~ . CATCHWORDS Practice and procedure - Jurisdiction of Federal Court to quash search warrant and restrain seizure of documents thereunder ~- Accrued jurisdiction. Administrative Decisions (Judicial Review) Act, 1977 s.5 Judiciary Act, 1903 s.39B RICHARD JAMES BREWER v. SHANE FRANCIS CASTLES, BRETT JACKSON, PATRICK QUINN, CARLO GRASER and JOHN CHARLES LEVETT No. 658 of 1984 - - - - - Beaumont, J. 9 March, 1984. Sydney. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY wee ew GENERAL DIVISION No. 658 of 1984 BETWEEN : RICHARD JAMES BREWER Applicant AND: SHANE, FRANCIS CASTLES BRETT. JACKSON PATRICK QUINN CARLO GRASER JOHN CHARLES LEVETT? Respondents ORDER. - __ Judge making order: Beaumont, J. Date order made: 9 March, 1984. Where made: Sydney 1. Declare that the Court has j entertain the claims for relief made respondents. urisdiction. against to all IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) ) ) GENERAL DIVISTON No. 658 of 1984 BETWEEN : RICHARD JAMES BREWER Applicant AND: SHANE FRANCIS CASTLES BRETT JACKSON PATRICK QUINN CARLO GRASER JOHN CHARLES LEVETT Respondents CORAM: Beaumont, J. DATED: 9 March, 1984. REASONS FOR JUDGMENT In this application for judicial review under the Administrative Decisions (Judicial Review) Act, 1977 ("the Judicial Review Act") and pursuant to s.39B of the Judiciary Act, 1903, a preliminary question has arisen as to the jurisdiction of the Court to entertain the application, or at least part of the application. In his Statement of claim; the applicant says~ that, at all material times he has occupied certain --premises- . 2. situated at 15th Floor, 111 Elizabeth Street, Sydney; that on 13 Pebruary, 1984, the fifth respondent issued a search warrant pursuant to s.10 of the Crimes Act, 1914 addressed to the first respondent in these terms: "WHEREAS I, John Charles Levett A Justice of the Peace within the meaning of that expression in Section 10 of the Crimes Act 1914 of the Commonweaith of Australia, being satisfied by information on oath placed before me this day that there are reasonable grounds for suspecting that there are ina place being the premises situated at 15th Floor, i111 Elizabeth Street, Sydney being premises occupied by NORWOOD & WALLIS, Solicitors, things being the original of copies of: correspondence, prospectuses, company records, opinions of counsel, purchase orders, sales ~ invoices, receipts, journals, ledgers, accounting records, bank statements, cheque butts, diaries, books, contracts, agreements, memoranda of understanding, leases, mortgages, microfilm copies of documents, computer a card and print-outs, common seals, assignments of debt, powers of attorney and documents referring to or quoting Sales Tax Certificate of Registration numbers, and other documents and instruments all of which have been produced or held by, for, or in respect of, Leonard Noel BRIOT and/or other persons namely: (There follows along list of names of individuals, firms of solicitors and. accountants and companies) As to which there are reasonable grounds for~ believing that the same will afford evidence as to the commission of any offence against a law of the Commonwealth namely: ° ~ _i. _Section 86(1) of the Crimes Act - - - —--s---1914, to wit, conspiracy to commit an offence against a law of the Commonwealth, to wit, Section 49 of . the Sales Tax Assessment Act No. l, 1930. ii. Section 86(1)(e) of the Crimes Act 1914, to wit, conspiracy to defraud the Commonweaith. iii. Section 49 of the Sales Tax Assessment Act No. 1, 1930, to wit, by any wilful act, default or neglect, or by any fraud, art of contrivance whatsoever, avoids or attempts to avoid taxation. By the aforesaid Briot, and the aforesaid named persons in any combination and with any otherperson or persons unknown. YOU ARE HEREBY AUTHORISED with such assistance as you think necessary to enter at any time the said place if necessary by force and to seize the said: correspondence, prospectuses, company records, opinions of counsel, purchase orders, sales invoices, receipts, journals, . ledgers, . accounting records, bank statements, cheque butts, diaries, books, contracts, agreements, memoranda of understanding, leases, mortgages, A microfilm copies of documents, computer tapes, cards and print-outs, ~— assignments of debt, power of attorney and documents referring to or quoting Sales Tax Certificate of Registration numbers, common seals, and other documents and instruments as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence and for so doing this shall be your sufficient warrant." The statement of claim then alleges that on 14 February, 1984, the first four respondents entered upon the said