Whether the terms of the order are clear, unambiguous, and capable of compliance
62 There is no dispute between the parties about the applicable legal principles. Search orders, like any other injunction, "should be granted in clear and unambiguous terms which leave no room for the person to whom they are directed to wonder whether or not their future conduct falls within the scope of the injunction": ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259 per Lockhart J. Further, "the Court approaches the question of whether the order is ambiguous on the basis that the recipient is expected to try to understand it and obey it": Kirkpatrick v Kotis (2004) 62 NSWLR 567 at 578, [55] per Campbell J.
63 But an order will not be incapable of founding a charge of contempt "merely because it leaves a respondent with room to wonder whether future conduct falls within it. At least where the true construction of the order is one which ought fairly to have been in the contemplation of the person to whom the order was directed … the Court which entertains the charge of contempt will be required to determine that construction": Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110 (Universal Music) at [38] per Branson J.
64 Counsel for Mr Hardy submitted, by way of summary, that the order was unclear, ambiguous and incapable of compliance because it:
(1) contained internally contradictory paragraphs; and
(2) provided Mr Hardy with "important safeguards which the order state[d] he [could] assert to prevent or limit the search but provide[d] impossible means to activate them in circumstances of a search entirely focussed on electronic documents".
65 A number of the submissions made on Mr Hardy's behalf in support of these propositions laboured under the misapprehension that many of the matters contemplated by the order to be done after the search party was permitted to enter the premises (something that did not occur in this case) were required to occur within the two to three hour "windows" provided for in paragraphs 3 and 15 of the order. Counsel submitted, for example, that the removal and search orders contained in paragraph 23 of the order, and the provision entitling Mr Hardy to prepare an affidavit containing information required to be disclosed to which he took objection under paragraph 24, required Mr Hardy's compliance within "the two or three hours on the morning of [2 March 2017]". Mr Hardy's counsel submitted that "the practicality of compliance during the time the Court is here concerned with, is virtually nil".
66 But that is simply not so. Other critical parts of the order made it abundantly clear that, had Mr Hardy chosen to permit the search party entry to the premises to conduct the search, he would have had ample time to invoke whatever rights given to him under the order that he chose to invoke. The order did not contemplate that the invoking of claims to privilege were to be done within two or three hours of the order being served. Paragraph 12(a) allowed the search party to leave and re-enter the premises "on the same and the following day until the search and other activities referred to in [the] order [were] complete". Those "other activities" obviously included the matters the subject of paragraphs 23 and 24. Further, paragraph 15 permitted the independent lawyer to extend the two hour time limit provided for in paragraph 15 within which Mr Hardy was entitled to seek legal advice and ask the Court to vary or discharge the order. And, in any event, paragraph 3 of the order provided that Mr Hardy could have applied to the Court to vary (or discharge) the order, by calling my chambers on the telephone number given in that paragraph.
67 Mr Hardy's counsel also submitted that because paragraph 24 of the order "is not time limited", there cannot be a breach of the obligation to permit entry provided for in paragraph 11 of the order. Counsel submitted in oral argument that "if the period [within which Mr Hardy was to permit the search to occur] is limited, as… is clear… then if there is capacity to claim privilege at a later time, then how can there be a breach [of paragraph 11] where that claim is either - has been made or might be made? It might be made as I stand here today".
68 That contention is, with respect, also misconceived, because, like many of the other submissions made on Mr Hardy's behalf (which are dealt with below), it ignores the obvious fact that "the capacity to claim privilege" referred to in paragraph 24 could only arise if and when Mr Hardy permitted the search party to enter the premises to carry out the search. That is something that he did not permit, so the question of whether Mr Hardy ever had "the capacity to claim privilege" under paragraph 24 during the period of any search permitted by the order never arose.
