose that ASIC was seeking civil penalties in those proceedings with respect to many of the suspected offences listed in condition 3 of the warrants.
The issue of the warrants
On 25 June 2001 Paul Gerard Gardiner, a Justice of the Peace, issued (inter alia) the following search warrants which are the subject of challenge in these proceedings:
-No 434 of 2001: a warrant in respect of Mr Williams’ house at 4 Burran Avenue, Mosman (LZ 18). The warrant was issued to Federal Agent Marjorie Brown. She altered the name of the warrant holder to Federal Agent Benjamin Ross Moses (see Crimes Act s 3E(5)(d)), but said in evidence in these proceedings that she maintained responsibility for the co-ordination of all warrants issued to her on 25 June 2001.
-No 436 of 2001: a warrant in respect of premises located at Level 6, 64 Castlereagh Street, Sydney (LZ 20). Those premises are occupied by Mr Williams’ accountant, Peter Hunt & Associates. This warrant was issued to Federal Agent Marjorie Brown, who altered the name of the warrant holder to Dawn Alderman.
-No 431 of 2001: a warrant in respect of premises located at Level 34, 264-278 George Street, Sydney. These premises are occupied by Adler Corporation Pty Limited. The warrant was issued to Federal Agent Marjorie Brown, and she did not alter the name of the warrant holder (Ex H4 p 1).
-No 433 of 2001: a warrant in respect of the premises located at 5 Sheldon Place, Bellevue Hill, being Mr Adler’s place of residence (Ex H4 p 10). This warrant was also issued to Federal Agent Marjorie Brown, who altered the name of the warrant holder to Federal Agent Heidi Quinn.
The warrants (other than the warrant in respect of the accountant’s premises) follow basically the same form, although condition 2 in the Adler warrants comprises a wider range of entities than the corresponding condition in the Williams warrant. There are also some differences in the specification of the suspected offences in condition 3 between the Adler warrants and the Williams warrant.
Taking the Williams warrant by way of example, the first condition covers things which are original copies or drafts of sixteen specified types of things relating to the period 1 July 1997 to 15 March 2001. The second condition covers things which relate to any one or more of about thirty-six people or companies. Neither Pacific Mentor Pty Ltd, nor Business Thinking Systems are listed in the second condition. The third condition lists fourteen suspected offences. If one works out the mathematical combinations, there are 8,064 (16 x 36 x 14) potentially different categories of “things” in the Williams search warrant, before factoring in the vagueness associated with the words “relating to” in the first and second conditions.
The form of the warrants issued differs from the applications in two respects. First, the offences were described in the warrants as being offences against “the laws of the Commonwealth”, whereas in the application the suspected offences were described as being “against the Corporations Law”. Second, the first company listed in condition 2 is HIH and “its subsidiaries as detailed in Attachment A”. There is no document attached to the warrants which satisfies that description, whereas such a document was attached to the applications.
Three defects are alleged to exist in relation to the form of the warrants. They are illustrated by the following examples:
(i) suspected offence (a) in the case of both Williams and Adler warrants is:
(a)an offence against s 184(1), namely that between 15 June 2000 and 30 June 2000 Adler, being a director of PEE was reckless and failed to exercise his powers and discharge his duties in good faith in the best interests of the corporation or for a proper purpose in that he caused PEE to acquire 3,924,545 shares in HIH.
The omission of the reference which appeared in the draft to the offences being offences against the Corporations Law means that in the warrant the offence is described as being an offence against s 184 of some unspecified Commonwealth law.
(ii) Suspected offence (k) in the case of the Williams warrant is:
(k)an offence against s 232(6) and 1317FA, namely that between 19 January 1999 and 21 September 1999 Williams, being a director of HIH, knowingly and dishonestly, used his position to gain an advantage for himself, in that he caused bank accounts operated by HIH and its subsidiaries to be used for his own private purposes.
As there is no Attachment A, the subsidiaries are not specified.
(iii)Suspected offence (m) in the Williams warrant (equivalent to (k) in the Adler warrants) is:
(m)an offence against s 232(2) and 1317FA, namely that between 19 August 1999 and 7 September 1999 Williams, and other directors of HIH knowingly and dishonestly and intending to gain an advantage for HIH failed to act honestly in the discharge of their duties of their office in that they improperly accounted for a reinsurance agreement with Hannover Re, namely recognising an increase in profits of $60 million.
There is no identification of the “other directors” who are alleged to have participated in the commission of this offence.
The warrant issued in relation to the accountant’s premises was somewhat more confined in its scope than the other warrants. In condition 2 reference was made to the HIH subsidiaries detailed in Attachment A, but there is no such attachment. The offences are described as being against the laws of the Commonwealth, with a section number, but not the name of the Act, given. Only two offences are specified in condition 3, each of which involves as one of its elements the operation of bank accounts by “HIH and its subsidiaries”. The absence of an Attachment A is said to produce the result that there is no identification of the subsidiaries.
The tactical briefing
At about 2 pm on 25 June 2001, after the issue of the warrants, Mr Unicomb gave a tactical briefing to team leaders in relation to the execution of the warrants. A “Powerpoint” presentation was given by Mr Unicomb to the persons attending the briefing.
The slides for the “Powerpoint” presentation (LZ 70) gave some information of a highly generalised kind as to the properties to be searched, and the transactions in which those suspected of the commission of offences were allegedly involved. In relation to Mr Williams’ accountant, the slide is as follows:
“APPLICATION FOR SEARCH WARRANTS

Person Properties
Transactions

Peter Hunt

A business office located at Level 6, 64 Castlereagh Street, Sydney, NSW 2000

Transactions involving use of Williams’ private bank accounts

Flow of funds linked to Williams

HIH generally”

There is no statement that the generality of the search is constrained by condition 3 and by the time period specified in condition 1.