premises and sought to execute the warrant although there were no. reasonable grounds for believing that the documents enumerated in the warrant were documents which ° 4. would afford evidence as to the commission of any offence . against any law of the Commonwealth. The applicant further says that a number of the documents comprised in the warrant were documents which were properly the subject of a claim for legal professional privilege and are therefore not properly the subject of a warrant. The applicant claims an order pursuant to s.39B of the Judiciary Act quashing the warrant; or alternatively an order pursuant to that provision quashing the warrant to the extent to which it relates to documents the subject of a claim for legal professional privilege; and an order restraining the first four respondents from executing the warrant; or alternatively, an order restraining those respondents from executing the warrant in respect of documents in respect of which a claim for legal professional privilege is made. The applicant also says that the decision of the fifth respondent in issuing the warrant was a decision within the meaning of s.3(2) of the Judicial Review Act; and that the decision of the first respondent to execute the warrant and to seize the documents was also a decision within the meaning of that provision. The applicant then says that there was no evidence or other material to justify the making of the decision to issue_the warrant; and that in- making the decision to seize the documents properly— the subject of a claim for legal professional privilege, the first respondent made anerror of law. The applicant claims, pursuant to s.16 of the Judicial Review Act, an order quashing the decision to issue the warrant; or alternatively, an order quashing the decision to issue the warrant insofar as it relates to documents properly the subject of a claim for legal professional privilege; an order guashing the decision of the first respondent to execute the warrant; or alternatively, an order quashing the decision of the first respondent to execute the warrant insofar as that decision involved the seizing of documents properly the subject of a claim for legal professional privilege; an order directing the first four respondents to refrain from seizing pursuant to the warrant the documents at present held in the Registry of the Court pending the determination of these proceedings; or alternatively, an order' restraining the first four respondents from seizing such documents described in the warrant which are properly the subject of a claim for legal professional privilege. It is submitted on behalf of the applicant that jurisdiction is conferred upon the Court in one of three ways. First, as to both the issue and the execution of the warrant, by virtue of s.5 of the Judicial Review Act; alternatively, as to the issue of the warrant, by virtue of ~that provision-and as to-its execution by virtue' of—s.39B of ~ the Judiciary Act; or alternatively, as to the execution of 6. the warrant by virtue of s.39B of the Judiciary Act and as x to its issue by virtue of s.32 of the Federal Court Act or the "accrued" or "pendent" jurisdiction of the Court. Notwithstanding a large measure of agreement between the parties on the questions now raised, (including a concession that the first four respondents are officers of the Commonwealth), since the matter is one of jurisdiction, these questions should be determined at the outset, especially in the light of the decision in Baker v. Campbell (1982) 44 A.L.R. 431 (see Moss v. Brown (1983) 47 A.L.R. 217; Westpac Banking Corporation v. Barnes (1983) 47 A.L.R. 431; Appliance Holdings Pty. Ltd. v. Lawson (1983) 1 N.S.W.L.R. 246). Relief is sought, in the first instance, against the fifth respondent as the magistrate who issued the warrant. Section 10 of the Crimes Act, 1914 provides: "Tf a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in any house vessel, or place- (a) anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed; 7 - —"{b)"" ° anything" as to~ which there are" ~~~ reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or --- (c) anything as to which there is . reasonable ground for believing that it is intended to be used for the purpose of committing any such offence; he may grant a search warrant authorizing any constable named therein, with such assistance as he thinks necessary to enter at any time any house, vessel, or place named or described in the warrant, if necessary by force, and to seize any such thing which he may find in the house, vessel, or place." The applicant concedes that the fifth respondent is not an officer of the Commonwealth for