FEDERAL COURT OF AUSTRALIA
Caratti v Commissioner of the Australian Federal Police [2018] FCA 907
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The parties confer and by 4pm on Tuesday 19 June 2018 file a minute of proposed orders designed to reflect the orders proposed in the reasons for judgment including as to the question of costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BARKER J:
1 This proceeding WAD630/2017 is an injunction proceeding in which, by originating application for relief under s 39B of the Judiciary Act 1903 (Cth) dated 12 December 2017, Mr Allen Bruce Caratti primarily seeks an injunction against the Commissioner of the Australian Federal Police (AFP) (the first respondent) restraining the AFP from providing documents to the liquidators and companies (who and which are named as the second to eleventh respondents) pursuant to requests made by them to the AFP under s 3N of the Crimes Act 1914 (Cth) (the 3N requests).
2 The 3N requests are for copies of documents seized under search warrants executed by the AFP in late January 2015, at premises associated with Mr Caratti and Ms Tina Bazzo and companies associated with each of them.
3 Mr Caratti also seeks an injunction restraining the liquidators and companies from inspecting or further inspecting any documents provided to them pursuant to the 3N requests; and a mandatory injunction that the liquidators and companies deliver up to Mr Caratti any such documents.
4 Mr Caratti also sought interlocutory relief against the AFP in similar terms.
5 On 20 December 2017, I made an order by way of interlocutory relief that the AFP be restrained from providing copies of the documents pursuant to the 3N requests until further order.
6 Other orders I made that day contemplated a hearing of the injunction proceeding on 3 and 4 April 2018.
7 I should also mention the related proceeding WAD329/2017 – the interpleader proceeding – under Pt 18 of the Federal Court Rules 2011 (Cth). On 4 July 2017, Zafra Legal Pty Ltd, the former lawyers for Mr Caratti and companies associated with him and Ms Bazzo and companies associated with her, applied for orders for the delivery up or possession of disputed property, being hard drives that it held. The hard drives contain electronic copies of documents seized under the aforementioned search warrants executed by the AFP in late January 2015. The hard drives were provided by the AFP subsequent to the seizing of the documents following a request for such copies by solicitors Wilson & Atkinson ostensibly pursuant to s 3N.
8 On 28 July 2017, I made an order requiring Zafra Legal to deliver the hard drives to the Court, which it did. The Court currently holds the hard drives.
9 On 22 December 2017, I made further orders in the interpleader proceeding, by consent, to enable resolution of the competing claims to the hard drives of the liquidators and companies, on the one hand, and Mr Caratti, on the other; and listed that proceeding for hearing on 3 and 4 April 2018.
10 Subsequently, on 27 March 2018 I made an order that the related proceedings be heard together on 3 and 4 April 2018, with affidavits, evidence and submissions in the one proceeding to stand as affidavits, evidence and submissions in the other.
11 In this, the injunction proceeding, Mr Caratti seeks injunctions on the basis that the liquidators and the companies are not persons entitled, under s 3N of the Crimes Act, to make requests for copies of documents seized under the warrants, primarily because only a natural person may make such a request. The liquidators and the companies dispute the construction of s 3N that Mr Caratti relies upon to that end and say they were and are entitled to make the 3N requests for copies of the documents seized that relate to them respectively. They seek declarations and orders entitling them to receive copies of relevant documents from the AFP.
12 In the related interpleader proceeding, Mr Caratti contends that the copies of the documents of the companies seized by the AFP that are on the hard drives, were provided pursuant to his personal, sole request made through his then solicitors Wilson & Atkinson, pursuant to s 3N, and that the companies have no entitlement either to the hard drives or the electronic files on the hard drives. The companies submit to the contrary. They say the s 3N request made by Wilson & Atkinson was in fact made by Mr Caratti on behalf of the companies, or on his own behalf and on behalf of the companies, such that they are entitled to copies of the documents seized that are on the hard drives.
Issues
13 For convenience, where appropriate I will refer to the liquidators and the companies by name, but otherwise by the single collective term, companies.
14 Mr Caratti identifies the primary issues as:
(1) the operation of s 3N of the Crimes Act, in particular whether the provision of documents by the AFP to the companies at their request is within power;
(2) alternatively, procedural issues as to the extent of the entitlements of the companies; and
(3) whether Mr Caratti has standing to bring his proceeding.
15 At the hearing, the AFP did not advance submissions as to whether final relief should issue in the injunction proceeding and limited its interest in the matter to (1) the proper construction of the Crimes Act; and (2) whether a person in the position of Mr Caratti has standing.
16 The companies say that the issues in dispute are:
(1) If the warrants are declared to be invalid in proceedings in the High Court of Australia in whole or in part, whether the provision of the documents the subject of the companies’ 3N requests, as narrowed in or about October 2017, would be unlawful and should be restrained.
(2) Whether Mr Caratti has standing to challenge:
(a) the companies’ entitlement to exercise their rights under s 3N to issue the companies their relevant 3N requests or otherwise to exercise any rights under s 3N of the Crimes Act; or
(b) the AFP’s obligation and decision to comply with the companies’ relevant 3N requests or otherwise.
(3) If Mr Caratti has standing, whether pursuant to s 3N the companies are entitled as occupiers to receive a copy of documents seized at either 48 Wickham Street, East Perth and 2 Duncraig Road, Applecross.
(4) If the companies are entitled as occupiers to receive a copy of the seized documents, whether the companies’ entitlement to a copy is limited to copies of documents which are books and records of the companies, as asserted by Mr Caratti.
17 Since the hearing of this application, the question of the validity of the warrants has fallen away following the refusal of the High Court to grant special leave to appeal in relation to the validity of the warrants, and so the companies’ issue (1) is no longer live.
18 It may therefore broadly be said that the primary issues in the injunction proceeding concern:
(1) Whether Mr Caratti has standing to bring the injunction proceeding.
(2) Whether, on the proper construction of s 3N of the Crimes Act, the companies are entitled as occupiers to receive copies of documents seized.
(3) What orders, if any, should now be made?
Evidence
19 At the hearing of the proceedings, a statement of agreed facts relevant to each proceeding, made pursuant to s 191 of the Evidence Act 1995 (Cth), was received into evidence by the Court. By reason of the order made that, amongst other things, the evidence adduced in each proceeding stand as evidence in the other, it is appropriate to record the facts agreed in relation to each proceeding as well as the affidavit and oral evidence adduced in each proceeding.
Statement of Agreed Facts in WAD630/2017, the injunction proceeding
20 The agreed facts in the injunction proceeding are as follows.
21 Mr Caratti, is and was at all material times a natural person.
22 The third, fifth, seventh and eleventh respondents, Mr William Harris and Mr Robert Kirman, are and were at all material times natural persons and are parties to this proceeding in their capacity as joint and several liquidators of:
the second respondent, GH1 Pty Ltd (in liquidation) (receivers and managers appointed) ACN 099 191 714;
the fourth respondent, MNWA Pty Ltd (in liquidation) ACN 101 717 177; and
the sixth respondent, I.M.E Nominees Pty Ltd (in liquidation) ACN 107 942 058 (IME).
23 The ninth respondent, Mr Kirman (and together with the third, fifth and seventh respondents, the liquidators), is and was at all material times a natural person and a party to this proceeding in his capacity as liquidator of the eighth respondent, ACN 142 745 337 Pty Ltd (in liquidation) (formerly known as Mammoth Civil Pty Ltd).
24 GH1, MNWA, IME and Mammoth Civil, the second, fourth, sixth and eighth respondents respectively, are and were at all material times incorporated pursuant to the Corporations Act 2001 (Cth).
25 Mr Harris and Mr Kirman, are natural persons and are parties to this proceeding in their capacity as joint and several liquidators of the tenth respondent, Whitby Land Company Pty Ltd (in liquidation) ACN 115 233 193.
26 Whitby is and was at all material times incorporated pursuant to the Corporations Act.
27 Search warrants were executed by the AFP in respect of:
44-48 Wickham Street, East Perth; and
2 Duncraig Road, Applecross,
on 28-30 January 2015 and 28 January 2015 respectively, resulting in books and records being seized.
28 On 19 April 2017, Mr Harris and Mr Kirman were appointed as joint and several administrators of GH1.
29 On 20 April 2017, Mr Harris and Mr Kirman were appointed the liquidators of MNWA.
30 On 27 April 2017, Mr Harris and Mr Kirman were appointed the liquidators of IME.
31 On 22 May 2017, Mr Harris and Mr Kirman were appointed the liquidators of GH1.
32 On 24 May 2017, Mr Kirman was appointed the liquidator of Mammoth Civil.
33 On or about 9 June 2017, the liquidators' solicitors sent a letter to the AFP.
34 On or about 30 June 2017, the liquidators' solicitors received a letter from the Australian Government Solicitors (AGS) acting on behalf of the AFP.
