Federal Court of Australia

Okewood Pty Ltd v Commissioner of the Australian Federal Police (No 3) [2021] FCA 2

ORDERS

THE COURT NOTES THAT:

1.    The respondent has agreed to provide to the applicants 14 days prior notice of any proposal to provide access to any of the Non-LPP documents (as defined in the orders of 4 August 2020) to former officers Blakiston, Mottram, Elliott and Whitfield.

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicants pay the respondent's costs to be assessed if not agreed.

3.    The parties have liberty to apply within seven days for order 2 above to be set aside or varied.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    On about 19 December 2012 officers of the respondent executed search warrants at a number of premises, as part of an investigation into alleged indictable offences against the Commonwealth involving a number of individuals and entities, and referred to by the respondent as 'Operation Lemans'.

2    Documents and electronic devices said to be the property of the applicants were seized as part of that exercise.

3    On 5 April 2013 the applicants commenced this action by originating process, seeking an order that the respondent be prohibited from inspecting any documents or copies of documents, whether stored electronically or in hard copy, seized by the Australian Federal Police (AFP) at the premises of the applicants pursuant to the search warrants, until such time as the applicants have identified those documents which are the subject of legal professional privilege.

4    After a protracted process, the applicants prepared a schedule of those documents that were seized under the warrants for which they assert a claim of legal professional privilege (LPP Schedule). This was provided to the respondent on or about 22 September 2020. The LPP Schedule apparently includes a description of each relevant document and the basis for the claim. In the ordinary course, and pursuant to its rights under the Crimes Act 1914 (Cth), the AFP should now have access to those seized documents that are not the subject of a legal professional privilege claim.

5    However, the applicants seek orders restraining named persons, said to be agents of the respondent, from inspecting the documents that are not the subject of any legal professional privilege claim.

6    The applicants contend that I have the power to make such orders either through the exercise of case management powers or as an exercise of the Court's equitable jurisdiction to protect confidential information.

7    For ease of reference, and following the parties' convention, I will refer in these reasons to the documents obtained pursuant to the execution of the relevant warrants and over which no claim for legal professional privilege is made as the Non-LPP documents and to those documents over which a legal professional privilege claim is maintained as the LPP documents.

History

8    There are a number of matters that provide important context to this application.

Previous decisions

9    I have previously published two sets of reasons in this action: Okewood Pty Ltd v Commissioner of the Australian Federal Police [2018] FCA 1035 (Okewood 1); and Okewood Pty Ltd v Commissioner of the Australian Federal Police (No 2) [2020] FCA 1363 (Okewood 2).

10    In Okewood 1 I addressed the manner in which the parties were to undertake a so-called document reduction process, a course implemented in order to reduce the number of seized documents derived from the electronic devices so that the task of identifying the legal professional privilege documents might be more manageable.

11    In Okewood 2 I dealt with an interlocutory application brought by the applicants that raised issues as to an access regime that had been implemented by the parties pursuant to orders made on 4 August 2020 and 6 August 2020. The regime was put in place in order to prevent access to the LPP documents until such time as any disputes about legal professional privilege could be resolved. The regime proceeded on the basis that the respondent could otherwise inspect the Non-LPP documents and so progress its investigations. The interlocutory application sought orders directing, amongst other things, conferral. I dismissed the application, but preserved the ability for the applicants to bring a properly formulated application to vary the inspection regime if they wished to do so. The reasons provide useful background to this application.

Any disputed claims as to privilege not yet resolved

12    There has been no determination as to whether the applicants (or any of them) are able to establish a basis for relying on legal professional privilege with respect to the LPP documents. I was told at an earlier hearing that legal professional privilege is claimed for some 3,844 documents by way of a 'standard' legal professional privilege claim and for 20,788 documents on the basis of 'illegibility'. At the hearing of the present application I was told that disputes as to whether communications were privileged had been resolved between the parties, save with respect to about 300 documents. There is no evidence before me as to the nature of the documents over which legal professional privilege is claimed, nor the basis for such claims.

Processes to preserve privilege claims and allegations of breach

13    As described in Okewood 1 and Okewood 2, the applicants allege that certain officers of the respondent breached protocols or agreements by the manner in which they handled or seized documents or devices.

14    It has never been in issue that the respondent's right to seize documents pursuant to the warrants does not affect the law relating to legal professional privilege: s 3ZX of the Crimes Act.

15    At the time of execution of the warrants (on 19 and 20 December 2012) the parties purported to put in place certain processes whereby copies of storage devices would be made and securely held, with claims for legal professional privilege to be commenced by 15 February 2013. This was done by way of a letter and an addendum to the letter (Addendum). The Addendum provided that after claims for legal professional privilege were commenced, Bennett + Co and the Australian Government Solicitor (AGS) were to liaise as to the collection of those documents over which legal professional privilege was claimed, and the AFP was not to be provided with a copy of any documents over which legal professional privilege had been asserted and was not to access them unless by order of the Court.

16    It became apparent that the process that had been anticipated by way of the letter and Addendum was overly optimistic in terms of simplicity and timing. Bennett + Co were unable to identify claims for legal professional privilege in the nominated time frame or collate the privileged documents as anticipated, having regard to the size of the task. The parties then entered into discussions as to a 'data reduction process', aimed at reducing the number of documents necessary for Bennett + Co to review in order to identify documents over which a claim for legal professional privilege was to be asserted.

17    As noted, in April 2013 this action was commenced.

18    On 6 September 2013 Gilmour J made a number of orders to give effect to a data reduction process that had been formulated by the parties (2013 Data Reduction Orders). The terms of the Addendum must be read having regard to the change in the agreed procedure between the parties that culminated in those orders. It was intended that under the orders the AFP, by a digital forensic officer (DFO), would utilise digital forensic software to automate a process to reduce the data on secured devices that was potentially relevant to its inquiries, so that any review to ascertain communications over which legal professional privilege was claimed would proceed over a smaller sub-set of documents stored on the devices. The data reduction process did not permit or involve the examination of the contents of any document by a DFO.

19    The data reduction process commenced on a trial basis but due to difficulties that were encountered, it was not completed.

20    Following disclosures made by the AFP at meetings with the applicants' solicitors to discuss progress, the applicants formed a suspicion as to whether or not the respondent had complied with the terms of the 2013 Data Reduction Orders. The applicants applied to the Court for orders requiring the respondent to provide disclosure as to the manner in which it had dealt with the seized data having regard to the 2013 Data Reduction Orders and pending the identification of the LPP documents. By an undertaking (reflected in an order of 11 February 2015), the respondent agreed to limit access to the data pending resolution of disputes as to the meaning of the 2013 Data Reduction Orders and the consideration of issues raised by the applicants.

21    On 23 March 2015 Gilmour J made orders requiring the AFP to file any affidavit evidence it wished to rely upon relating to the manner in which data had been accessed. The respondent initially filed four affidavits pursuant to those orders, but after communications with Bennett + Co, the respondent continued to provide additional affidavits to address particular questions, such that the respondent filed some 41 affidavits in response. The respondent does not admit there were any breaches of the 2013 Data Reduction Orders or the Addendum.

22    Orders were made on 18 August 2015 which required all the seized items and any copy documents to be held in secure storage by the AGS until further order. The AFP accordingly had no access to the data from that time.

23    At a hearing on 18 August 2016 Gilmour J determined that issues relating to the alleged non-compliance with the 2013 Data Reduction Orders (including what, if any, relief might follow) should be put to the side while the parties pursued the central question of the process for document reduction and legal professional privilege review.

24    In September 2016 the applicants also brought a separate interlocutory application seeking further disclosure about alleged breaches. That application has not been pursued and remains adjourned. The applicants did not contend that it was necessary for that application or the question of whether there had been any contravention by the respondent of the 2013 Data Reduction Orders or Addendum to be determined before this application for relief was pursued.

The data reduction process proceeds

25    An amended data reduction process was finally put in place in 2018 by way of the orders made and referred to in Okewood 1. Due to difficulties with its application with respect to particular devices, further orders were made on 14 October 2019 for the data reduction process to be re-conducted (Second Reduction Process).

26    The data reduction proceeded. I was told by counsel for the applicants that the data reduction process (since 2013) reduced the database from some 5,000,000 data entries to some 109,000 documents for review. The amount of data and the scope of the task undertaken by the parties to reduce it should not be underestimated.

27    Further orders were made on 4 August 2020. Those orders allowed for inspection by the respondent of the Non-LPP documents. It is those orders that the applicants seek to vary by this application.

The 4 August 2020 orders

28    Relevantly, order 6 of the orders of 4 August 2020 provides as follows:

…

6.    To enable the respondent to access the electronic documents within the Non-LPP documents the following process will apply:

(a)    At the same time as serving the LPP Schedule the applicants will provide to the respondent a complete file listing (outlining MD5 Hash, X WAYS GUID and item path for each file) for each electronic document over which a claim for LPP has been made;

(b)    Upon receipt of the complete file listing a Digital Forensic Officer of the Australian Federal Police except DFO Michael Wheeler (AFP DFO) will be permitted to obtain the reduced data set from AGS and create another data set from the reduced data set with all the documents over which a claim for LPP has been made removed (the Non-LPP data set). Following completion of the creation of the Non-LPP data set the reduced data set is to be returned to AGS. At all times whilst the AFP DFO is taking these steps, the applicants' technical adviser will be entitled to attend and observe;

(c)    Following creation of the Non-LPP data set the AFP DFO will provide one copy of the Non-LPP data set to the applicants' technical adviser and one copy will be retained by the AFP DFO. The AFP will not access its copy of the Non-LPP data set until receipt of the confirmation to be provided under 6(d);

(d)    Within 4 business days of the receipt of the Non-LPP data set from the AFP DFO the applicants' technical adviser will confirm to the AFP DFO that all documents over which a claim for LPP has been made have been removed from the Non-LPP data set;

(e)    In the event that the applicants' technical adviser is unable to provide the required confirmation under order 6(c), the steps required under orders 6(b), 6(c) and 6(d) are to be repeated as necessary to enable that confirmation to be provided; and

(f)    Following receipt of the required confirmation under order 6(d), the respondent will be entitled to access all the documents in the Non-LPP data set.

29    Orders 8 and 10 of those orders explain the remaining process to resolve disputed privilege claims:

8.    Within 21 days of the respondent obtaining access to the documents in the Non-LPP data set under order 6 above, or such further time as may be agreed by the parties, the respondent is to serve on the applicants a response to the claims for LPP made in the LPP Schedule, indicating for each document whether or not the respondent accepts the LPP claim which has been made.

…

10.    The parties shall confer and seek to agree a process for resolving claims for LPP over any documents that are not accepted by the respondent within 7 days. If agreement is reached the parties are to provide to the Court a minute of consent orders. Absent agreement the matter may be re-listed.

30    Separately, an order was made by consent on 6 August 2020 entitling the respondent to inspect the hard copy Non-LPP documents, on certain terms.

The relief sought by this application

31    The applicants seek by this application to vary the orders of 4 and 6 August 2020 so that no 'Excluded Agent' is permitted to access any of the Non-LPP documents or discuss the contents of any of the documents with any other officer or agent of the respondent, including any member of the Operation Lemans taskforce. As already noted, the applicants contend that I have the power to make such orders either through the exercise of case management powers or as an exercise of the equitable jurisdiction to protect confidential information by granting injunctive relief. They contend that the purpose of the exercise of such powers is the protection of the confidentiality of potentially privileged material and to restrain its misuse.

32    It is therefore appropriate to address first the general principles relating to legal professional privilege and the exercise of such powers.

Principles

Equitable relief

33    In Glencore International AG v Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646 the High Court refused to injunct the respondent Commissioner from making use of documents known as the 'Paradise Papers' that had been stolen from the electronic file management system of a legal practice and were in the public domain. Some of the documents were created for the sole or dominant purpose of the provision of legal advice.

34    The High Court in Glencore referred to references in authorities to legal professional privilege as a 'right' and said as follows:

[21]    Legal professional privilege has been described as a right which is fundamental to persons and to our legal system. It has also been described as 'a practical guarantee of fundamental, constitutional or human rights'. Such descriptions point up the importance of the privilege. They serve to show that it is not merely an aspect of curial procedure or a mere rule of evidence but a substantive right founded upon a matter of public interest. The same distinction has been drawn in New Zealand and the United Kingdom.