the purposes of s.39B of the Judiciary Act, but submits that, in his case, the jurisdiction of the Court is attracted by the Judicial Review Act. In Baker v. Campbell, supra, it was held that the decision of a magistrate to issue a search warrant under s.10 was not a "decision" within the meaning of the Judicial Review Act as the decision was of a judicial, rather than administrative, character. However, in the High Court proceedings (Baker v. Campbell (1983) 57 A.L.J.R. 749), Wilson, J., in rejecting an argument that the issue of a warrant is a judicial act unlike the ministerial act of the Commissioner of Taxation in Q'Reilly's case (1982) 57 A.L.J.R. 130, said (at p.765): - "The second argument is-also- untenable because even though in issuing a search warrant a justice is obliged to act judicially (Req. v. Tillett; Ex parte Newton (1969), 14 F.L.R. 8. 101), such a description merely describes the » Nature and quality of that particular act. Although the form in which the case stated 'asks the question may on one view be thought to focus attention on the issue of the warrant, it is when the warrant comes to be executed that the question of privilege, if it canbe raised at all, becomes relevant because that is the time when the claim to privilege must be made. Clearly, no judicial or quasi-judicial proceedings are involved in the execution of the warrant: it is a purely ministerial act." (See also Aston v. Irvine (1955) 92 C.L.R. 353 at p.363; Electronic Rentals Pty. Ltd. v. Anderson (1971) 124 C.L.R. 27 at p.39.) In Lamb v. Moss (1983) 49 A.L.R. 533, in a context not dissimilar from the present, the Full Court of this Court said (at p.559): "We are clearly of opinion that the fact that the magistrate was bound to act judicially, ie justly and fairly, provides no reason why the conclusion should be drawn that decisions made or to be made by him in the course of administrative proceedings were or would be of a judicial, rather than an administrative, character for the purposes of the Act. The decision as to whether there is, or is not, a prima facie case and, if there is, the further decision as to whether or not to commit an accused person for trial are the central steps in the administrative process which is involved. To say that a magistrate hearing committal proceedings is bound to act judicially is to do no more than to describe how he must perform his administrative function. It does not turn his decision into "7 -"~ " "a> judicial one, nor. does it make-his decision™ ~ judicial in_character. _ Indeed, this is clearly established by- authority: see, eg R v Davison (1954) 90 CLR 353, per Kitto J (at 373); Rv Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373; Sankey v Whitlam (1978) 142 CLR 1 'at 80." In my opinion, the decisions in Westpac, supra, and in Moss v. Brown, supra, together with the observations of Wilson, J. in Baker v. Campbell, supra, and the reasoning cited from Lamb v. Moss, supra, sufficiently indicate that the decision of the fifth respondent to issue the warrant was a decision of an administrative character which is reviewable under the Judicial Review Act. I therefore hold that the Court has jurisdiction to deal with the application for review of the decision of the fifth respondent to issue the warrant. A separate question arises as to the jurisdiction of the Court to entertain the application made against the first. four respondents to restrain them from executing the warrant. In Baker v. Campbell (1982) 44 A.L.R. 431 at p.438, it held that the act of seeking to execute the warrant was not a decision of an administrative character within the purview of the Judicial Review Act on the ground that the Act was not "intended to apply to such an act by a police constable pursuant to his duty as such and acting under a search warrant issued by a justice of the peace" (see also Ex parte Johnson: Re Macmillan (1947) 47 S.R. (N.S.W.) 16 at pp.18-19). 10. In any event, in my view, even if jurisdiction of the Court is not conferred by the Judicial Review Act or by s.39B of the Judiciary Act, the Court may entertain the application for relief against the first four respondents in the exercise of its jurisdiction under s.32 of the Federal Court Act, 1976 or alternatively in the exercise of its "accrued" jurisdiction (see Stack v. Coast Securities (No. 9) Pty. Ltd. (1983) 57 A.L.J.R. 731). I therefore declare that the Court has jurisdiction to entertain the claims for relief made against all respondents. certify that this and the 9 preceding ' Jages are a irue copy of ihe reasons for _udgmeni herein of Tne Honourable Mr Justice Beaumont 3. Gagery. qu Associate Dated 9 March F 1984, bd