A document styled “Tactical Plan, HIH Insurance, Search Warrant Executions” was tabled at the meeting (LZ 68). It is not clear how widely the document was disseminated. Mr Dunlop said he did not receive a copy at the briefing (T 248), nor did Mr Buchhorn (T 319). Federal Agent Brown received a copy at the briefing, but she did not give copies to members of her search team (T 337). The tactical plan states that the types of documents to be searched for are listed in Annexure 3. Annexure 3 is simply a listing of relevant entities and documents. The list of entities include Pacific Mentor Pty Ltd and Business Thinking Systems Pty Ltd, although those companies were not included in the warrant. There is no statement that the types of documents to be searched for is also constrained by condition 3, (although Annexure 1 is a list of suspected Corporations Law offences, but not in the same terms as condition 3). Nor is there any reference to the time constraints in condition 1.
The tactical plan includes the following statement:
“Legal advice
Most search teams include an ASIC lawyer. If legal issues arise that cannot be resolved at the scene, advice can also be sought from the following:
ASIC Jan Redfern 9911 2191 0411 119 210.”
Ms Redfern says that she did not see a copy of the tactical plan until after the institution of these proceedings (T 195). She says that she did not know at the time that she had been nominated as the person responsible for giving legal advice if it was needed in the field during the execution of the warrants (T 196). It was not the usual practice for her name and telephone number to be included in such a document without her prior knowledge and consent, but she does not know how this came about (T 245). However, Ms Redfern’s telephone numbers are available from the ASIC directory (T 195).
There is a dispute as to whether Ms Redfern was present at the tactical briefing. She says she was not (T 234). Mr Buchhorn could not recall her being there, nor could he recall whether Ms Balding was present (T 327). Federal Agent Brown had difficulty putting names and faces together. She thought that “Jennifer Redfern” was present at the tactical briefing. She said she met Jennifer Balding on that day, but she did not know whether she spoke to Jan Redfern. Mr Dunlop, who attended the meeting, was not asked whether Ms Redfern was present. I would not be prepared to reject Ms Redfern’s denial that she was present, supported as it is by the evidence of Mr Buchhorn, purely on the testimony of Federal Agent Brown, who, apart from other problems with her testimony, was a long way from being sure as to the position.
Mr Alan Turton (T 223) had compiled a list of team members who would be involved in the execution of the warrants which was amongst the documents circulated at the briefing (LZ 87). Mr Turton knew the civil proceedings were on foot (T 224). The team included Mr Unicomb, Jennifer Balding, Jeremy Herman and Peter Edwards (T 225) who were already involved in the civil proceedings.
At this meeting no instruction was given, or limitations imposed on the use to which seized material might be put once seizure was effected. No one told Mr Buchhorn, for example, that information or documents obtained was not for use in the civil proceedings (T 329).
Ms Redfern gave the following evidence in cross-examination (T 223):
“Now, were you alive to the fact at the time the search warrants were executed that it would have been impermissible for ASIC to be searching for documents for use in civil proceedings? --- For use in the civil proceedings?
Yes? --- Yes.
Were you sensitive to that issue at the time? Was it something ---? --- Sensitive to it, what do you mean?
Well, was it something that crossed your mind, was it something that you didn’t know about at the time? --- No, it was something I was concerned to ensure didn’t happen.
Well, if you were so concerned, why would you have Jennifer Balding as the principal solicitor in the civil proceedings being the person who also executed the search warrant? --- I didn’t actually know that she was executing the search warrant.
Who took that decision? --- I don’t know. I actually thought that she was back at the office, that was the issue I was referring to earlier.
When did you find that out? --- When I was telephoned at about a quarter past two on the afternoon by Glen Unicomb who told me that he was with Jennifer and they were having a dispute in relation to the execution of the warrant.
...
Have you got any explanation to offer as to how it came about that the principal solicitor on the civil proceedings was present and acting as an assistant constable in the execution of the search warrant? --- No.”
The execution of the warrants
Mr Williams and Mr Adler contend that documents were seized pursuant to the warrants which do not fall within the terms of the warrants and/or are the subject of legal professional privilege. Harts Australia Ltd v Australian Federal Police (2001) 46 ATR 338; [2001] FCA 175 (“Harts v AFP (2001)”) establishes that unless the parties can agree on some more sensible regime, the Court may be required to immerse itself in questions as to the seizure of a mass of individual documents.
It was impractical for this task to be undertaken in the time which I had available within which to conduct a final hearing of these proceedings, hence the parties agreed that this issue should be the subject of a separate question, to be determined, if necessary, later in the proceedings.
The standstill agreement