[22]    What cannot be discerned from these cases is that the 'right' spoken of in connection with the privilege is an actionable right. If one asks what this 'right' gives to a person, the answer could be stated as 'a right to resist the compulsory disclosure of information' or 'the right to decline to disclose or to allow to be disclosed the confidential communication or document in question', as the Privy Council and the House of Lords respectively have held. So understood it is a freedom from the exercise of legal power or control, which is to say an immunity, and that is what Daniels Corporation held its true character to be.

[23]    In Daniels Corporation Gleeson CJ, Gaudron, Gummow and Hayne JJ, having observed that it is now settled that legal professional privilege is a rule of substantive law and not merely a rule of evidence, made the statement referred to earlier in these reasons that:

'It is an important common law right or, perhaps more accurately, an important common law immunity.'

[24]    McHugh J likewise described it as 'a person's immunity from compulsion to produce documents that evidence confidential communications about legal matters' between lawyers and clients.

(footnotes omitted)

35    Referring further to The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 and Carter v The Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121, the High Court continued:

[26]    The statements in Daniels Corporation accord with what Gummow J had said in Propend. His Honour described legal professional privilege as 'a bar to compulsory process for the obtaining of evidence'. In his Honour's view, the privilege is 'not to be characterised as a rule of law conferring individual rights, breach of which gives rise to an action on the case for damages, or an apprehended or continued breach of which may be restrained by injunction'. And they accord with the view expressed by Brennan J in Carter, that the justification for the privilege is not to be found in the enforcement of some private right, but rather in the public interest.

(footnotes omitted)

36    That public interest was described in Glencore as the enhancement of the administration of justice by facilitating the representation of clients by legal advisers (citing Grant v Downs (1976) 135 CLR 674 at 685), a public interest that is paramount to the more general public interest which requires the production of evidence for the purpose of litigation (at [29]).

37    The High Court in Glencore confirmed that the cases do not suggest any further relief beyond that which ensured that privileged documents need not be produced:

[31]    In striking the balance between the two competing public interests, the law was not concerned to further a client's personal interest in preventing the use which might be made by others of the client's communications if they obtained them. In providing an immunity, the law's purpose was to enhance the administration of justice. And in settling the conditions which must be present for the privilege to operate, it defined the boundaries of the privilege.

38    However, the High Court said, if privileged documents came into the possession of persons in circumstances which raised an equity, an injunction could be granted in order to protect their confidential nature, citing Johns v Australian Securities Commission (1993) 178 CLR 408 and the seminal statement to that effect in Lord Ashburton v Pape [1913] 2 Ch 469 at 475 (at [6] and [19]). The High Court continued:

[34]    On the present state of the law, once privileged communications have been disclosed, resort must be had to equity for protection respecting the use of that material. Although the policy upon which legal professional privilege is founded is not irrelevant to the exercise of that jurisdiction, the juridical basis for relief in equity is confidentiality.

(footnote omitted)

39    The mere wrongfulness of the taking of information is insufficient to found relief:

[39]    Certainly, it is necessary for an equity to arise that the person to be restrained must have an obligation of conscience, but the basis for an injunction is the need to protect the confidentiality of the privileged document.

40    In confirming the narrow circumstances in which the court may find a basis to grant an injunction, the High Court (at [36]) addressed and distinguished the facts in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; (2013) 250 CLR 303. In that case documents were mistakenly provided to the other parties' solicitors in the course of court-ordered discovery and the solicitors refused to return them. The High Court held in Expense Reduction Analysts that it was not necessary for the holder of the privilege to seek an injunction because the Supreme Court's case management powers relating to court-ordered discovery were sufficient to make the necessary orders. It was open to the disclosing party to amend its discovery list pursuant to s 64 of the Civil Procedure Act 2005 (NSW) (which permits a court to order any document be amended, subject to certain terms) to correct its failure to initially claim immunity from production. Disks that contained privileged material should then be returned. No injunction was required.

41    Therefore, in circumstances where there has been disclosure of privileged documents, Glencore confirms that whilst the privilege may be relied upon to claim immunity from production, once documents are disclosed the basis for injunctive relief lies in the need to protect the confidentiality of the privileged document. It is also necessary for an equity to arise that the person to be restrained have an obligation of conscience.

42    In Crown Resorts Limited v Zantran Pty Limited [2020] FCAFC 1 Allsop CJ said as follows:

[24]    A party may be bound to an obligation of confidence not to disclose information by express or implied contract or contractual term, or by equity. The identification of these legal foundations of confidence is not an exercise in idle taxonomy. It frames the nature and content of the principles by reference to which confidence will be protected, or not, as the case may be. This involves considerations of both common law and equity, and of their respective relationships with statute.

[25]    Even in the absence of a contract, equity will grant relief in personam not to disclose or use information other than for the purpose for which it was communicated if the nature of the information and the circumstances in which it was communicated call for that confidence to be respected by reference to notions of conscience: Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] [1984] HCA 73; 156 CLR 414 at 437-438 (Deane J); Commonwealth of Australia v John Fairfax & Sons Ltd [1980] HCA 44; 147 CLR 39 at 50-52 (Mason J); Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 at 117–119 (Bowen CJ in Eq); Lord Ashburton v Pape [1913] 2 Ch 469 at 475; Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215; Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47; Talbot v General Television Corporation Pty Ltd [1980] VR 224 at 230.

43    As to whether or not the circumstances of communication are such that an obligation of conscience arises, the circumstances are to be considered as a whole and there is no precise test: Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47 (Megarry J), adopted in Australia by a number of authorities, collected and referred to in Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172 at [104]-[105] (Campbell JA); see also the authorities collected in Armstrong Strategic Management & Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430 at [100] (Campbell JA) (not questioned as a statement of principle on appeal); and Johns v Australian Securities Commission at 459-460 (Gaudron J).

44    Separately, it may be that limitations are imposed on the admissibility of evidence at trial having regard to the circumstances in which the particular evidence is obtained: for example, under s 138 of the Evidence Act 1995 (Cth). The High Court in Glencore acknowledged such potential, but said that the issue did not arise on the facts (at [20]).

Case management powers

45    There is no doubt that this Court has broad powers with respect to case management, as reflected in Part VB of the Federal Court of Australia Act 1976 (Cth) and provisions such as s 37M, s 37N and s 37P. However, the powers are procedural. As stated by Allsop CJ in Crown Resorts Limited, the recognition of the width and strength of powers relating to case management should not 'distort the reach of the procedural powers into some false warrant of authority to set aside, revoke or suspend substantive rights of parties to litigation' (at [4]).

The relief sought is not of the nature of case management

46    It is to be recalled that the documents in this case have been seized and are to be produced to the respondent not pursuant to any court-ordered discovery process, but as a result of the execution of warrants and pursuant to powers under the Crimes Act. These proceedings were commenced in order to guard against inspection prior to the establishment of claims for legal professional privilege. Those claims to legal professional privilege have now been made, and from a procedural perspective, all that remains is the resolution of any disputed claims as to privilege. Otherwise, the purpose of these proceedings has been met.

47    These proceedings do not deal more broadly with the manner in which the respondent is to conduct its investigations for the purpose of Operation Lemans or with the manner in which it might prosecute any claims against any of the applicants. Nor do these proceedings purport to address the exercise by the respondent of other powers under the Crimes Act such as the right for officers to share information under s 3ZQU of the Crimes Act.

48    The orders sought by the applicants that seek to limit access to Non-LPP documents produced under the warrants are of a substantive nature, and have the potential to direct the manner in which the respondent's resources are utilised and the manner in which it carries out its investigations. The principal case management role of this Court since the proceedings were instituted has been to supervise a regime whereby access to documents would be deferred pending claims for legal professional privilege. The orders now sought extend beyond that role and extend in effect to injunctive relief relating to access to documents that are not the subject of any claim for legal professional privilege.

49    It has been appropriate for the court to make certain orders of a case management nature within the remit of these proceedings. For example, orders were made to facilitate access by the applicants to the seized documents and to facilitate a document reduction process, being procedural steps considered necessary to assist the applicants by limiting the number of documents that required individual privilege review. Directions have been made (many by consent) as to the programming of steps in the data reduction process. Reporting requirements were imposed with the intention that the Court be kept informed of progress. An order was made that a particular officer (Officer Wheeler) not continue his administrative role of supervising the data reduction process in circumstances where the applicants objected to his involvement, where the basis of the objection remained in issue and where the respondent accepted that another person could carry out that role (Okewood 1). Such orders can properly be viewed as an exercise of case management powers for the purpose of the underlying proceedings and the relief sought, and in order to promote the timely and cost-effective resolution of these proceedings.

50    However, the orders now sought are of a very different nature, for the reasons I have explained.

51    The applicants referred to both Expense Reduction Analysts Group Pty Ltd (HCA) and Jones v Treasury Wine Estates Limited [2016] FCAFC 59; (2016) 241 FCR 111. The circumstances of the present proceedings are distinguishable from the court-ordered discovery regime considered in Expense Reduction Analysts Group Pty Ltd (HCA).

52    Jones v Treasury Wines Estates concerned an application made by the respondent for an anti-suit injunction in circumstances where the applicant had commenced a class action against the respondent. Without notice to the docket judge of this Court, the applicant obtained orders from courts in the United States of America under 28 USC § 1782 of the Federal Rules of Civil Procedure to obtain evidence by depositions from current and former executives of the respondent. The application for depositions was made to obtain a benefit not usually available in this Court. The anti-suit injunction application was considered and granted by a Full Court exercising original jurisdiction. The Full Court did not restrain the US proceedings simply because the class action was the subject of case management. Rather, it stated that the vice in the particular circumstances of the case was the conduct of the applicant in invoking the US proceedings without notice and without the imprimatur of the Court. This undermined the Court's case management and supervision of the class action (at [47]). The Court's proceedings and pre-trial processes are solely subject to supervision by the Court, and particularly so where one is dealing with a class action (at [48]).

53    The applicants did not explain how it is, or persuade me, that the orders they seek would protect the Court's own processes, or enhance supervision of ongoing case management. The present proceedings relate to documents over which a claim for legal professional privilege might properly be made, and have the purpose of retaining the practical value of a claim by the applicants for immunity to production of those documents. The applicants have not established that access to the Non-LPP documents will undermine or prejudice such purpose.

54    The applicants submit that the purpose of this application was to protect any claimed legal professional privilege. At times during the hearing the purpose was described as being to prevent the misuse of privileged information by 'coming to the task' of considering the Non-LPP documents with knowledge of privileged documents: to prevent those persons from 'misusing confidential information so as to inspect documents'. There are difficulties with the submission:

(a)    there was no evidence or explanation as to how any access to any particular privileged communication might influence the manner in which the inspection of the non-confidential Non-LPP documents is conducted, might provide the respondent with some advantage or might influence the use of such Non-LPP documents; and

(b)    the applicants have knowledge of what is contained in the LPP documents. The applicants are assumed to have a considered knowledge of their content, as apparently they have described the documents and explained the basis of the privilege claim for the purpose of the LPP Schedule. There was no attempt to describe to the Court the nature of the communications over which legal professional privilege is claimed or the basis of the privilege claim: the only explanation given to the Court is that referred to at [12] above. The absence of any real detail means that the Court is asked to intervene to guard against an alleged indirect risk to the confidentiality of privileged information through access to non-privileged documents or an alleged risk of misuse of unidentified confidential information by accessing non-privileged documents, a risk that is put at a level of generality that is no more than speculation.

55    I do not consider it appropriate to make the requested orders under the guise of case management. Even if there were a basis for utilising such powers to determine who might access non-privileged documents in legal proceedings, I would not exercise them in this case, having regard to the powers pursuant to which the documents have been provided to the respondent and the potential interference such directions would cause to the manner in which the respondent elects to conduct its investigations under the Crimes Act. It is not for the Court to purport to manage the investigation, but to manage only this particular proceeding.

56    Therefore, to the extent any relief might be granted, it remains for the applicants to establish their claim based on equitable relief and in accordance with the principles as to the protection of confidential information as explained in Glencore.

