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Federal Court of Australia - Full Court |
Last Updated: 27 February 2004
FEDERAL COURT OF AUSTRALIA
Seeter Pty Ltd t/a Great Barrier Reef Tuna v Hester [2004] FCAFC 39
PRACTICE & PROCEDURE – proceedings wrongly constituted -
necessity for contradictor – entitlement of appellant to access evidence
subject
to specific objection – public interest immunity – statutory
protection of confidentiality not considered.
Crimes Act 1914
(Cth) s 3E
Fisheries Management Act 1991 (Cth) reg
36
Fisheries Management Regulations 1992
Beneficial
Finance Corporation Ltd v Commissioner of Australian Federal Police [1991] FCA 92; (1991)
103 ALR 167 cited
BTR Plc v Westinghouse Brake & Signal Co (Aust)
Ltd (1992) 35 FCR 246 referred to
Forster v Jododex Aust Pty Ltd
[1972] HCA 61; (1972) 127 CLR 421 cited
Merit Protection Commissioner v Nonnenmacher
[1999] FCA 274; (1999) 86 FCR 112 referred to
The Queen v Australian Broadcasting
Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
cited
SEETER PTY LIMITED TRADING
AS GREAT BARRIER REEF TUNA AND ROBERT L LAMASON V DARYELLE LESLEY HESTER, MLADEN
BOSNIC, PATRICK MEYERS,
CATHERINE COWLING AND TANIA STOKES
Q 174
OF 2003
BEAUMONT, DOWSETT AND ALLSOP JJ
27
FEBRUARY 2004
SYDNEY (HEARD IN BRISBANE)
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN:
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SEETER PTY LIMITED TRADING AS GREAT BARRIER REEF TUNA AND ROBERT L
LAMASON
APPELLANTS |
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AND:
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DARYELLE LESLEY HESTER
FIRST RESPONDENT MLADEN BOSNIC SECOND RESPONDENT PATRICK MEYERS THIRD RESPONDENT CATHERINE COWLING FOURTH RESPONDENT TANIA STOKES FIFTH RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The appeal be allowed in part.
2. The order dismissing the application be set aside and the matter be remitted to the primary Judge for such orders as may appear to the Judge to be appropriate in accordance with these reasons for judgment.
3. There be no order for the costs of the appeal. Costs at first instance to be decided by the primary Judge.
Note: Settlement and entry of
orders is dealt with in Order 36 of the Federal Court Rules.
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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AND:
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REASONS FOR JUDGMENT
INTRODUCTION
1 By their application for an order of review dated 11 November 2003, filed 12 November 2003, the appellants applied to review the decision(s) of the first respondent (then the only respondent) made on 27 October 2003, to issue warrants authorising the parties who are the second to fifth respondents to enter and search the vessels, properties and a vehicle then specified.
2 The appellants claim to be aggrieved by the decision(s) because, as owners of the vessels, properties and vehicle, the warrant authorised interference with their proprietary rights, had resulted in seizure of much material required by them for the efficient operation of their business, and had breached the confidentiality of their fishing logbooks.
3 The grounds of the application were:
‘1. That there was no evidence or other material to justify the making of the decisions.
Particulars
a) The decision maker was authorised by section 3E of the Crimes Act 1914, to make the decision to issue the warrants only if satisfied, by evidence on oath, that there were reasonable grounds for suspecting that there is, or there would have been, within the next 72 hours, any evidential material at the premises.
b) There was no such evidence on oath or other material from which she could reasonably be so satisfied.
2. Further or alternatively, the decisions, for the reasons particularised in paragraph 1, involved an error of law.
3. That the decisions were not authorised by the enactment in pursuance of which they were purported to be made.
Particulars
a) The decisions were purported to be made under section 3E of the Crimes Act 1914;
b) The decisions purport to authorise the seizure of logbooks, specifically, Australian Pelagic Longline Daily Fishing Log (ALO5);
c) The legislative scheme providing for the keeping of such logbooks (Fisheries Management Act 1991 and Regulations 1992 s.36) provides for the confidentiality of information contained therein.
d) Section 3E of the Crimes Act 1914 does not authorise the seizure of information the confidentiality of which is statutorily protected.