On 26 June 2001 there were conversations between Mr Zwier and Ms Redfern in which Mr Zwier asserted that the warrants were invalid because, amongst other things, they were an illegitimate attempt to get discovery in civil penalty proceedings. Ms Redfern denied that this was ASIC’s intention. She said the warrants were being executed in connection with the criminal investigation not the civil proceedings. Agreement was reached as to the boxing and sealing of seized documents pending the institution of these proceedings. A similar arrangement was reached in relation to Mr Adler, the terms of which are recorded in Gilbert & Tobin’s letter of 27 June 2001.
Notwithstanding the separation of issues to which I earlier referred, some events which occurred in the course of execution of the warrants are relied upon by the applicants in support of other aspects of their claim and it will be necessary to turn to them.
Mr Williams – Mosman premises
Mr Buchhorn is an ASIC Investigator. He attended the tactical briefing on 26 June 2001, but did not have any prior association with the HIH investigation. He attended the Mosman premises and participated in the execution of the search warrant. In a walk-in-robe adjacent to a large bedroom he found some documents including a Westpac bank statement for an account of Mr and Mrs Williams. He formed the view that the bank statement fell outside the scope of the warrant (as it was outside the time period stipulated in the warrant), but he nonetheless decided to make notes of its contents. He told Mr Turton of the notes he had made, who said that he should “put it in a memo to Glen” (Unicomb) (T 307). Mr Turton did not suggest that Mr Buchhorn was guilty of any impropriety in making notes as to the contents of documents which fell outside the warrant, or in communicating information gathered in the course of execution of the warrants to ASIC officers, having regard to its apparent relevance to the Supreme Court proceedings and the Mareva injunction which ASIC had obtained on those proceedings.
Mr Buchhorn said that he made the notes because the documents were potentially evidence (T 312) in respect of the criminal investigation. Mr Buchhorn denied that he went to the premises for the specific purpose of gathering information that would be useful to ASIC’s civil case (T 314).
Mr Buchhorn also made some notes about entries on a document relating to Aria Park, a company not referred to in the second condition to the warrant, and asked Mr Williams some questions about the document (T 321).
On 27 June 2001 Mr Buchhorn sent a memo to Glen Unicomb regarding Ray Williams’ overdraft. The memo included the following:
“Yesterday while conducting the search on Ray Williams [sic] house, I came across various bank statements.
Some of these indicate that Ray Williams is running an overdraft account which has been drawn down dramatically over the last months and now stands at ... debit. I understand we have freezing orders over certain of William’s[sic] assets. It is possible that some of these assets may be security for the overdraft account and the ASIC caveat is being undermined.”
Details of Key Account balances on the account for dates between 16 May 2001 and 15 June 2001 were then given. ASIC contended that the information in the memo was not confidential, a submission which I rejected. Accordingly, I have not reproduced the precise figures referred to in the memo. This memo relates to the Mareva injunction in the civil proceedings. Neither this nor any other memo adverts to the significance of the notes which Mr Buchhorn made in relation to any criminal proceedings.
Mr Williams – the accountant’s premises
The accountant’s premises were computerised. Some information relevant to the warrant was found on a computer, but there was a large amount of information recorded on the computers which was totally unrelated to the warrant. There was a discussion between Ms Alderman, Mr Higginbotham (the solicitor for the accountants) and Mr Hunter (a forensic technician assisting AFP) as to how this problem should be managed. Ms Alderman said that she intended to have a copy done of all information on all computers which would be sealed in an envelope. Arrangements would be made for a representative of the accountants to be present when the computerised information was later reviewed so that only information covered by the warrant would be printed out. Although Mr Higginbotham participated in these discussions he did not consent to the course proposed.
There is an issue as to whether taking a copy of the relevant files at the premises was a practical option. Mr Hunter’s evidence was that it would take a week to copy only relevant files. Further, he said:
“There are so many other factors which surround that file or surround the information inside that file which can play a part in how it got there, who created it. There’s many facets to computer-based evidence. Copying a single file is probably the worst way of treating evidence from a computer.”
(T 270)
In par 8 of Mr Hunter’s affidavit, Mr Hunter put the matter in this way:
“Taking a copy of just the relevant files was not a practical option as such an exercise would have taken, in my estimate, at least a week as in addition to the time taken in identifying those files, it would be necessary to show the context in which the files were stored. Furthermore it may be necessary to hold a copy of the actual database and operating system in which those files are stored to get an actual replication of the information on the file.”
No countervailing evidence was called by the applicants.
The applicants contend that this evidence was an ex post facto reconstruction on the part of Mr Hunter. Mr Higginbotham says that Mr Hunter said at the time:
“It is possible to access and separate the information we need for the Search Warrant from the general information on the computer however that will take much longer than simply copying the whole computer data and it may take until midnight tonight to do it that way. The only information which couldn’t be separated in this matter would be deleted files.”
Mr Hunter denies that conversation.
The applicants do not accept that it was “not practicable” within the meaning of s 3L(3) of the Crimes Act to do other than take everything on the computer at the accountant’s premises. They appear to accept that it may have taken until midnight to take relevant material only, but complain that the chosen course was adopted as a matter of convenience, simply because it was regarded as the quickest option.
Mr Adler – Bellevue Hill premises
Mr Dunlop, a principal investigator with ASIC attended these premises. A white ring-back folder which contained six to eight documents was found and shown to him. He looked at the first two or three documents and formed the opinion that they appeared to come within the conditions of the warrant. He told Federal Agent Quinn that this was his view. Ms Platford of Gilbert & Tobin disagreed and Ms Redfern was consulted. Ms Redfern was of the view that the documents should not be taken; Mr Dunlop disagreed and expressed that disagreement to Federal Agent Quinn. Ultimately two documents were taken, CAP1 and CAP2. They were not taken by Mr Dunlop who had left the premises beforehand. CAP1 and CAP2 had noted against them the claims for privilege and the claim that the documents fell outside the terms of the warrant. Those claims fell to be dealt with under the agreed procedure set out in Gilbert & Tobin’s letter of 27 June 2001.
Mr Dunlop denied that the exercise in which he was involved was the deliberate seizure of documents which he knew to be outside the warrant (T 255) and denied (T 254) that he was “a bare faced liar”.
Ms Platford says (affidavit 17 July 2001 at par 5) that Mr Dunlop told her during the discussion at the premises in which Ms Platford protested about the seizure of these documents:
“As far as we are concerned, under the warrant we intend to and have been told to take any document that mentions Pacific Eagle Equities or Adler Corporation.”
Mr Dunlop denied in his affidavit (par 22) that he made this statement. He repeated that denial in cross-examination (T 293). Ms Platford did not make contemporaneous notes of her conversations with Mr Dunlop, and the conversations were somewhat heated (T 171). Given the circumstances of this conversation and the dispute as to what was said, I am not prepared to find Mr Dunlop admitted that both his instructions and his intention were to seize documents which mentioned PEE or Adler Corporation irrespective of whether the other conditions were met.
Mr Dunlop favoured seizure of CAP1 because it was a document issued by Adler Corporation Pty Limited which referred to Adler Corporations assets, and he believed that Adler Corporation’s assets had been enhanced by certain of the transactions referred to in condition 3 (T 283). He agreed that there was no basis for seizure of CAP2, and certain other documents which he was shown (for example, pp 185 and 186 of Ex H4) but said that he could not recall seeing them before, and did not recall whether those documents were in the white folder.
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.
Examples of documents which were seized from these premises appear in Ex H4 at pp 251 et seq. They include a receipt given to Mrs Adler for attention to her swimming pool (p 251), and a tax invoice for $70 given to Mrs Adler for mowing the lawns and the like (p 256). Receipts for donations to recognised charities were also seized.
The memorandum and articles of association of Pacific Mentor Pty Ltd were seized (Ex H4 p 336) and documents in relation to Business Thinking Systems Pty Ltd were searched for (T 347-349; Ex H4 p 60) and seized (Ex H5 p 171). Federal Agent Brown gave evidence in the proceedings. She accepted that she went out and seized documents relating to entities that were not in the warrant (T 341).
Federal Agent Brown’s explanation as to the seizure of documents relating to companies not referred to in the warrant is that the names of those companies were included on a board at the front of the premises under the name of Adler Corporation Pty Limited (T 348). The reference in condition 2 to Adler Corporation Pty Limited justified the seizure of the documents (T 349). She claims that Glen Unicomb and Jennifer Balding gave her that advice (T 349) as well as other officers who were with her (T 350).
Taking the swimming pool receipt at Ex H4 p 251 as an example, Federal Agent Brown justified its seizure on the basis that Adler was one of the names in the conditions, 5 Sheldon Avenue was one of the addresses at which the warrants were executed, and the document could relate to all or any of the offences in condition 3, because the document is a receipt for money, and the offences are financial offences (T 357-358). Further, Federal Agent Brown did not know “the context” in which the document was seized, which might affect its character. When asked to explain this she said that “upkeep of assets” would be a context justifying seizure (T 358). Similar explanations were given in relation to the receipt for mowing lawns (T 358-359).
Federal Agent Brown said that she did not read all of the documents which were seized. She took advice from her seizing officers although she did spot checks from time to time. Thus she “probably didn’t read” the documents which were receipts for donations to charities at the time of seizure (T 361). Seizure of a receipt for a donation to the Children’s Hospital was justified, on the basis, at least ex post facto: “Where did the money come from that was being given away by Adler Corporation” (T 365).
I did not find Federal Agent Brown to be a reliable witness. I do not accept that she honestly believed that the seizure of the documents to which I have referred could be justified by reference to the reasons which she gave. She was attempting to justify the actions of herself or her team in relation to the documents put to her, which she knew could not be justified in terms of the warrant.
The involvement of Ms Redfern in the execution of the warrants
Ms Redfern was at her son’s school in the morning of 26 June 2001. Her mobile phone was turned off for a large part of the time she was there (T 196), She did not attend any of the premises at which warrants were being executed until about 4.30 pm in the afternoon. The following is an abbreviated time line of her involvement:
-9 am:               telephoned by Officer Quinn on her mobile phone, and spoke to Colleen Platford. Switched off mobile phone shortly afterwards (T 243);
-12-12.30 pm:   at an ASIC meeting when told to contact Leon Zwier urgently, which she does (Redfern affidavit [Williams proceedings] 18 July 2001 par 11);
-2.15 pm          Glen Unicomb telephones and asks Jan Redfern to come to Adler Corporation;
-early pm:         contacted by Ms Platford who complains that ASIC lawyers are threatening to seize Mrs Adler’s documents (Platford affidavit 17 July 2001 par 7);
-          after 4 pm:       at Adler Corporation premises (T 196);
-          about 10 pm:    in the ASIC office with Turton (T 197);
-          11 pm:             at Hunt’s premises (T 197).
I do not accept that the extent of Ms Redfern’s involvement on 26 June 2001 indicates or requires a conclusion that her involvement must have been planned and known to her prior to that date. It is at least equally possible that she was merely reacting to events as they occurred on that day, without any prior arrangement that she would be available for that purpose. It is not likely that she would have spent much of the morning at her son’s school, with her mobile phone switched off, if she knew that she was expected to discharge the role assigned to her in the tactical plan. It is true that there is no reference in Ms Redfern’s affidavits to her attendance at Hunt’s premises at 11 pm. There is no sinister significance in this omission. In the context, there was no particular reason why she should have referred to it.
Discussion re s 33 notice
On 26 June 2001 at about 11.45 pm Federal Agent Brown was served with a notice under s 33 of ASIC Act requiring production to Mr Unicomb forthwith of the documents seized from (inter alia) Mr Williams’ home and his accountant’s office (LZ 47). Ms Brown was not the executing officer under either of those warrants. She took no action in consequence of the receipt of the notice. The decision to issue this notice is the “third other decision” challenged by Mr Williams in these proceedings. It will be necessary to return to that decision later in these reasons.
What is or may be important for present purposes is that Mr Zwier, in par 38 of his first affidavit, said:
“On the evening of 26 June 2001, Jan Redfern telephoned me. She told me that she would resolve the issues with Ms Alderman in accordance with the Status Quo agreement. Jan Redfern also told me that the documents being seized by the AFP from the Accountant’s Premises would be the subject of a notice issued by ASIC requiring the AFP to deliver up all the seized documents to ASIC.”
Ms Redfern did not take issue with this statement in any of her affidavits. However, in cross-examination she denied that she was aware of a s 33 notice issued by ASIC to AFP to produce the documents seized under the search warrant. At T 205 in her cross-examination, the following appears:
“Q.You told Leon Zwier, did you not, on the evening of 26 June that documents seized by AFP from the accountant’s premises would be the subject of a notice issued by ASIC requiring the AFP to deliver up all the seized documents to ASIC --- I don’t believe so. I don’t believe I told him that.”
This conversation allegedly took place prior to the issue of the notice. It is unlikely that Mr Zwier would have the information about the intention to issue the notice unless it was given to him by someone from ASIC with whom he was dealing. There is no reason for Mr Zwier to attribute the information to Ms Redfern if it was given to him by someone else, if in fact he was talking to others from ASIC at this time. Mr Zwier was not cross-examined on this aspect of his affidavit. I accept Mr Zwier’s evidence. I accept that on 26 June 2001 Ms Redfern knew of ASIC’s intention to issue a s 33 notice in relation to the seized material, and told Mr Zwier that this would occur.

