[1982] HCA 65
Ruzehaji v Commissioner of the Australian Federal Police (2015) 124 SASR 355
Judgment (24 paragraphs)
[1]
Solicitors:
Australian Federal Police (Plaintiff)
Fortis Law (Fourth Defendant)
File Number(s): 2018/00222509
Publication restriction: Nil
[2]
Introduction
These reasons deal with whether the Commissioner of the Australian Federal Police ('the Commissioner'), by using the production power in s 202 of the Proceeds of Crime Act 2002 (Cth) ('the POCA') once proceedings under the POCA had been commenced, [1] interfered with the administration of justice thereby committing a contempt of court.
That is the principal contention of Despina Mavris ('the fourth defendant'). By the third further amended cross summons filed 18 December 2023, she seeks declaratory and injunctive orders to deal with and remedy the contempt to ensure that she receives a fair and lawful trial.
In my view, for the reasons that follow, there has been no interference with the administration of justice by the Commissioner using the power in s 202 of the POCA as alleged, with the result that the third further amended cross summons should be dismissed.
[3]
Background
I set out below the background facts. They are partly drawn from the earlier judgment delivered (that separately determined two issues in the proceedings: Commissioner of the Australian Federal Police v Mazzco Investments Pty Ltd & Ors. (No 3) [2023] NSWSC 1576 ('Mazzco No. 3')), and accepted by each party, and supplemented to deal with the additional matters of fact that arise in the context of the current application. They reflect my findings.
[4]
The circumstances giving rise to the Commissioner's proceedings
On 23 May 2018, the late Dimitrios (Jim) Mavris was arrested at Sydney Airport by Australian Federal Police ('AFP') officers, and subsequently interviewed by them. On 24 May 2018, he was charged with the offence of importing a commercial quantity of a border-controlled drug, contrary to s 307.1 of the Criminal Code Act 1995 (Cth) sch 1 ('Criminal Code'): in short, the allegation was that on or around 23 March 2018, Mr Mavris attempted to import into Australia 59 kilograms of cocaine concealed inside the walls of two shipping containers travelling from Peru via Columbia. The cocaine had been estimated to have a value of between $AUD11,800,000 and $AUD12,980,000, and up to $AUD20,000,000.
Following being taken into custody, on 25 May 2018, Mr Mavris was found dead in his cell from an apparent suicide.
On 30 May 2018, the charge against Mr Mavris was withdrawn. There is no suggestion that there are any extant criminal proceedings. As it happens, the only criminal proceedings commenced were against Mr Mavris, but they were discontinued following his death whilst in custody.
The Commissioner's evidence also sets out the circumstances of a money laundering offence (see the affidavit of Alexander Drummond affirmed 19 July 2018). It is alleged that Mr Mavris and Mazzco Investments Pty Ltd each committed a serious offence, or offences, being dealing in money or property worth $AUD100,000 or more which was reasonably suspected of being proceeds of crime, contrary to s 400.9(1) of the Criminal Code. Put very simply, it is alleged that this offence arose from the value of properties being grossly disproportionate to the declared income of each of them: in the case of properties owned by (or alleged to be subject to the effective control of) Mr Mavris in Woolloomooloo, each were purchased in close proximity to the importation of two consignments of semi-processed cow hides from Colombia in 2012 and 2013 - consignments that are suspected to have contained border-controlled drugs.
[5]
The Commissioner's proceedings in this Court
On 19 July 2018, the Commissioner commenced proceedings under the POCA by summons, naming four defendants: Mazzco Investments Pty Ltd (the first defendant); the late Dimitrios (Jim) Mavris (the second defendant); the Administrator of the Estate of the Late Dimitrios (Jim) Mavris (the third defendant); and Despina Mavris (the fourth defendant). The only active defendant is the fourth defendant.
By that summons, the Commissioner sought a number of restraining (orders 3-7), custody and control (orders 15-16), and forfeiture orders (orders 18-22) under the POCA in regard to eight properties. Mazzco Investments Pty Ltd - of which Mr Mavris was the sole director and shareholder - was the registered proprietor of six properties in Pyrmont ('the Pyrmont Properties') and the fourth defendant is the registered proprietor of two properties in Woolloomooloo ('the Woolloomooloo Properties'). The Commissioner also sought pecuniary penalty orders against the first, second and third defendants (order 17).
