Caratti v Commissioner of the Australian Federal Police

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Respondents: Mr S Vandongen SC with Mr J E Scovell

Solicitor for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Respondents: HWL Ebsworth Lawyers

Solicitor for the Tenth and Eleventh Respondents: Allens

AND: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE First Respondent

GH1 PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) (ACN 099 191 714) Second Respondent

WILLIAM HARRIS AND ROBERT KIRMAN AS JOINT AND SEVERAL LIQUIDATORS OF GH1 PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 099 191 714) (and others named in the Schedule) Third Respondent

JUDGES: KERR, STEWARD AND BANKS-SMITH JJ DATE OF ORDER: 2 AUGUST 2019

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 On 28-30 January 2015, the Australian Federal Police (the "AFP") executed search warrants at 44-48 Wickham Street, East Perth and 2 Duncraig Road, Applecross (collectively, the "Premises"). Books and records, both in hard and soft copy, were seized. They included or comprised the books and records of the respondent companies (the "Companies"), now in liquidation. The applicant, Mr Caratti, admits that he was at this time either a director, or what is sometimes called a "shadow director", of these Companies. 2 The Premises were collectively the registered offices and registered principal places of business of the Companies. Mr Caratti carried on activities at Wickham Street as an officer of the Companies. He also lived at the premises at Duncraig Road. He was present at the execution of each warrant. 3 In 2017, the liquidators of the Companies made a series of requests to the Commissioner of the AFP (the "Commissioner") pursuant to s 3N of the Crimes Act 1914 (Cth) (the "Crimes Act") seeking copies of the records seized. Mr Caratti sought an injunction to prevent the copies of the seized material being provided. The learned primary judge refused to grant this relief. 4 Two issues arise for determination: (1) whether Mr Caratti had standing to bring his proceeding to seek injunctive relief; and (2) whether the Companies were "occupiers" of the Premises for the purpose of s 3N of the Crimes Act. 5 The primary judge found that Mr Caratti had no standing and that the Companies were "occupiers" of the Premises.

Legislative Provisions 6 Section 3N is contained within Div 2 of Pt IAA of the Crimes Act which contains rules concerning the issue and execution of search warrants. It provides: Copies of seized things to be provided (1) Subject to subsection (2), if a constable seizes, under a warrant relating to premises: (a) a document, film, computer file or other thing that can be readily copied; or (b) a storage device the information in which can be readily copied; the constable must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure. (2) Subsection (1) does not apply if: (a) the thing that has been seized was seized under subsection 3L(1A) or paragraph 3L(2)(b) or 3LAA(4)(b); or (aa) the thing embodies data that was accessed under the warrant at a place other than the premises; or (b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence. 7 Statutory context played a prominent role in this appeal. It is therefore appropriate to set out some of the following provisions of Div 2 of Pt IAA: 3G Availability of assistance and use of force in executing a warrant In executing a warrant: (a) the executing officer may obtain such assistance; and (b) the executing officer, or a person who is a constable and who is assisting in executing the warrant may use such force against persons and things; and (c) a person who is not a constable and who has been authorised to assist in executing the warrant may use such force against things; as is necessary and reasonable in the circumstances. 3H Details of warrant to be given to occupier etc. (1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing officer or a constable assisting must make available to that person a copy of the warrant. (2) If a warrant in relation to a person is being executed, the executing officer or a constable assisting must make available to that person a copy of the warrant. (3) If a person is searched under a warrant in relation to premises, the executing officer or a constable assisting must show the person a copy of the warrant. (4) The executing officer must identify himself or herself to the person at the premises or the person being searched, as the case may be. (5) The copy of the warrant referred to in subsections (1) and (2) need not include the signature of the issuing officer or the seal of the relevant court. 3J Specific powers available to constables executing warrant (1) In executing a warrant in relation to premises, the executing officer or a constable assisting may: (a) for a purpose incidental to the execution of the warrant; or (b) if the occupier of the premises consents in writing; take photographs (including video recordings) of the premises or of things at the premises. … 3JA Extension of time to re-enter premises in emergency situations (1) If: (a) a warrant in relation to premises is being executed; and (b) there is an emergency situation; and (c) the executing officer or a constable assisting believes on reasonable grounds that the executing officer and the constables assisting will not be able to return to the premises within the 12 hour period mentioned in paragraph 3J(2)(aa); he or she may apply to an issuing officer for an extension of that period. (2) Before making the application, the executing officer or a constable assisting must, if it is practicable to do so, give notice to the occupier of the premises of his or her intention to apply for an extension. … 3K Use of equipment to examine or process things Equipment may be brought to warrant premises (1) The executing officer of a warrant in relation to premises, or constable assisting, may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant. Thing may be moved for examination or processing (2) A thing found at warrant premises, or a thing found during a search under a warrant that is in force in relation to a person, may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if: (a) both of the following apply: (i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; (ii) the executing officer or constable assisting suspects on reasonable grounds that the thing contains or constitutes evidential material; or (b) for a thing found at warrant premises - the occupier of the premises consents in writing; or (c) for a thing found during a search under a warrant that is in force in relation to a person - the person consents in writing. … 3L Use of electronic equipment at premises … (1A) If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may: (a) copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device brought to the premises; or (b) if the occupier of the premises agrees in writing - copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device at the premises; and take the device from the premises. … 3P Occupier entitled to be present during search (1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to Part IC, entitled to observe the search being conducted. (2) The right to observe the search being conducted ceases if the person impedes the search. (3) This section does not prevent 2 or more areas of the premises being searched at the same time. 8 Section 2C of the Acts Interpretation Act 1901 (Cth) (the "Interpretation Act") was relied upon by the Commissioner. It provides: References to persons (1) In any Act, expressions used to denote persons generally (such as "person", "party", "someone", "anyone", "no-one", "one", "another" and "whoever"), include a body politic or corporate as well as an individual. (2) Express references in an Act to companies, corporations or bodies corporate do not imply that expressions in that Act, of the kind mentioned in subsection (1), do not include companies, corporations or bodies corporate. Section 2(2) of the Interpretation Act provides: However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.