Mr Beach QC submitted that Ms Redfern was deliberately not telling the truth on this matter, and was again seeking to distance herself from the search warrants, because if she admitted knowledge of the s 33 notice, that would be indicative of greater involvement in the search warrant process on her part. I will return to that submission when dealing with Ms Redfern’s credibility.
The s 30 notice
On 25 June 2001 Peter Edwards on behalf of ASIC made a decision to issue a notice under s 30 of the ASIC Act addressed to Peter H Hunt & Associates (LZ 20). This is the “section 30 decision” referred to in Section E of the Second Amended Statement of Claim in the Williams proceedings. Peter Edwards was then involved in the conduct of the Supreme Court proceedings. No documents were produced in relation to the decision making process, nor was Mr Edwards called to give evidence.
The notice was served on Peter Hunt & Associates on 26 June 2001 during the course of execution of the search warrants. It is contended that ASIC staff only gained access to the accountant’s premises at that time as “constables assisting” the executing officer in relation to the search warrants directed to the firm, and that ASIC staff used the occasion of such access and entry for an improper collateral purpose, namely service of the s 30 notice. At the time of service of the notice, Mr Edwards is recorded as having said:
“This notice here requires production of any records that you may have in storage or offsite, so obviously the warrant can’t cover that because we don’t know where they are.”
There is nothing in the terms of the notice which confines its operation to the production of records in storage or offsite.
Events subsequent to execution – admissions
Ms Platford says that she had a telephone conversation with Ms Redfern at about 6 pm on 28 June 2001. She dictated a file note of that conversation immediately thereafter (Ex H1). The file note records that there was discussion about the institution of proceedings to challenge the validity of the search warrant. There was also discussion about the Supreme Court proceedings which were listed for directions on 2 July 2001. Ms Redfern said:
“I also wanted to talk to you about next Monday’s directions hearing. We would like a 4 week adjournment because ASIC wants to go through the material that was seized and also make a final determination about whether each proposes to institute criminal proceedings. Obviously if it instituted criminal proceedings then the civil proceedings would be automatically stayed.”
Ms Redfern’s account of that conversation is as follows:
We would like to have a four week adjournment because we haven’t yet decided whether to proceed with a criminal prosecution. If there is a prosecution the civil proceedings will be stayed. To make that decision we will need to go through the documents and that will be delayed because of your proceedings about the warrants. What is your position on this?”
Ms Platford accepted (T 168) that the reference in the file note to “each” was an error (presumably it should have been “ASIC”) but she would not accept that the reference to “also” was an error, or that the reference to “also” did not really make sense.
Mr Glass says (affidavit 23 July 2001 par 5) that when the Supreme Court proceedings were listed for directions on 2 July 2001 he had discussions with Ms Redfern. The context was either about the date for filing a statement of claim in the Supreme Court proceedings or the date by which ASIC was to give discovery in those proceedings, but he could not recall which. Ms Redfern said:
“We won’t even have had enough time to finish reading the documents obtained under the search warrants by then.”
Ms Redfern denies that she said words to that effect. It was put to Mr Glass that what Ms Redfern had said was that before deciding whether or not to commence the criminal proceedings, ASIC would need to look at the documents which had been seized on the execution of the search warrants. He did not recall her saying that (T 184).
At the time of each of these conversations, the parties were well and truly at issue as to whether or not the search warrants had been obtained by ASIC to seize documents for use in connection with the civil proceedings. Ms Redfern had denied that this was so. It is improbable that whilst voicing her denial that this was so in conversations with the applicants’ legal representatives, she would in conversations with these same people at about the same time, make admissions that she intended to read the documents seized for the purpose of progressing the civil proceedings. As the versions of the conversation between Ms Platford and Ms Redfern recounted above indicate, comparatively slight variations in language may give rise to significant differences in meaning.
I do not intend to reflect adversely on the honesty of any of those involved when I say that, for the reasons given in the previous paragraph, I am not satisfied that Ms Redfern made any of the admissions imputed to her in the conversations referred to above.
Events subsequent to execution – discovery in the Supreme Court
On 2 July 2001 Santow J made orders which included the following:
“3.The parties to serve requests for discovery by way of specified categories by 10 August 2001.
...
5.The parties to give discovery by 31 August 2001.”
(LZ 51)
Mr Williams contends that these orders ought not to have been made, as discovery ought not to be awarded in proceedings which are quasi criminal in nature. His failure to object to the making of the orders was due to a mistake, explained by the fact that he was represented by a junior solicitor, who attended the directions hearing in the expectation that, by agreement, the proceedings would be adjourned for four weeks. I accept the evidence to this effect. On 6 July 2001 ASIC was asked to consent to the vacation of the orders against Mr Williams. Whether or in what form ASIC responded to that request does not appear from the evidence.
The evidence does not disclose any communicated objection on the part of Mr Adler to the discovery orders made against him.
Events subsequent to execution – Ms Balding
There was no “Chinese wall” in place at the time of execution of the warrants (T 203). Ms Redfern says that the involvement of Ms Balding in the execution of the warrants was “unwise” (T 224) having regard to her role in the Supreme Court proceedings and that when she found out about it she advised Alan Turton that “we would have to make some changes with the resourcing” (T 224). Within a couple of days a decision was taken that Ms Balding would remain the principal lawyer on the investigation, but would not be involved in the Supreme Court proceedings (T 224).
On 24 July 2001 Jennifer Balding signed a letter enclosing copies of the Statement of Claim which had been filed in the civil proceedings (T 226). Ms Redfern said that she asked Ms Balding to sign this letter, but maintained: “at the end of the day she is not involved in the civil proceedings” (T 227).
The release of the documents to ASIC
I have already referred to the fact that on 26 June 2001 Federal Agent Brown was served with a notice under s 33 of ASIC Act (LZ 47) [par 71 above]. The notice related to books seized pursuant to the warrants to search premises issued on 25 June 2001, including the warrants the subject of these proceedings.
Federal Agent Brown did not tell Federal Agent Alderman (the warrant holder for the accountant’s premises) or Federal Agent Quinn (the warrant holder for Mr Adler’s residence) or Federal Agent Moses (the warrant holder for the Mosman premises) that she had received the notice because she “did not regard it as important” as the executing officer has the power “to hand documents seized over to an investigating agency” pursuant to 3F(5) of the Crimes Act.
Federal Agent Brown made the decision to hand over to ASIC the documents seized from Adler Corporation, except for privileged documents, which were originally lodged with the Downing Centre Local Court and later transferred to ASIC. She obtained a receipt from ASIC for documents described, for example, as “Box 26”, having a specified ASIC barcode.
In her affidavit in the Adler proceedings Federal Agent Brown said:
“Notwithstanding the Notice [under s 33] served on me, my decision to hand over the documents was made pursuant to s 3F(5) of the Crimes Act knowing the high standard of exhibit handling and security ASIC has in place and because I am aware that ASIC required the documents for the purpose of investigating the offences set out in the warrants.”
In Federal Agent Brown’s view (T 373) the section authorised her to hand the documents over to ASIC rather than merely affording access to the documents to ASIC officers. There is no evidence that any decision was made by any executing officer (other than Federal Agent Brown) to hand the material to ASIC. The applicants submit that the strategy envisaged by the tactical plan was simply to pass the material on to ASIC, and the s 33 notice was designed to overcome any inhibitions which AFP might otherwise have in relation to the delivery of the documents to ASIC, having regard to the fact that s 3F(5) only authorises the executing officer to “make the things available” to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.
Lack of power to issue the warrants
The application for the issue of warrants was made by Mr Unicomb, a staff member of ASIC. The warrants were issued by a Justice of the Peace in and for the State of NSW and were addressed to a member of AFP as executing officer.
The applicants contend that there was no power in the issuing officer to issue warrants under the Crimes Act in relation to suspected state offences, or for members of the AFP to act as executing officers in relation to such warrants.