35 On or about 21 August 2017, the liquidators' solicitors sent a letter to AGS.
36 On or about 25 August 2017, AGS sent a letter to Zafra Legal.
37 On or about 1 September 2017, Zafra Legal sent a letter to AGS.
38 On or about 18 September 2017, Zafra Legal ceased acting for Mr Caratti.
39 On 27 September 2017, Mr Harris and Mr Kirman were appointed the liquidators of Whitby by order of the Court.
40 On or about 28 September 2017, the liquidators' solicitors were sent a letter from AGS.
41 On or about 3 October 2017, the liquidators of Whitby sought permission from the AFP, via its solicitors, AGS, to access the Property Seizure Records (PSRs) which identified the materials seized pursuant to the warrants.
42 On or about 4 October 2017, AGS confirmed that the AFP had no objection to the liquidators reviewing the PSRs (in respect of Whitby).
43 On or about 4 October 2017, the liquidators' solicitors sent a letter to AGS.
44 On or about 10 November 2017, the liquidators sent a letter to AGS requesting on behalf of Whitby a copy of certain seized materials from 48 Wickham Street and 2 Duncraig Road pursuant to s 3N of the Crimes Act.
45 On or about 10 November 2017, the Full Federal Court handed down its decision in NSD2087/2016, dismissing Mr Caratti's appeal (the appeal was from the judgment of Wigney J dismissing Mr Caratti’s challenge to the validity of the warrants pursuant to which the relevant documents were seized).
46 On or about 1 December 2017, AGS sent a letter to Hardinlaw on behalf of Mr Caratti.
47 On or about 11 December 2017, Zilkens Lawyers on behalf of Mr Caratti commenced this proceeding.
48 On 8 December 2017, Mr Caratti filed an application for special leave to appeal in the High Court in respect of NSD2087/2016.
49 At the time of the execution of the warrants and presently, the registered office and registered principal place of business for:
GH1;
IME; and
Mammoth Civil,
was and continues to be 48 Wickham Street.
50 At the time of the execution of the warrants, the registered office and registered principal place of business of MNWA was 2 Duncraig Road.
51 On and from 9 August 2017, the registered office and registered principal place of business of MNWA became and continues to be 48 Wickham Street.
52 At the time of the execution of the warrants, Whitby's registered principal place of business was 2 Duncraig Road (this was changed as at 1 August 2017 to be 48 Wickham Street).
53 At the time of the execution of the warrants, Whitby's registered office was 2 Duncraig Road (this was changed as at 31 July 2017 to be 48 Wickham Street).
54 At the time of the execution of the warrants:
hard copy books and records of GH1, MNWA, IME, Mammoth Civil and Whitby were located at 48 Wickham Street; and
electronic servers on which books and records of GH1, MNWA and Whitby were stored and were located at 48 Wickham Street, along with other electronic volumes and devices on which other books and records of GH1, MNWA and Whitby were stored.
55 At the time of the execution of the warrants, GH1 was the registered proprietor of both 44 and 48 Wickham Street.
56 At the time of the execution of the warrants, a solicitor had an office at 44-48 Wickham Street.
57 At the time of the execution of the warrants, documents of the companies and Whitby were kept at 44-48 Wickham Street.
58 At the time of the execution of the warrants, Mr Caratti carried on activities at 44-48 Wickham Street in his role as an officer of the entities of which he was an officer.
59 The liquidators currently hold some hard copy books and records and electronic copies of the books and records of GH1, MNWA, IME and Whitby.
60 At the time of the execution of the warrants, some mail of MNWA was received at 2 Duncraig Road.
61 From time to time, Mr Caratti would take home to 2 Duncraig Road documents of MNWA, to use them to carry out work in respect of the affairs of MNWA.
62 At the time of the execution of the warrants, some documents relating to MNWA were at 2 Duncraig Road.
63 At the time of the execution of the warrants:
(1) Mr Caratti was present at each of 48 Wickham Street and 2 Duncraig Road.
(2) Mr Caratti was:
(a) at the time and presently, a director and secretary of MNWA;
(b) at the time, a director and secretary of Mammoth Civil;
(c) at the time, a former director and secretary of GH1 and IME;
(d) at the time and presently, a director and secretary of Whitby; and
(e) at the time an officer of other entities, as registered with the Australian and Securities Investments Commission (ASIC).
(3) Ms Bazzo was present at each of 48 Wickham Street and 2 Duncraig Road.
(4) Ms Bazzo was:
(a) at the time and presently, a director and secretary of GH1;
(b) at the time, an employee of MNWA; and
(c) at the time a director and officer of other entities, as registered with ASIC.
(5) Mr Isaac Ellison was present at 48 Wickham Street on 28 and 29 January, being:
(a) at the time and presently, a director and secretary of IME;
(b) presently, the director and secretary of Mammoth Civil and MNWA; and
(c) presently, a director and secretary of Whitby.
Statement of Agreed Facts in WAD329/2017, the interpleader proceeding
64 The agreed facts in the interpleader proceeding are as follows.
65 Zafra Legal, is and was at all material times incorporated pursuant to the Corporations Act and carried on the business of providing legal services.
66 Mr Caratti is and was at all material times a natural person.
67 The first, second, fourth and eleventh respondents, Mr Harris and Mr Kirman, are and were at all material times natural persons and are parties to this proceeding in their capacity as joint and several liquidators of:
the sixth respondent, GH1;
the seventh respondent, MNWA; and
the eighth respondent, IME.
68 The fifth respondent, Mr Kirman (and together with the first, second and fourth respondents, the liquidators), is and was at all material times a natural person and a party to this proceeding in his capacity as liquidator of the ninth respondent, Mammoth Civil.
69 GH1, MNWA, IME and Mammoth Civil, the sixth to ninth respondents respectively, are and were at all material times incorporated pursuant to the Corporations Act.
70 The eleventh respondents, Mr Harris and Mr Kirman, are natural persons and are parties to this proceeding in their capacity as joint and several liquidators of the tenth respondent, Whitby.
71 Whitby is and was at all material times incorporated pursuant to the Corporations Act.
72 Search warrants were executed by the AFP in respect of eight premises in Western Australia including:
48 Wickham Street; and
2 Duncraig Road,
on 28-30 January 2015 and 28 January 2015 respectively, resulting in documents being seized.
73 On or about 20 February 2015, Wilson & Atkinson sent a letter to the AFP.
74 On 21 July 2015 and 10 August 2015, Wilson & Atkinson received copies of the seized materials in the form of three hard drives (serial numbers WCAV9E956865, WCAVY0291105 and WCC4E4YFZY85).
75 Following the receipt of the hard drives by Wilson & Atkinson, the hard drives were transferred by Wilson & Atkinson to Zafra Legal, when Mr Daniel Steven Romano moved from Wilson & Atkinson to Zafra Legal.
76 At the time of the letter referred to at [73] above, Mr Caratti was a director (as that term is used in the Corporations Act) of Whitby.
77 On 19 April 2017, Mr Harris and Mr Kirman were appointed as joint and several administrators of GH1.
78 On 20 April 2017, Mr Harris and Mr Kirman were appointed the liquidators of MNWA.
79 On 24 April 2017, Mr Harris and Mr Kirman issued:
a notice under s 438C of the Corporations Act in respect of GH1; and
a notice under s 530B of the Corporations Act in respect of MNWA,
to Zafra Legal requiring the production of books and records.
80 On 24 April 2017, Mr Harris and Mr Kirman issued a letter to Mr Caratti.
81 On 24 April 2017, the solicitors for Mr Harris and Mr Kirman sent a letter to Zafra Legal.
82 On 27 April 2017, Mr Harris and Mr Kirman were appointed the liquidators of IME.
83 On 22 May 2017, Mr Harris and Mr Kirman were appointed the liquidators of GH1.
84 On or about 23 May 2017, Zafra Legal sent a letter to the liquidators' solicitors.
85 On 24 May 2017, Mr Kirman was appointed the liquidator of Mammoth Civil.
86 On or about 19 June 2017, the liquidators' solicitors sent a letter to Zafra Legal.
87 On or about 23 June 2017, Zafra Legal sent a letter to the liquidators' solicitors.
88 On or about 30 June 2017, the liquidators' solicitors received a letter from the AGS acting on behalf of the AFP.
89 On or before 28 July 2017, Zafra Legal delivered the hard drives to the Court pending resolution of the matters in proceeding WAD329/2017.
90 On 23 August 2017, the liquidators issued notices under s 530B of the Corporations Act in respect of:
IME; and
Mammoth Civil,
to Zafra Legal requiring the production of books and records.
91 On or about 18 September 2017, Zafra Legal ceased acting for Mr Caratti.
92 On 27 September 2017, Mr Harris and Mr Kirman were appointed the liquidators of Whitby by order of the Court.
93 On 28 September 2017, the liquidators of Whitby issued a notice under s 530B of the Corporations Act to Zafra Legal.
94 At the time of the execution of the warrants and presently, the registered office and registered principal place of business for:
GH1;
IME; and
Mammoth Civil,
was and continues to be 48 Wickham Street.