The persons identified by the applicants and the subject of the proposed relief

57    I will deal with the 12 persons identified in the application in the following order, consistent with a descending level of complexity of the matters that arise:

(1)    Officer Steven Perrot;

(2)    Officer Michael Wheeler;

(3)    Officer Michael Hickey;

(4)    Warrick Round;

(5)    Murray Brand, Carolyn Moore, Amanda Dimasi and Elizabeth Palmela; and

(6)    former AFP officers Jason Blakiston, Russell Motram, Stephen Elliott, and Howard Whitfield.

Officer Perrot

58    Officer Perrot has provided a number of affidavits for the purpose of the proceedings generally. The evidence set out below is taken from his affidavits filed 20 April 2015, 3 June 2015, 3 August 2015, 4 September 2015, 21 September 2020 and 26 November 2020.

59    Officer Perrot is a Federal Agent with the AFP. He has been a member of the AFP since 2002 and has been involved in investigations into narcotic importations, money laundering, taxation, welfare fraud, proceeds of crime and bankruptcy. Since November 2012 he has been the Senior Investigative Officer of the AFP-led Operation Lemans. Operation Lemans is a multi-agency investigation involving the Australian Crime Commission (ACC), the Australian Securities and Investment Commission (ASIC) and the Australian Taxation Office (ATO). It involves the investigation of alleged serious offences against the Commonwealth.

60    On 19 December 2012 the AFP executed a number of search warrants that were issued pursuant to s 3E of the Crimes Act. It is the warrants executed at premises in Harrogate Street, Oxford Close and Banool Crescent that are particularly relevant, although there is also some reference in the evidence to a warrant executed at Henry Street. To the extent complaints are made by the applicants as to Officer Perrot's alleged access to privileged documents, they relate to each of the Harrogate Street, Oxford Close and Banool Crescent warrants.

Evidence as to Harrogate Street warrant

61    Officer Perrot gave the following evidence in respect to the execution of the Harrogate Street warrant and subsequent access to seized documents.

62    During the execution of the warrant various devices and hard drives were seized. Hard copy documents including copies of emails, letters, tax invoices, cheque butts, contract notes and financial documents were also seized. The hard copy documents were able to be stored in four archive boxes.

63    The Harrogate Street warrant extended to, relevantly, originals or copy documents that related to a long list of entities, including Varesona Participation Corporation (the ninth applicant and discussed further below).

64    Officer Perrot was present on 19 December 2012 when Mr Michael Bruce of Bennett + Co produced a letter from that firm addressed to the AFP in relation to, relevantly, the Harrogate Street warrant, the Oxford Close warrant and the Banool Crescent warrant. That letter relevantly stated that Bennet + Co acted for Antony Sage, Cape Lambert Resources Limited, Kupang Resources Limited, African Petroleum Corporation Limited, Cauldron Energy Limited, EGAS Superannuation Fund, Global Strategic Metals NL and Okewood Pty Ltd and in particular referred to information stored on databases and storage devices. It was proposed that, having regard to the volume of material seized, Bennett + Co's clients would identify the documents or data which were subject to claims of legal professional privilege and provide a list of the same by 29 January 2013.

65    In the letter Bennett + Co acknowledged that documents or data to which a claim of legal professional privilege may be made might not be identified due to an inadvertent failure to identify the document as being subject to such claim, and reserved the right to apply to a court for orders that any inadvertent failure to assert a claim for privilege over any document released to the respondent in accordance with the procedures would not constitute a waiver of privilege by any party entitled to assert it.

66    Officer Perrot stated that after the conclusion of the execution of the Harrogate Street warrant, the seized property was placed in an AFP night safe in the company of Mr Bruce.

67    The safe could only be opened by an AFP investigator together with an AFP Property Exhibits Registrar.

68    On 20 December 2012 in the company of Mr Bruce, Officer Perrot retrieved the items seized at Harrogate Street from the AFP night safe and took them to a boardroom, where the hard copy documents were to be inspected for legal professional privilege by Ms Claire Tolcon, Ms Pippa Leverington and Mr Bruce.

69    Officer Perrot understood that Cape Lambert Resources Limited employed Ms Leverington and Ms Tolcon. He also knew at that time that as well as being the company secretary of Cape Lambert, Ms Tolcon was also the company secretary of African Petroleum Corporation Limited, Cauldron Energy Limited and International Petroleum Limited. Officer Perrot was not aware at that time that Ms Leverington was not an officer of Cape Lambert Resources Limited but was the company secretary of Global Strategic Metals NL and of Kupang Resources Limited.

70    In the company of ACC officer Warrick Round, Officer Perrot opened the four archived boxes containing the hard copy documents and provided them for inspection to Ms Tolcon, Ms Leverington and Mr Bruce. It took them approximately one and a half hours to inspect all of the documents in the four archive boxes.

71    During the course of their inspection of the Harrogate Street hard copy documents Ms Tolcon, Ms Leverington and Mr Bruce identified nine documents as the subject of a claim for legal professional privilege. After the inspection was completed, Mr Round and Officer Perrot 'briefly glanced at the 9 documents in the presence of Ms Tolcon, Ms Leverington and Mr Bruce to determine if they were still relevant to the Operation Lemans investigation'.

72    Mr Round and Officer Perrot concluded that six of the documents were still of interest, and released the other three documents to Mr Bruce. Mr Bruce signed a receipt.

73    As to the remaining six documents for which legal professional privilege was claimed, they were recorded and sealed in an envelope in the presence of Ms Tolcon, Ms Leverington and Mr Bruce. Officer Perrot delivered the sealed envelope to the AGS on 21 December 2012.

74    According to the AFP property seizure record, one of the documents over which legal professional privilege was claimed on 20 December 2012 was a loan agreement dated 28 June 2011 between Varesona Participation Corporation and Okewood Pty Ltd. Another was described as a 'bundle of documents - general security deed - Okewood Pty Ltd and Varesona Participation Corporation'.

75    At a later point (see the chronology for 31 January 2013) it was suggested by the applicants that Bennett + Co were purporting to represent only Cape Lambert Resources at the time. Officer Perrot deposed in his evidence to the fact that none of Mr Bruce, Ms Tolcon or Ms Leverington advised him that they were only representing Cape Lambert Resources Limited in reviewing the documents for legal professional privilege. He stated:

Nor did they advise me that they wished to inspect the documents again at some future time for other applicants. At the completion of the inspection neither Mr Bruce, Ms Tolcon nor Ms Leverington advised that that the hard copy documents over which LPP had not been claimed should not be inspected by the AFP until further LPP reviews had been carried out.

76    Officer Perrot noted in his evidence, for example, that those documents for which legal professional privilege was claimed included documents which related to applicants other than Cape Lambert Resources Limited.

77    On 21 December 2012 Officer Perrot received a letter from Mr Bruce which stated:

I refer to my meeting with you on 20 December 2012 in connection with the assertion by my clients of claims for legal professional privilege over documentary material seized under search warrants executed by the AFP on 19 December 2012.

78    The letter continued:

You informed me at our meeting that the clients for whom Bennett + Co act were unable to review the documents seized from the above premises for the purposes of assessing that documentation for claims of legal privilege unless Bennett + Co had obtained the consent of Mr Valentino to the inspection of that documentation for that purpose.

I write to inform you that we are now instructed by Mr Valentino to act for him in connection with all documents and materials seized from the premises …

79    In a letter dated 2 January 2013 from Mr Bruce in relation to the hard copy and electronic documents seized on 19 December 2012 pursuant to the various search warrants, Mr Bruce stated, amongst other thing, that:

To date my clients have only had an opportunity to inspect and assert claims for legal professional privilege over certain of the hard copy documents seized from [redacted] Harrogate Street, West Leederville.

Except for the Harrogate Street hard copy documents over which no claim for privilege is asserted, I reiterate that my clients object to the AFP, ACC, ATO, ASIC, any other Government agencies, its servants or agents inspecting the other documentation seized (whether those documents be in hard copy or electronic format) until my clients have had an opportunity to inspect those documents for the purpose of assessing them and asserting over them any claims to legal professional privilege.

80    Officer Perrot states that as a result of those matters he believed that the inspection of the hard copy documents seized from Harrogate Street was complete with only nine items being identified as the subject of legal professional privilege claims.

81    On 4 January 2012 he made a note on the property log system in relation to the property seized from Harrogate Street stating that the hard copy documents had been assessed for legal professional privilege.

82    Officer Perrot states that he commenced recording/logging the Harrogate Street documents into the AFP's 'PROMIS Property Module' (or log) between 4 and 8 January 2012. He then handed the documents to the Property Exhibits Registrar for lodging.

83    On 4 January 2013 Officer Perrot had a telephone discussion with Mr Bruce. Officer Perrot states that he advised Mr Bruce that the remaining hard copy documents from Oxford Close, Banool Crescent and Henry Street were available to be inspected for the purposes of asserting any legal professional privilege claims over them. Mr Bruce did not advise him that he or his clients wished to have any further inspection of the Harrogate Street documents.

84    On 8 January 2013 Officer Perrot wrote to Mr Bruce. He informed Mr Bruce that all of the physical property seized from his clients was available to be assessed for legal professional privilege. His intention in so doing was to refer to the documents that had been seized apart from those from Harrogate Street which had already been inspected.

85    On 15 January 2013 Officer Perrot received a letter from Mr Bruce dated 11 January 2013 responding to Officer Perrot's letter of 8 January 2013. On 15 and 16 January 2013 there were various attempts at communication between Officer Perrot and Mr Bruce to arrange inspection of the remaining hard copy documents seized under the warrants. Mr Bruce emailed Officer Perrot on 16 January 2013 stating he would get back to him about a convenient time for inspection of the hard copy documents.

86    On 16 January 2013 Officer Perrot retrieved the hard copy documents seized from Harrogate Street which had already been assessed for legal professional privilege from the AFP Property Exhibits Store and placed them in a locked room. He gave access to that room to Caroline Moore for the purpose of inspecting the documents (Ms Moore was a senior auditor with the ATO who was 'outposted' to the ACC from the ATO in January 2013). Amanda Dimasi was also present, as explained below. Once Ms Moore had completed her inspection, Officer Perrot locked the room and to his knowledge, no copies of any documents were made. Ms Moore said in an affidavit that she had taken copies of two documents. Officer Perrot referred to that evidence but said that he had no knowledge that those copy documents were taken.

87    Officer Perrot says that he did not receive any further response from Mr Bruce to the suggestion that the remaining documents be inspected on 17 January 2013, and so he sent an email to Mr Bruce extending the date for inspection to 18 January 2013. He received no response from Mr Bruce.

88    On about 18 January 2013 Officer Perrot asked another AFP officer, Officer Whitfield, to commence copying the hard copy documents seized from Harrogate Street. Officer Perrot stated that he made this request because he had asked Mr Bruce, after completion of the inspection of those documents on 20 December 2012, if he or his clients would require a copy of the documents, to which Mr Bruce had responded 'yes'.

89    In a letter to the AGS of 25 January 2013, Mr Bruce requested a copy of all hard copy documents seized during the execution of the warrants. Mr Bruce also requested that the time for inspection of both the hard copy documents and the electronic data be extended from 29 January 2013 to 28 February 2013.

90    On 30 January 2013 Officer Perrot had a conversation with Mr Bruce in which he mentioned to him that the AFP had commenced copying the Harrogate Street hard copy documents for the purposes of providing him with that copy.

91    On 31 January 2013 Officer Perrot sent an email to Ms Ann Gear of the ATO in response to an earlier telephone conversation with Ms Gear. In that conversation Ms Gear informed Officer Perrot that Mr Sage's accountant had told her that the AFP had seized a quantity of documentation from the offices of Mr Sage, and that documentation was required by the accountant in order to comply with an ATO request for information. Ms Gear wanted to know if this was correct. Officer Perrot informed her that the AFP had seized a quantity of documents from Harrogate Street, was copying those hard copy documents and would be providing them to Mr Sage or his representative by 5 February 2013.

92    Officer Perrot stated that from viewing a 'disclosure of taxation information response' dated 14 February 2013, he was able to say that the ATO telephoned the accountants Hewitt Turner & Gelevitis at 2.40 pm on 31 January 2013 in relation to the provision of information to the ATO regarding entities including Antony Sage, EGAS Superannuation Fund and Okewood Pty Ltd.