4. Further or alternatively, the decisions to issue the warrants expressly in relation to the logbooks referred to in paragraph 2 in the circumstances particularised therein were otherwise contrary to law.’
4 Section 3E(1) of the Crimes Act 1914 (Cth) provides:
‘3E When search warrants can be issued
(1) An issuing officer may issue a warrant to search premises if ... satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.’
5 Section 3C(1) defines ‘evidential material’ to mean –
‘[A] thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form.’
6 Regulation 36(1) of the Fisheries Management Regulations 1992 provides that a person must not:
(b) make a record of information that is in a logbook concerning the affairs of another person; or
(c) communicate such information to a person; or
(d) give a person a part of a logbook recording such information.
7 However, a person may do these activities if in accordance with (a) the Fisheries Management Act 1991 (Cth) or the Regulations; or (b) an order of a court or tribunal, or a person having authority, under a law, or with the consent of the parties, to receive evidence (reg 36(2)).
8 Moreover, subreg (1) does not apply to information concerning the affairs of a person that does not set out the name of the person who provided the information or to whom it relates (reg 36(3)(b)).
9 In their application, the appellants sought the following relief:
‘1 An order abridging such times as may be required to allow this application to be heard in Brisbane on Thursday 13 November 2003 at 10.15am;
2 An order that the things seized pursuant to the warrants remain in the custody of the Supreme Court at Cairns until such time as this proceeding is determined;
3 An order that the decisions be quashed or set aside;
4 An order for the return of all things seized pursuant to the warrants;
5 An order that the respondent pay the applicants’ costs.’
10 In support of their application, the appellants relied upon the affidavit of Mr Lamason, sworn 11 November 2003.
11 After stating that search warrants had issued in respect of the vessels, properties and vehicle specified in the application, Mr Lamason referred to an affidavit sworn by him in other proceedings (No. Q 169 of 2003) on 3 November 2003.
12 In his earlier affidavit, Mr Lamason gave this evidence:
• Great Barrier Reef Tuna (‘GBRT’) operates a fish wholesale and retail business from premises at 37 – 39 Aumuller Street, Portsmith (Cairns). (This is one of the properties specified in the warrant.)
• He is the registered holder of Australian Fisheries Management Authority Fishing Permits, each endorsed for COMMERCIAL FISHING in the Eastern Tuna & Billfish Fishery LONGLINE (PELAGIC) method and minor line pole for certain of the vessels specified in the warrant.
• Together with his wife, he is the registered holder of Australian Fisheries Management Authority Permit for the vessel ‘Rummage’, another specified vessel.
• On 28 October 2003, ‘Extractor’, a vessel owned by GBRT and specified in the warrant, was boarded at sea by Queensland State Police, National Parks Officers and the Federal Police.
13 A copy of the warrant was annexed to this affidavit. It was addressed to the second respondent as a ‘Federal Agent’. It provided, inter alia, for a condition in these terms:
‘Things as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following offence(s) against the laws of the Commonwealth:
That between 27 October 2002 and 27 October 2003, in waters within the Cairns and Far Northern Sections of the Great Barrier Reef Marine Park, Robert Lamason did, contrary to section 38CB of the Great Barrier Reef Marine Park Act 1975 as amended, intentionally or negligently fish in the marine park in a manner contrary to the zoning plans for the Cairns and Far Northern Sections.
That between 27 October 2002 and 27 October 2003 in waters described as Area E, of the Eastern Tuna and Billfish Fishery (ETBF), Robert Lamason did, contrary to section 95(1) of the Fisheries Management Act (Commonwealth) 1991, breach conditions of his permit by fishing with in excess of 500 hooks.
Including any storage medium or storage device which contains any of the above things and any manual, instruction, password or other thing which is needed to gain access to or interpret or decode any of the above things.’