When account is taken of various definitions in ss 3 and 3C of the Crimes Act, it is clear that Part 1AA of that Act, operating of its own force, only authorises the issue of search warrants in relation to suspected offences against a law of the Commonwealth, or of a Territory other than the Australian Capital Territory.
Whether the warrants sufficiently state the offences to which the warrants relate (as required by s 3E(5)(a) of the Crimes Act) is considered elsewhere in these reasons. However, it appears from the application for the warrants that the suspected offences are against “the Corporations Law”. There is no single law which answers or exactly corresponds with that description. As a result of s 5 of the Corporations Act 1989 (Cth) a law, which may be referred to as the Corporations Law of the Capital Territory, applies as a law for the government of the Capital Territory. The “Capital Territory” means the Australian Capital Territory and the Jervis Bay Territory. It was not submitted by any party that the distinction between the “Capital Territory” and the “Australian Capital Territory” was of any relevance in the present case. As a result of s 7 of the Corporation (Name of State) Acts of each of the States and of the Northern Territory, the Corporations Law of (name of State) applies as a law of that State or the Northern Territory, and in so applying may be referred to as the Corporations Law of (name of State).
There is nothing in the application, or in the evidence generally, which suggests any nexus between the suspected offences and the Capital Territory. That being so, the suspected offences are against the laws of a State or States, and are prima facie outside the purview of the Crimes Act (Cth).
In order to overcome that prima facie position, either:
-a Commonwealth law would need to provide that for the purposes of Commonwealth laws, or at least for the purposes of the Crimes Act, the relevant State offences are to be taken to be offences against the laws of the Commonwealth; or
-State law would need to pick up and apply the Crimes Act as a law of the State in relation to State offences. Insofar as the Act as thus applied purports to confer a function on a Commonwealth authority or official, federal law authorisation for the conferral is required; and
-the federal laws in question would need to be constitutionally valid.
No question was raised in the present case as to constitutional validity.
Deemed offences under Commonwealth law
ASIC’s outline of submissions filed prior to the commencement of the hearing included the following:
“... section 45 of the Corporations Act and section 29 of the Corporations (NSW) Act deem an offence against the Corporations Law to be an offence against the laws of the Commonwealth.”
The outline did not include any elaboration upon, or argument in support of that contention.
Section 45(1) of the Corporations Act1989 (Cth) provides that for the purposes of a law of the Commonwealth or a law of the Capital Territory, an offence against a provision of the Corporations Law of a jurisdiction other than the Capital Territory is taken to be an offence against the laws of the Commonwealth in the same way as if those provisions were laws of the Commonwealth. Section 29(2) of the Corporations (NSW) Act provides that for the purposes of the law of NSW, an offence against a provision of the Corporations Law of NSW is taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth. Both s 45(1) and s 29(2) provide that the offence is taken not to be an offence against the laws of NSW.
Section 45 of the Corporations Act1989 (Cth) appears in Division 2 of Part 8 of the Act. Section 40 provides that the object of Division 2 is to further the object of Part 8 by providing for an offence against an applicable provision of another jurisdiction to be treated in the Capital Territory as if it were an offence against the law of the Commonwealth.
In their opening submissions, the applicants contended that s 45 of the Corporations Act 1989 (Cth) is irrelevant to the circumstances of the present case, because nobody is purporting to exercise relevant powers in the Capital Territory. The search warrants were applied for in NSW, and issued in NSW. Reliance was placed by the applicants on the decision of the High Court in R v Hughes (2000) 171 ALR 155; [2000] HCA 22. In that case there was a challenge to the propriety of the Commonwealth DPP conducting a prosecution in Western Australia for breach of the prescribed interest provisions of the Corporations Law of Western Australia. The DPP’s statutory function was to institute and carry on prosecutions for offences against the laws of the Commonwealth. The Court held that the effect of s 29 and s 31 of the Corporations (WA) Act was that the DPP Act was rendered applicable as a law of Western Australia in relation to the offences against the Corporations Law of Western Australia which were the subject of the indictment. Section 47 of the Corporations Act 1989 (Cth) and Reg 3(1)(d) of the Corporations (Commonwealth Authorities and Officers) Regulations operated, as a matter of Commonwealth law, to stipulate that the DPP had the functions and powers expressed to be conferred on him by the Corporations (WA) Act.
The members of the Court (other than Kirby J) disposed of the relevance of s 45 of the Corporations Act 1989 (Cth) to the circumstances of that case in a footnote. Their Honours observed that s 45 appeared in Division 2 of Part 8, the stated object of which is to provide for the treatment in the Capital Territory of laws such as the Corporations Law of Western Australia (s 40(1)). Accordingly, s 45 had no application to the prosecution the subject of those proceedings and might be put to one side. At [83] Kirby J also concluded that s 45 had no application to the case before the Court as it applies only in the Australian Capital Territory, and the case before the Court had to be determined by reference to the law applicable in Western Australia.
ASIC did not offer any response to the applicants’ contention that the decision of the High Court in R v Hughes led to the conclusion that s 45 was of no relevance in the circumstances of the present case. Thereafter ASIC’s submissions concentrated on the provisions of s 29 and s 31 of the Corporations (NSW) Act, and no further reliance was placed on s 45 of the Corporations Act 1989 (Cth).
Deemed offences under State law
Section 29 of the Corporations (NSW) Act, in its operation in the circumstances of the present case, can be restated as follows:
(1)The Crimes Act and/or the Australian Federal Police Act 1979 (Cth) (“AFP Act”) applies as a law of NSW in relation to an offence against the provisions of the Corporations Law of NSW as if those provisions were laws of the Commonwealth and were not laws of NSW.
(2)For the purposes of a law of NSW, an offence against the provisions of the Corporations Law of NSW:
(a)is taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth; and
(b)is taken not to be an offence against the laws of NSW.
Section 31 of the Corporations (NSW) Act, in its operation of the circumstances of the present case, can be restated as follows:
-if the Crimes Act and/or the AFP Act confers on an officer or authority of the Commonwealth a function or power in relation to an offence against the Corporations Law of the Capital Territory, then the same function or power is conferred on that officer or authority in relation to an offence against the corresponding provision of the Corporations Law of NSW.
ASIC submits that the circle is completed by s 47 of the Corporations Act (Cth) and, in relation to AFP, by Reg 3(1)(b) of the Corporations (Commonwealth Authority and Officers) Regulations. Section 47 authorises the making of regulations whereby Commonwealth Authorities and officers may have the functions and powers that are expressed to be conferred on them by or under (inter alia) the Corporations (NSW) Act. Reg 3(1)(b) provides that members of the AFP have the functions and powers that are expressly conferred on them by or under (inter alia) the Corporations (NSW) Act. Regulation 3(1)(h) could, if necessary, apply to ASIC but s 11(7) of the Australian Securities and Investment Commission Act (1989) (Cth) provides that the Commission has any functions and powers that are expressed to be conferred on it by a national scheme law of another jurisdiction.
In this way, the Crimes Act is, in relation to an offence against the Corporations Law of NSW, applied by force of law of NSW as a law of that State. The Crimes Act as so applied, is to be adapted such that a search warrant might be issued in relation to a suspected offence against the Corporations Law of NSW: see R v Hughes (supra) at [28] and [103].
Potential problems with s 31
A potential problem arises because s 31 of the Corporations (NSW) Act only confers powers and functions on Commonwealth officers that those officers have in relation to an offence against the Corporations Law of the Capital Territory. The power to issue search warrants is to be found in Part 1AA of the Crimes Act. Part 1AA includes s 3D. Section 3D(3) provides as follows:
“(3)This part does not apply to offences against the laws of the Australian Capital Territory.”
The issue is whether an offence against the Corporations Law of the Capital Territory falls within that exclusion.
Part 1AA was introduced into the Crimes Act by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth) which commenced on 30 November 1994. Prior to that amendment the power to issue a search warrant was contained in s 10 of the Crimes Act which applied in relation to suspected offences against any law of the Commonwealth or of a Territory. According to the Explanatory Memorandum issued in relation to the 1994 Amendment Act:
“[Part 1AA] does not apply to offences against the laws of the Australian Capital Territory. It is understood that the ACT will be enacting its own legislation.”

