Jemella Australia Pty Ltd v Young (No. 2) [2008] FCA 396

FEDERAL COURT OF AUSTRALIA

Jemella Australia Pty Ltd v Young (No. 2) [2008] FCA 396

PRACTICE AND PROCEDURE – consideration of an application for a Search Order under Order 25B of the Federal Court Rules JEMELLA AUSTRALIA PTY LTD ACN 104 455 138 v MICHAEL YOUNG, MJY HAIR AND BEAUTY PTY LTD ACN 125 666 711, TOM KOTSIMBOS AND JEMELLA LIMITED QUD57 OF 2008

GREENWOOD J

19 MARCH 2008

BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD57 OF 2008

BETWEEN: JEMELLA AUSTRALIA PTY LTD ACN 104 455 138

Applicant

AND: MICHAEL YOUNG

First Respondent

MJY HAIR AND BEAUTY PTY LTD ACN 125 666 711

Second Respondent

TOM KOTSIMBOS

Third Respondent

JEMELLA LIMITED

Fourth Respondent

JUDGE: GREENWOOD J

DATE OF ORDER: 19 MARCH 2008

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. A Search Order issue in the form of the Search Order marked Annexure 1 to this Order. 2. The Notice of Motion be returnable on Tuesday, 1 April 2008 at 10:15am. 3. Service of the application, the affidavits in support, this Order, and the Search Order be effected upon the first, Second and third respondents by delivery of facsimile copies of each document. 4. Costs of and incidental to the Notice of Motion be reserved.

