Standing
10 Section 3N of the Crimes Act imposes an obligation on an AFP constable to give a copy of the thing or the information seized to the "occupier of the premises" being searched if requested to do so. The Companies claim to be the occupiers of the Premises searched. Here, the liquidators, as agents of the Companies, have sought a copy of their books and records held by the AFP as a result of the execution of the warrants. Inferentially, they do so to enable the Companies to be wound up. Mr Caratti wants to stop this.
11 The learned primary judge decided that Mr Caratti had no standing to seek that remedy. The essence of his Honour's reasoning may be found at [195]-[196] below as follows:
In this case, the situation is … that the companies, whose documents have been seized under warrant, have made a proper request under s 3N of the Crimes Act (as I find below) for copies of the seized documents. The provision of the documents by the AFP to the companies is a civil right that the companies may exercise. Whether or not the AFP is obliged by s 3N of the Crimes Act to respond to the companies' requests for copies of the documents seized is a matter for the AFP to consider, not for Mr Caratti to contest, in my view. As personally interested as Mr Caratti may be in that question, I do not consider he has demonstrated a sufficient interest in the subject matter of the proceeding to bring the injunction proceeding. His personal interest does not, in my assessment, constitute an immediate, significant or peculiar interest to Mr Caratti which, as a matter of practical reality, provides him with a special interest in the injunction proceeding.
Here, the documents requested by the companies' narrowed 3N request are documents belonging to the companies. The request is not in respect of documents in which Mr Caratti has any interest other than an interest which might be described as a personal interest by a person who is a director of a company in company documents which have been seized by the AFP and which may separately be relevant to an investigation being conducted by the AFP, albeit an investigation where Mr Caratti is the target.
We respectfully agree with this conclusion of the learned primary judge and do so for the reasons his Honour has given. For that reason, this appeal should be dismissed.
12 Because Mr Caratti does not pursue private rights, but instead, seeks to prevent the violation of a public right, to have standing, he must have a sufficient "special interest" in the subject matter of the litigation. In Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, Gaudron, Gummow and Kirby JJ said at 265-266 [46]:
In the joint judgment of Brennan, Dawson, Toohey, Gaudron and McHugh JJ in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA), reference was made to the requirement that the plaintiff have "a special interest in the subject matter of the action". Their Honours stated that the rule is flexible and continued that "the nature and subject matter of the litigation will dictate what amounts to a special interest". This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law. That would be the consequence of the adoption of the approach taken by the primary judge in this litigation. It will be recalled that, in Onus v Alcoa of Australia Ltd, Brennan J warned that to deny standing may be to "deny to an important category of modern public statutory duties an effective procedure for curial enforcement".
(Footnotes omitted.)
Before the Court, the "special interest" sought to be advocated by Mr Caratti appeared to be supported by two propositions.
13 First, Mr Caratti submitted that he has an interest in the accusatorial process as an object of the AFP investigation, and as such, had standing to prevent the "wrongful dissemination of material that could ultimately directly or derivatively assist in a prosecution against him". With respect, it is not at all clear to us how disclosure of the books and records of the Companies to their respective liquidators could somehow incriminate Mr Caratti. In his written submissions, the proposition was expressed as follows:
It is known that the documents were seized under a warrant to obtain evidence against the appellant. It follows that the appellant may be prejudiced by unlawful dissemination.
Again, with respect, we do not think this follows. It has not been shown that the future administration and winding up of the Companies, using the books and records sought, bears upon the current criminal investigation or any future criminal proceeding.
14 It can be accepted that Mr Caratti has an understandable personal interest in the books and records. And, as the subject of the AFP investigation, he had standing, as the learned primary judge well understood, to challenge the validity of the warrants. He did this but was unsuccessful. But that personal interest does not, in our view, constitute a sufficient special interest in the discharge by the AFP of their statutory duty under s 3N as against the liquidators of the Companies. The learned primary judge was of the same opinion. The request made by the liquidators is a matter between those entities and the AFP. Mr Caratti is, in relation to that request, no more than a "phantom busybody or ghostly intermeddler": Craig P, Administrative Law (3rd ed, Sweet & Maxwell, 1994) at 484 as applied in Bateman's Bay at 261 [34].
15 Secondly, it was said that Mr Caratti had an entitlement to prevent a trespass to the documents by their copying and provision to the liquidators. This entitlement arose from "rights" Mr Caratti held with respect to the documents, "such as confidentiality or otherwise". In that respect, Mr Caratti complains that the learned primary judge made no directions for the creation of a "regime" whereby the respective interest of the Companies and Mr Caratti in each document could be determined. Mr Caratti's counsel referred the Court to the lengthy decision of Kyrou J (as his Honour then was) in Slaveski v Victoria [2010] VSC 441. At [300] his Honour said:
In the context of the execution of a search warrant, a police officer will commit a trespass to goods if he or she copies or transcribes information from documents found on the premises without the occupier's consent or a court order authorising him or her to use the documents for that purpose. In the absence of such consent or lawful authority, the police officer is authorised to conduct only a limited inspection of the documents for the purpose of ascertaining whether they are described in the warrant. Any documents that are seized must be taken before the Magistrates' Court without delay and cannot be used in any way that is not authorised by an order of that Court.
(Footnotes omitted.)
16 Counsel for Mr Caratti also referred the Court to footnote 269 in that judgment where Kyrou J said:
The making of copies of seized documents for the occupier, at the occupier's request, would obviously not constitute a trespass to those documents. Such conduct may also be regarded as being incidental to the lawful execution of the search warrant and as impliedly authorised by the warrant.
17 It was also submitted that Mr Caratti's right or entitlement extended to information contained in the books and records, even though it was conceded that, generally speaking, information is not property. The decision of this Court in Denlay v Federal Commissioner of Taxation (2011) 193 FCR 412 at 431 [68]-[70] per Keane CJ, Dowsett and Reeves JJ was cited for this proposition.
18 We are respectfully unable to agree with Mr Caratti's submissions for two reasons:
(1) Mr Caratti's counsel candidly conceded that Mr Caratti did not himself have any standing to bring an action in trespass or conversion in respect of the books and records. That being so, in our view, he had no entitlement recognised by law to prevent the Commissioner from giving copies of the books and records seized to the Companies;
(2) Mr Caratti never established that he had an interest or rights in any particular identified document. His claim that he had such rights was only an assertion. In that respect, Mr Caratti knew, in general terms, what had been seized; they were documents generated by companies in respect of which Mr Caratti was a director or shadow director. We also infer that Mr Caratti had or could have sought access to a copy of the books and records seized since 2015 (when his solicitor sought copies). He thus has had some opportunity to lead evidence concerning those documents in which he asserted some form of interest. He never did this. In that respect, we disagree with the complaint that the primary judge should have established some form of regime for adjudicating Mr Caratti's rights. The Court was under no duty to make out Mr Caratti's case. This was a matter for Mr Caratti to prove.
19 For these reasons Mr Caratti's appeal should be dismissed with costs.