Such proceedings under the POCA are civil, not criminal: s 315(1) of the POCA.
On 19 July 2018, Schmidt J made 19 orders pursuant to the Commissioner's summons, including restraining orders under ss 18 and 19 of the POCA in connection with the Pyrmont Properties and the Woolloomooloo Properties. Relevantly here, the orders restrained the fourth defendant from selling or otherwise disposing of the Woolloomooloo Properties - it being alleged that the Woolloomooloo Properties were property of the fourth defendant "that was subject to the effective control of the Late Dimitrios (Jim) Mavris" (order 3). Further, in relation to the Woolloomooloo Properties, the restraining orders were made under both ss 18 and 19 of the POCA.
[6]
The fourth defendant's notice of motion and summons
On 17 August 2018, the fourth defendant filed a notice of motion ('the revocation and exclusion motion') seeking two primary orders in connection with the restraining orders made by Schmidt J:
1. first, an order, pursuant to s 42(5) of the POCA, that orders 3-7 made by Schmidt J on 19 July 2018 be revoked - that is, an order revoking the restraining orders made under ss 18 and 19 of the POCA in relation to the Pyrmont and Woolloomooloo Properties; and
2. secondly, and alternatively, an order pursuant to ss 29 and/or 31 of the POCA that the Pyrmont and Woolloomooloo Properties be excluded from the restraining orders made by Schmidt J on 19 July 2018.
Given that the fourth defendant was the registered proprietor only of the Woolloomooloo Properties, the basis for the fourth defendant seeking orders in connection with the Pyrmont Properties was not explored, and need not be considered further.
[7]
Use of information gathering powers
In the period 24 October 2018 to 19 July 2019, the Commissioner applied to various Local Court magistrates for the issuing of 17 production orders pursuant to s 202 of the POCA - either directed to financial institutions or lawyers/conveyancers - requiring the production of property-tracking documents.
In relation to each application, Federal Agent Alexander Drummond, an authorised officer within the POCA (see s 338 of the POCA) - being a member of the AFP authorised by the Commissioner - swore an affidavit in support of the making of production orders. The content of each of those affidavits was essentially identical. The authorised officer (relevantly) disclosed: the background to the charges against Mr Mavris; that proceedings had been commenced by the Commissioner under the POCA; that orders had been made by Schmidt J in connection with the Woolloomooloo and Pyrmont Properties; and that the property-tracking documents requested "will provide evidence as to the unlawful accumulation of wealth by [Mr Mavris] in support of the ultimate forfeiture of property restrained in the orders made by Justice [Schmidt]".
It will be necessary to return to some of the detail of the affidavits of Federal Agent Drummond when dealing with the issue of "purpose", given the reliance that the fourth defendant placed upon parts of those affidavits and the arguments raised in connection with the "purpose" of the Commissioner seeking those production orders. For present purposes, the following matters should simply be noted in connection with the applications and the orders that were subsequently made.
On 24 October 2018, Atkinson LCM made production orders directed to six third parties - namely, Bowles Lawyers Pty Ltd; Firmstone Lawyers; Owen Hodge Lawyers; Galilee Solicitors Pty Ltd; Fox Stevens Conveyancing Pty Ltd; and Judy Howard Conveyancing. Federal Agent Drummond affirmed an affidavit dated 24 October 2018 to support the making of the production orders. The orders made required production of property-tracking documents by 8 November 2018.
On 22 November 2018, Funston LCM made production orders directed to four third parties - namely, M Law Group; Moray & Agnew Lawyers; Growthbuilt Pty Ltd; and Eclipse Prudent Mortgage Corporation. Federal Agent Drummond affirmed an affidavit dated 22 November 2018 to support the making of the production orders. The orders made required production of property-tracking documents by 7 December 2018.
[8]
The documents produced in response to the production orders
The documents produced in response to the production orders were not in evidence, although there was a schedule of the documents produced in evidence (affidavit of Christopher Nehme sworn 8 September 2021, par 17, Annexure A - 'the schedule of documents'). The evidence was that in excess of 1,000 pages of material - "at least 1,116 documents" - had been produced (affidavit of Christopher Nehme sworn 8 September 2021, par 17). Nothing turns, or is said to turn, on the precise number of documents that were produced.