Penal Notice TO: Michael Young If you (being the person bound by this Order): (a) refuse or neglect to do any act within the time specified in the Order for the doing of the act; or (b) disobey the Order by doing an act which the Order requires you to abstain from doing, you will be liable to imprisonment, sequestration of property or other punishment. Any other person who knows of this Order and does anything which helps or permits you to breach the terms of this Order may be similarly punished. Date that entry is stamped: Deputy District Registrar ANNEXURE 1 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY NO: QUD of 2008 JEMELLA AUSTRALIA PTY LTD ACN 104 455 138 Applicant MICHAEL YOUNG First Respondent MJY HAIR AND BEAUTY PTY LTD ACN 125 666 711 Second Respondent TOM KOTSIMBOS Third Respondent JEMELLA LIMITED Fourth Respondent SEARCH ORDER TO: Michael Young This is a 'search order' made against you on 19 March 2008 by Justice Greenwood at a hearing without notice to you after the Court was given the undertakings set out in Schedule B to this Order and after the Court read the affidavits listed in Schedule C to this Order. THE COURT ORDERS: Introduction 1. (a) the application for this order is made returnable immediately; (b) the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by 25 March 2008. 2. Subject to the next paragraph, this Order has effect up to and including 1 April 2008, ("the Return Date"). On the Return Date at 10 am (Queensland time), there will be a further hearing in respect of this Order before Justice Greenwood. 3. You may apply to the Court at any time to vary or discharge this Order; including, if necessary, by telephone to the Judge referred to in the immediately preceding paragraph (Phone No: 07 3248 1166) or to the Duty Judge (Phone No: 07 3248 1100). 4. This Order may be served between 7:00am and 7:00 pm (Victorian time) on a business day; 5. In this Order: (a) 'applicant' means the person who applied for this Order. (b) 'independent computer expert' means the persons identified as the independent computer expert in the search party referred to in Schedule A to this Order. (c) 'independent solicitor' means the persons identified as the independent solicitor in the search party referred to in Schedule A to this Order. (d) 'listed thing' means any thing referred to in Schedule A to this Order. (e) 'premises' means the premises and any of the premises identified in Schedule A to this Order, including any vehicles and vessels that are under the respondents' control on or about the premises or that are otherwise identified in Schedule A. (f) 'search party' means the persons identified or described as constituting the search party in Schedule A to this Order. (g) 'thing' includes a document. (h) 'you', where there is more than one of you, includes all of you and includes you if you are a corporation. (i) any requirement that something be done in your present means: (A) in the presence of you or of one of the persons described in (6) below; or (B) if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in (6) below. (j) 'motor vehicle' means the vehicle being a silver Toyota Camry Aurion with the registration WCS-273. 6. This Order must be complied with by you by: (a) yourself; or (b) any director, officer, partner, employee or agent of yourself; or (c) any other person having responsible control of the premises. 7. This Order must be served by, and be executed under the supervision of, the independent solicitor. ENTRY, SEARCH AND REMOVAL 8. Subject to paragraphs 13 to 22 below, upon service of this Order, you must permit members of the search party to enter the premises and to have access to the inside of the motor vehicle so that they can carry out the search and other activities referred to in this Order. 9. In the event that the motor vehicle or any of its compartments are locked, you are to provide the independent solicitor with a key that will unlock the locked compartments for the purpose of allowing the independent solicitor to unlock the compartments. 10. In the event the search party is unable to access the area immediately adjacent to the main entrance to the premises (the Restricted Area) due to security restricting such access, any person responsible for managing and enforcing the restriction to this access is, upon being directed to do so by the independent solicitor, to use his or her best endeavours to assist the search party to gain access to the Restricted Area. 11. Having permitted members of the search party to enter the premises, you must: (a) permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in this Order are complete; (b) permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things; (c) disclose to them the whereabouts of all the listed things in the respondents' possession, custody or power, whether at the premises or otherwise; (d) disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out; (e) do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords; (f) permit the independent solicitor to remove from the premises into the independent solicitor's custody: (i) the listed things or things which reasonably appear to the independent solicitor to be the listed things and any things the subject of dispute as to whether they are listed things; and (ii) the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and (g) permit the independent computer expert to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert or the independent solicitor to remove any computer hard drive and computer from the premises as set out in paragraphs 23 and 24 below. RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL 12. This Order may not be executed at the same time as a search warrant (or similar process) is executed by the Police or by a regulatory authority. 13. You are not required to permit anyone to enter the premises or the motor vehicle until: (a) the independent solicitor serves you with copies of this Order and any affidavits referred to in Schedule C (confidential exhibits, if any, need not be served until further Order of the Court); and (b) you are given an opportunity to read this Order and, if you so request, the independent solicitor explains the terms of this Order to you. 14. Before permitting entry to the premises or the motor vehicle by anyone other than the independent solicitor, you, for a time (not exceeding two hours from the time of service, two hours from the commencement of normal business hours or such longer period as the independent solicitor may permit): (a) may seek legal advice; (b) may ask the Court to vary or discharge this Order; (c) (provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent solicitor in (if you wish) a sealed envelope or container; and (d) may gather together any documents that passed between you and your lawyers for the purpose of obtaining legal advice or that are otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent solicitor in (if you wish) a sealed envelope or container. 