95 At the time of the execution of the warrants, the registered office and registered principal place of business of MNWA was 2 Duncraig Road.
96 On and from 9 August 2017, the registered office and registered principal place of business of MNWA became and continues to be 48 Wickham Street.
97 At the time of the execution of the warrants, Whitby's registered principal place of business was 2 Duncraig Road (this was changed as at 1 August 2017 to be 48 Wickham Street).
98 At the time of the execution of the warrants, according to records of ASIC, Whitby's registered office was 2 Duncraig Road (this was changed as at 31 July 2017 to be 48 Wickham Street).
99 At the time of the execution of the warrants and presently:
hard copy books and records of GH1, MNWA, IME, Mammoth Civil and Whitby were located at 48 Wickham Street; and
electronic servers on which books and records of GH1, MNWA and Whitby were stored and were located at 48 Wickham Street, along with other electronic volumes and devices on which other books and records of GH1, MNWA and Whitby were stored.
100 At the time of the execution of the warrants, GH1 was the registered proprietor of both 44 and 48 Wickham Street.
101 At the time of the execution of the warrants, a solicitor had an office at 44-48 Wickham Street.
102 At the time of the execution of the warrants, documents of the companies and Whitby were kept at 44-48 Wickham Street.
103 At the time of the execution of the warrants, Mr Caratti carried on activities at 44-48 Wickham Street in his role as an officer of the entities of which he was an officer.
104 The liquidators currently hold some hard copy books and records and electronic copies of the books and records of GH1, MNWA, IME and Whitby.
105 At the time of the execution of the warrants, some mail of MNWA was received at 2 Duncraig Road.
106 From time to time, Mr Caratti would take home to 2 Duncraig Road documents of MNWA, to use them to carry out work in respect of the affairs of MNWA.
107 At the time of the execution of the warrants, some documents relating to MNWA were at 2 Duncraig Road.
108 Some of the original seized material are books and records of the companies.
109 At the time of the execution of the warrants:
(1) Mr Caratti was present at each of 48 Wickham Street and 2 Duncraig Road, being:
(a) at the time and presently, a director and secretary of MNWA;
(b) at the time, a director and secretary of Mammoth Civil;
(c) at the time, a former director and secretary of GH1 and IME;
(d) at the time and presently, a director and secretary of Whitby; and
(e) at the time a director and officer of other entities, as registered with ASIC.
(2) Ms Bazzo was present at each of 48 Wickham Street and 2 Duncraig Road, being:
(a) at the time and presently, a director and secretary of GH1;
(b) at the time, an employee of MNWA; and
(c) at the time a director and officer of other entities, as registered with ASIC.
(3) Mr Isaac Ellison was present at 48 Wickham Street on 28 and 29 January 2015, being:
(a) at the time and presently, a director and secretary of IME;
(b) presently, the director and secretary of Mammoth Civil and MNWA; and
(c) presently, a director and secretary of Whitby.
110 On 11 December 2017, the tenth and eleventh respondents were joined as respondents to this proceeding.
Admission
111 Additionally, at the hearing on 3 April 2018, Mr Caratti made the following admission in each proceeding:
For the purposes of the Court’s determination of the relief sought in these proceedings (and not for any other purpose), paragraph 28(d)(i)(2) of the Companies’ Second Amended Statement of Facts, Issues and Contentions filed 2 March 2018 is admitted, that is, Mr Caratti was at the time of execution of the search warrants a person who acted, and is presently a person who acts, in the position of a director or further or alternatively a person in respect of whom the directors of the Companies were/are accustomed to acting in accordance with his instructions and wishes.
Affidavit evidence led in the proceedings
In WAD630/2017, the injunction proceeding:
112 Subject to the next paragraph, the companies formally read the following affidavits:
(a) Affidavit of Mr Kirman made 1 March 2018, comprising 49 paragraphs.
(b) Affidavit of Mr Kirman made 1 March 2018, comprising 18 paragraphs.
(c) Affidavit of Mr Brendan Ashley Payne made 10 March 2018.
(d) Affidavit of Ms Victoria Willie made 2 March 2018.
(e) Affidavit of Ms Linda Methven Smith made 2 March 2018.
113 In the injunction proceeding, the parties agree:
That [30] of Mr Kirman’s affidavit of 1 March 2018, comprising 49 paragraphs, should be read as inserting “from them” after the word “questionnaires” .
That [31], [32]-[33], [45], [48], [49], p 139 and p 151 of Mr Kirman’s affidavit of 1 March 2018, comprising 49 paragraphs are not read.
As to the affidavit of Ms Smith made 2 March 2018, the parties agree in respect of exhibit LMS-1 that its use should be limited to proving the extent of involvement of Mr Caratti in the affairs of GH1, which is the stated purpose as per Ms Smith’s affidavit at [7].
In WAD329/2017, the interpleader proceeding:
114 The companies formally read the following affidavits:
(1) Affidavit of Mr Matthew Peter Sunits made 4 July 2017.
(2) Affidavit of Mr Kirman made 1 March 2018.
115 Mr Caratti formally read the following affidavits:
(1) Affidavit of Mr Caratti made 22 March 2018.
(2) Affidavit of Mr Darryl Kipping made 21 March 2018.
116 In the interpleader proceeding, the parties agree in respect of objections to evidence as follows:
In respect of the affidavit of Mr Kirman made 1 March 2018, comprising 18 paragraphs, that [32] be read as inserting “from them” after the word “questionnaires”.
That [33], [34]-[35], [40], [43], [52], [55], [56], [57], p 134 and p 151 of Mr Kirman’s affidavit of 1 March 2018 be not read.
In respect of the affidavit of Mr Caratti, sworn 22 March 2018:
(a) As to [51(5)], the first sentence be limited as to his belief.
(b) Page 151 is not read.
In respect of the affidavit of Mr Kipping made 21 March 2018, as to [31], the second, third and fourth sentences are not read.
117 The essence of much of the evidence deposed to is sufficiently provided in the following account of the viva voce evidence of key witnesses. I will also advert to other relevant affidavit evidence in the course of making my findings on key issues below.
Viva voce evidence adduced at the hearing:
Allen Caratti
118 Mr Caratti was cross-examined for the companies on his affidavit dated 22 March 2018.
119 Mr Caratti confirmed that Mr Romano at Wilson & Atkinson, and later at Zafra Legal, did a great deal of legal work for him or entities associated with him, including GH1 or Gucce Holdings Pty Ltd, Mammoth Nominees Pty Ltd (also known as MNWA), Lakeview Rise, Whitby and IME, once known as Starbrake Pty Ltd (as distinct from Starbrake Holdings Pty Ltd).
120 Mr Caratti confirmed that when the Wickham Street seizure took place there were books and records at the property owned by companies including GH1, MNWA, IME and Whitby. He could not recall if there were any books and records of Mammoth Civil. He did not think there were a lot of books or records at Duncraig Road.
121 He confirmed that he telephoned Mr Romano from the Wickham Street premises when officers of the AFP arrived to execute the search warrant. In answer to the question whose interests he was trying to protect when he rang Mr Romano, Mr Caratti answered:
Well, when I read the warrant, the warrant related mainly to me personally, and the – the charges on it, or the allegations of the charges, was based around me personally.
122 He acknowledged that Ms Bazzo was also the subject of one of the charges or allegations.
123 He agreed that when he rang Mr Romano he had in mind that he may also be able to provide assistance to Ms Bazzo.
124 When asked, given that he was a director and a person able to make decisions on behalf of the other companies mentioned, whether he was interested in protecting the interests of those companies as well, Mr Caratti responded:
No. I was interested in protecting – after I read the warrant, I could see that the warrant was based around allegations of some criminal charges in relation to me personally and Ms Bazzo.
125 When challenged that it had entered into his mind to protect the interests of companies associated with Wickham Street, Mr Caratti said it “was about me and protecting my interests”.
126 Mr Caratti accepted that he appreciated the AFP might use the company documents seized against him. When expressly asked “You did think that?”, he answered in the affirmative. He then accepted that it was in his interests to obtain legal advice from Mr Romano about whether or not the police were entitled to seize those documents.
127 When asked whether it was also in the interests of the companies, he responded that he was “more thinking about my own interest because that was the only one on the search warrant and the allegations of criminal activity”.
128 When Mr Romano attended and made claims of legal professional privilege, while Mr Caratti only had a recollection, he thought Mr Romano did so on his behalf and did not recall claims being made on behalf of Mr Bazzo or the companies.
129 Mr Caratti was then asked: “In relation to the companies that you were a director or secretary of, did you instruct Mr Romano to make any claims of privilege for and on behalf of those companies?”. He replied:
I’m not sure whether the privilege was to – that we requested the documents – a copy of all the documents so we could make legal privilege claims or if – or if it was done at the time. I can’t quite recall which one it was done.
130 The question was then asked: “As a director of those companies, at the time the search is being executed … did you think that it was your obligation, as a director, to make claims of privilege for and on behalf of those companies?”. Mr Caratti responded:
Yes, I would have done.