69 Mr Hardy further submitted that paragraph 24 of the order was unclear and/or incapable of compliance. He submitted that the steps required to be taken by paragraph 24(b) were incapable of being completed at the time at which the independent computer expert would be purporting to exercise his powers under paragraph 23, because:
(1) Mr Hardy lived in Traralgon and was required by the order to be at his home while the search was conducted and "at the same time" prepare an affidavit and deliver it to the Court and "do all other matters he was ordered to do";
(2) the Listed Things were contained on a Storage Device; he could not, so it was submitted, disclose "some" of the information in accordance with paragraph 24(b)(i), assuming privilege was not claimed over all of it;
(3) Mr Hardy would risk altering the documents' properties, and thus breaching paragraph 17, were he to segregate and/or review certain documents for the purposes of preparing an affidavit under paragraph 24(a)(ii).
70 Mr Hardy further submitted that paragraph 15(c) was "incapable of compliance", because it required Mr Hardy to put documents subject to legal professional privilege in an envelope or container, which is impossible when all of the relevant Electronic Documents were contained in a Storage Device. Rhetorically, his Counsel asked, "is [he] to put his computer in an envelope? Is he to review the contents of his electronic documents and print those over which he wishes to make a claim?"
71 Mr Hardy next submitted that paragraph 18 was incapable of compliance, because all of the Listed Things were electronic and:
(1) Paragraph 23(b) provided that only the independent computer expert was permitted to search the relevant Storage Devices on which the Listed Things were contained, yet paragraph 23(c) prohibited the independent computer expert from inspecting such Storage Devices before removing them from the premises.
(2) It would have constituted a breach of paragraph 17(c) for Mr Hardy to review each Electronic Document to determine whether it was a Listed Thing.
72 Mr Hardy also submitted that paragraph 12(b) and paragraph 19, respectively, contradicted paragraph 23. In the first instance, it was submitted, this is because paragraph 12(b) empowered all members of the search party to search for and inspect the Listed Things, while paragraph 23(b) empowered only the independent computer expert to search a Storage Device (and all of the Listed Things are contained on a Storage Device). Mr Hardy would, it was submitted, thus have been unable to identify who should be permitted to search his Electronic Documents. In the second instance, the contradiction was said to arise from paragraph 19 providing a process for removal of Listed Things from the premises (namely, by the independent computer expert providing Mr Hardy with a list of those things for his verification) while paragraph 23 provided for the removal of Storage Devices and copies thereof: paragraph 23(c), (d). A "tension", Mr Hardy submitted, arose from the individual treatment of Listed Things in paragraph 19 with the bulk treatment of such things (as contained on Storage Devices) in paragraph 23.
73 Mr Hardy also submitted that paragraph 3 contradicted paragraph 15(b), because those paragraphs provided two different mechanisms for seeking variation or discharge of the order. The former entitled Mr Hardy to seek variation or discharge on the giving of three hours' written notice to AGL. The latter entitled him to seek variation or discharge, before permitting entry to the premises, during the period prescribed by that paragraph. It was submitted that paragraph 8 of the "Important Notice to the First Prospective Respondent/Occupier of the premises at [street address], Traralgon, Victoria" on page 18 of the order compounded this contradiction. Relevantly, that paragraph notified Mr Hardy of his right to seek variation or discharge "provided that you do so at once, and provided that meanwhile you permit the independent lawyer (who is a lawyer acting independently of the Prospective Applicant) and one of the Prospective Applicants' representatives to enter, but not start to search, the premises".
74 Finally, Mr Hardy submitted that paragraph 23 was "internally contradictory, inconsistent with other [o]rders and is unworkable" because:
(1) Paragraph 23(c) required the independent computer expert, inter alia, to make a copy of Storage Devices and remove any copy from the premises, without making inspection of the material contained therein. Paragraph 23(e), however, conferred a discretion on the independent computer expert to search a Storage Device at the premises.
(2) Paragraph 23(c) was inconsistent with paragraph 19, because, presumably, it would not be possible for the independent computer expert to create a list of all Listed Things without inspecting the material contained on a Storage Device.
(3) Only the independent computer expert was empowered to search a Storage Device, but "the subject and nature of the definition of Listed Things require[d] someone with knowledge of the workplace and dispute to consider scope (particularly in identifying documents falling within Order 6(c))".
75 I will deal with the submissions set out at [69] to [74] above in turn.