Mr Hammerschlag submitted that there was no rational explanation for the search warrants other than a desire for publicity, given the history and Adler’s co-operation in supplying information to ASIC.
In Smiles v Commissioner of Taxation (1992) 35 FCR 405 Davies J, at first instance, held that whilst it would be inappropriate for a prosecution to be instituted merely for the purpose of the publicity which might be gained, it is not wrong to take into account the publicity likely to arise from, and the deterrent effect of, a prosecution when considering whether or not a prosecution for a taxation offence should be instituted. There is no element of abuse of power in that consideration, rather good administration.
It is at least implicit in the applicants’ submissions that the search warrant power is a power of last resort which should only be resorted to if the alternative means available by which the applicant for a search warrant might obtain access to documents the subject of the proposed warrant, with less invasion of privacy, have failed or are shown to be inappropriate. In Lord (Liquidator of Dallhold Investments Pty Ltd (in liq)) v Commissioner of Australian Federal Police (1997) 74 FCR 61 84-85, Lindgren J rejected the submission that the search warrants power is a power of last resort.
Although the submissions assert that there was “no basis” on which ASIC could properly seek ex parte relief in the civil proceedings, or the surrender of Adler’s passport, this is not established as a matter of fact. Ms Redfern denied any impropriety on the part of ASIC in this respect and there is nothing apart from bald assertion to contradict what she said in that respect. Mr Adler did not give evidence in the proceedings, and his public announcement was admitted into evidence on the specific basis that it did not establish the truth of the matters announced.
There was a lot of publicity generated by the collapse of HIH, and Ms Redfern did concede that there was intense pressure on ASIC to be seen to be doing something about HIH. Mr Knott did make a press statement to the effect that ASIC cannot be fully effective unless the market knows that it is regulating, and that effect can best be achieved by publicity.
However, the matters relied upon do not come anywhere near establishing that publicity was the sole or a predominant factor influencing the decision to seek the search warrants. There is no evidence that Ms Redfern, or for that matter, anybody else took any steps to create any media interest, although Ms Redfern readily conceded that she knew that there would be media interest.
This claim fails.
Release of the documents to ASIC
On 26 June 2001 Federal Agent Brown was served with a notice under s 33 of ASIC Act. The notice related (inter alia) to books seized pursuant to the warrants the subject of these proceedings. Federal Agent Brown’s evidence was that she did not act on the notice (T 372): “because the documents are handed over under Crimes Act 3F(5)”. Ultimately the respondents did not rely upon the s 33 notice as the authority for the transmission of the documents seized pursuant to the warrants from AFP to ASIC, hence it is not necessary to pursue further questions as to the validity of that notice.
The applicant for the search warrants was an ASIC officer, and ASIC officers assisted AFP in the execution of the warrants. ASIC is charged with the administration of the Corporations Law in relation to which the offences referred to in the third condition of the warrants allegedly arose. It is clear that it was always intended that documents seized by AFP pursuant to the warrants would be made available to ASIC, as the “mission” described in the tactical plan includes as the final step: “transfer custody of the seized books from the AFP to ASIC”.
Federal Agent Moses told Mr Zwier that AFP executed the search warrants at the request of ASIC, and AFP did not wish to become embroiled in a legal dispute. It was AFP’s intention to deliver up the documents seized uncopied to ASIC.
Section 3F(5) of the Crimes Act provides as follows:
“(5)If things are seized under a warrant, the warrant authorises the executing officer to make the things available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.”
Section 3ZV imposes an obligation upon a constable who seizes a thing under Part 1AA of the Crimes Act to return that thing in specified circumstances.
Although the executing officers were not called to give evidence (apart from Federal Agent Brown) I infer from the surrounding circumstances referred to in par [279] above that it was conceived to be necessary to make documents seized pursuant to the warrants available to ASIC for the purpose of investigating or prosecuting the offences to which the documents seized relate. There is no evidence from which I could draw a contrary inference. The evidence of Federal Agent Brown supports that inference.
Even so, the applicants submit that s 3F(5) only authorises AFP to “make the things available” to ASIC; it does not authorise relinquishing custody of those things, nor surrendering care, custody and control of them.
There is no direct evidence of any agreement between AFP and ASIC as to the terms on which the documents seized were made available to ASIC, except that Federal Agent Brown gave some evidence that “the process of receipts being handed over and returned” was the basis on which movement of documents from AFP to ASIC and in the opposite direction takes place.
It would not be open to AFP to deal with the documents seized in such a way as would make it impossible for the s 3ZV obligation to be performed. But there is no evidence on which I could infer that AFP has behaved in that way, and such evidence as there is on the topic (transfer of documents between agencies by receipt) suggests that it has not.
“Make available” is a non-technical expression which would give a range of choices to the person empowered to make a thing available to officers of other agencies. For example, allowing inspection of a document by an officer of another agency might constitute making that document “available” to the officer of that agency, but there is no reason for restricting the expression to that illustration, when clearly, it is capable of a wider signification. As a matter of ordinary English a document might be made available to a person by putting the document into the possession of that person. The applicants submit that a power to make something “available” does not authorise its surrender. If all that is meant by this submission is that AFP cannot disable itself and its officers from their ability to discharge the s 3ZV obligation, then the submission is unexceptionable, but, as I have said, there is no evidence that AFP has so acted as to make the s 3ZV obligation incapable of performance. But if the submission is meant to convey that giving possession or custody of a document to a person is sufficient of itself to establish that something beyond making the document available to that person has occurred, then I do not agree.
All that emerges is that AFP has given the documents seized to ASIC for the purpose referred to in s 3F(5). As a matter of ordinary English, it seems to me that AFP has thus made the documents seized available to ASIC for that purpose. The applicants have therefore failed to make out their claim that the giving of the documents by AFP to ASIC was beyond power.
The applicants also submitted that natural justice required that they be given notice before the documents were passed on to ASIC: Johns v Australian Securities Commission (1992) 178 CLR 408. Johns concerned the exercise of a statutory power in private, and then a dissemination outside the statutory scheme to a Royal Commission without preservation of confidentiality. In the circumstances of the present case, s 3F(5) confers statutory authority for AFP to make things available to ASIC. There is no room for an implication that the authority thus conferred is subject to the applicants being given prior notice of AFP’s intention to exercise the statutory power given to it by s 3F(5) in that respect.
I should add, although this was not the subject of submission on the part of the respondents that the “status quo agreement” embodied in the letter of 26 June 2001 from Arnold Bloch Leibler to ASIC, and in the letter of 27 June 2001 from Gilbert & Tobin to ASIC proceeded upon the basis that it was ASIC which had possession of the documents and which gave the undertakings designed to preserve the status quo. In particular, the Gilbert & Tobin letter recorded an agreement that documents seized would be placed in sealed boxes and sent to AFP officers on the basis that they would not be inspected by AFP. ASIC was to promptly serve a notice on AFP to secure the release of the documents into the custody of ASIC which in turn gave certain undertakings as to what would happen to the documents thereafter. At least so far as Mr Adler is concerned, his solicitors appear to have entered into an agreement with ASIC, one of the terms of which was that documents seized by AFP would be passed over to ASIC. In view of the conclusion which I have reached it is not necessary to pursue this matter further. However, if I had come to a different conclusion, a question would have arisen as to whether Mr Adler was disentitled to any relief in relation to the handing over of the documents by AFP to ASIC, as his solicitors appear to have assented to that occurring.
Copying the computer records
After operating electronic equipment at the accountant’s premises pursuant to s 3L(1), it was found that evidential material was accessible by use of that equipment. However, the computer databases included more than evidential material. Information in relation to hundreds of clients of the accountant’s firm, as well as in relation to the accountant’s business was also stored in the databases forming part of the computer system.