131 When the question was pressed: “Did you make those claims?”, he responded: “I can’t recall if we did then or we did later”.
132 When asked whether he thought there might have been some claim to privilege at the time of the search warrant, he thought so, and when asked on whose behalf those claims were made he said: “On my behalf and on my behalf as the director of those companies”, being Mammoth Nominees and Gucce Holdings. He could not recall which others. He could not remember if the blanket claim was made on behalf of all entities that had holdings at the Wickham Street premises.
133 He confirmed that one of the reasons for requesting copies of the documents seized subsequently was to enable a privilege review to be conducted. Mr Romano, he said:
He was to conduct a – look at that on behalf of me as director of those entities, and he was taking instructions from me.
134 When it was put to him that he, as a director, was acting on behalf of the companies in so doing, Mr Caratti responded:
I was taking – seeking advice from Daniel [Romano] to see whether we had – that I could then advise the company which to take legal privilege against.
135 When further pressed to the effect that one of the purposes for taking legal advice from Mr Romano concerned the preservation of any claims of legal professional privilege the corporations associated with him may have, he responded: “As a director, I was asking for that – that advice, yes”.
136 Mr Caratti was also taken to a copy of a letter from Wilson & Atkinson dated 9 February 2015 – the 9 February costs agreement letter – shortly after the search warrants were executed. He confirmed that the letter disclosed correct email addresses for him and Ms Bazzo. He insisted the first time he had seen the document was in this court proceeding and he was not sure if it was sent. He agreed, however, that if it was sent he would have seen it. I find below that Mr Romano sent it, by email and most probably by hard copy too.
137 Notwithstanding the reference to Gucce Holdings in the 9 February costs agreement letter, Mr Caratti insisted that he was sure that Mr Romano knew it was he who was the client. He said that on this particular matter, which was a personal matter, he was the client.
138 Mr Caratti also indicated that when instructions were given to challenge the search warrant in the Federal Court he instructed the lawyers on behalf of himself and Ms Bazzo.
139 He confirmed that the purpose amongst others of the search warrant proceedings was to get back the things that had been seized that were owned by the companies.
140 He also confirmed that at the time the search warrants were executed, Mammoth Nominees, Gucce Holdings and Starbrake Holdings were involved in taxation review proceedings in the Administrative Appeals Tribunal (AAT). However, he was reluctant to accept that recovery of the seized documents was relevant to the maintenance of those proceedings – apart from Starbrake Holdings.
141 Mr Caratti was also asked about his use of the expression “entities associated” with him in his affidavit at [67(5)] – which he said included Starbrake Holdings and Gucce Holdings.
142 I will make findings below on relevant aspects of Mr Caratti’s evidence.
Darryl Kipping
143 Mr Kipping was cross-examined by senior counsel for the companies on his affidavit made 21 March 2018, read in the interpleader proceeding.
144 Mr Kipping conducted his own legal practice from a part of the premises at 48 Wickham Street, as well as conducting work for Mr Caratti, Ms Bazzo and their companies.
145 He explained, in cross-examination, that from time to time he would be instructed to act for a particular entity amongst the various entities related to Ms Bazzo and Mr Caratti. They included Gucce Holdings (now known as GH1), Whitby, Starbrake Pty Ltd (now known as IME).
146 He did not believe, however, he worked for Mammoth Civil.
147 Mr Kipping explained that he had access to all files available within the building if he needed to access them, other than in Ms Bazzo’s office and the storeroom (which were locked); and that included access to files relating to those companies in which legal advice from external lawyers had been given. The access he had was to hard copy documents.
148 He said he did not have access to electronic documents unless they had been emailed to him by Mr Caratti or Ms Bazzo or someone else in their office.
149 He explained that in his own office he would have hard copy or electronic documents concerning companies associated with Ms Bazzo or Mr Caratti.
150 Mr Kipping confirmed that he told an AFP officer at the time of the seizure that material in his office was legally privileged. He agreed he made a “blanket claim” of privilege.
151 He said he did that because he was not aware of what the warrants were or what they related to.
152 Mr Kipping also explained the process by which different documents and files were identified for the purposes of seizure by the AFP.
153 Mr Kipping’s evidence is not contentious.
Daniel Romano
154 Mr Romano was subpoenaed by Mr Caratti to give evidence. In evidence in chief he explained that, at material times, at Wilson & Atkinson he was the solicitor for Mr Caratti. He also acted for Ms Bazzo. Additionally, he acted for a number of companies associated with them, including Gucce Holdings (now GH1), Mammoth Nominees, Starbrake Pty Ltd (now IME) and Starbrake Holdings.
155 When acting for Mr Caratti or Ms Bazzo, Mr Romano said there was a general practice that he would bill his legal fees for entities associated with Ms Bazzo, to Gucce Holdings; and would bill his legal fees for entities associated with Mr Caratti, to Mammoth Nominees. He said that practice was irrespective of who the retainer was with. I understood him to be saying, and in any event, infer that this was a standing arrangement expressly agreed between him, Mr Caratti and Ms Bazzo.
156 He confirmed that on the day the AFP search warrants were executed at 48 Wickham Street, he received a call from Mr Caratti to attend the premises and that he did so. He said he received instructions whilst at the premises from Mr Caratti. He said his role was to advise on the warrants and in particular whether they were valid and also what Mr Caratti needed to do to comply with them.
157 He said he also made claims of legal professional privilege while he was at the premises and did so by saying words to the effect of, “Stop searching because legal professional privilege claims are being made”. He confirmed the nature of the claim was a blanket claim of privilege.
158 He said he made the blanket claim of privilege on behalf of Mr Caratti personally, as an individual.
159 Mr Romano was taken to a number of documents of Wilson & Atkinson which referred to the “client”, namely:
A letter to the AFP dated 20 February 2015.
An email dated 15 February 2015 at 11.55am from Mr Sunits to Helen Drew at the AFP.
A letter dated 21 May 2015.
A letter dated 16 June 2015.
In each case he said the “client” was a reference to Mr Caratti.
160 In short, by reference to a range of correspondence relating to the documents seized at 48 Wickham Street, Mr Romano was insistent that his client was Mr Caratti alone.
161 He was then taken to the 9 February costs agreement letter (from about a week after the warrants were executed), which purported to be a fee retainer letter prepared by Wilson & Atkinson. He said that whilst there was provision at the end of the document for Mr Caratti and Ms Bazzo to sign, in the particular capacities stated, for Gucce Holdings, to “his knowledge” neither had ever signed the letter.
162 He said, however, that he “believed” that the document was emailed to the addressees in the method indicated on the letter.
163 Mr Romano said that as of 9 February, he did not have any knowledge of the documents that had been seized by the AFP. He explained that “we” – which I infer to be a reference to Wilson & Atkinson – did not receive copies of the documents that were seized until some time later. However, he “believed” they received copies of the property seizure records and he “would’ve had a cursory review of the sorts of documents that were on the records”. I infer this is indeed what happened.
164 Mr Romano said he did not seek to enter into a retainer with each of the entities whose documents had been seized.
165 Mr Romano was taken to the letter of Wilson & Atkinson dated 20 February 2015 which stated a number of purposes for which the requested documents were required. He addressed the purposes. He again confirmed that he considered his client was Mr Caratti alone.
166 In cross-examination, Mr Romano was first asked about those companies that, at the time the request for copies of documents seized was made by Wilson & Atkinson, had taxation review proceedings pending in the AAT. He confirmed that they included Starbrake Holdings as trustee for Starbrake Holdings Trust and Gucce Holdings. He said he was instructed to make an application to stay those proceedings pending the outcome of the Federal Court proceeding challenging the validity of the warrant. He confirmed that if the warrant challenge was successful then the outcome would have been the return to the companies of the documents subject of the warrant seizure.
167 In respect of the warrant proceeding in the Federal Court, Mr Romano said that his instructions were from Mr Caratti.
168 He also confirmed that he made a blanket privilege claim when the documents were seized under the warrants. He advised Mr Caratti. He did not believe he provided any advice to Ms Bazzo about privilege.
169 Nor did he recall whether he provided any advice to Mr Caratti about making claims of privilege in relation to the entities associated with him or Ms Bazzo that he had acted for in the past.
170 Counsel then took Mr Romano to the 9 February costs agreement letter. He confirmed the email addresses shown on the document were those ordinarily used by him to communicate with Mr Caratti and Ms Bazzo. While Mr Romano said he did not have a recollection of sending the email or instructing someone else to do so, he believed it was it was his ordinary practice to send a hard copy of documents sent by email. He could not recall whether he would have done that on the occasion of this costs agreement document.
171 I consider, having regard to the whole of his evidence, that the emails were in fact sent by Mr Romano to the addressees and that the hardcopy was most probably sent. There is nothing in Mr Romano’s evidence to suggest he did not follow his usual business practice. The tenor of his evidence was such that I take him not to have suggested he did not send the 9 February costs agreement letter by one means or another or both.