93    At about 5.30 pm on 31 January 2013 Officer Perrot received a letter from Mr Bruce in relation to the hard copy documents seized from Harrogate Street. Mr Bruce stated, amongst other things:

I refer to our telephone conversation yesterday, 30 January 2013.

I have taken instructions from my clients in relation to the matters which we discussed. An issue has arisen which I am instructed to raise urgently with you. That issue concerns inspection of the hardcopy documents seized from the Harrogate Street premises.

You will recall that on Friday [20] December 2012 Ms Claire Tolcon, Ms Pip Leverington and the writer attended at your offices to inspect the seized hardcopy documents from Harrogate Street with a view to advising you of those documents over which my client, the Cape Lambert Group, asserted a claim for legal professional privilege. In our telephone conversation with me yesterday you informed me that you were arranging to make a copy of the documents, seized from Harrogate Street over which a claim for privilege had not been asserted on behalf of Cape Lambert with a view to providing us with that copy.

Since that inspection, other parties have instructed Bennett + Co in relation to the [assertion] of privilege in respect of documents (hard copy and electronic) seized, in the execution of the warrants.

Those clients object to the AFP, the Australian Crime Commission, ASIC and/or the ATO (Agencies) inspecting those documents until we and they have had the opportunity to undertake a review of them for the purpose of determining:

1.    whether or not any of the clients for whom we act assert a claim for legal professional privilege over them;

2.    whether or not those documents fall within the scope of the warrant.

My clients request that the moratorium on inspection by the Agencies of those hardcopy documents seized from Harrogate Street apply until Tuesday 19 February 2013, so that further inspection for the above purposes can be made.

…

94    On 5 February 2013 the AGS replied to the letter of 31 January 2013, noting that on 31 January 2013, more than five weeks after the initial inspection, Bennett + Co had advised that other parties had instructed it in relation to the assertion of privilege in respect of the documents.

95    The AGS recorded that on 1 February 2013 it asked Bennett + Co to identify those 'other parties', and was advised that they were 'Kupan, African Petroleum, Cauldron, Egas Super Fund, Global Strategic Metals, Okewood, International Petroleum, Antony Sage and Robby Valentino'.

96    The AGS noted that it appeared that International Petroleum was missed from the list in the letter of 20 December 2012, as in fact those premises were the registered offices of International Petroleum, its offices were covered by the warrant and Mr Sage and Ms Tolcon held positions with International Petroleum. The AGS denied that, having regard to the communications between the parties, the inspection on 20 December 2012 occurred solely on behalf of the Cape Lambert Group.

97    The AGS noted that Ms Tolcon and Ms Leverington were at the time company secretaries of African Petroleum Corporation Ltd, International Petroleum Limited, Global Strategic Metals NL and Kupang Resources Ltd and that in addition Ms Tolcon was company secretary of Cape Lambert Resources and in house legal counsel of African Petroleum Corporation, International Petroleum and Cape Lambert Resources.

98    The AGS stated that in all of those circumstances it failed to see any legitimate basis for claiming the documents that had previously been inspected and released without qualification were the subject of a claim for legal professional privilege by any individual or company represented by Bennett + Co. However, the AFP was willing, despite this, to again quarantine the documents which were in the process of being copied to allow further inspection and review for any privilege claims.

99    At that time Officer Whitfield had not completed copying the documents and Officer Perrot shredded the copies of the hard copy documents that had been made by that time.

100    On 11 February 2013 the Harrogate Street hard copy documents were delivered to the AGS to allow them to be copied in the presence of Bennett + Co.

101    The AFP records show that on 26 February 2013 the hard copy documents from Harrogate Street were collected from the AGS and re-lodged with the Property Exhibits Registrar.

102    As to the inspection by Ms Moore on 16 January 2013, Officer Perrot gave evidence that he later recalled that Ms Moore was accompanied by another ATO officer on secondment to the ACC, being Ms Dimasi, and that they completed the inspection of the documents together. Once they had completed the inspection Officer Perrot locked the room (Ms Dimasi was at that time an auditor with the ATO on secondment to the ACC).

103    On 13 March 2013 the AGS wrote to Bennett + Co on behalf of Officer Perrot. The AGS stated that it reserved all of its rights in respect of the potential issue of waiver of legal professional privilege following the inspection on 20 December 2012.

104    The AGS informed Bennett + Co that:

12.    The law charges my clients with the obligation to act reasonably and to ensure there is a reasonable opportunity to make a claim for LPP (see, eg, Question of Law Reserved (No 1) (1998) 70 SAS 281; Kennedy v Baker (Branson J, 6 May 2004)).

…

17.    Nevertheless, in a final gesture of goodwill and co-operation, my clients are willing to extend the agreed timeframes outlined in my letter dated 20 February 2013 by two further weeks, but no longer.

18.    If you still contend this is not adequate, then my clients intend to deal with the matter as follows:

18.1    An officer of the AFP who is familiar with the investigation will access the hard copy documents on 29 March 2013;

18.2.    That officer will look at each document for the purpose only of determining whether it might be covered by LPP. The documents will not be looked at closely, but merely enough to enable the officer to determine that issue alone (per JMA Accounting);

18.3.    You (and/or your clients) may be present to observe the process;

…

19.    In relation to this proposal, we point out that where there is a blanket claim for privilege and it is reasonably apparent that the claim is not sustainable, it is a 'lawful violation' of LPP for an officer to undertake a bona fide examination of a document to determine whether it may be subject to the privilege: Allitt v Sullivan [1988] VR 621.

105    More generally, Officer Perrot deposed to the fact that the AFP Perth Property Exhibits Store is a secure area protected by electronic swipe card access. AFP members provide exhibits to designated Property Registrars who physically place the items within the Property Exhibits Store. Access to any item placed within the Property Exhibits Store by an AFP member can only be obtained through a Property Registrar. I note that in his evidence the AFP Property Exhibits Store is sometimes referred to as the 'Property and Exhibits' Store and a Property Registrar is sometimes referred to as a 'Property and Exhibits Registrar'. Nothing seems to turn on these various iterations.

106    Finally, Officer Perrot deposed as follows:

20.    At no time since the seizure under search warrants of the electronic devices and hard copy documents which are the subject of this proceeding:

20.1.    have I accessed the contents of any electronic device over which there was a claim for LPP which had been made by any person including the applicants;

20.2.    have I viewed, inspected or otherwise seen any documents on any electronic device over which there was a claim for LPP which had been made by any person including the applicants;

20.3.    have I viewed, inspected or otherwise seen any hard copy documents at any time when a claim for LPP had been made in relation to the documents by any person including the applicants;

20.4.    has any other person communicated to me the contents of any documents on any electronic device or any hard copy documents over which there was a claim for LPP which had been made by any person including the applicants.

107    I note that this evidence of Officer Perrot relates not only to the Harrogate Street warrant but also to the Oxford Close and Banool Crescent warrants.

108    Ms Moore was able to provide some further evidence by affidavit as to her inspection of the hard copy documents on 16 January 2013. Ms Moore recalled that:

(a)    she had been informed by Officer Perrot that no claim of legal professional privilege attached to any of the documents;

(b)    during her inspection she did not see any documents that she believed would be subject to legal professional privilege;

(c)    she did not disclose any information to the ATO;

(d)    she attended the inspection together with Ms Dimasi;

(e)    she made copies of two documents, which she described as a 'mortgage document' relating to Banool Crescent (and not described as a 'draft mortgage document', as the applicants submit) and a one page piece of writing pad paper with hand-written notes made in ink regarding a fixed and floating charge over the assets of Okewood Pty Ltd;

(f)    she would have placed the two copies in the 'Project LeMans' files at the ACC;

(g)    she then went on extended leave and did not return to duties at the ACC until 1 August 2013;

(h)    she was informed then that subsequently the Harrogate Street documents had been quarantined pending ongoing legal arguments about privilege;

(i)    by that time Ms Moore had forgotten about the two copies she had taken;

(j)    she did not provide the copies, or any further copies, to the ATO;

(k)    her posting at the ACC concluded in June 2014;

(l)    prior to her departure, relevant hard copy documents were scanned to be stored electronically by the ACC, and the hard copies, together with all hard copies that had not been considered relevant, were shredded by ATO staff outposted at the ACC;

(m)    she does not recall whether the two copy documents were scanned but believes they were shredded in accordance with the course outlined;

(n)    she has never disclosed any of the information in any of the hard copy documents she inspected to the ATO; and

(o)    she does not recall disclosing any information from those hard copy documents to any persons involved in Operation Lemans, except that she may have disclosed information from those hard copy documents to Officer Perrot or Mr Round, although she has no recollection of doing so or what information she might have disclosed.

109    Ms Dimasi gave affidavit evidence confirming that she attended the inspection with Ms Moore; that she did not receive or take any copies of documents; and that she does not recall at any time disclosing any information from her inspection of the hard copy documents to the ATO or persons other than the ATO, including persons involved in Operation Lemans. Ms Dimasi stated that at the time she inspected the hard copy documents, she made a list of documents that she considered relevant to the operation. The list, by way of spreadsheet, was in evidence. The spreadsheet was given to the ATO. On its face, the content of the spreadsheet does not disclose privileged information.

Evidence as to Oxford Close warrant

110    Officer Perrot's relevant evidence with respect to access to devices and documents received upon execution of the Oxford Close warrant indicates the following.

111    On the date of execution (19 December 2012), Officer Mottram previewed the data on a MacBook Pro laptop (MacBook Pro) that was located at the address. Officer Perrot determined that the laptop should be moved for the purpose of examination pursuant to s 3K(2) of the Crimes Act and it was placed in a sealed audit bag. The MacBook Pro was handed to an AFP Property Exhibits Registrar and lodged in the Property Exhibits room the same day.

112    On 20 December 2012 Officer Perrot retrieved the MacBook Pro from a Property Exhibits Registrar and handed it to Officer Mottram for the purpose of examination pursuant to s 3K(2) of the Crimes Act.

113    On 21 December 2012 Officer Mottram informed Officer Perrot that he had located an email titled 'FW: Varesona Loan' dated 19 July 2012 on the MacBook Pro. On that basis Officer Perrot determined that the MacBook Pro should be seized pursuant to s 3F(1)(c) of the Crimes Act.

114    On 24 January 2013 Officer Perrot retrieved the MacBook Pro from AFP Officer Stephen Elliott in a sealed audit bag. The following day he handed it to a Property Exhibits Registrar for lodgement in the AFP Property Exhibits Store.

115    On the same date Officer Perrot received a hard disk from Officer Elliott in a sealed audit bag which contained an image of the MacBook Pro. He handed the hard disk in the sealed audit bag to the AGS for secure storage and forwarding to Bennett + Co.

116    On 14 February 2013 Officer Perrot received the MacBook Pro from a Property Exhibits Registrar and returned it to Bennett + Co.

117    On 12 August 2014 Officer Perrot received a 'primary evidence copy' of the MacBook Pro in a sealed evidence bag. He placed it in a locked draw and did not access the sealed evidence bag. The seal remained intact at all material times. Officer Perrot provided the sealed evidence bag to ASIC on 21 August 2014 for the purpose of compliance with the data reduction process anticipated by the 2013 Data Reduction Orders.

118    Prior to the orders of 20 July 2018 for the first data reduction process (Okewood 1) and the orders that resulted in the Second Reduction Process, Officer Perrot formed the view, without the need to examine any of their contents, that some devices would not contain any documents of relevance to Operation Lemans. It was not necessary to include those devices in the first data reduction process under the Okewood 1 orders or the Second Reduction Process. Officer Perrot formed that view at that time with respect to the MacBook Pro. Accordingly, the MacBook Pro was not one of the devices dealt with under those regimes.

119    On 2 October 2020 Officer Perrot met with Ms Christine Arthurs of Bennett + Co and returned to her those devices encompassed by his determination referred to in [118].

120    I should add that Officer Elliott gave evidence regarding the MacBook Pro. He confirmed that he used forensic software to create the copies referred to by Officer Perrot. Officer Elliott stated that it was not necessary for him to view or inspect any of the documents on the MacBook Pro, the primary evidence copy or the hard disc copy, and he did not do so.