Agreed Facts 9 There was a statement of agreed facts which the learned primary judge reproduced at [20]-[63] of the reasons. It is not necessary to reproduce it here. The facts were not in dispute. Where necessary we have identified the facts found by the primary judge which are relevant to the disposition of this appeal in our reasoning below.

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.

Section 3N 20 In so concluding that Mr Caratti had no standing to seek injunctive relief against the Commissioner, the other grounds of appeal fall away. Nevertheless, as the matter was fully argued, it is appropriate that we should say something about the operation of s 3N of the Crimes Act. 21 Mr Caratti contended that the Companies could not make a valid request under s 3N as that section is confined to requests made by natural persons. 22 The learned primary judge disagreed and found that the s 3N requests made by the liquidators on behalf of the Companies were validly made in essence for two reasons: (1) first, there was no reason not to apply the presumption in s 2C of the Interpretation Act so that the reference to a "person" and "occupier" in s 3N should also be read as including a company; and (2) secondly, that conclusion made abundant sense given the very great number of premises occupied by companies. 23 There can be little doubt that a company can occupy premises. That act of occupation, being a physical act, cannot, of course, be undertaken by the company itself, which as a juridical entity is a statutory fiction; but it can be undertaken by individuals for the company. As Windeyer J observed in Federal Commissioner of Taxation v Casuarina Pty Ltd (1971) 127 CLR 62 at 77: A proprietary company may well seem to be, in reality, merely the trade-name in which a man carries on some part of his affairs. But by a following of correct legal forms the name becomes in law a thing. Formalism produces a legal substance, and its "owner" can by careful bookkeeping get all the advantages, be they limited liability, relief from taxation or other benefit, which the law annexes to his sedulous use of the corporate name. A company like Casuarina may be called prestigious in the proper sense of the word, and the accountants called prestigiators. This and other metaphorical descriptions, dummy, puppet, alias, alter ego and the like come readily to mind: but they remain descriptive not definitive of legal consequences … A company which speaks with the voice of the person who controls it and which acts as he directs is not necessarily to be called a facade, nor its acts in the law called shams. Its existence as a legal person is not incompatible with its practical obedience to orders … 24 However, we nonetheless regret that we doubt the conclusion reached by the learned primary judge. Statutory context suggests that Parliament, by using the words "by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed" was referring: (a) to individual persons who are at the premises during the execution of the warrant; and (b) to requests made to the constable by such persons at that time. 25 Because the request was made here about two years after the execution of the warrants, s 3N was not satisfied. 26 This point was not raised by the parties before the learned primary judge but was the subject of argument on appeal. 27 Division 2 of Pt IAA makes repeated references to an "occupier", to a "person" and to being "present" at premises during the execution of a search warrant which sufficiently indicates that Parliament intended that the reference to the "occupier of the premises" in s 3N is to an individual who was at the premises during the search. Thus: (a) section 3G refers to an executing officer using force against a person in executing the warrant; (b) section 3H(1) refers to an executing officer making available a copy of the warrant to an occupier or person present at the premises when the warrant is being executed. Section 3H(4) refers to the executing officer identifying herself or himself to the person at the premises; (c) section 3J(1) refers to the occupier consenting in writing to the taking of photographs in executing the warrant; (d) section 3JA(2) refers to the executing officer giving notice to the occupier of an intention to apply for an extension of time for executing the warrant; (e) section 3K(2) refers to the occupier of the premises consenting in writing to the taking away of a thing found at warrant premises for examination or processing; (f) section 3L(1A) refers to the occupier of the premises consenting in writing to the copying of data and the taking of data from the premises; and (g) section 3P refers to the occupier of the premises or another person present at the premises being entitled to observe the search being conducted. 28 Each of the foregoing refer to an activity that takes place during the execution of the warrant. None of them refer to an activity taking place after the search has been completed. The activities of using force, making a copy available, identifying oneself, giving notice to someone, consenting in writing and observing a search are all, with respect, plainly activities that are to be undertaken by a natural person or done to a natural person. 29 In our view s 3N, which forms part of this statutory context, is no different. It forms part of a series of provisions contained in Div 2 that regulate the issue and then execution of search warrants. It sets out rules to be followed during the search by both the police and those persons present. Section 3N refers again to a physical activity, namely requesting copies of the books and records seized. Like the other activities referred to in Div 2, that is an activity which takes place when the warrant is being executed. That is why the request is made to the "constable" that seizes the books and records. She or he must then supply the copy as soon as practicable "after the seizure". Like the other provisions in Div 2, s 3N also expressly provides that if the request is to be made by a representative of the occupier it needs to be made "when the warrant is executed". This was apparently conceded by counsel for the Commissioner at the hearing of the appeal (it was not clear to us whether the concession was subsequently withdrawn). In our opinion, the request must also be made at the time of the execution of the warrant if made by an "occupier". And it must, with great respect to the learned primary judge, be made by a natural person. 30 As to the reliance on s 2C of the Interpretation Act, in our view, s 2(2) of that Act is engaged because we have found in the language of Div 2 and s 3N of the Crimes Act the expression of a contrary intention which excludes the rule found in s 2C. 31 It was submitted that the phrase "who is present when the warrant is executed" qualified only the identification of the person who represents the occupier and not also the occupier herself or himself. With respect, whether that phrase is so confined does not matter. What is clear is that if the occupier is to be the person who is to make the request she or he must make it to the constable who seized the books and records. In our view, that can only occur when she or he is present at some stage during the execution of the warrant. That conclusion is consistent with the scheme of Div 2. 32 In that respect, it is not clear to us why Parliament would draw a possible distinction between the rights of an occupier and that of a representative of an occupier. We think that it is unlikely to be what Parliament intended. The better view is that both the occupier and the ostensible representative need to make the request during the execution of the warrant. 33 If necessary, our conclusion is supported by the Review of Commonwealth Criminal Law: Fourth Interim Report (Australian Government Publishing Service, 1990) known as the "Gibbs Report". It is clear that the bill which introduced Part IAA of the Crimes Act (Crimes (Search Warrants and Powers of Arrest) Amendment Bill 1994 (Cth)), which includes Div 2, did not adopt all of the recommendations of the Gibbs Report. However, the very strong similarity between the content of s 3N and recommendation 41.1(x) supports an inference that the Gibbs Report was the inspiration for this provision. Recommendation 41.1(x) stated: The law should provide that the executing officer seizing any document, film or like thing should provide, as soon as practicable to the occupier, if present and, if not present, any person present apparently representing him or her, a copy of the document, processed film or like thing free of charge if he or she so desires and the occupier or other person should be informed of this right. (Emphasis added.) Not all of the foregoing found its way into s 3N. But the description of who can make the request (highlighted above) is entirely consistent with the ordinary and natural meaning of the language of s 3N. 34 We are conscious that our construction of s 3N may mean that there is no statutory right to obtain copies if, for example, a search were to take place at a time when neither the occupier nor any other person was present. However, that consequence is the product of the language Parliament has chosen to use. Whether Kyrou J's observation in Slaveski that the giving of copies might be mandated in any event as being "incidental to the lawful execution of the search warrant and as impliedly authorised by the warrant" was not a matter argued before us. However, the observation, like so many other things written by that judge, has obvious ostensible merit.

