FEDERAL COURT OF AUSTRALIA Harts Australia Limited v Commissioner, Australian Federal Police [2002] FCA 405 HARTS AUSTRALIA LIMITED (ACN 010 765 394), HARTS PTY LIMITED (ACN 010 093 663) AND STEVEN IRVINE HART, ROBERT THOMAS ADCOCK, ASTION PTY LIMITED v THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE, MICHAEL JOHN MORRIS, WILLIAM JOSEPH McKAY AND HENRY ALBIEZ, I. BARTLEY, DENICE BIRD, JOHN BROWN, MICHAEL BUTCHER, IVOR CHALMERS, RON C. CRAMP, PAUL DELANY, GEOFF P. EYLES, ARTHUR FADDEN, ALAN FARNELL, ANTHONY FITZSIMON, ROBERT G. GLOVER, JOHN HOPKINS, IAN HOUGHTON, MARK JAGER, STEVEN JAY, CAMERON JEFFS, GEOFF JENSEN, MARIE McCARTHY, MALCOLM McKAY, JOE MANRICKS, METCALFE, ROBERT PENNICOTT, ALLAN PERRY, CRAIG PHILP, PETER ROBERTS, PAUL SHANLEY, G. SWANSON, ALEX TEA, NEIL THOMPSON, WILLIAM VICKERS, G. WALSH, TREVOR WENZEL, BETH WILLIAMS, IAIN YOUNG QG 162 OF 1996 DRUMMOND J BRISBANE 21 MARCH 2002 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 162 OF 1996 BETWEEN: HARTS AUSTRALIA LIMITED (ACN 010 765 394) HARTS PTY LIMITED (ACN 010 093 663) FIRST APPLICANTS STEVEN IRVINE HART ROBERT THOMAS ADCOCK ASTION PTY LIMITED SECOND APPLICANTS AND: THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE FIRST RESPONDENT MICHAEL JOHN MORRIS SECOND RESPONDENT WILLIAM JOSEPH McKAY THIRD RESPONDENT HENRY ALBIEZ, I. BARTLEY, DENICE BIRD, JOHN BROWN, MICHAEL BUTCHER, IVOR CHALMERS, RON C. CRAMP, PAUL DELANY, GEOFF P. EYLES, ARTHUR FADDEN, ALAN FARNELL, ANTHONY FITZSIMON, ROBERT G. GLOVER, JOHN HOPKINS, IAN HOUGHTON, MARK JAGER, STEVEN JAY, CAMERON JEFFS, GEOFF JENSEN, MARIE McCARTHY, MALCOLM McKAY, JOE MANRICKS, METCALFE, ROBERT PENNICOTT, ALLAN PERRY, CRAIG PHILP, PETER ROBERTS, PAUL SHANLEY, G. SWANSON, ALEX TEA, NEIL THOMPSON, WILLIAM VICKERS, G. WALSH, TREVOR WENZEL, BETH WILLIAMS, IAIN YOUNG FOURTH RESPONDENTS JUDGE: DRUMMOND J DATE OF ORDER: 21 MARCH 2002 WHERE MADE: BRISBANE THE COURT: 1. Declares that the respondents were entitled to seize, pursuant to s 3F the Crimes Act 1914 (Cth): (a) all documents in hard copy form found at any of the premises at which warrants were executed which contain any reference to the Hendon Unit Trust, or the Northbourne Holdings Unit Trust or the R D Moore Family Trust. (b) All documents in hard copy form that relate to documents containing a reference to any of these three trusts, though not mentioning that trust. 1A. Orders that the respondents shall within eight weeks of today file and serve a schedule, prepared on the basis of GAL-1 to Mr Leary's affidavit of 15 June 2001, identifying the documents agreed between the respondents and the applicants to be within the declaration in par 1, with sufficient precision to enable effect to be given to that declaration and, in default of agreement, liberty to apply in relation only to settling the schedule. 2. Declares that the respondents are entitled to retain for use in their investigation the documents the subject of the consent order made on 7 June 1999, in so far as any such documents are not covered by the declaration in par 1. 3. Declares that, save for the material the subject of the declarations in pars 1 and 2, the respondents were not entitled to seize or remove from the premises in question any of the other material taken in hard copy form. 4. Orders that in respect of each of the documents to which par 3 applies, (a) the first respondent deliver it up to the occupier at whose premises the document was seized unless that occupier otherwise approves or directs in writing; (b) in the case of premises occupied by the first applicants, delivery up to John Lethbridge Greig and Robert John Duff, duly appointed liquidators of each of the first applicants, shall be a sufficient performance of the order. 5. Declares that the respondents were entitled, pursuant to s 3K(2), to remove from the various premises the entirety of the material in electronic form: (a) downloaded at the first applicants' premises at 240 Margaret Street, Brisbane and 63 Neil Street, Toowoomba and at the premises of Bradley Fibreglass at Brendale on to Australian Federal Police storage devices; (b) contained on tapes and cartridges belonging to the occupiers of the premises of the first applicants at 63 Neil Street, Toowoomba and of Gessner Industries at Toowoomba; (c) contained on floppy disks (other than on the one disk taken from the office of Mr P H Willemse). 6. Declares that the first and second respondents still remain entitled to examine or process all the material in electronic form to which par 5 applies in order to determine whether any of it is information that can be seized under the relevant warrant provided they first comply with s 3K(3) in relation to each lot of that material. 7. Declares that the respondents are not entitled to retain: (a) material in electronic form downloaded from the personal computers taken from the residence of the second applicant, Mr Steven Irvine Hart, the residence of Ms M F Clark and the office of Queensland Mushrooms Pty Ltd; and (b) the floppy disk taken from the office of Mr P H Willemse. 