121    Officer Mottram also gave evidence about the MacBook Pro. At the relevant time he was a DFO employed by the AFP. He explained that the task he undertook of 'previewing' the MacBook Pro involved running an automated search across it of keywords. On 20 December 2012 he set the automated search to run in a computer forensic workstation utilising a locked computer and software. He returned the following morning to check for any matches. Keyword matches were provided by the software program in a generated list. The software found the email titled 'FW: Varesona Loan'. Officer Mottram did not make any notes of the data he previewed, apart from the file folder name, email subject title and date. He does not recall opening the contents of the email. He told Officer Perrot about the match but did not provide a copy of the email to him.

Evidence as to Banool Crescent

122    Officer Perrot's evidence as to the Banool Crescent warrant was to the following effect.

123    The items seized pursuant to the warrant were hard copy documents that fitted into three archive boxes.

124    All documents seized were sealed and handed to a Property Exhibits Registrar on the date of execution of the warrant (19 December 2012). The documents were retrieved and placed into locked rooms on various dates but were returned to a Property Exhibits Registrar and remained sealed.

125    On 11 February 2013 the sealed documents were delivered to the AGS for copying in the presence of Bennett + Co.

126    AFP records indicate that on 26 February 2013 the hard copy documents were retrieved by Officer Whitfield from the AGS and returned to a Property Exhibits Registrar.

127    On 4 April 2013 Bennett + Co wrote to the AGS about the Banool Crescent warrant. The potential for relevant clients to make privilege claims was noted.

128    On 23 April 2013 Bennett + Co wrote to the AGS confirming that none of their clients intended to make any claims for legal professional privilege over the hard copy documents seized from Banool Crescent.

129    On 30 April 2013 Officer Perrot retrieved the hard copy documents from a Property Exhibits Registrar and conducted a relevance review of them in the company of Mr Round and Ms Palmela.

130    All of the hard copy documents that were seized under the warrant were returned to Bennett + Co on 29 May 2013.

Officer Perrot - imputed conduct

131    The applicants rely on seven examples of conduct on the part of Mr Perrot in support of their contention that he should not have access to the Non-LPP documents.

132    First, they complain as to Officer Perrot's conduct in 'recording or logging the Harrogate Street documents into the PROMIS property module'. That conduct occurred between 4 January 2013 and 8 January 2013, at a time when, by their letters and conduct between 20 December 2012 and 8 January 2013, Bennett + Co had encouraged an understanding on the part of the AFP that any claims to legal professional privilege over the documents had been made by the applicants. At that time the six retained documents of the nine documents for which a claim was made had been stored separately and securely.

133    Therefore, at the time that Officer Perrot inspected the balance of the hard copy documents from Harrogate Street for the purpose of logging them, he had no reason to believe there was any claim of legal professional privilege with respect to the balance of the documents. No claim had been made despite the inspection that had already been undertaken by Bennett + Co. The suggestion that Bennett + Co acted only for Cape Lambert (a suggestion that conflicted with the prior conduct and representations) was not conveyed to the AGS until 31 January 2013. As is clear from the AGS letter of 5 February 2013, the AFP then moved to again quarantine the documents pending further inspection.

134    The applicants did not draw attention in their submissions to any particular documents from the hard copies that may have been logged by Officer Perrot and as to which legal professional privilege was later claimed or is claimed in the LPP Schedule: a submission was made that there are 21 such documents but the Court was not provided with any evidence in support of that submission and the documents were not identified.

135    Second, the applicants complain that Officer Perrot retrieved the hard copy documents and gave Ms Moore and Ms Dimasi access to those documents on 16 January 2013. That he did so is not in issue. However, as explained above, at that time he had been informed that no claim for legal professional privilege attached to those documents.

136    Third, the applicants refer to evidence from Ms Moore about her inspection of the Harrogate Street hard copy documents on 16 January 2013. As noted above, Ms Moore deposed that she may have disclosed information from the hard copy documents to Officer Perrot or Mr Round after her inspection, although she has no recollection of doing so or what information she may have disclosed. Her evidence in this regard was equivocal. She also deposed to Officer Perrot having informed her that there was no claim made for legal professional privilege over the documents she inspected. Ms Moore's evidence must be considered together with that of Officer Perrot referred to at [86] and [102] above. The combined evidence does not rise to probative evidence that Ms Moore passed on any information to Officer Perrot. In any event, at the time the documents were inspected by Ms Moore, Officer Perrot had been led to believe that there were no claims for legal professional privilege with respect to those documents, as addressed at [133] above.

137    Fourth, the applicants refer to Officer Perrot's ability to access the room where the hard copy documents were stored between November 2012 and early 2015. Officer Perrot confirmed in his evidence that he had such access. However, Officer Perrot also stated in his evidence that the only occasions on which he accessed the seized data or documents was for the purpose of logging them between 4 January 2013 and 8 January 2013, as previously set out, and that leaving aside those occasions, he has no recollection of ever viewing any copies provided by Ms Moore or viewing, sighting, opening or having any access to any seized documents over which the applicants maintain a claim of privilege.

138    Fifth, the applicants refer to the copies of the hard copy documents taken by Officer Whitfield, as referred to at [88] above.

139    At the time the relevant copies were taken (from 18 January 2013), Officer Perrot had been informed that no claim for legal professional privilege attached to those documents. Mr Bruce had requested copies of the documents. The copy documents that had been made were subsequently shredded in early February 2013, when Bennett + Co and the AGS entered into the further correspondence about potential privilege claims that is set out above. No additional privilege claims relating to the hard copy documents had been made by that time.

140    In conclusion, with respect to the hard copy documents seized from Harrogate Street, there is no evidence that Officer Perrot inspected or viewed any documents over which a claim to legal professional privilege had been made. At the time that he viewed documents for the purpose of logging them (which excluded the six documents that had been secured as to which privilege was claimed), there was no extant privilege claim, and Officer Perrot had been told that was the case.

141    Sixth, and turning to the Oxford Close warrant, the applicants complain that Officer Perrot used his knowledge of the email entitled 'FW: Varesona Loan' in deciding to seize the silver MacBook Pro.

142    It may be accepted that Officer Perrot used his knowledge of the existence of an email bearing that title in deciding to seize the MacBook Pro. His decision to seize the laptop is perhaps not surprising in light of the scope of the warrant: the relevant entities referred to in the Oxford Close warrant included 'Varesona Participation Corporation'. However, the evidence does not suggest Officer Perrot accessed the email or knew of its contents or the substance of its contents. Further, as the return of the MacBook Pro indicates, its contents, which were not examined by Officer Perrot, are not considered relevant to Operation Lemans.

143    The evidence of Officers Mottram and Elliott does not suggest that they had information about the content of the email that was passed on in any manner to Officer Perrot.

144    Seventh, and turning to the Banool Crescent warrant, the applicants complain that Officer Perrot conducted a hard copy documents review. However, the chronology relied upon by the applicants does not refer to the letter of 23 April 2013 in which any claim to legal professional privilege was disavowed by the clients represented by Bennett + Co. There is nothing in the evidence that suggests that Officer Perrot had access to any documents from Banool Crescent the subject of a claim for legal professional privilege. I was not taken to any evidence that suggests that the applicants informed the AGS that they opposed Officer Perrot undertaking a relevance review of those documents.

The ongoing contention about alleged access by Officer Perrot to the Varesona documents

145    In Okewood 2 I rejected a submission by the applicants to the effect that a Federal Agent must have accessed and read documents seized pursuant to the execution of the warrants in 2012 in order to describe with particularity certain offences set out in a warrant in 2014. The relevant allegation, included in a 2014 warrant relating to Harrogate Street, was apparently that the eighth applicant had caused a loss to the Commonwealth through income generated outside of Australia and transferred into Australia as loans. Because the applicants continue to agitate the submission, and for ease of reference, I include the relevant extract from the Okewood 2 reasons:

[53]    … The applicants rely on evidence by way of a report of a telephone conversation between Mr Bennett and his client in which it was suggested that the only way that the AFP could have known the balance of a particular loan account was by accessing confidential loan agreements. However, in response to that allegation, Federal Agent Perrot has sworn an affidavit in which he deposed to the basis upon which he described the relevant loan in the 2014 warrant.

[54]    It is not necessary to set out the evidence in detail, suffice to say that Agent Perrot received information that included Australian Transaction Reports and Analysis Centre (AUSTRAC) records. AUSTRAC is the Commonwealth Government financial intelligence agency which monitors financial transactions into and out of Australia, in addition to particular domestic transactions. The relevant AUSTRAC information to which he had regard included publically available information sourced from the ASX and more particularly AUSTRAC records which disclosed four loan transactions (each naming Okewood Pty Ltd). The sum of the four amounts identified accords with the amount referred to by Agent Perrot in the warrant. One detail is different, being a particular date, but as Agent Perrot's affidavit does not purport to be a comprehensive disclosure of all material in the relevant AUSTRAC records, I do not consider his evidence is compromised.

[55]    Second, it was asserted that the level of detail (down to dollars and cents) of a sum relating to a separate alleged offence led to an inference that the Agent must have had access to seized documents. However, that matter had previously been addressed in correspondence between the AGS and Bennett + Co and Agent Perrot had already disclosed that the source of the particular sum was a bank statement obtained from a financial institution as a result of an Australian Crime Commission notice to produce issued to that bank.

[56]    Further, and importantly, Agent Perrot deposes to the fact that 'I have never used any of the information obtained from the documents seized under the 2012 search warrants for the purpose of preparing 2014 search warrants'.

[57]    Therefore, to the extent the applicants seek to rely on such examples for a broader submission that they disclose that Agent Perrot must have accessed seized documents (and, implicitly, documents the subject of a LPP claim) it is not supported. I have not ignored the suggestion from Mr Bennett that there is a document said to be the subject of LPP that refers to a fixed and floating charge that relates in some way to the loan agreement that may have been accessed by another agent who gave information to Agent Perrot. However where the balances were clearly available separately, the suggestion of a second hand use of privileged information is supposition and flies in the face of Agent Perrot's evidence that he did not use privileged information.

146    I add that Officer Perrot deposed to the fact that the information he received that is referred to at [54] in Okewood 2 was provided to him by ATO members seconded to Operation Lemans on 28 January 2014.

147    The applicants now submit that the Court should infer that the ATO and the ACC in some manner relied upon privileged information in obtaining the information that they then provided to Officer Perrot as referred to at [54] of Okewood 2.

148    There is no evidence from which I would draw that inference safely. I must balance that submission against:

(a)    the reasons I have already given for rejecting it, reasons that are maintained;

(b)    Officer Perrot's sworn evidence rejecting the proposition;

(c)    the fact that the ATO and the ACC have their own broad investigative powers, and may have come across the information through use of such powers;

(d)    the uncontradicted information in a signed witness statement of Ms Ingrid Simon of the ATO dated 22 December 2016 which indicates that the ATO had received copies of two loan agreements (each of four pages and for loans of $5,500,000 and $3,300,000 respectively) from the eighth applicant's accountants in June 2012;

(e)    the fact that the AGS has informed Bennet + Co that the AFP had recently confirmed that both of the loans referred to by Ms Simon are between Varesona Participation Corporation and Okewood Pty Ltd; and

(f)    the fact that Ms Simon's evidence casts real doubt on the veracity of the information apparently given to Mr Bennett by his client and relied upon in Court to the effect that the Varesona loans were confidential and only located at the warrant premises. Rather, it appears from Ms Simon's evidence that the ATO independently held relevant Varesona loan agreements from June 2012, well prior to the time that the information was given by the ATO to the AFP in January 2014.

149    Therefore, having considered the applicants' submission carefully, I decline to infer that the content of the 2014 warrant suggests that Officer Perrot or the ATO must have used information directly or indirectly that was the subject of a legal professional privilege claim at the time of the preparation of the 2014 warrant. The content of the 2014 warrant does not establish that Officer Perrot examined or relied upon hard copy documents from execution of the 2012 Harrogate Street warrant that were the subject of a claim to legal professional privilege.

Conclusion - Officer Perrot

150    Even assuming that there might be confidential communications of a privileged nature within the hard copy documents seized from Harrogate Street (although the nature of such information is not known, and nor is it known whether privilege claims are agreed or disputed), having regard to the principles summarised above as to equitable relief and the need to consider notions of conscience, I must consider the nature of Officer Perrot's conduct.