14 In this affidavit, Mr Lamason referred to the issue of similar warrants.
15 Reverting to Mr Lamason’s affidavit sworn 11 November 2003, Mr Lamason said that his solicitor had called upon the first respondent to provide a copy of the information laid before the first respondent, but that this was refused.
16 Annexed to this affidavit was a fax to the appellants’ solicitors from the Commonwealth Director of Public Prosecutions dated 4 November 2003 stating that ‘the Australian Federal Police will not supply you with a copy of the affidavit placed before the Justice of the Peace’. No reason for this refusal was given.
17 The fax also stated that the first respondent was the issuing officer of the warrant.
18 In his affidavit sworn 11 November 2003, Mr Lamason proceeded to give the following further evidence:
‘8. I refer to the two alleged offences recited in the search warrants. As to the first offence alleged against the Great Barrier Reef Marine Park Act, I am unable to discern the nature of the alleged offence and therefore am unable to comment thereon. I know of no offence that I have committed under the Great Barrier Reef Marine Park Act.
9. As to the second alleged offence, I deny that I have ever committed the offence of fishing in "Area E" with more than 500 hooks, contrary to the Fisheries Management Act.
10. I say that I need the documents and computers purportedly seized pursuant to the search warrants for the efficient running of my business. In particular I am obliged under the Fisheries Management legislation to keep the records contained in the fisheries log books aboard each vessel.
11. Last Saturday, 8th November 2003, I was served with a further unsigned and unidentified search warrant in respect of the vessel Hooked. Exhibited hereto and marked "RLJRA2" is a true copy of the said search warrant issued on 8th November 2003 together with copy Property Seizure Record No. 84754.
12. Federal Agent Bosnic, who served me with the search warrant, took possession of the new confidential fishing log for Hooked that we had just received from AFMA. It relates to a period outside the time frame referred to in the warrant.
13. In order for the vessels to be compliant in their operations with both the Fisheries Management Legislation and fishing permit conditions I need all confidential fishing logs to be returned.’
THE HEARING BEFORE THE PRIMARY JUDGE
19 This hearing took place on 13 November 2003. It will be recalled that, at the hearing, the only respondent to the application was the first respondent. As will be explained later, the other respondents were joined subsequently, for the purposes of the appeal only, although, as mentioned, the warrant was issued to the second respondent as a ‘Federal Agent’.
20 At the hearing, Mr Davidson appeared for the appellants and Mr O’Shea for the first respondent.
21 The transcript of the hearing is as follows:
‘MR DAVIDSON: The order is sought in the application, your Honour.
HIS HONOUR: Yes, well, may I see the application first of all? Yes, is there any material in support of the application?
MR DAVIDSON: There is, your Honour. There is an affidavit of Robert Lamerson [sic] which was filed on 12 November. Mr Lamerson [sic] also refers in that affidavit to an affidavit [sworn 3 November 2003] that’s been filed in Q169 proceedings.
HIS HONOUR: Yes, so? At the moment, you see, this affidavit, in any event, doesn’t make out your case. Your case is that there was no evidence on which the decision-maker could be reasonably satisfied that – for suspecting that there would be evidential material.
MR DAVIDSON: Yes, your Honour.
HIS HONOUR: And what does the affidavit say?
MR DAVIDSON: The affidavit filed yesterday says that no material has been disclosed [to] Mr Lamerson [sic] or his solicitors.
HIS HONOUR: So?
MR DAVIDSON: And deposes to the fact that he has not committed any offence under the Fisheries Management Act. And in relation to the Great Barrier Reef Marine Park Act it says that he’s unable to discern the nature of the alleged offence but knows of no offence it has committed under that Act.
HIS HONOUR: So?
MR DAVIDSON: Well, absent anything to the contrary, your Honour, from the respondent, the inference is on those facts that the evidence was not of the requisite standard to satisfy section 3E of the Crimes Act.
HIS HONOUR: Yes. Well, I have your submissions. In relation to the respondent to that matter what is your position?
MR O’SHEA: I’m sorry, your Honour, I neglected to announce my appearance before, O’Shea, initial B.