172 He was taken to the paragraph in the letter which stated that:
If you do not advise us of your objections to the terms of this costs agreement, and you continue to instruct us, you will have thereby accepted our offer to enter into this costs agreement, and we will act on the basis of this costs agreement.
Mr Romano confirmed the start date of the costs agreement stipulated was 27 January 2015, the day of the execution of the search warrant at the Wickham Street premises.
173 When challenged that the terms of the costs agreement indicated that the client of Wilson & Atkinson was Gucce Holdings, Mr Romano drew attention to the fact the letter was sent to Ms Bazzo and Mr Caratti at Gucce Holdings. He was then asked to observe that the signing clauses stated:
I confirm that I am duly authorised to instruct you on behalf of Gucce Holdings Proprietary Limited.
174 When asked whether, for the purpose of the costs agreement, the client was Gucce Holdings, Mr Romano responded:
I can see that now, but my practice was to – as I said, I was getting invoiced ..... invoice from Gucce Holdings. Therefore, I, by practice, just had the costs agreement in the name of Gucce Holdings, so - - -
175 When it was put to him that he would ordinarily invoice Mammoth Nominees for work done in respect of Mr Caratti’s entities, and so did that not mean the client for the particular matter was Mammoth Nominees, Mr Romano responded “Possibly not. Yes.”.
176 Mr Romano ultimately said, when challenged that the client, for the purposes of the costs agreement, was Gucce Holdings, that:
I’m not sure. That’s maybe a matter of construction. I can – I can see the logic in your question.
177 Mr Romano maintained his view that it was a “matter of construction” whether the client was Gucce Holdings or Mr Caratti. But he added (transcript 65, lines 3 and 4):
I can see now, looking at those words you’ve put me to, that Gucce Holdings may be a client.
178 In relation to the tax review proceedings in the AAT, Mr Romano believed there were also separate proceedings between Mammoth Nominees (as MNWA was earlier known) and the Commissioner of Taxation.
179 Mr Romano said that when Mr Caratti instructed him to make a blanket claim for privilege over the documents at the time of their seizure, he received the instructions over the telephone and did not believe that, at the time, there was any discussion between him and Mr Caratti about the need to make claims on behalf of the related entities.
180 In response to the question whether, at material times, at any time he advised Mr Caratti concerning the making of claims of privilege on behalf of his related entities whose materials had been seized, Mr Romano said that at the time of the seizure, he was not aware of what was being seized but subsequently when they were given the property seizure records by the AFP, they became aware of the nature of the documents that were seized.
181 When asked whether, at that point, further claims of privilege were made, he said “Not in respect to the Wickham Street premises”.
182 In re-examination, Mr Romano said that, at material times in respect of the search warrants, he did not receive instructions from Ms Bazzo, Gucce Holdings or Mammoth Nominees.
Does Mr Caratti have standing to bring and maintain the injunction proceeding?
183 This issue is raised by the AFP and the companies who contend that not only does Mr Caratti not have any statutory right of standing to commence and maintain the injunction proceeding, but also that he has no “special interest in the subject matter of the action”, the standing test relevant to the maintenance of an equitable proceeding for an injunction such as the present, as enunciated in such authorities as Australian Conservation Foundation Incorporated v The Commonwealth of Australia and Others (1980) 146 CLR 493; [1980] HCA 53; Onus and Another v Alcoa of Australia Limited (1981) 149 CLR 27; [1981] HCA 50; and Bateman’s Bay Local Aboriginal Land Council and Another v The Aboriginal Community Benefit Fund Pty Limited and Another (1998) 194 CLR 247; [1998] HCA 49.
184 Mr Caratti relies on the contentions he makes at [10] of his statement of facts, issues and contentions as supporting his claim to have a sufficient interest to maintain the injunction proceeding. He makes no further submissions.
185 At [10] of that statement, Mr Caratti identifies the following factors as sufficient to give him standing:
a. The Applicant is a subject of a criminal investigation, the alleged factual basis for which relates to activities of each of the Companies and Whitby.
b. The question of the validity of the search warrants remains the subject of ongoing curial proceedings, being the High Court Proceedings.
c. The Commissioner for the Australian Federal Police has undertaken to not inspect the seized materials until at least final determination of the High Court Proceedings.
d. If the warrants are declared invalid in whole or in part with the result that some or all of the documents the subject of the s.3N Requests were seized unlawfully, then provision of the documents by the AFP to the Respondents under section 3N would also be unlawful.
e. Unlawful dissemination of documents is potentially prejudicial to a person, here the Applicant, where those documents have been seized as part of a criminal investigation against the person.
f. When the 48 Wickham Street Warrant was executed, the Applicant was entitled to be present, was present and had authority to access any material at the premises which is the subject of the s.3N Requests.
g. When the Warrants was executed at 2 Duncraig Road, that premises was the Applicant's residence, the Applicant was entitled to be present, was present and had authority to access any material at the premises which may be the subject of the s.3N Requests.
h. In respect of seizures from 44-48 Wickham Street on execution of the warrants, the Applicant has an interest in the question of whether copies of documents to which he had access are provided in accordance with the law.
i. In respect of seizures from 2 Duncraig Road on execution of the warrants, the Applicant has an interest in the question of whether copies of documents to which he had access are provided in accordance with the law.
j. A person entitled to receive copies of seized documents under s.3N has an interest in the question of whether copies are provided to others unlawfully.
k. The proposed provision of copies pursuant to the s3N Requests is a proposed action by officers of the Commonwealth.
l. The applicant is a suitable contradictor on the question of whether what is proposed to be done by officers of the Commonwealth is unlawful.
186 The AFP and the companies contend that none of these factors, separately or cumulatively, supplies an interest sufficient to support Mr Caratti’s standing, and say:
(1) There is no substance and can be no substance to the proposition that Mr Caratti’s pending application for special leave to the High Court constitutes a sufficient interest for standing purposes. They add that the execution of the warrants remains lawful, having regard to the first instance Federal Court decision and the decision of the Full Court, insofar as it concerns the companies’ narrow s 3N request; and will remain so unless and until the High Court grants special leave and then overturns the decision of the Full Federal Court.
(2) While there may be a question concerning the duty of the AFP to provide a copy of things or information seized pursuant to a warrant to one party, in respect of which access may not be permissible due to rights that another party has (for example, legal professional privilege), Mr Caratti does not identify any such right as being a basis for standing, and despite having more than adequate ability and time to do so he has not identified any materials that are the subject of a personal right that could or should prevent access by the companies.
(3) Mr Caratti’s assertion that he is entitled to make a s 3N request does not give him sufficient interest to maintain the injunction proceedings and it does not follow that his entitlement to a copy of documents gives him a right to challenge whether anybody else has a right to request the documents, or that the decision of the AFP to provide somebody else with a copy of the documents is open to challenge at his suit.
(4) Mr Caratti has no proprietary interest in the documents the subject of the 3N request, with a result that the claim for injunctive relief relies upon the construction of s 3N and not directly upon the application for special leave to the High Court.
187 In my view, despite Mr Caratti’s personal desire to maintain the injunction proceeding, his standing to do so is not demonstrated.
188 Mr Caratti does not have any statutory right to challenge either the relevant requests for materials made by the companies pursuant to s 3N of the Crimes Act, or the exercise of the power by the AFP (the “constable”) to meet the obligation of a constable to respond to a request made under s 3N. The question is whether he has standing under equitable principles.
189 In Bateman’s Bay, the plurality (Gaudron, Gummow and Kirby JJ) at [46], by reference to authority, noted that the standing rule expressed in the special interest terms, is flexible, and that the nature and subject matter of the litigation will dictate what amounts to a special interest. Their Honours said this emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. Their Honours added that it also suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject matter of an action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support the public interest in due administration which enlivens equitable intervention in public law.
190 In that case, the first respondent operated a contributory funeral benefit fund business catering for members of the New South Wales Aboriginal community. The second respondent operated a contributory life insurance business for members of the same community. The Bateman’s Bay Local Aboriginal Land Council, established under the Aboriginal Land Rights Act 1983 (NSW) proposed to conduct a contributory funeral benefit fund catering for all Aboriginal persons. The respondents brought proceedings in the Supreme Court of New South Wales claiming that the establishment and operation of such a fund was unlawful on the ground it was beyond the Council’s statutory powers. Injunctions were sought restraining the Council from carrying on the fund business. The question of the respondents’ standing became of some importance. The Court held that the respondents had a sufficient special interest to seek the equitable relief.
191 The plurality observed, at [49], that the nature and subject matter of the litigation before the Court was the observance by the Council of the statutory limitations placed upon its activities. In an immediate sense, the statutory prohibitions served to protect the interests of subscribers. Their Honours noted that those persons, even if not given by the legislation personal rights which would be protected by injunction, may well have a sufficient special interest.