151    It follows from the assessment of the seven complaints made about Officer Perrot's conduct and from the rejection of the submission as to the provenance of information used to draft the 2014 warrant, that I am not persuaded that the matters raised by the applicants with respect to Officer Perrot establish any improper conduct on his part such that equity would intervene to prevent him from accessing the Non-LPP documents or dealing with those documents in accordance with his powers and obligations under the Crimes Act.

152    I do not consider that the evidence establishes to the relevant standard that Officer Perrot has knowledge of confidential matters the subject of an extant claim to legal professional privilege. Nor, in any event, has he conducted himself in a manner that would justify the resort to equity in the manner sought by the plaintiff.

153    To the extent Officer Perrot had access for a short period to the Harrogate Street hard copy documents over which a claim for privilege has subsequently been made, the confidential information he allegedly sighted has not been identified; any knowledge of the confidential information was received in innocent circumstances, that is, where he had been informed no claim for privilege was made; there is no established threat that Officer Perrot will misuse any knowledge of confidential material by inspecting the Non-LPP documents; the AFP has not sought to rely on any waiver of privilege with respect to the documents accessed at the time; the AFP acted to cooperate with steps to re-quarantine the documents pending further inspection; and Officer Perrot shredded any hard copies that had been made in the intervening period.

154    Having regard to the circumstances, the applicants have not persuaded me that relief by way of a restriction against Officer Perrot accessing the Non-LPP documents is justified on the claimed basis of protecting against the potential misuse of any confidential privileged material.

Officer Michael Wheeler

155    Officer Wheeler is the Team Leader of the Digital Forensic Team at the AFP's Western Australian Headquarters.

156    Officer Perrot gave evidence that Officer Wheeler is no longer directly involved in Operation Lemans and will not be involved in reviewing any of the Non-LPP documents. However, as Team Leader, he is required to perform administrative and technical reviews of work and case files performed by members under his supervision, including ensuring that members have applied processes in accordance with the AFP digital quality assurance framework.

157    Counsel for the respondent confirmed that performance of this supervisory and quality assurance role would not require or involve any access by Officer Wheeler to the Non-LPP documents.

158    There is no basis for making an order, the effect of which is to restrain Officer Wheeler from accessing the Non-LPP documents, when the evidence is that he will not have access in any event and he is no longer involved in Operation Lemans. There is no established risk of misuse of any confidential privileged information.

159    However, I will address the three complaints as to Officer Wheeler's conduct relied upon by the applicants.

160    First, it is alleged that Officer Wheeler failed to comply with the terms of the Addendum by retaining possession of a working copy of the hard drive of a Lenovo PC seized on 19 December 2012 pursuant to the Harrogate Street warrant.

161    Officer Wheeler's conduct was after the time of the Addendum and under the regime provided for by the 2013 Data Reduction Orders.

162    He says that, based on his review of the forensic case file, on 19 December 2012 at the Harrogate Street address, a DFO opened a Lenovo PC computer and caused a copy of the content of the hard disc drive to transfer to a Seagate Digital Forensic issue hard disk drive. After the copying process, the Seagate hard disk drive was given to Officer Hickey and placed in a sealed audit bag.

163    On 24 February 2014 Officer Wheeler retrieved a sealed audit bag from the Digital Forensic Exhibit Store, opened it and confirmed that it contained the relevant Seagate hard disk drive bearing forensic reference number Item 0014. He obtained a new Digital Forensic issue hard drive bearing serial number [2579] (New Drive). He connected the New Drive to an AFP Galaxynet analysis computer reference [PC05] located within the Digital Forensic Laboratory. 'Galaxynet' is the name of the AFP forensic evidence network and access to it is controlled. AFP investigators are only given access to Galaxynet if they are given particular permission by a DFO.

164    The Digital Forensic Laboratory is a restricted area within the AFP office and is swipe card protected. Access is restricted to members of the AFP Forensics Area and AFP members who hold management and fire warden positions. No AFP investigator has swipe card access to the area.

165    Officer Wheeler then created a copy of all data on Item 0014 for the purpose of the data reduction process under the 2013 Data Reduction Orders. Officer Wheeler referred to that copy as a forensic copy. Later that day and after the copy process completed, he disconnected Item 0014, resealed the audit bag and returned it to the Digital Forensic Exhibit Store.

166    On 26 February 2014 Officer Wheeler removed the New Drive containing the forensic copy from the computer identified as [PC05] and installed it in his personal issue Galaxynet computer identified as [PC16].

167    Between 26 February 2014 and 17 March 2014 Officer Wheeler applied the data reduction process against the forensic copy of Item 0014. It was necessary to move the New Drive between two computers in order to carry out the task. The other computer was identified as [PC17]. Both computers were located on Officer Wheeler's desk within the Digital Forensic Office. The New Drive contained forensic copies of other items in addition to Item 0014.

168    Between 17 March 2014 and 9 March 2015 Officer Wheeler exported the results of the data reduction process; created DVDs that contained the exported data for provision to Bennett + Co; worked on the data copies for Items 0010 and Item 0012; re-copied some data from those items for the purpose of correcting verification errors; attended a conferral meeting with Bennett + Co on 29 May 2014 as to the process that by then had been undertaken; undertook additional data reduction work as a result of that conferral, including additional key word searches to filter out potentially privileged documents; archived the results of that further process to DVDs; and on 9 March 2015 attended a further conferral meeting at the office of the AGS to discuss the process that had been undertaken.

169    On 9 March 2015 Officer Wheeler also removed the New Drive from his computer identified as [PC16], placed it in a sealed audit bag and placed it in the Digital Forensic Exhibit Store.

170    The applicants complain that between 24 February 2014 and 9 March 2015 the New Drive was retained in Officer Wheeler's possession in the Digital Forensic Laboratory and could have been accessed by others, in breach of the term of the Addendum that provided that there was to be no access to documents over which a legal professional privilege claim was made, subject to court order.

171    The respondent submits that Officer Wheeler was authorised to make the forensic copy under the 2013 Data Reduction Orders, that the copy was retained in the Digital Forensic Laboratory for the purpose of carrying out the process, and that in any event access to the Digital Forensic Laboratory was limited.

172    In particular, Officer Wheeler said that evidence about access to the computers identified as [PC16] and [PC17] by any other persons showed the following:

(a)    there are no records that establish whether any person accessed [PC16] between 26 February 2014 and 2 April 2014;

(b)    between 3 April 2014 and 16 April 2015 the only AFP members that accessed [PC16] were Digital Forensic Member Edmond Wisniewski, Federal Agent Amy Burnip and Officer Wheeler;

(c)    at the time Agent Burnip accessed [PC16] the New Drive was disconnected within the computer and was not able to be accessed;

(d)    there are no records that establish whether any person accessed [PC17] between 26 February 2014 and 26 April 2014; and

(e)    between 26 April 2014 and 26 April 2015 the only AFP members that accessed [PC17] were Digital Forensic Member Wisniewski and Officer Wheeler.

173    Therefore, it is apparent that during the window of 26 February 2014 and 26 April 2014, it is possible that another DFO or AFP member who held a management or fire warden position had access to Officer Wheeler's computers (that is, [PC16] or [PC17]) and had access to the data on the New Drive copied from the Lenovo PC.

174    There is no evidence that any person in fact accessed such information, or that in doing so they accessed any document or the contents of any document as to which a claim for legal professional privilege is maintained.

175    In conclusion, it is by no means clear that the conduct of Officer Wheeler in creating the New Drive for the purpose of the data reduction process breached the Addendum: the terms of the Addendum were drafted earlier in time and did not anticipate the process reflected in the 2013 Data Reduction Orders, or that further copies of the data might be required in order to properly undertake the data reduction process and protect the relevant data. Nor is it clear that the retention of the New Drive in the Digital Forensics Laboratory over the relevant period contravened the terms of the Addendum, because those terms did not specifically anticipate the relevant process. It is the 2013 Data Reduction Orders that are relevant to how the data reduction process was to be undertaken by Officer Wheeler, not the Addendum. I am not satisfied on the evidence before me that there was any clear breach of the Addendum in the making of the copy or any improper or colourable behaviour by Officer Wheeler in making it. He made the copy for the purpose of the data reduction process.

176    However, the issue of substance raised by the applicants is the potential access to the New Drive whilst it was in the Digital Forensics Laboratory. Again, in my view the superseded Addendum terms did not clearly extend to such scenario. However, even if there is room for a different understanding of the terms and I am wrong as to the scope of their intended ongoing operation, I am not satisfied that the evidence currently before me establishes that there was any improper or intentional breach. It could be said that Officer Wheeler perhaps failed to understand or foresee the risk created by his conduct, but there is no evidence that such conduct in fact resulted in any unauthorised or unidentified access to the contents of documents.

177    Second, the applicants refer to Officer Wheeler's evidence as to his conduct of additional key word searches, which I have touched upon above. Officer Wheeler's evidence was that he applied filters against a data set to identify those files that were required to be extracted in two separate sets, one set being 'files that had been identified as potentially subject of legal professional privilege'. Officer Wheeler also stated that he was requested to conduct a key word search for all files that contained the string 'bennettandco.com.au', a search which identified a number of files that were filtered out of the data set.

178    The applicants contend that Officer Wheeler therefore breached the 2013 Data Reduction Orders which (they assert) prohibited the AFP from inspecting, looking at or opening any document in the course of applying the reduction process.

179    I do not consider the matters referred to at [177] evidence an inspection or opening of any document that is contrary to the intent of the orders. The orders indeed anticipate the applications of filters. It does not follow from the fact that the names of files are segregated, collected or identified by that process that the contents of those documents is reviewed in any way. The purpose of the orders is to reduce the number of relevant documents whilst guarding against a disclosure of the content of documents, being a disclosure of the nature that would compromise the confidentiality of the privileged document.

180    Officer Wheeler gave further evidence about the limited nature of his access to the documents:

(a)    he conducted random searches in accordance with an AFP procedure manual to ensure the quality of the data copying - that is, he opened some of the extracted copies at random to check that readable, rather than corrupt, copies were being produced when opened with the appropriate application (for example, that a pdf could be opened with Adobe Acrobat);

(b)    he did not need to read a document to see if it was readable, and did not do so, because he could tell if it was readable by merely glancing at the document;

(c)    the process of reducing the data in accordance with the data reduction regime did not require the inspection of the content of the documents; and

(d)    at no time while undertaking the data reduction processes did he view:

In any meaningful way, in the sense of reading, considering or otherwise inspecting any LPP documents that would have resulted in myself viewing the contents of any documents subject to a claim for LPP.

181    Mr Wheeler's detailed evidence as to the processes he undertook does not disclose the inspection of the contents of any documents, save for the sampling referred to. The evidence of the sampling process does not disclose any inspection of the substance of documents (as against of their superficial legibility) or any examination of the contents of the document.

182    Finally, the particular allegations as to Officer Wheeler's conduct do not indicate any conduct that squarely breaches the terms of the 2013 Data Reduction Orders. This may be tested by setting out the particular paragraphs of the orders that the applicants assert were breached:

2    Forensic software will then be tasked to complete the following process over each storage device separately:

…

2.9    On completion of the process, the remaining files are then exported to disk media (the reduced material), along with a table (spread sheet) which particularises each file's attributes, including but not limited to filename, type, date/time, file path, size, hash value and hash category. A copy of the disk media and the table will be provided to Bennett + Co and one copy will be kept by the AFP but will not be inspected.

3    The relevant software automates the process at each step described above and no Digital Forensic Officer (DFO) is required to look at the contents of each document in the course of the process at any stage. No DFO will in fact examine any document.

4    If, at any step of the process, problems occur with the forensic software then DFOs will be required to queue each step manually rather than queuing them automatically as would normally be the case. In those circumstances, no DFO is required to look at the contents of any documents and will not do so.

5    If the forensic software gets 'hung up' on one particular document or file, that document or file can be triaged out of the data set without opening the file or document. This will occur without opening the file or document. The process set out above would then continue.

183    As to each of these paragraphs:

(a)    no conduct is identified that relates to the steps set out in para 2.9 of the orders;

(b)    there was no 'looking at the contents' or examining the content in a manner that would constitute a breach of para 3 of the orders, having proper regard to the manner in which the orders are to be understood as addressed at [181];

(c)    there is no evidence any queueing process was required and no evidence of 'looking' at the contents of documents, as addressed at [179]; and

(d)    there is no evidence the software was 'hung up' and no evidence of such opening - in any event, the matters at [179] tell against any finding of breach.