There were at least three ways of dealing with this problem. One was to conduct a keyword search of the material on the accountant’s computers, and to copy only those files which contained information satisfying the three conditions of the warrant. As indicated in pars 49-53 above, Mr Hunter did not consider this to be a practical option because it would take a week to copy only relevant files, and in any event copying a single file is not a satisfactory way of treating evidence in a computer. I accept Mr Hunter’s evidence in this respect.
A second way would be to transfer the hard disk from the accountant’s computer, and to replicate it on Mr Hunter’s equipment. A keyword search could be conducted on that equipment much more quickly than on the accountant’s equipment. If a keyword search did not bring up relevant matches, then the image taken could be deleted from Mr Hunter’s equipment. This process would have taken until about midnight as there were thirteen computers which needed to be processed in this way. The warrant was authorised to be executed between the hours of 6 am and 10 pm.
A third choice, and the one which was adopted, was to take a “forensic image” of the contents of the databases thereby capturing material that was within the scope of the warrants, as well as material that was outside it. Mr Hunter conducted a keyword search on each of the thirteen computers which were on the premises and:
“As soon as a match was discovered the computer was turned off and the hard disk imaged. That was the process that took place.”
(T 271).
By this process a complete snapshot was taken of all the information on the hard disk stored in the computer, including information which had been deleted.
Section 3L(2) and (3) of the Crimes Act provide as follows:
“(2)If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
(a)seize the equipment and any disk, tape or other associated device; or
(b)if the material can, by using facilities at the premises, be put in documentary form – operate the facilities to put the material in that form and seize the documents so produced;
or
(c)if the material can be transferred to a disk, tape or other storage device that:
(i)is brought to the premises; or
(ii)is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.
(3)A constable may seize equipment under paragraph (2)(a) only if:
(a)it is not practicable to put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c); or
(b)possession by the occupier of the equipment could constitute an offence.”
Thus, subject to s 3L(3) the executing officer was authorised to seize the computer equipment or the hard disk or other associated device on which evidential material was to be found.
I accept Mr Hunter’s evidence that it was not practicable to deal with the matter in terms of s 3L(2)(b). The question which then arises is whether s 3L(2)(c) authorises copying of the material which is on the disk, tape or device by the operation of which evidential material may be accessed, or whether it merely authorises the copying of the evidential material contained on the disk, tape or device.
The Explanatory Memorandum in relation to proposed s 3L includes the following:
“Subsection 3L(3) is intended to encourage the seizure of printouts or duplicate disks wherever possible. It provides that a constable may seize equipment under subsection (2) only if it is not practicable to put the material into documentary form or copy them to a storage device or if possession by the occupier of the equipment could constitute an offence. Where original material is seized s 3N requires the police to provide a copy of the thing or information to the occupier unless its possession constitutes an offence.”
The “material” which can be transferred to a storage disk pursuant to s 3L(2)(c) is the material contained on the disk, tape or other associated device which, but for the ability to produce a duplicate disk could have been seized pursuant to the warrant. When the draftsman of the statute intends to refer to “evidential material” as defined, he is careful to use that term. The storage device is intended as a surrogate for the original disk, tape or other associated device, and the Explanatory Memorandum confirms that a duplicate disk was intended.
Accordingly, in my view, the production of a duplicate disk containing all of the material on the original disk, tape or other associated device was authorised by s 3L once it was ascertained that evidential material was to be found on the original. That, as I understand the evidence, particularly that referred to in par [293] above, is what occurred. If and insofar as what I have described as the “second way” of solving the problem differed in its practical effect from the solution adopted, that has no bearing upon the lawfulness of the solution which was in fact adopted.
Section 30 notice to Peter H Hunt & Associates
On 25 June 2001 ASIC issued a notice under s 30 of the ASIC Act directed to Peter H Hunt & Associates. The notice required the production forthwith of specified types of records for the period 1 July 1997 to 15 March 2001, whether or not created in that period, which relate to any of twelve specified entities and persons, one of which was the companies in the HIH group. Attachment A was physically attached to this notice.
Mr Williams seeks to set aside this notice upon the grounds that it was issued for an improper purpose and has a tendency to interfere with the administration of justice in the same respects as alleged in relation to the warrants. This claim fails for the same reasons as the equivalent claim in relation to the warrants fails.
In addition, Mr Williams asserts that service of the notice on Peter H Hunt & Associates on 26 June 2001 was unlawful in that the notice was actually served by Mr Peter Edwards, an ASIC employee, on Mr Hunt at the time of the execution of the search warrants. In Mr William’s contention Mr Edwards only obtained access to the premises by reason of his being a constable assisting in relation to the search warrant, yet he used the occasion to do something which had nothing to do with the search warrant, namely to serve the s 30 notice.
It is not clear to me how Mr Williams has locus to challenge the service of a s 30 notice on Peter H Hunt & Associates, although this is not a point which was taken by ASIC in its submissions. The transcript taken at the point where service of the notice is recorded does not indicate any protest on the part of Mr Hunt about the notice being served in the way it was. For all I know, Mr Hunt may have consented to this occurring. There is no evidentiary foundation for a conclusion that Mr Edwards’ service of the notice on Mr Hunt was against his will as the occupier of the premises in question.
ASIC’s only response to this point was: “the ‘trespass’ point is bad: a power to issue a statutory demand carries with it an implied power to go on premises to serve the notice”. No authority was cited in support of that proposition. Nor, for that matter, did the applicants cite any authority for the contrary proposition.
The decision of the High Court in Plenty v Dillon (1991) 171 CLR 635 was concerned with service of a summons and in that respect, may be distinguishable from the present case. The Court there held that a police officer charged with the duty of serving a summons was not authorised by the common law to enter on private property without the consent of the person in possession and without any implied leave or licence. An interesting Case Note on this decision is to be found at (1993) 1 Torts Law Journal 1.
The concurring judgment of Gaudron and McHugh JJ (at 647) states:
“The policy of the law is to protect the possession of property and the privacy and security of its occupier ...”
It is undesirable that questions which are potentially of general application should be decided without the benefit of full argument unless this is unavoidable. Whether or not there is an implied power of the type contended for by ASIC, in the light of the discussion in Plenty v Dillon, is one on which there might be room for legitimate differences of opinion.
Section 63(1) of the ASIC Act makes it an offence to fail to comply, without reasonable excuse, with a requirement under s 30. It would be open to Mr Hunt to contend, if he wished, that the circumstances in which the notice was served upon him provided a reasonable excuse for non-compliance with it.
However, it would not be appropriate as a matter of discretion for this Court, in these proceedings to make any declaration about the matter, still less to grant an injunction, particularly when the facts have not been established by direct evidence and when an available inference is that Mr Hunt had no objection to being served with a s 30 notice on the occasion of the execution of the search warrant.
Conclusion
Subject to the matter mentioned below; neither Mr Williams nor Mr Adler has established any entitlement to relief in relation to the questions which have been the subject of separate determination.
In written submissions, counsel for Mr Williams indicated that the following relief is sought in relation to Mr Buchhorn’s conduct:
(i)a declaration that the obtaining by Buchhorn and the recording by Buchhorn of the information contained in his notes and the dissemination thereof to other ASIC personnel (Annexures “A” and “B” to his affidavit sworn 25 July 2001) breached an equitable duty of confidence that ASIC and/or Buchhorn owed to the applicant;
(ii)an injunction restraining ASIC, its servants and agents (including Buchhorn) from using or disseminating further the information in paragraph (i) and an order that the notes or any document recording the same or any copy thereof be delivered up to the applicant.
ASIC contended that this information was not confidential, a submission which I have rejected. ASIC did not otherwise respond to that claim for relief.