The fourth defendant's evidence also indicated that only a "small fraction" of the documents produced were, in fact, used by the Commissioner in the evidence that they filed in 2019 (affidavit of Christopher Nehme sworn 8 September 2021, par 17). The parties were in agreement, and I find, that only approximately 50 documents produced have been used as part of the evidence proposed to be adduced at a subsequent hearing (fourth defendant's submissions at 91; Commissioner's submissions at [6.1]). To be clear, those documents were not in evidence, however the schedule of documents identified, by highlighting, those that had been used by the Commissioner in the evidence they filed. It will be necessary to refer further to these documents when dealing with whether, as part of the fourth defendant's contempt argument, there has been a measure of "advantage" secured by the Commissioner using the production order power following the commencement of proceedings. It is, however, sufficient to simply note that those documents are, broadly, of the following type: records of school fees, land title and conveyancing documents, AUSTRAC and ATO documents, bank records and the like.
The fourth defendant's submissions suggested that the documents produced in response to the production orders were provided to the fourth defendant on 24 May 2022 and 7 June 2022 (fourth defendant's submissions at 53). The dates nominated appear to be erroneous: based upon the affidavit of the solicitor for the fourth defendant, it appears (and I find) that those documents were made available to the fourth defendant on or around 29 April 2021. It is those documents that are set out in the schedule of documents (affidavit of Christopher Nehme sworn 8 September 2021, pars 16 and 17). Nothing turns upon, or is said to turn upon, the precise date that the fourth defendant was provided the documents produced in response to the production orders.
[9]
The procedural history
The fourth defendant's challenge to the Commissioner's use of the production order power was first raised in a cross summons filed by the fourth defendant on 31 August 2020. That cross summons sought declaratory and injunctive relief in relation to the Commissioner's use of that power.
On 18 August 2022, the fourth defendant filed a further amended cross summons. By that further amended cross summons, the fourth defendant sought:
1. declaratory and injunctive relief on the basis that the use by the Commissioner of the information gathering powers under the POCA after the commencement of the proceedings "for the sole or dominant purpose of adducing evidence in the proceedings was not authorised by the Act", or in the alternate if it was authorised, that it nevertheless constituted an excess of power and was unlawful or an abuse of process, where it had a "real risk of, or involves a tendency to interfere with, the administration of justice and the exercise of judicial power in federal jurisdiction by conferring an advantage on the Plaintiff not available under the Court's processes" such that the Commissioner's conduct was "in excess of power and unlawful, or an abuse of process, and null and void" (further amended cross summons, relief claimed, par 1);
2. a declaration that production orders issued to third parties pursuant to Part 3-2 of the POCA are "invalid, null and void" (further amended cross summons, relief claimed, par 1A);
3. an "order setting aside as invalid, null and void the production orders issued" to third parties pursuant to Part 3-2 of the POCA (further amended cross summons, relief claimed, par 1B);
4. an order restraining the Commissioner from "in any way using, or relying on, as evidence or otherwise" any documents obtained by the Commissioner by the issue of the production orders (further amended cross summons, relief claimed, par 2); and
5. an order that the Commissioner be required to "identify, deliver up, and then destroy" such documents (further amended cross summons, relief claimed, par 3).
On 11 October 2023, the fourth defendant filed a second further amended cross summons. The relief claimed in par 1 of the second further amended cross summons was modestly refined, to expressly include an allegation that the use of the power in s 202 "after the commencement of the proceedings for the sole or dominant purpose of adducing evidence in the proceedings, was a contempt of court as it resulted in a substantial risk of serious injustice" (second further amended cross summons, relief claimed, par 1(b)).
[10]
The competing positions: an overview
I will set out, by way of introduction, a summary of the competing positions of the parties.