HIS HONOUR: Yes.
MR O’SHEA: Your Honour, my instructions are that the respondents are happy to abide the rule of the Court in that application.
HIS HONOUR: All right. Well, you’ve put no material before me. Is that right?
MR O’SHEA: No, your Honour. We were only served with the application yesterday, at the latest today.
HIS HONOUR: Yes, well, it seems to be a curious position, quite frankly, for a Justice of the Peace to take. In particular a curious position for Crown Law to take. In any event you’ve said what you want to say. You don’t want to put any material before the Court and you’re happy for the application to be dealt with today.
MR O’SHEA: That’s correct, your Honour.
HIS HONOUR: All right, well, I can deal with it straightaway. This is your application – this is your material?
MR DAVIDSON: Yes, your Honour.
HIS HONOUR: All right. In my opinion, the material is insufficient to make out any relief. The grounds of the application are that there was no evidence or other material to justify the making of the decisions. The affidavit material simply indicates that there has been a refusal to put the material that was before the Magistrate before the Justice of the Peace to the applicants on the application for an order to review. The absence of material doesn’t indicate that there was no material before the Magistrate.
And the only other material referred to in the affidavit material in support of the application is the statement by Mr Lamerson [sic] that he is unable to discern the nature of the alleged offence and he knows of no offence that he’s committed under the Great Barrier Reef Marine Park Act. No basis has been shown for questioning the basis for the decision to issue the warrants. The application is dismissed.’
THE JOINDER OF THE SECOND TO FIFTH RESPONDENTS FOR THE PURPOSES OF THIS APPEAL
22 On 21 November 2003, soon after the appellants filed their notice of appeal, the second to fifth respondents applied to the primary Judge for, and, by consent, were granted, leave to be joined as respondents to the appeal.
23 Relevantly, the transcript of this hearing states:
‘MR GRIFFIN [for the second to fifth respondents]: Your Honour, the grounds of appeal, particularly 3 and 4, if I can take you to those in the notice of appeal ---
HIS HONOUR: Yes.
MR GRIFFIN: --- deal with effectively the sufficiency of the material which grounded the granting of the search warrants. In other words, grounds 3 and 4 are really grounds which argue the validity of the search warrant: the person who swore material upon which the search warrant was issued and who has an interest in the continued use of material obtained by means of that search warrant is Bosnic and the other persons who are the applicants in this application.
HIS HONOUR: Well, I can understand the argument or the submission that they have an interest in the outcome of the appeal in the sense that they would have had an interest in the outcome of the application, but I just can’t see at the moment why it is necessary that they be joined as parties to ensure that all matters in dispute in the proceeding may be effectually and completely determined, which follows the suggestion that the sufficiency of the affidavit material is a question raised in the appeal.
MR GRIFFIN: That language is language which comes from or derives from Order 6, Rule 8, which is the joining of parties in a primary hearing. But my submission is that the interest which Bosnic and the other respondents now have is to use the words of Order 52, Rule 14, an interest in maintaining the judgment. That is an interest in the maintenance of a judgment which preserves the validity of the search warrant.
HIS HONOUR: Well, it doesn’t preserve the validity. It just declines to judicially review it for inadequacy of material.
MR GRIFFIN: Well, in that sense.
HIS HONOUR: Yes, yes.
MR GRIFFIN: In that sense, it staves off.
HIS HONOUR: Yes, I understand. Mr Davidson, do you have any position in relation to this application?
MR DAVIDSON: Well, your Honour, insofar as it’s an application just for those parties to be joined, I don’t oppose the application. In light of that sentence that your Honour has read out, I will just place on record that that’s certainly not any concession in respect of any material that the ---
HIS HONOUR: No, I understand. The point of – the real issue at least – perhaps not the real issue on the appeal, but the real issue for me at the hearing was whether one could infer from the absence of the material that was before the Magistrate that that material was insufficient. That was the inference that your client asked me to draw as the basis of the application as well as the claim that he had never committed any offences and my conclusion was that material didn’t justify a judicial review of the decision.