184    More generally, it is recognised that the seizure of a document under warrant without it being read does not infringe legal professional privilege. There will also be circumstances where it will be proper for an officer to look at a privileged document, including a document for which privilege is claimed, for the purpose of testing or determining whether it might be covered by the privilege, one example being where there is a blanket claim for privilege and it is reasonably apparent that the claim is not sustainable. Such limited access to a privileged document being a 'lawful violation of privilege', does not comprise an abuse of process or improper conduct: see generally JMA Accounting Pty Ltd v Commissioner of Taxation [2004] FCAFC 274; (2004) 139 FCR 537 at [13]-[15]. It is also recognised that glancing at a document to ascertain its relevance does not of itself undermine a claim for privilege: JMA Accounting at [20]. The applicants suggested in oral submissions that a permissible 'glance' at the point of execution of a warrant to assess relevance may be distinguishable from a 'glance' for the purpose of checking that the data reduction process was producing readable documents. I do not accept there is a meaningful distinction. If anything, common sense suggests that a 'glance' to assess relevance may be of more substance than a 'glance' to assess whether a copy document is readable or corrupt.

185    Taking into account that the applicants emphasise that the purpose of this application is to protect against the misuse of privileged information, I do not consider that Officer Wheeler acted unreasonably or illegally in accessing or glancing at the documents in the limited manner that he has disclosed. The evidence does not disclose any inspection or consideration of the documents or their content of a nature that would comprise any unjustified intrusion into the applicants' right to claim privilege or that would comprise impermissible access to privileged information.

186    Third, the applicants repeat their concern as to the potential access to the New Drive and the information being produced by way of the reduction process during the two month window referred to at [170]-[173]. For the same reasons, although there may have been an opportunity created by Officer Wheeler's conduct, there is no evidence that any person seized upon such opportunity to access the relevant computer or to access or consider the content of a privileged document during that period. The applicants refer to paragraph 6 of the Addendum. The paragraph was drafted prior to the 2013 Data Reduction Orders and it assumes that claims to legal professional privilege were already identified: it is the orders that describe how the reduction process was to proceed.

187    Having regard to all of these matters, it is by no means clear that there was a breach by Officer Wheeler of the 2013 Data Reduction Orders (or Addendum) as alleged. There is perhaps room for argument as to how some of the words in the orders are to be understood in their context. I appreciate that the question of whether breaches are established has yet to be fully tested and determined and there has been no cross-examination of witnesses. However, having regard to the request for the exercise of the Court's equitable jurisdiction, it has been appropriate to assess the allegations about alleged breaches or improper conduct by the respective officers in order to consider any obligation of conscience. In assessing such conduct, any conduct that on the face of the current evidence would clearly constitute a breach, or illegal or improper conduct, might be of some significance. However, on the evidence before me, there is no such clear case of breach or illegal or improper conduct for the reasons given.

188    Therefore, I am not satisfied that the applicants have established a basis for equity to intervene in order to make the orders sought insofar as they extend to Officer Wheeler.

Officer Michael Hickey

189    Officer Hickey is now stationed at the AFP's airport office and has no ongoing involvement with the relevant investigation. Officer Perrot deposed to the fact that Officer Hickey will not be involved in reviewing any of the Non-LPP documents. Therefore, and similarly to the position that pertains with respect to Officer Wheeler, there is no basis for equity to intervene to prevent Officer Perrot from undertaking such review.

190    However, I will consider the complaints made by the applicants as to Officer Hickey's conduct.

191    The applicants complain that Officer Hickey failed to return certain devices to secure storage and instead kept them in his locked desk.

192    Officer Hickey provided the following evidence about those devices.

193    On 21 December 2012 he received four Blackberry mobile phones, each of which was sealed, and an AFP forensic data disc containing the export of those phones. He placed the sealed Blackberry phones into his locked draw. He was the only person with access to the locked draw. He gave the disc to Officer Perrot.

194    Between 21 December 2012 and 7 January 2013 Officer Hickey did not access the sealed Blackberry phones. To the best of his knowledge nobody else accessed the sealed Blackberry phones as their seals remained intact.

195    On 7 January 2013 Officer Hickey handed three of the Blackberry phones to Property Registrar Bennett for lodging in the AFP Property Exhibits Store. He retained the fourth (which belonged to Ms Tolcon), still sealed. On 10 January 2013 he retrieved the fourth sealed Blackberry phone and returned it to Ms Tolcon.

196    Officer Perrot gave evidence that the other three Blackberry phones have since been delivered to Bennett + Co. They were amongst the devices that were returned on the basis that before the data reduction process ensued the respondent had determined they were no longer of relevance to Operation Lemans. Officer Perrot did not need to examine the content of the devices in order to form that view.

197    The applicants assert that Officer Hickey breached the Addendum agreement. The submissions as to the basis upon which a breach allegedly occurred are somewhat confusing, but on the facts any real complaint appears to be limited to the retention of the mobile phones for a period in Officer Hickey's desk drawer, rather than being returned after imaging to the Computer Forensic Exhibits Store. The respondent asserts there was no breach as the applicants have not properly represented the terms of the Addendum. Be that as it may, and allowing for the scope for debate as to the manner in which the terms of the Addendum were to operate with respect to particular devices and copies, it is reasonably apparent that it was intended that the Blackberry phones would be returned to the Computer Forensic Exhibits Store, although precisely when is unclear. It is arguable that there may have been a technical breach with respect to storage of the Blackberry phones in Officer Hickey's desk for a period.

198    Assuming such a breach, then having regard to the underlying purpose of guarding against access to privileged information, that purpose does not appear to have been compromised. The Blackberry phones remained sealed. There is no evidence that Officer Hickey knowingly or deliberately failed to return the Blackberry phones to the Computer Forensic Exhibits Store and no suggestion that he accessed or attempted to access the phones during the relevant period that they were in his custody. Rather, the evidence is to the contrary. Nothing in his conduct supports a suggestion that in some manner he obtained access to privileged documents as a result of locking the sealed phones in his drawer, rather than returning them immediately to the Computer Forensics Exhibits Store. Further, the fact that the devices have been deemed not relevant to the ongoing investigation tells against the risk that privileged information on the phones would be deployed in some manner.

199    Therefore, I am not satisfied that the applicants have established a basis for equity to intervene in order to make the orders sought insofar as they extend to Officer Hickey.

Mr Warrick Round

200    Officer Perrot gave evidence that Mr Round is not and has not at any relevant time been a serving officer of the AFP.

201    Mr Round was at all relevant times an officer seconded from ASIC to the ACC and is now an Investigations Manager at the ACC. According to Officer Perrot, Mr Round has continued to have periodic involvement in the Operation Lemans investigation. He will not be involved in reviewing any of the Non-LPP documents.

202    Mr Round does not fall within the scope of the orders of 4 August 2020. Those orders permit access to the electronic Non-LPP documents only by DFOs of the AFP. He is not within that category. Nor does Mr Round fall within the scope of the orders of 6 August 2020 as to access to the hard copy Non-LPP documents. He is not a representative of the respondent. Order 2 of those orders anticipates access only by the respondent.

203    Therefore, Mr Round is not a person who in any event would have access to the Non-LPP documents under the current orders and Officer Perrot has confirmed that position. Accordingly, there is no basis upon which an order should be made excluding him from such access: he is already excluded, for all intents and purposes.

204    Further, the conduct of Mr Round which is referred to by the applicants does not establish any breach of a term or order on his part. The evidence does not disclose that his conduct was improper.

205    First, the applicants refer to the evidence given by Ms Moore that at the time of her inspection of the Harrogate Street warrant hard copy documents (see [108] and [136] above) she may have disclosed information from those hard copy documents to Officer Perrot or Mr Round, although she has no recollection of doing so or what information she might have disclosed.

206    As with the position pertaining to Officer Perrot, Ms Moore's evidence was equivocal as to whether or not any information was conveyed to Mr Round, and was not sufficiently probative to support an inference that information was conveyed. Further, at the time that access to the hard copy documents was granted to Ms Moore, the AFP had been led to believe by Bennett + Co that no claims for legal profession privilege were made over those documents.

207    Second, the applicants refer to the 'relevance review' conducted by Mr Round together with Officer Perrot and Ms Palmela of the hard copy documents obtained under the Banool Crescent warrant: see [129] above.

208    For the reasons given with respect to Officer Perrot at [144] above, there is nothing in the evidence that suggests that Mr Round had access to any documents from Banool Crescent the subject of a claim for legal professional privilege. Any such claim had been disavowed by the clients represented by Bennett + Co.

209    Therefore, I am not satisfied that the applicants have established a basis for equity to intervene in order to make the orders sought insofar as they extend to Mr Round

Murray Brand, Carolyn Moore, Amanda Dimasi and Elizabeth Palmela

210    This group comprises persons who were not employed by the AFP at the relevant time and are not now employed by the AFP. Officer Perrot provided evidence as to the role of each.

211    Mr Brand was at all relevant times a Digital Forensic Analyst with ASIC who was asked to assist with the conduct of the reduction process under the 2013 Data Reduction Orders for certain devices during 2014. Mr Brand has had no involvement in Operation Lemans since 2014 (save for the purpose of swearing two affidavits in these proceedings). He will not be involved in reviewing any of the Non-LPP documents.

212    Ms Moore was at all relevant times a senior auditor with the ATO who was outposted to the ACC. She has had no involvement in Operation Lemans since 2014 (save for the purpose of swearing three affidavits in these proceedings) and will not be involved in reviewing any of the Non-LPP documents.

213    Ms Dimasi was an auditor with the Australian Tax Officer who was outposted to the ACC. She has had no involvement in the Operation Lemans investigation since 2014 (save for the purposes of swearing two affidavits in these proceedings) and will not be involved in reviewing any of the Non-LPP Documents.

214    Ms Elizabeth Palmela was an officer of ASIC seconded to the ACC and will not be involved in reviewing any of the Non-LPP documents.

215    None of Mr Brand, Ms Moore, Ms Dimasi or Ms Palmela fall within the scope of the orders of 4 August 2020. Those orders permit access to the electronic Non-LPP documents by DFOs of the AFP. None are within that category. Further, they do not fall within the scope of the orders of 6 August 2020 as to access to the hard copy Non-LPP documents. They are not representatives of the respondent. Order 2 of those orders anticipates access only by the respondent.

216    Therefore, no member of this group of persons is a person who in any event would have access to the Non-LPP documents under the current orders. Officer Perrot has confirmed with respect to each of them that they will not be involved with reviewing the Non-LPP documents. Accordingly, there is no basis upon which an order is required excluding them from such access: they are already excluded, for all intents and purposes.

217    However, again I will consider the allegations about their conduct made by the applicants.

Mr Brand

218    Mr Brand was involved in the data reduction process. Therefore, his conduct is to be viewed having regard to the issues I have already identified with seeking to apply the terms of the Addendum to conduct that occurred once the Addendum was superseded by the 2013 Data Reduction Orders and other orders relating to that process (for example, see [175] above).

219    The applicants complain that Mr Brand wrongly made a working copy of the original evidence copy of the MacBook Pro that had been received from Officer Perrot (see [117] above) at the time he commenced the data reduction process.

220    Mr Brand provided evidence to the effect that he received the sealed hard drive from Officer Perrot and then adhered to the data reduction process. The process was performed on password protected ASIC workstations within the Document Control Unit (DCU) at ASIC utilising two hard drives for storing forensically verified working copies of the original exhibits provided. The ASIC workstations were removed from the ASIC forensic network. The working drives were stored securely in the DCU whenever not connected to the forensic workstation. No other officer handled the working drives. At no stage did he inspect any files or data contained within the sealed hard drive or contained on the discs that were used to store the result of data reduction process.

221    Therefore, whilst the process of the data reduction required him to prepare working drives from the sealed hard drive he had received, they were prepared only for the purpose of the data reduction process, in circumstances where it is not apparent that such conduct would breach the superseded Addendum agreement and in circumstances where he did not inspect the content of any of the data. Even if there were some technical breach of the Addendum, assuming it to still apply, there is no suggestion that it led to or facilitated any access by Mr Brand to the content of documents over which privilege was to be claimed.