As ultimately put during submissions (T 81.40), the fourth defendant advanced three key contentions:
1. first, that the Commissioner, after commencement of the proceedings in this Court, used the production order powers for the sole or dominant purpose to obtain documents for use in those proceedings (fourth defendant's submissions at 89);
2. secondly, s 202 of the POCA does not permit production orders to be obtained, if to do so gives the Commissioner an advantage beyond what is permitted to a litigant by the rules of court or there is a real risk that the continuing use of the power will have that effect (fourth defendant's submissions at 90); and
3. thirdly, that the Commissioner, in using the power under s 202 of the POCA to obtain information for use in these proceedings, gained an advantage beyond what is permitted to a litigant by the rules of court or there is a real risk that the continuing use of the power will have that effect (fourth defendant's submissions at 89).
The fourth defendant, in the written submissions filed, had argued that s 202 of the POCA did not permit, after the commencement of proceedings, production orders to be obtained for the sole or dominant purpose of receiving documents for use in these proceedings (fourth defendant's submissions at 90), but during the course of submissions the fourth defendant indicated that the argument was no longer pressed (T 80.36-81.12).
The first contention involves an issue of fact - namely, the Commissioner's purpose in using the production order power. The second contention involves an issue of construction of s 202 of the POCA. The third contention follows on from the second and involves, ultimately, an issue of fact - whether, by the use of the production power in the present circumstances the Commissioner secured an unfair advantage, amounting to a contempt.
The Commissioner's position, by way of response, was as follows. In relation to the first contention - essentially, the purpose of Federal Agent Drummond in seeking the production orders - this matter should be resolved adversely to the fourth defendant: the Commissioner argued that the Court would not find that Federal Agent Drummond obtained the production orders for the sole or dominant purpose of obtaining evidence in the proceedings. In relation to the second contention, the Commissioner did not contest the statutory and inherent jurisdiction of the Court to control the proceedings before it, nor more specifically the applicability of the contempt principle as a limitation on the exercise of the production order power. The Commissioner did, however, submit that an important consideration into whether there was any unfairness visited upon the fourth defendant would be informed by whether the production order power was permissibly used for the sole or dominant purpose of securing documents for use in the proceedings. And, in relation to the third contention, the Commissioner submitted that the use of the power in s 202 of the POCA did not confer upon the Commissioner an advantage beyond what is permitted to a litigant by the rules of court and nor was there a real risk that the continuing use of the documents obtained in reliance upon that power will have that effect.
[11]
The contested issues of fact: the 'investigation' and the purpose of Federal Agent Drummond
There are two overlapping issues of fact in issue - namely: first, whether there was an "extant investigation" and the nature of that investigation; and, secondly, the purpose of Federal Agent Drummond seeking the issue of the production orders.
Before addressing, and resolving, those matters, it is as well to concisely explain, for introductory purposes, the materiality of them to the respective parties.
For the Commissioner, its case was that, during the period when the production orders were sought and issued, there was a wider law enforcement investigation being undertaken and, although conceding that "a" purpose in seeking the production orders was for use in these proceedings, the purpose was also to aid and assist that other investigation. For the fourth defendant, the essential argument advanced was that, in substance, the investigation and the proceedings in this Court were one and the same, such that when Federal Agent Drummond made reference in his evidence to "an investigation" or "the investigation", he should be taken to mean the proceedings in this Court (or the litigation). In effect, on the fourth defendant's argument, these two issues of fact coalesce. And, it necessarily followed on that argument, that the only purpose for which Federal Agent Drummond sought the production orders was for use in the proceedings.
[12]
Whether there was an "extant investigation"
The parties were at odds as to whether there was an "extant investigation" as at the time the production orders issued. The fourth defendant, although accepting (at least implicitly) that, at one point, there was an "investigation" that was different from the proceedings in this Court (albeit that those investigations may have resulted in the commencement of them), nevertheless (again, at least implicitly) submitted that there was no such investigation at the time any of the production orders were sought by the Commissioner (or, if there was one, that it did not feature in any of the decisions of Federal Agent Drummond to seek production orders). The Commissioner contested this, pointing out that the evidence established that, in fact, there was an ongoing investigation and thus, inevitably, and consistent with Federal Agent Drummond's evidence, there was another purpose for the applications for production orders, other than to obtain information for use in the proceedings.
The fourth defendant further argued that, properly understood, Federal Agent Drummond's evidence reduced to this: the investigation he referred to or considered existed was no more than the current proceedings in this Court and, to the extent that he was referring to further investigations, that was merely descriptive of the steps that he was taking in the course of these proceedings. While adopting that stance, the fourth defendant, ultimately, submitted that whether there was - or was not - an "extant investigation" was inessential to her principal contention: that was because, it was argued, the sole or dominant purpose in seeking the issue of production orders for the production of material was to use that material in the proceedings.