192 Their Honours added, at [50], that it did not follow that such persons alone have standing and it would be wrong to take that as a starting point. At [52], the plurality said that the respondents had an interest in the observance by the Council of the statutory limitations upon its activities, with respect to contributory funeral funds which, as a matter of practical reality, was immediate, significant and peculiar to them. Thus, they had standing.
193 Justice McHugh, at [102], also held that, under the special interest test, the respondents had standing. Justice Hayne, at [107], said that for the reasons given by the other members of the Court, he agreed the respondents had a special interest in the subject matter of the proceedings.
194 While it might be argued here that Mr Caratti has an indirect, rather than a direct or primary, interest in the subject matter of the proceeding – because if he can somehow prevent the companies from gaining access to the seized documents that belong to the companies, his desire to protect his personal interests from unlawful or unreasonable invasion by the AFP might be advanced, I do not consider that, upon closer analysis, a sufficient interest to maintain this injunction proceeding is indicated. This proceeding is quite different from a proceeding, such as a warrant proceeding, where a person such as Mr Caratti may have standing to challenge the validity of a warrant directed to the seizure of documents from a third party where he or she is the target of investigation. Such a case is much more akin to the interest found to be sufficient in the Bateman’s Bay case.
195 In this case, the situation is, by contrast, that the companies, whose documents have been seized under warrant, have made a proper request under s 3N of the Crimes Act (as I find below) for copies of the seized documents. The provision of the documents by the AFP to the companies is a civil right that the companies may exercise. Whether or not the AFP is obliged by s 3N of the Crimes Act to respond to the companies’ requests for copies of the documents seized is a matter for the AFP to consider, not for Mr Caratti to contest, in my view. As personally interested as Mr Caratti may be in that question, I do not consider he has demonstrated a sufficient interest in the subject matter of the proceeding to bring the injunction proceeding. His personal interest does not, in my assessment, constitute an immediate, significant or peculiar interest to Mr Caratti which, as a matter of practical reality, provides him with a special interest in the injunction proceeding.
196 Here, the documents requested by the companies’ narrowed 3N request are documents belonging to the companies. The request is not in respect of documents in which Mr Caratti has any interest other than an interest which might be described as a personal interest by a person who is a director of a company in company documents which have been seized by the AFP and which may separately be relevant to an investigation being conducted by the AFP, albeit an investigation where Mr Caratti is the target.
197 The fact that Mr Caratti may have had standing to challenge the warrants pursuant to which relevant documents have been seized and in respect of which 3N requests have been made, does not, in my view, alter the position. The warrants concern seizure of documents potentially helping to incriminate him. The 3N request by the companies lacks any such character.
198 Nor is it possible to say that, by making an application for special leave to appeal from the decision of the Full Court of this Court upholding the validity of the warrants in question, Mr Caratti derives an interest sufficient to maintain the injunction proceeding. As the companies and the AFP pointed out at the hearing, it must be presumed by the Court at this point that the warrants are valid. Since then Mr Caratti’s application for special leave to appeal to the High Court against the Full Court’s ruling has been refused. The warrants are valid.
199 I therefore find Mr Caratti does not have standing to bring and maintain the injunction proceeding.
200 However, in the event that I am wrong in so finding, I should also deal with the substantive question concerning the construction of s 3N of the Crimes Act and, consequently, the status of the contested relevant 3N requests made by or on behalf of the companies.
On the proper construction of section 3N of the Crimes Act, are the companies entitled as occupiers to receive copies of documents seized?
201 Section 3N provides that:
3N Copies of seized things to be provided
(1) Subject to subsection (2), if a constable seizes, under a warrant relating to premises:
(a) a document, film, computer file or other thing that can be readily copied; or
(b) a storage device the information in which can be readily copied;
the constable must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.
(2) Subsection (1) does not apply if:
(a) the thing that has been seized was seized under subsection 3L(1A) or paragraph 3L(2)(b) or 3LAA(4)(b); or
(b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence.
202 Mr Caratti submits that, when properly construed, the reference to “the occupier” does not include the companies.
203 Mr Caratti says that a question is whether the word “occupier” denotes a natural person in physical occupation of relevant premises; and even if the word “occupier” has a broader meaning, s 3N is nonetheless confined to natural persons who were present when the warrant was executed because the words, “and who is present when the warrant is executed”, apply to both “the occupier of the premises” and “another person who apparently represents the occupier”.
204 Mr Caratti reasonably notes that the word “occupier” may have a meaning that differs from situation to situation, citing a number of authorities in support of that proposition. The proposition itself is not contested and I need not elaborate on those authorities.
205 What might reasonably be said, as the parties accept, is that the meaning of a word or phrase must be considered in the context of the legislation in which it appears, taking into account the purpose and object of the legislation. It is sufficient in that regard to cite Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.
206 Mr Caratti develops his arguments on construction in the following way. First, he draws attention to the language of the section and says it contemplates that it operates in respect of a “person” (another person) including a person who apparently represents the occupier.
207 He says the use of the phrase “another person” implies that the occupier must also be a “person”. He says if it were otherwise, the word “another” would not be necessary.
208 So far so good, it might be observed. But Mr Caratti then contends that it does not make sense that a corporate entity could represent the occupier in the context of the execution of a search warrant.
209 Thus, he submits, it follows that the natural meaning of the word “person” in this statutory context is a natural person.
210 Mr Caratti submits that this approach and meaning is corroborated by the fact that the word “person” is distinguished in the scheme of the Crimes Act from a “body corporate”. In this regard he refers to ss 41(3), 42(4), 85ZP(2) and 85ZZGF. He submits that in the Crimes Act, “person” is used in contradistinction to “body corporate”, except that s 4B substitutes “body corporate” wherever “person” appears for purposes not presently relevant, in respect of imposing a pecuniary penalty. He says the legislature was alive to the need to distinguish between different types of entities.
211 Mr Caratti also submits that other references in the Crimes Act to the word “occupier” proceed on the basis that the occupier is a natural person, for example, s 3J(1) as to consent of an “occupier” to the taking of photographs, and s 3K(2)(b) as to consent of an “occupier” to the moving to another place a thing found during a search.
212 Mr Caratti further says, in relation to the question of who is present when the warrant is executed, that the language of the section, the words “and who is present when the warrant is executed”, properly interpreted apply both to a person who “apparently represents” the occupier and a person who is “the occupier”. He submits that this is a natural meaning corroborated by s 3H(1) and s 3P of the Crimes Act.
213 Additionally, he submits, as to purpose and object, an apparent purpose of the draftspersons, in deciding who may obtain copies of seized material under s 3N, is to not require each executing officer who locates a document to consider arguments such as who may or may not own an item or have an interest in it, or whether a person who apparently represents an occupier at the time of the execution of a warrant in fact represented an occupier.
214 He contends that the power to provide copies was explicitly not given in respect of a number of descriptors used elsewhere in the Crimes Act, which are accordingly in contradistinction: a “person from whom the thing was seized”, a “person with an interest in thing or document” and the “the owner of the thing or document”.
215 Mr Caratti submits that such an approach by the drafters is supported by the use of the word “apparently” in the phrase “apparently represents the occupier”, which connotes that the person entitled to copies might not in fact be entitled to represent the occupier. The term, he says, is as apposite to providing a copy of the warrant, as it is to providing copies of documents. The provision is meant to have practical application.
216 Mr Caratti draws attention to s 3H(1) which relevantly provides that:
If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing officer or a constable assisting must make available to that person a copy of the warrant.
217 He says that the same composite phrase or substantially the same composite phrase as used in s 3N is used here.
218 He also draws attention to s 3P, which relevantly provides:
3P Occupier entitled to be present during search
(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to Part IC, entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person impedes the search.
(3) …
219 The submission made is that the use of the second usage of the words “the person” of s 3P(1) and the use of those words in s 3P(2), refer back to the words “the occupier” and “another person” in s 3P(1).
220 The argument put by Mr Caratti is that these provisions, in relation to presence, denote the capability of an occupier to interact with and observe the executing constables in real time – thus the need for the occupier to be a natural person present at the time the warrant is executed.
221 In oral submissions, counsel for Mr Caratti contended that to the extent there is ambiguity in the meaning of the composite expression or the term “occupier” in s 3N, the recommendations of the Gibbs Report (Review of Commonwealth Criminal Law: Fourth Interim Report, Australian Government Publishing Service, Canberra 1990), which has been recognised as the precursor to the amendments to the Crimes Act that included s 3N, support the view that an occupier in s 3N must be a natural person.
222 In the result, I do not consider that the construction Mr Caratti contends for, in respect of s 3N, is the preferred or indeed the correct construction.
223 Notwithstanding the proper understanding that a public authority under our Australian system of government cannot intrude into the private property domain of citizens and other persons unless authorised by the general law or by statute, I consider the meaning of the word “occupier” as used in s 3N of the Crimes Act includes a body corporate. It is not limited to a natural person. As I will explain, I do not find persuasive the grammatical constructs, policy arguments or legislative history, upon which Mr Caratti relies, in order to come to a different view.