8. Orders that: (a) in respect of the material in electronic form to which par 7(a) applies, the first respondent return to the occupier at whose premises the material was downloaded, any tapes or storage devices containing the downloaded material unless that occupier otherwise approves or directs in writing; and (b) in respect of the floppy disk to which par 7(b) applies, the first respondent return the same to Mr P H Willemse unless he otherwise approves or directs in writing. 9. Orders that subject to the preceding declarations and orders, the applications be dismissed. 10. Orders that each party bear their own costs, save only such costs as have been the subject of express orders earlier made. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 162 OF 1996 BETWEEN: HARTS AUSTRALIA LIMITED (ACN 010 765 394) HARTS PTY LIMITED (ACN 010 093 663) FIRST APPLICANTS STEVEN IRVINE HART ROBERT THOMAS ADCOCK ASTION PTY LIMITED SECOND APPLICANTS AND: THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE FIRST RESPONDENT MICHAEL JOHN MORRIS SECOND RESPONDENT WILLIAM JOSEPH McKAY THIRD RESPONDENT HENRY ALBIEZ, I. BARTLEY, DENICE BIRD, JOHN BROWN, MICHAEL BUTCHER, IVOR CHALMERS, RON C. CRAMP, PAUL DELANY, GEOFF P. EYLES, ARTHUR FADDEN, ALAN FARNELL, ANTHONY FITZSIMON, ROBERT G. GLOVER, JOHN HOPKINS, IAN HOUGHTON, MARK JAGER, STEVEN JAY, CAMERON JEFFS, GEOFF JENSEN, MARIE McCARTHY, MALCOLM McKAY, JOE MANRICKS, METCALFE, ROBERT PENNICOTT, ALLAN PERRY, CRAIG PHILP, PETER ROBERTS, PAUL SHANLEY, G. SWANSON, ALEX TEA, NEIL THOMPSON, WILLIAM VICKERS, G. WALSH, TREVOR WENZEL, BETH WILLIAMS, IAIN YOUNG FOURTH RESPONDENTS JUDGE: DRUMMOND J DATE: 21 MARCH 2002 PLACE: BRISBANE REASONS FOR JUDGMENT 1 It was central to my reasons for making the orders I have in relation to the seizure of the hard copy documents, as is recorded in par [92] and following of my reasons, that a very large part of the hard copy documents seized had been conceded, albeit in the cataloguing exercise, by the respondents as not being documents whose seizure was authorised by law. 2 Mr Stevens has sworn an affidavit setting out the results of a further analysis he has done which, on the view he takes, suggests that a minuscule proportion of documents only are ones whose seizure was authorised by law. I do not think that it is necessary to go into either of the analyses that Mr Stevens has done on the two different bases because his conclusion seems to me to really reflect the order I have made contained in the first declaration. It may be that there was some misapprehension about the effect of the second declaration in par 1(b) of the orders, but I think the position has become clear to all parties in the course of this afternoon's proceedings. As I say, the declaration that I have made now in the formal orders, foreshadowed by the declarations I suggested I would make in the reasons I published previously, reflects much the same view as Mr Stevens' current analyses on the extent of the success of the respondents in relation to the seizure of the hard copy documentation. 3 This is not, in my opinion, a case for any nice analysis of the extent to which identifiable issues can be said to be the subject of success by one side or the other. It is a case, in my opinion, in which a broad approach is to be taken. The view I take is that in the end result both sides have been successful in part and unsuccessful in part on what can be called the ultimate issues raised for determination as to whether particular classes of material were validly taken. 4 The applicants' attack on the seizure of the hard copy material was successful, save only in respect of material touching on the Hendon, Northbourne and RD Moore Family Trusts. But though the applicants largely succeeded on the ultimate issue involving the hard copy material, they ran substantial arguments, supported by much evidence, on sub-issues on which they failed. See, eg, the judgment at pars [32] to [51]. 5 The respondents are, in my opinion, in a very similar position. They succeeded on the ultimate issue in relation to the taking of most of the material in the electronic form, but they failed to make out their primary justification, viz, that s 3F the Crimes Act 1914 (Cth) authorised the taking of that material and succeeded only on the ground, based on s 3K the Crimes Act 1914 (Cth), which was belatedly raised. 6 In these circumstances, the proper outcome, so far as the costs of this litigation is concerned, in my opinion, is that each party should bear their own costs, save only such costs as have been the subject of express orders earlier made. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. Associate: Dated: 16 April 2002 Solicitor for the First Applicant: Blake Dawson Waldron Solicitor for the Second Applicant: Hawthorn Cuppaidge & Badgery Solicitors Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 21 March 2002 Date of Judgment: 21 March 2002