Conclusion 35 Mr Caratti had no standing to seek his injunction against the Commissioner. His appeal must be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kerr, Steward and Banks-Smith.

SCHEDULE OF PARTIES WAD 311 of 2018 Respondents Fourth Respondent: MNWA PTY LTD (IN LIQUIDATION) (ACN 101 717 177) Fifth Respondent: WILLIAM HARRIS AND ROBERT KIRMAN AS JOINT AND SEVERAL LIQUIDATORS OF MNWA PTY LTD (IN LIQUIDATION) (ACN 101 717 177) Sixth Respondent: I.M.E NOMINEES PTY LTD (IN LIQUIDATION) (ACN 107 942 058) Seventh Respondent: WILLIAM HARRIS AND ROBERT KIRMAN AS JOINT AND SEVERAL LIQUIDATORS OF I.M.E NOMINEES PTY LTD (IN LIQUIDATION) (ACN 107 942 058) Eighth Respondent: ACN 142 745 337 PTY LTD (IN LIQUIDATION) (ACN 142 745 337) Ninth Respondent: ROBERT MICHAEL KIRMAN AS LIQUIDATOR OF ACN 142 745 337 PTY LTD (IN LIQUIDATION) (ACN 142 745 337) Tenth Respondent: WHITBY LAND COMPANY PTY LTD (IN LIQUIDATION) (ACN 115 233 193) Eleventh Respondent: WILLIAM HARRIS AND ROBERT KIRMAN AS JOINT AND SEVERAL LIQUIDATORS OF WHITBY LAND COMPANY PTY LTD (IN LIQUIDATION) (ACN 115 233 193)