224 While counsel for Mr Caratti took me to passages in the judgment of Brennan J in Halliday v Nevill and Another (1984) 155 CLR 1 at 9-11; [1984] HCA 80, particularly concerning a constable’s right to enter private property with leave and licence, and the right of a person in possession in certain circumstances to refuse leave and licence to enter, I do not consider those general principles inevitably lead to the view that, in the case of s 3N, an occupier was intended by the Parliament, when enacting s 3N, to be concerned only with the rights of a natural person considered to be an occupier.
225 I might say at this point that it is not necessary for me, in the circumstances of this case, to decide the metes and bounds of the expression “occupier”. It is sufficient to note that under the general law an occupier of premises may be a natural person or a body corporate. Also, it is possible, depending on the circumstances of the case, for there to be more than one occupier of a premises. Submissions made on behalf of the AFP addressed some of these principles, but I do not need to elaborate on them here. There was no debate or issue about whether any relevant person failed to satisfy relevant criteria in this regard. The debate centred on whether or not an occupier for s 3N purposes was limited to a natural person.
226 Reading the various provisions of the Crimes Act relied on by Mr Caratti, I see no obvious reason to construe the word “occupier” in a limited way so as to exclude a body corporate.
227 It may be accepted, as is the case, that the word “occupier” is not defined by the Crimes Act itself. However, we now live in a world of statutory construction where the first point of reference is, or should be, the Acts Interpretation Act 1901 (Cth). While, by s 2(2), the application of that Act or its provisions to an Act or its provisions is subject to a contrary intention I consider no contrary intention is indicated here by the Crimes Act or any of its provisions.
228 In this case, s 2C(1) of the Acts Interpretation Act provides that:
In any Act, expressions used to denote persons generally (such as ‘person’, ‘party’, ‘someone’, ‘anyone’, ‘no‑one’, ‘one’, ‘another’ and ‘whoever’), include a body politic or corporate as well as an individual.
229 There is, in my view, nothing obvious in the Crimes Act to suggest that this default position does not apply to s 3N. As I say, there is no reason, under general law, why a body corporate cannot be an occupier. It will be necessary to discover some clear indication from the text and purpose and objects of s 3N, or the provisions of the Crimes Act more generally, to produce a different result.
230 I do not consider that the other provisions of the Crimes Act to which Mr Caratti makes reference, and include a specific reference to a “body corporate”, provide the reason to construe the word “occupier” in s 3N as limited to a natural person. I accept the submission made on behalf of the AFP that in s 41(3)(b) and s 42(4)(b) the reference to “body corporate” is in the nature of a “for the avoidance of doubt” reference – to make clear that the party to a conspiracy may be a body corporate.
231 I also accept the contention made on behalf of the AFP that s 85ZP(2) does not support Mr Caratti’s argument. It provides that a “reference in this Part to a person convicted of an offence does not include a reference to a body corporate”. There would be no reason to make such a provision if “person” otherwise did not include a body corporate.
232 Section 85ZZGF refers to “body corporate”, but does so in the context of a definition of “work” which is said to include “work … as an officer of a body corporate”. That says nothing as to whether “person” in the Crimes Act means natural person. As the AFP submits, it would be absurd to suggest the Parliament should have used the phrase, “work … as an officer of a person”.
233 It is appropriate also, to revert to the Acts Interpretation Act and to note that in s 2C(2) the Parliament has made it clear that:
Express references in an Act to companies, corporations or bodies corporate do not imply that expressions in that Act, of the kind mentioned in subsection (1), do not include companies, corporations or bodies corporate.
234 That provision, as counsel for Mr Caratti later acknowledged in his oral reply, puts paid to a number of the construction arguments advanced on behalf of Mr Caratti.
235 I also do not consider that the terms of s 3J(1)(b) and s 3K(2)(b) concerning the taking of photographs and the moving of a thing found during a search warrant to other premises necessarily connote actions of a natural person. There is no reason why a body corporate cannot consent to the taking of photographs or the moving of a thing found during a search warrant. A body corporate acts, as is well established by authority that need not be cited here, through its duly authorised officers. It is sufficient here to refer to s 124 and s 198A of the Corporations Act concerning the recognition that a company has the legal powers and capacities of a person.
236 Perhaps the grammatical argument upon which more emphasis was put by Mr Caratti, concerns the words, “and who is present when the warrant is executed” in s 3N. The contention is, as noted, that in the phrase “the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed”, the words “and who is present” qualify both “the occupier” and the “another person who apparently represents the occupier”. I accept the submission made on behalf of both the AFP and the companies that the submission does not fit with an ordinary, grammatical reading of s 3N. It involves reading s 3N as if, amongst other things, it referred to “the occupier of the premises and who is present when the warrant is executed”, an unnatural reading.
237 I am also not attracted to Mr Caratti’s related argument that the occupier must be a natural person because a body corporate cannot be present at premises. I accept the submission made by the AFP and the companies that a body corporate may be present at premises if its directing mind and will or agents are at the premises in their corporate capacity. There is no legal or practical difficulty with that concept.
238 In relation to the text of s 3P and s 3H, I consider each to provide an explicable distinction in the language used. Each uses a similar form of language. For example, s 3P(1) provides that:
If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to Part IC, entitled to observe the search being conducted.
239 It is clear that the Parliament has conferred the entitlement on the occupier or “another person” who is “present at the premises” when the warrant “is being executed”. The purpose of that entitlement is obvious. If such an occupier or person is present then they may remain and observe the search. It is a civil right. But it does not extend to occupiers or persons representing occupiers who are not present and in relation to whom, if they were to have an entitlement to observe the execution of the warrant, would have to be notified potentially causing disruption to the efficient and sensible execution of a warrant.
240 I might observe in passing that the Gibbs Report contains a recommendation concerning what became s 3P that conforms with the observation I have just made.
241 Section 3H does not take matters further.
242 Additionally, in my view, there is nothing in the text of s 3N that requires a request by an occupier or another person who apparently represents the occupier and who is present when the warrant is executed, for a copy of the thing or the information seized, to have been made at the time the warrant is being executed, although it may be. I note that the obligation on the constable to give a copy of the thing or the information to the relevant person, is to do so “as soon as practicable after the seizure”.
243 The request may well be made at the time of the execution of the warrant when materials have been seized; or equally may be made after the warrant has been executed, in the sense that materials have already been seized. There is nothing to suggest that the request, in temporal terms, must be more or less contemporaneous with the seizure of the materials. There is nothing, on the face of the s 3N, to suggest that a relevant s 3N request may be made by an occupier, or by a person who apparently represents the occupier and who is present when the warrant is executed, after the materials have been seized. It will be a matter of fact whether a person in the latter category “apparently represents” the occupier and was “present” when the warrant was executed, for the purpose of making the request. If they were not, that may cause the constable to refuse the request.
244 More broadly, it would seem a curious, if not an absurd, outcome for the expression “occupier” in s 3N to be construed to exclude a body corporate. The law enforcement powers of a constable might, on one view, be enhanced if a constable need only deal with a s 3N request made by a natural person or another natural person representing the first person (on Mr Caratti’s argument), and so never need to concern themselves with meeting a request made on behalf of a body corporate occupier. To state the proposition, however, is to state its limitation. Accepting Mr Caratti’s contention that a constable is not intended to have to engage in any detailed inquiries about who an occupier is when responding to a s 3N request, the constable would still need to be satisfied that the person making the request, or on whose behalf the request is made, is not a corporate body and is an occupier – for, on Mr Caratti’s construction, only a non-corporate, natural person who plays a significant role in the commercial life of the corporation could possibly meet the status of an occupier.
245 More likely it is that Parliament, understanding and recognising that corporate entities occupy premises and so are equally likely, as natural persons, to be affected by the execution of warrants to which s 3N would be relevant, intended to extend the entitlement to request copies of materials seized to such corporate entities, as if they were natural persons. That brings one back to the terms of the Acts Interpretation Act, where we started, which commences on the understanding that persons include corporate entities.
246 In my view, there is no relevant ambiguity in the terms of s 3N to make it necessary or appropriate to regard the recommendations of the Gibbs Report. But even if one does turn to that extrinsic information to elicit what assistance may be found there, I do not consider the terms of the relevant recommendation to be determinative of the construction issue.
247 The Gibbs Report dealt generally with the law relating to search warrants. It dealt with a number of circumstances in relation to the grant of search warrants and their scope, and recommended changes to existing law. At [38.54], for example, the review committee considered a suggestion from the Attorney-General’s Department that it was imperative that the officer in charge of police executing a warrant should identify himself or herself clearly to the occupier. At [38.56], the review committee expressed the opinion that the occupier of the premises, if present, or, if not present, anyone present that apparently represents the occupier, should be given a copy of the warrant and this copy should clearly state the name of the officer in charge of the actual execution of the warrant.
248 Then, at [40.28], the Attorney-General’s Department suggested that there should be an obligation on the executing officer to give the occupier a copy of the search warrant. The review committee said that, provided that this is limited to circumstances where the occupier or an adult person apparently representing the occupier is present, it agreed with the suggestion.