Subject to one qualification, I would be disposed to make orders in the Williams proceedings in the following terms:
(i)that ASIC be restrained by itself, its servants or agents from using or disseminating further the information contained in Annexures A and B to the affidavit of Michael Buchhorn sworn on 25 July 2001;
(ii)that ASIC deliver up the documents referred to in par (i) hereof, or any copies thereof to the applicant.
The qualification to which I refer is that I would need to be satisfied that the terms of the Second Amended Application and Statement of Claim encompass this claim, or are amended so as to do so.
The parties should bring in short minutes of order to give effect to this decision, and to provide for the further conduct of the proceedings and costs. If there is disagreement on the costs question, I will hear argument on a convenient date.

I certify that the preceding three hundred and fourteen (314) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.
Associate:
Dated: 13 September 2001

Counsel for the Applicant in Williams: Mr J Beach QC, Mr D Star

Counsel for the Applicant in Adler Mr D Hammerschlag SC, Mr R Bromwich

Solicitor for the Applicant in Williams: Arnold Bloch Leibler

Solicitor for the Applicant in Adler Gilbert & Tobin

Counsel for the Respondent: Mr A Robertson SC, Ms P McDonald

Solicitor for the Respondent:

Date of Hearing: 23, 24, 25, 26, 27 July 2001

Last submission lodged: 15 August 2001

Date of Judgment: 13 September 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1010 OF 2001

BETWEEN:	RAYMOND REGINALD WILLIAMS APPLICANT
AND: BETWEEN: AND:	MICHAEL JOSEPH KEELTY, COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE FIRST RESPONDENT AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION SECOND RESPONDENT PAUL GERARD GARDINER THIRD RESPONDENT N 1014 OF 2001 RODNEY STEPHEN ADLER FIRST APPLICANT ADLER CORPORATION PTY LIMITED (ACN 054 924 373) SECOND APPLICANT PAUL GERARD GARDINER FIRST RESPONDENT THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE SECOND RESPONDENT AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION THIRD RESPONDENT
JUDGE:	HELY J
DATE:	13 SEPTEMBER 2001
PLACE:	SYDNEY

Counsel for the Applicant in Williams:	Mr J Beach QC, Mr D Star
Counsel for the Applicant in Adler	Mr D Hammerschlag SC, Mr R Bromwich
Solicitor for the Applicant in Williams:	Arnold Bloch Leibler
Solicitor for the Applicant in Adler	Gilbert & Tobin
Counsel for the Respondent:	Mr A Robertson SC, Ms P McDonald
Solicitor for the Respondent:
Date of Hearing:	23, 24, 25, 26, 27 July 2001
Last submission lodged:	15 August 2001
Date of Judgment:	13 September 2001