FEDERAL COURT OF AUSTRALIA

Seeter Pty Ltd v The Commonwealth of Australia [2003] FCA 1330

Great Barrier Reef Marine Park Act 1975 (Cth)

Fisheries Management Act 1991 (Cth)

SEETER PTY LTD (ACN 009 144 117) T/A GREAT BARRIER REEF TUNA (ABN 4979321) and ANOR v THE COMMONWEALTH OF AUSTRALIA and ORS

No. Q 169 of 2003

SPENDER J

BRISBANE

13 NOVEMBER 2003

THE COURT ORDERS THAT:

1.         The interlocutory application seeking to quarantine documents until the hearing of the principal proceedings, is refused.

2.         The costs of the application are reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The principal application, which is the subject of an amended application, seeks declarations that search warrants issued by a Justice of the Peace are invalid and therefore should be set aside.  The warrants allege the suspicion of offences by the second applicant, Mr Lamason, under the Great Barrier Reef Marine Park Act 1975 (Cth) and the Fisheries Management Act 1991 (Cth). 

2                     There is a claim that some of the documents are protected by legal professional privilege and a further claim that the privacy provisions, in particular Regulation 36 of the Fisheries Management regime, render the documents that were in fact seized by Australian Federal Police immune from seizure. 

3                     I am presently concerned only with the question of whether the Australian Federal Police, until the determination of the application seeking declarations as to invalidity, may inspect or have access to the documents pending the resolution of the principal proceedings. 

4                     On 4 November 2003, Cooper J ordered that upon the second respondent causing all information on all computers seized pursuant to the execution of the search warrants the subject of these proceedings to be imaged, the said computers be returned into the possession of the first applicant.  He further ordered, until 5 pm on Friday 7 November 2003, or earlier order, the respondents by themselves, their servants or agents or otherwise be restrained from further inspecting documents seized in execution of the said search warrants.  The application was then adjourned until the morning of Friday 7 November 2003 before me for further directions.

5                     The directions embargoing the documents, or restraining the respondents from further inspecting the documents, was continued, and I am concerned today with whether that embargo should be further continued. 

6                     I can deal with the matter reasonably shortly because most of the submissions on behalf of the applicants seeking continuation of the embargo are really directed at the issues in the principal proceedings, that is to say, whether the terms of the warrant are too wide and therefore are invalid, whether they are directed at documents which are protected by the privacy provisions of the Fisheries legislation, and whether some of the documents are the subject of legal professional privilege.  I am concerned today only with the question of whether interlocutory orders preventing inspection by the police of the seized documents should be made.

7                     In respect of the question of legal professional privilege, which is the matter which principally concerns me, on the material presently available to me I have no reason to think that any valid claim of legal professional privilege, or client professional privilege as it is more recently referred to, attaches to the documents seized.  Client professional privilege attaches to documents which are brought into existence or which are created for the purpose of legal advice, or which are communicated to a solicitor for the purpose of getting legal advice. 

8                     None of the circumstances here seem to me to attract legal professional privilege, even for interlocutory purposes.  The mere fact that a person hands to his solicitor documents for advice about whether in fact they are caught by the terms of a search warrant, does not render the documents immune from seizure on the grounds of legal professional privilege.

9                     In respect of the other matters, the applicants’ claims concerning the privacy provision seems to me to be insubstantial, but I am of the view that there is a serious question to be tried concerning the width of the search warrant and its terms.  Since there is, at least, that serious question to be tried, and perhaps other issues concerning the application of the privacy provisions, it is necessary to consider the balance of convenience.  I do not think the prospects of success on the questions that I have referred to are particularly great, but it really is a question of convenience, it seems to me, on which this present application will turn.

10                  In my view, the applicants have not demonstrated a significant prejudice likely to accrue to them as a result of the execution of the warrants or as a result of the respondents having access to those documents, pending the resolution of the attack on the validity of those warrants.  If those complaints are subsequently upheld, the applicants’ privacy will have been impinged upon, and they may have been, to some extent, inconvenienced in not having access to their documents and computer records. 

11                  However, access is available to them and, if necessary, copies of the original documents can be made and returned to the applicants.  There is no suggestion that it is impractical for them to have access to those documents in the interim period between now and the final resolution of the matter.

12                  In those circumstances, it is difficult to see that the applicants are going to suffer any loss at all, let alone a loss for which they cannot be adequately compensated in damages.  If it be the case that the search warrants ultimately are found to be invalid, and if, subsequently, offences are brought against Mr Lamason, then it will be open to him to argue that documents wrongly seized should not be used in evidence in the establishment of those offences. 

13                  If, on the other hand, inspection of those documents and consideration of all the other material means that there will be no offence levelled against Mr Lamason, so be it.  It is clear that the respondents seek to assess that material for the purpose of considering prosecution of Mr Lamason for offences under both the Great Barrier Marine Park Authority Act 1975 (Cth) and the Fisheries Management Act 1991 (Cth).

14                  In my opinion, the balance of convenience does not favour restraining respondents from the exercise of their duties, given that there appears to be no irremediable prejudice to the applicants.  So I will decline the application for interlocutory relief seeking to quarantine those documents until the hearing of the principal proceedings. 

15                  I will reserve the costs of that interlocutory application.  The ultimate outcome may be relevant to the question of where the interlocutory costs should justly fall.

Associate:

Dated:              20 November 2003