249 The review committee at [40.28] also noted a suggestion that there be an obligation on the executing officer to identify himself or herself clearly to the occupier. The review committee recommended that, while a warrant might be addressed to another officer, it should clearly state the name of the officer in charge of the actual execution of the warrant and a copy of the warrant should be given to the occupier, if present, or if not present, any person apparently representing the owner.
250 The review committee at [40.28] further noted the suggestion that there should be an obligation on the executing officer to provide, where appropriate, the person from whom documents or films are seized with copies of the documents or processed photographs. The review committee said it was of the view that a person from whom documents, films or like matter are seized should be provided, if he or she so desires, with copies of the documents, processed films or like matter, free of charge as soon as practicable and should be informed of this right.
251 The summary of recommendations from that part of the Gibbs Report appears at [41.1]. The recommendations I have just noted (and others) were relevantly repeated. In particular, at [41.1(x)], the review committee recommended that:
The law should provide that the executing officer seizing any document, film or like thing, should provide, as soon as practicable to the occupier, if present and, if not present, any person present apparently representing him or her, a copy of the document, processed film or like thing free of charge if he or she so desires and the occupier or other person should be informed of this right.
252 That recommendation is accepted by the parties to be the precursor to what became s 3N. Section 3N, however, was not enacted precisely in the terms of that recommendation. Section 3N should be construed on the basis of what it actually provides. The recommendation in [41.1(x)] may be said not to be a very precise drafting instruction. It seems to be based on a view that ideally copies of things seized should be provided free of charge if an occupier who is present at the time or a person representing them who is present at the time, so desires. The question of the expression of desire was not left, in the recommendation, in a vacuum. The review committee proposal was that an occupier or a person representing them should be informed of the right to desire a copy of things seized at the time of the execution of the warrant. That obligation – the obligation to inform a person of their right to request copies – was not transformed into s 3N.
253 In my view, it is plain that s 3N, as enacted, does not faithfully implement that recommendation. Legislative choices have been made by the Parliament in the terms finally adopted in s 3N.
254 In that regard, I do not consider that the relevant recommendation of the Gibbs Report relevantly assists in the proper construction of s 3N; at the least, it is not determinative of the construction issue.
255 On Mr Caratti’s construction of s 3N, the companies did not meet the threshold for making 3N requests they made of the AFP following the seizure under the warrants, because they were neither natural persons nor, whether as entities or by their liquidators, present when the relevant warrants were executed. It follows, having rejected the construction Mr Caratti contends for, that I reject that proposition.
256 Further, I find the individual companies whose documents were seized at 48 Wickham Street, East Perth were as at that time “occupiers” of the premises. The proposition that they were not occupiers was not seriously raised. The relevant companies plainly conducted most, if not all, of their activities from the Wickham Street premises largely under Mr Caratti’s direction as a person deeply involved in the direction and management of each company. I draw the inference each was a relevant occupier of the premises, even if the occupation was shared with others.
257 It follows that the answer to this second issue is, yes, the companies are entitled as occupiers of the Wickham Street premises to receive copies of the documents seized.
258 On behalf of Mr Caratti, it is submitted that even if the companies do meet the threshold (as I have found they do), their interests, in effect, would only extend to such portion of the premises at which the search warrant was relatively executed as occupied by each corporation; and, on the facts, each of the companies would only be entitled to receive copies of such seized material as belonged to it and then only in respect of its books and records.
259 I consider, on the facts above, that each of the companies at material times occupied the premises from which the documents were seized.
260 I consider that each is entitled to receive copies of those documents that may be said, putting it generally, that belong to it. In this regard, I understand each company has relevantly narrowed its s 3N request of the AFP prior to the commencement of these proceedings to ensure this outcome.
261 I reject any proposition that the companies may only receive copies of documents that answer the description of “books and records” in some narrower form. There is no such specification in s 3N of the Crimes Act. Each is entitled to request copies of the documents seized from Wickham Street that belong to them.
262 At the hearing Mr Caratti noted that he maintains a claim that the warrants under which the relevant materials were seized were invalidly issued in whole or in part. But he accepted that, in light of the first instance decision and that of the Full Court, upholding the validity of the warrants, that the legal position presently is otherwise.
263 This ground now fully falls away because the High Court of Australia recently refused special leave to appeal from the Full Court judgment.
What orders, if any, should now be made?
264 The primary relief that should now be granted is an order that Mr Caratti’s application for injunctions should be dismissed.
265 However, given that the challenges, or effective challenges, to the validity of the relevant 3N requests made by the companies, I consider it also appropriate to make declarations of their validity, as claimed on behalf of the companies.
266 I should note that, following the High Court’s refusal of special leave, Mr Caratti submitted that an interim stay order may also be appropriate to enable the parties to consider my reasons for judgment and whether to seek a stay of orders, including to permit the parties to consider whether to appeal, if necessary. Mr Caratti submitted that if the outcome is against his interests an appeal may be rendered nugatory if the liquidators were granted access to documents before an appeal is heard.
267 Mr Caratti suggested a second purpose for a stay would concern the challenge to the search warrants. Then again, he submitted, it would not be possible to consider whether a stay should be sought until the Court’s orders are made and reasons are known.
268 Mr Caratti also indicated an intention to file an application of 1 June 2018 in the original jurisdiction of the High Court, alleging jurisdictional error by the Full Court of the Federal Court in the warrant appeal in failing to reach its own conclusion whether or not the warrants were valid and thereby failed to exercise jurisdiction.
269 The companies oppose any such stay orders being made for these reasons.
270 In my view, it is not appropriate for the Court to make any stay order in this proceeding. Should the stay of my orders. or any other proceeding or action ensue, a stay can be sought, if considered appropriate, in any such appeal, proceeding or other action.
Orders
271 The following orders would now appear appropriate, but before making them, I will hear further from the parties.
(1) The Court declares that:
(a) Each of the second respondent, the fourth respondent, the sixth respondent, the eighth respondent, and the tenth respondent was, at the time of the execution of the search warrants in late January 2015 at premises known as 44-48 Wickham Street, East Perth an “occupier” of those premises for the purposes of s 3N of the Crimes Act 1914 (Cth).
(b) The request for copies of documents made by or on behalf of the each of the second to the ninth respondents in the form outlined in the letter of the solicitors for the third respondent, fifth respondent, seventh respondent and ninth respondent to the Australian Government Solicitor (AGS) dated 4 October 2017 amending the scope of the original request and narrowing the scope of the books and records requested (the narrowed s 3N request) is valid.
(c) The s 3N request made by the eleventh respondent by letter dated 10 November 2017 to the AGS, is valid.
(2) The Court orders that:
(a) The originating application dated 12 December 2017 otherwise be dismissed.
(b) The applicant pay the costs of the proceeding of the second to the eleventh respondents, to be assessed if not agreed.
272 I do not consider it necessary to grant the injunctive relief that the companies have also sought, requiring the AFP to deliver up to the liquidators a copy of the books and records referred to in the companies’ narrowed 3N requests or the tenth respondent’s request; or to make declarations that the companies are entitled to inspect those books and records. In my view, having made the above declarations and having dismissed the injunction proceeding, it is now open to the AFP to respond to the relevant companies’ 3N requests and for the companies, upon any subsequent receipt of copies of documents, to inspect them.
273 Having regard to the findings and declarations I propose to make, I will not make any declarations or orders in respect of any s 3N requests by any of the respondents in respect of documents seized from the 2 Duncraig Road, Applecross premises.
274 As to the costs of the first respondent, I will hear from the parties concerned.
I certify that the preceding two hundred and seventy-four (274) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. |
WAD 630 of 2017 | |
MNWA PTY LTD (IN LIQUIDATION) ACN 101 717 177 | |
Fifth Respondent: | WILLIAM HARRIS AND ROBERT KIRMAN AS JOINT AND SEVERAL LIQUIDATORS OF MNWA PTY LTD (IN LIQUIDATION) |
Sixth Respondent: | I.M.E. NOMINEES PTY LTD (IN LIQUIDATION) ACN 107 942 058 |
Seventh Respondent: | WILLIAM HARRIS AND ROBERT KIRMAN AS JOINT AND SEVERAL LIQUIDATORS OF I.M.E. NOMINEES PTY LTD (IN LIQUIDATION) |
Eighth Respondent: | ACN 142 745 337 PTY LTD (IN LIQUIDATION) |
Ninth Respondent: | WILLIAM HARRIS AND ROBERT KIRMAN AS JOINT AND SEVERAL LIQUIDATORS OF ACN 142 745 337 PTY LTD |
Tenth Respondent: | WHITBY LAND COMPANY PTY LTD (IN LIQUIDATION) ACN 115 233 193 |
Eleventh Respondent: | WILLIAM HARRIS AND ROBERT KIRMAN AS JOINT AND SEVERAL LIQUIDATORS OF WHITBY LAND COMPANY PTY LTD (IN LIQUIDATION) |