222    The applicants also assert that Mr Brand wrongly created a further working copy of the reduced data set onto his working drive when the orders provided that upon completion the reduced data set was to be transferred only to discs. It is not clear from Mr Brand's evidence that this creation of a further data set on the working drive in fact occurred, or that it occurred after completion of the data reduction process, but even if it did, then it occurred as part of the overall technical reduction process he undertook as referred to in the preceding paragraph of these reasons. If there were any breach, it is of a highly technical nature and I am not satisfied that there was any step undertaken by Mr Brand that was improper or led to any compromise of the data reduction process. The working drives were provided to Officer Perrot and were not retained by ASIC.

223    The applicants assert that Mr Brand also wrongly created a further working copy of data seized from the Cape Lambert computer server seized from Oxford Close. The argument suffers from the same difficulties with respect to the working copy of the MacBook Pro created by Mr Brand and the same response applies.

224    Further, the applicants seize on evidence given by Mr Brand to the effect that he did not receive any instructions as to whether he was authorised to view documents the subject of legal professional privilege. The applicants misconstrue the evidence. The point made by Mr Brand is that because under the process he did not view or inspect any files or data contained within the electronic data, 'therefore' he did not receive any such instructions. The evidence is properly understood as indicating that it was not necessary for him to receive such instructions as they were not relevant to him, having regard to the tasks he undertook.

225    Finally as to Mr Brand's position, Officer Perrot states that none of the devices dealt with by Mr Brand in 2014 were part of the Second Reduction Process carried out under the orders of 14 October 2019, and as a consequence no documents from those devices are subject to the orders of 4 and 6 August 2020. The devices were deemed not relevant to the inquiries and returned.

Ms Moore

226    The limited role of Ms Moore has already been addressed. Ms Moore was provided with access to the Harrogate Street hard copy documents at a time when there was expressly no privilege claim maintained. She has no specific memory of passing on any information she may have seen: see [108] above. Ms Moore's evidence does not satisfy me of any breach or any inappropriate conduct on her part with respect to any documents over which privilege was claimed.

Ms Dimasi

227    Ms Dimasi's role and evidence has also been addressed: see [109] above.

Ms Palmela

228    The complaint made with respect to Ms Palmela is the same as that made with respect to Officer Perrot and Mr Round and the relevance review conducted over the documents obtained on execution of the Banool Crescent warrant: see [144] and [208] above.

229    There is nothing in the evidence that suggests that Ms Palmela had access to any documents from Banool Crescent the subject of a claim for legal professional privilege. Any such claim had been disavowed by the clients represented by Bennett + Co.

230    It follows that I am not persuaded that any relief extending to any of Mr Brand, Ms Moore, Ms Dimasi or Ms Palmela is justified.

Officers Jason Blakiston, Russell Motram, Stephen Elliott and Howard Whitfield

231    Each of the above officers has left the AFP. As far as the respondent is concerned, they will not have any access to the Non-LPP documents. It is neither necessary nor efficient to consider further the claims made by the applicants as to any past access to devices or data. The respondent has agreed that it will provide the applicants with fourteen days' notice of any known change in that position before any access would be facilitated. Should such notice be given, to the extent the applicants seek to agitate any claim to limit the access of this group of persons to Non-LPP documents, subject to any further court order, it will be open to them to do so. The applicants confirmed that they were content with such an approach.

232    Having regard to the applicants' 'global' claim (see below), I will briefly note the conduct of those persons, and the basis upon which I do not consider that any improper conduct on their part or any access of any substance to documents the subject of a claim for privilege has been established.

Officer Blakiston

233    Officer Blakiston was a senior digital forensic examiner with the AFP. It is alleged that on 20 and 21 December 2012 Officer Blakiston copied data from four Blackberry mobile phones to a shared AFP location in breach of the Addendum.

234    Officer Blakiston's evidence is that he was tasked with making two copies of the data on the devices. He utilised forensic software to extract the data, using the Perth Digital Forensic Galaxynet server. One copy was made to a disk, which he sealed and provided to Officer Hickey, along with the four Blackberry phones, which he also sealed (evidence that is consistent with that of Officer Hickey). Another copy was made to a USB. The USB was sealed and retained in the Computer Forensic Exhibit Store as the master evidence copy.

235    As the respondent submits, these steps were undertaken prior to the assertion of particular privilege claims, as foreshadowed by the steps set out in the Addendum, and it is not apparent that any breach occurred. Regardless, in terms of whether any claims to privilege were compromised, Officer Blakiston's evidence was that during the copying process he was not required to, nor did he, view or inspect any of the data contained on the primary evidence copy, the forensic data disc, the Blackberry phones or the files that were uploaded to Galaxynet. He said he only accessed data for the purpose of verification in accordance with standard forensic procedures and quality assurance validation: for example, he would typically view a mobile device to turn off a password and check time setting, check serial numbers, and review a sample of user data such as contacts or call lists to verify that the data extracted using the forensic software was accurately extracted.

236    As already noted, the Blackberry phones were returned to Bennett + Co and Ms Tolcon on the basis that they were not relevant to the investigations.

237    In my view the circumstances do not establish improper conduct on Officer Blakiston's part or that he had any access of any relevant substance to data the subject of a claim for privilege.

Officer Mottram

238    The relevant circumstances of Officer Mottram's involvement are set out at [121] above. The impugned action occurred prior to seizure of the MacBook Pro. No breach or improper conduct on the part of Officer Mottram is disclosed by the evidence.

239    The MacBook Pro was returned to Bennett + Co and is not considered relevant to the investigation: see [118] above.

Officer Elliott

240    Officer Elliott produced copies of the data on the MacBook Pro. His evidence has been addressed: see [120] above. It is by no means clear that his actions in making a primary evidence copy and a forensic copy breached the Addendum, as the relevant parts of the Addendum refer to a process to be undertaken after rather than before privilege claims were identified. Officer Elliott deposed to the fact that he was not required to, nor did he, view or inspect any of the documents contained on the primary evidence copy, the forensic copy or the MacBook Pro. In any event, as the return of the MacBook Pro indicates, its contents, which were not examined by Officer Perrot or Officer Elliott, are not considered relevant to Operation Lemans.

241    The applicants assert that a second allegedly unauthorised copy of the data was prepared: that assertion was addressed in writing by the AGS in a letter to Bennett + Co of 23 February 2016, and it is unclear whether the assertion is maintained. The AGS explained that no additional copy exists. Rather, the forensic copy made by Officer Elliott did not copy properly and a partial copy was erased and re-copied on 15 January 2013. That forensic copy was sealed by Officer Elliott.

242    On the evidence currently before me, I do not consider any breach or improper conduct on the part of Officer Elliott is disclosed. Furthermore, there is no suggestion he has read or had access of any substance to any of the documents on the MacBook Pro that might be subject to any privilege claim.

Officer Whitfield

243    The circumstances in which Officer Whitfield copied some of the hard copy documents seized from Harrogate Street have been addressed: see [139] above. The applicants assert such copying was a breach, although the complaint is not otherwise explained. Regardless, there was no extant claim for privilege at the time and there is no evidence that Officer Whitfield acted improperly.

Other general allegation

244    The applicants also rely on the disclosure by Officer Perrot that an archive box containing some 14 hard copy exhibits seized from Harrogate Street was left unsealed in the Property Exhibits Store sometime between 26 February 2013 and 27 August 2015. Officer Perrot said he discovered the seal was broken when he:

… attended the Store to withdraw all items/exhibits held therein over which a claim of LPP was maintained for the purpose of transferring those exhibits held therein to the offices of the Australian Government Solicitor pursuant to the order made by Justice Gilmour on 18 August 2015.

245    Officer Perrot immediately resealed the box without further reviewing the contents. He made inquiries of all AFP Drugs and Property Registrars who may have had access to the box. Seven of the nine persons indicated they did not know the seal was broken and did not access the box or view its content. The eighth person, Ms Viola Bennett, deposed to the fact that during a random audit she had noticed the seal was broken and had made a note to that effect, but did not break the seal further or view the contents of the box. She does not recall whether she requested the relevant case officer to reseal the box. Apparently the ninth person also provided an affidavit but it was not in evidence before me. As previously noted, there is restricted access to the AFP Property Exhibits Store.

246    The applicants have not disclosed whether, having now conducted the privilege review, any particular document from that box is the subject of a privilege claim. There is no evidence that any person accessed the box despite it being unsealed for an unidentified period in the secure Store. In all of those circumstances, there is insufficient evidence to suggest that any privileged document was accessed or that there is the potential that a person has knowledge of confidential information contained in it and might seek to misuse such information in the course of accessing or reviewing the Non-LPP documents.

Passage of time

247    A submission was made by the respondent that even if one of the identified persons had accessed confidential privileged information, a necessary component of the applicants' argument is that the person must have committed its content to memory and could still remember its content, years after the event. I have not made any assumption that any of the named persons are likely to have forgotten any information they may have seen, having regard to the passage of time. I do not consider that would be a safe assumption. It was not necessary to make such an assumption for the purpose of resolving this application.

Conclusion

248    The application must be dismissed. For the reasons given that address each of the named persons individually, I am not persuaded that orders should be made that exclude and limit their conduct as requested by the applicants.

249    It was urged that even if conduct by any particular person did not satisfy me that the person should be excluded from an ongoing role with respect to the Non-LPP documents, then I should take a global view of all of the conduct the applicants have raised and should be satisfied that the orders ought to be made. Because of this submission, I have addressed the impugned conduct set out above, even where it is apparent that named persons are to have no relevant role in the review of Non-LPP documents in any event. Even viewed globally, and having regard to notions of conscience, it is not established that there has been improper conduct or a threat of misuse of any confidential information by way of access to the Non-LPP documents such that I am satisfied that equitable relief should be granted.

250    In the end, it does not appear that any of the named persons are to have an active role in the review of Non-LPP documents apart from Officer Perrot. There is no evidence to support a contention that even if, contrary to my conclusions, any of the other persons had improperly acquired confidential information of a privileged nature (which has not been established), such information was conveyed to Officer Perrot or received by him either at all or in any improper circumstances. Officer Perrot's evidence was contrary to such contention. There is no basis to find that any such information might be used or misused for the purpose of any review of the Non-LPP documents.

251    I accept that during the course of a long process dealing with huge amounts of data there have been opportunities for persons to access documents or data over which a claim to privilege may continue to be maintained. In particular, I have acknowledged there was access to the Harrogate Street hard copy documents at a time when privilege was not claimed but that privilege is now apparently maintained as to some 21 of those documents. I have also acknowledged the window of time when there was the potential for a limited class of persons to access data on Officer Wheeler's computer, although there is no evidence that any access other than by Digital Forensic Member Edmond Wisniewski, Federal Agent Amy Burnip or Officer Wheeler in fact occurred. I also acknowledge the 'unknown unknown' submission made by the applicants: that is, they contend they only know of conduct disclosed by the respondent and do not know of conduct that has not been disclosed. However, the respondent has provided 41 detailed affidavits dealing with questions as to access to data and documents and Officer Perrot, in particular, has sworn six affidavits relied upon in this application. The Court must consider this application having regard to the evidence before it.

252    Nothing in these reasons should be seen to minimise the importance of the applicants' claims to legal professional privilege. It remains open to the applicants to maintain and pursue those claims. The effect of the dismissal of this application is that the respondent may proceed to access the Non-LPP documents. It does not permit any access to the LPP documents. Nor does it prevent the applicants from bringing any application they deem appropriate in any other proceedings that may be brought against them as to the basis upon which any particular evidence may be admitted or excluded.

253    Finally, I note that the applicants submit that the Court has the power to grant the relief sought under s 23 of the Federal Court Act. No attention was given to such power at the hearing. In any event, I decline to make the requested orders by the exercise of power under s 23 for the same reasons that I do not consider it appropriate to grant equitable relief.

254    I know of no reason why costs should not follow the event. There will be an order that the applicants pay the respondent's costs, to be assessed if not agreed. However, as I have not heard from the parties on costs they may apply within seven days to vary that order if any different costs order is sought.

Associate:

Dated:    15 January 2021

SCHEDULE OF PARTIES