15. Subject to paragraph 25 below, the independent solicitor must not inspect or permit to be inspected by anyone, including the applicant and the applicant's solicitors, any thing handed to the independent solicitor in accordance with subparagraphs 15(c) and (d) above and the independent solicitor must deliver it to the Court at or prior to the hearing on the Return Date. 16. During any period referred to in paragraph 15 above, you must: (a) inform and keep the independent solicitor informed of the steps being taken; (b) permit the independent solicitor to enter the premises but not to start the search; (c) not disturb or remove any listed things; and (d) comply with the terms of paragraphs 28 and 29 below. 17. Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent solicitor for safekeeping pending resolution of the dispute or further Order of the Court. 18. Before removing any listed things from the premises (other than things referred to in the immediately preceding paragraph), the independent solicitor must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant's solicitors a copy of the list signed by the independent solicitor. 19. The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent solicitor to be your director, officer, partner, employee, agent or other person acting on your behalf or on your instructions. 20. If the independent solicitor is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent solicitor may permit the search to proceed and the listed things to be removed without full compliance. 21. The applicant's solicitors and the independent solicitor must not allow the applicant in person to inspect or have copies of any thing removed from the premises nor communicate to the applicant information about its contents or about anything observed at the premises until 4.30pm on the Return Date or other time fixed by further Order of the Court. COMPUTERS 22. (a) If it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant's solicitors ("the independent computer expert"). (b) Any search of a computer must be carried out only by the independent computer expert. (c) The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises. (d) The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for listed things and may copy the listed things electronically or in hard copy or both. (e) The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the Return Date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent solicitor, together with a report of what the independent computer expert has done including a list of such electronic and hard copies. (f) The independent solicitor must, at or prior to the hearing on the Return Date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter's report on the parties. (g) If no independent computer expert has been appointed, but the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent solicitor may remove the computer from the premises for that purpose and cause that purpose to be achieved. 23. (a) Unless you are a corporation, you are entitled to object to paragraphs 22(b) to (g) on the ground that they might tend to incriminate you or make you liable to a civil penalty. (b) You are also entitled to object to paragraphs 22(b) to (g) on the ground that the computer contains material that is otherwise privileged. (c) Upon communicating any objection under paragraph (a) or (b) to the independent solicitor, paragraphs 22(b) to (g) become inoperative to the extent that you have objected to them. In that event, if the applicant's solicitor communicates to the independent solicitor that the applicant proposes to contest the objection: (i) the independent computer expert shall remove the computer hard drive (or, if that is not practicable, the computer) from the premises and deliver it into the custody of the independent solicitor who shall deliver it to the Court at or prior to the Return Date; (ii) on the Return Date or on another date, the applicant may apply to the Court for Orders to similar effect as paragraphs 22(b) to (g) and if you object, the Court may adjudicate upon your objection. INSPECTION 24. Prior to the Return Date, you or your solicitor or representative shall be entitled, in the presence of the independent solicitor, to inspect any thing removed from the premises and to: (a) make copies of the same; and (b) provide the independent solicitor with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant. PROVISION OF INFORMATION 25. Subject to paragraph 27 below, you must: (a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to: (i) the location of the listed things; (ii) the name and address of everyone who has supplied you, or offered to supply you, with any listed thing; (iii) the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and (iv) details of the dates and quantities of every such supply and offer; (b) within two (2) working days after being served with this Order, make and serve on the applicant an affidavit setting out the above information. 26. (a) This paragraph (27) applies if you are not a corporation and you wish to object that compliance with paragraph 26 may tend to incriminate you or make you liable to a civil penalty. (b) This paragraph (27) also applies if you are a corporation and all of the persons who are able to comply with paragraph 26 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them or make them liable to a civil penalty. (c) You must, at or before the further hearing on the Return Date (or within such further time as the Court may allow), notify the applicant in writing that you or all the persons referred to in (b) wish to take such objection and identify the extent of the objection. (d) If you give such notice, you need comply with paragraph 26 only to the extent, if any, that it is possible to do so without disclosure of the material in respect of which the objection is taken. (e) If you give such notice, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in (b) wish to place before the Court in support of the objection. PROHIBITED ACTS 27. Except for the sole purpose of obtaining legal advice, you must not, until 4.30pm on the Return Date, directly or indirectly inform any person of this proceeding or of the contents of this Order, or tell any person that a proceeding has been or may be brought against you by the applicant. 28. Until 4.30pm on the Return Date, you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this Order or further Order of the Court. COSTS 29. The costs of this application are reserved to the Judge hearing the Application on the Return Date. SCHEDULE A Premises The premises located at (i) Shop 3, The Causeway, Melbourne in the State of Victoria; and (ii) Shop 17, the Block Arcade, Melbourne in the State of Victoria. Motor Vehicle A motor vehicle being a silver Toyota Camry Aurion with the registration WCS-273.