The reason I drew attention to this sentence is the one which precedes it, which speaks of the adequacy of the affidavit material and the very real fight or interest that Seeter has in getting its hands on that affidavit. It was because that – not in this application but in the other application, which is for hearing, there were persistent efforts to obtain the material which were resisted by these officers that I wanted to draw attention to that particular sentence, because the appeal will be determined in ignorance of what was the material before the Magistrate.
MR DAVIDSON: Yes, your Honour.
HIS HONOUR: All right. In the light of the submissions by Mr Griffin for the applicants that the four named persons on the application be joined as parties, and in the light of the stance adopted by Mr Davidson for the appellant, I order that the first four applicants be joined as respondents to appeal Q174 of 2003. They then become parties and their role – their exposure is as parties not as interveners.’
THE GROUNDS OF THE APPELLANTS’ AMENDED NOTICE OF APPEAL
24 By their amended notice of appeal, filed pursuant to leave granted by the primary Judge on 21 November 2003, the appellants contend, in effect, that:
• They were denied natural justice in that the application was dismissed after submissions had been heard on whether the matter would be heard and determined forthwith and they were allowed no opportunity to be heard on the substantive application.
• The appellants’ material, and the absence of any material from the first respondent, supported the inference that the material before the issuing justice (the first respondent) was not sufficient to satisfy the requirement of s 3E of the Crimes Act.
• His Honour failed to consider or to decide the second branch of the appellants’ argument regarding the lack of power to issue warrants to seize the logbooks given the statutory protection of the confidentiality of those logbooks provided by reg 36 of the Fisheries Management Regulations.
25 Accordingly, the appellants ask the Full Court to quash the warrants and order the return of all things seized thereunder.
CONCLUSIONS ON THE APPEAL
26 As was mentioned in argument, the proceedings before the primary Judge were, in our view, wrongly constituted.
27 The joinder of the first respondent, as the decision-maker, was purely nominal. The ordinary course, as was in fact done here, is for it to submit to the jurisdiction of the Court and to play no active role in the proceedings.
28 As the Full High Court held in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35 – 36:
‘If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.’
29 See also BTR Plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 35 FCR 246 at 265.
30 At the same time, the power of this Court conferred by O 6 r 2 of the Federal Court of Australia Rules should have been invoked (as it was for this appeal) to ensure that the proper respondents to the appellants’ claim, that is, (at least) the relevant officers of the Commonwealth Director of Public Prosecutor’s Office, be joined.
31 In other words, the claim at first instance proceeded without a proper contradictor, an impermissible process (see, e.g. Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437 – 438; Merit Protection Commissioner v Nonnenmacher [1999] FCA 274; (1999) 86 FCR 112 at [10] – [12]).
32 Since the second to fifth respondents were not parties to the application at first instance, they are not able to benefit from its dismissal; likewise the appellants are not estopped from making such a claim against them in other proceedings. In short, the resolution of the dispute between the real disputants was not, in truth, advanced by the dismissal of the claim as originally constituted.
33 Three further important procedural difficulties appear.
34 Firstly, the general authority contained in s 3E of the Crimes Act to issue a search warrant was invoked here, notwithstanding that s 85 of the Fisheries Management Act confers, subject to certain conditions, a specific authority to issue a warrant in connection with the surveillance and enforcement of that Act.
35 Secondly, the primary Judge’s attention was not drawn to the entitlement of the appellants in the absence of a specific objection (such as a claim of public interest immunity), to access the evidence upon which the warrant was issued.
36 In Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police [1991] FCA 92; (1991) 103 ALR 167, Burchett J (Sheppard and Pincus JJ concurring) said (at 194 – 195):
‘That leaves (in respect of the first and second warrants) the question whether the appellants should have been permitted by the learned primary judge to examine the material that was before the justice of the peace, in order to see if they could find a foothold for an argument against its sufficiency. The judge accepted the respondents’ objection of public interest immunity, after examining the material for himself. At the hearing of the appeal, though with some hesitation, we also took the course of examining the material. It is appropriate to note at once that it confirms the claims made about it in the affidavit in support of the objection of public interest immunity.
The argument raised some fundamental issues. For the applicants, reliance was placed upon a number of cases, in Australia and overseas, where ... information was made available to a person challenging the sufficiency of the evidence upon which a search warrant had issued. In some cases, a justice who had issued a search warrant has even been called to give evidence concerning the basis on which he proceeded: Montague v Ah Shen [1907] VicLawRp 82; [1907] VLR 458; Parker v Churchill [(1985) 9 FCR 316] .... That is not usual. If, in a case under s 10, an issue is raised as to the sufficiency of the "information on oath" which was placed before the justice, I do not think the nature of the proceedings is such as to preclude an applicant having access to the information, in the absence of a specific objection. It was argued for the respondents that the right time to consider the sufficiency of the evidence is during the course of any prosecution proceedings which may eventuate: cf the remarks of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 338-9; [1990] HCA 33; 94 ALR 11; and see Coghill v McDermott [1983] VicRp 71; (1982) 48 ALR 351 at 360. At the stage when a search warrant is issued, premature disclosure of how much the police know may lead to the stultification of their inquiries, whereas a general rule of non-disclosure would merely postpone the right of an accused person, without extinguishing it. However, search warrants may be issued against innocent third parties who, on this view, might never have an opportunity to test the validity of the basis on which their privacy and their property were invaded. In my opinion, Toohey J expressed the true rule in Quartermaine v Netto, [Toohey J, 14 December 1984, unreported], when he said:
"I do not think that the information itself necessarily enjoys an immunity from production. It may be largely formal in its language. But it may be, on examination, that it details investigations being conducted, material which is protected by the public interest immunity of which Lord Wilberforce spoke [ie in Inland Revenue Commissioners v Rossminster Ltd [1979] UKHL 5; [1980] AC 952 at 999]."’ (Emphasis added.)
37 Thirdly, as is contended in the appellants’ third ground of appeal, the issue of the statutory protection of the confidentiality of the logbooks was not considered at first instance.
38 We are of the view that the appeal should be allowed principally for the third procedural difficulty referred to above. We do not think that we should ourselves consider any of the substantive issues, such as the quashing of the warrants, now sought to be raised before us. So far as the challenge to the warrant is concerned, we have not seen the evidence upon which it was issued. So far as concerns the secrecy claim, the argument on either side was barely developed before us.
39 We should add that the assertion that the primary Judge denied the appellants procedural fairness is unfounded. The appellants wanted the matter disposed of instanter. The primary Judge did so. The transcript does not disclose any impediment to the appellants’ legal representative putting any submissions thought to be appropriate.
40 In the result, we are of the opinion that the whole matter (as now properly constituted) should be remitted to the primary Judge for such orders as may appear to the Judge to be appropriate in accordance with these reasons. In these circumstances, there should be no order for the costs of the appeal. The costs at first instance should be determined by the primary Judge.
ORDERS
41 The Court accordingly orders:
1. The appeal be allowed in part.
2. The order dismissing the application be set aside and the matter remitted to the primary Judge for such orders as may appear to the Judge to be appropriate in accordance with these reasons.
3. There be no order for the costs of the appeal. Costs at first instance to be decided by the primary Judge.
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I certify that the preceding forty-one (41) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Court.
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Associate:
Dated: 27 February 2004
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Counsel for the Appellants:
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Mr Ian Hanger QC
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Solicitor for the Appellants:
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Bottoms English Lawyers
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Counsel for the First Respondent:
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Mr S A McLeod
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Solicitor for the First Respondent:
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Crown Solicitor’s Office
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Counsel for the Second, Third, Fourth and Fifth Respondents:
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Mr Milton Griffin SC
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Solicitor for the Second, Third, Fourth and Fifth Respondents:
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Commonwealth Director of Public Prosecutions
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Date of Hearing:
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20 February 2004
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Date of Judgment:
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27 February 2004
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