I do not accept the fourth defendant's submissions. I accept, and find, that from at least 2017 until an indeterminate time - well after the final production orders were issued in 2019 - there was an extant investigation that involved investigating Mr Mavris and other persons and entities in connection with drug and money laundering offending and an associated criminal assets investigation. That investigation was conducted by the Criminal Assets Confiscation Taskforce ('CACT') comprising the AFP, the Australian Border Force and the Australian Tax Office. I make that finding for the following reasons.
[13]
The reason for seeking production orders: purpose
This issue of fact was significantly contested. The fourth defendant argued that the Commissioner used the power in s 202 for the sole purpose or, if not for the sole purpose, then the dominant purpose of securing evidence for use in the current proceedings (fourth defendant's submissions at 6 and 89). The Commissioner contested this, arguing that the production order power was utilised merely for a purpose, and not the sole or dominant purpose, of securing evidence for use in the current proceedings.
Given only Federal Agent Drummond was involved in the applications for the issuing of production orders, the finding as to purpose turns upon - and was accepted by the parties to turn upon - what Federal Agent Drummond did at the time, and his reasons for seeking the issue of those production orders.
Although, as I have indicated, the fourth defendant argued for a finding that the use of the power in s 202 was for the sole or dominant purpose of securing evidence for use in the current proceedings, I am unable to accept that the production orders were sought for the sole purpose of securing evidence for that use. In my view, having accepted, consistent with my earlier finding, that there was an ongoing investigation that was extant at the time that the production orders were sought by the Commissioner, it is, I consider, quite improbable that any production orders would be sought, and only sought, without regard to that investigation. That was Federal Agent Drummond's evidence, as well, which I accept and it is evidence that accords with the probabilities, in my view. I also do not accept that any of the production orders were issued for the sole purpose of the proceedings more generally for the reasons that follow.
In terms of dominant purpose, the submissions principally were advanced on the footing that the Court should find that all the production orders were sought for the dominant purpose of using the material in the proceedings in this Court. That is, no distinction was drawn in submissions between any of the 17 production orders that were issued: all were argued to have issued for the dominant purpose identified. Nevertheless, there is a distinction, or possible distinction, in the evidence between those production orders that issued in 2018, and those production orders that issued in 2019, which I will explain when dealing with the respective arguments on the evidence that was suggested to support them. Further, in terms of the test relevant to determining purpose, the fourth defendant relied upon what was said in Australian Securities and Investments Commission v Elm Financial Services Pty Ltd [2004] NSWSC 859; (2004) 50 ACSR 406 at [77] ('Elm Financial') - in particular, the "idea of 'initiating and abiding purpose'…and the idea of a substantial purpose in the sense that the decision to continue the investigation and issue the notices would not have been made but for its presence" (citation omitted). The basis for approaching the matter on this footing - an enquiry into the sole or dominant purpose for seeking the production orders - appears to lie in the remarks of James J in Authorised Officer Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Limited [2007] NSWSC 1215 at [90] ('Authorised Officer Christine Tumney') and what was said on appeal in NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456; [2008] NSWCCA 252 including at [158] ('Nutricia'). Given the stance of the parties, I have approached the matter in this way.
[14]
The POCA: the use of the power in s 202 of the POCA following commencement of proceedings
The Commissioner argued that it was necessary to fully construe s 202 - in particular, to determine whether its use following the commencement of proceedings could occur when the sole or dominant purpose was to secure property-tracking documents for use in the proceedings - and that to do otherwise would be artificial. That was because it was directly relevant to the question of contempt to consider whether the Commissioner was exercising a power lawfully conferred, or otherwise. Put a little differently, it is not possible to examine any issue of contempt without determining the limits of the power simply because whether the power was - or was not - permissibly exercised informs, possibly significantly so, any consideration of contempt because it is the use of the power, or the purported use of it, that is said to amount to the contempt.
The fourth defendant set out, or made brief reference to, a number of statutory provisions (ss 5-8 - sections that deal with introductory matters including the principal objects of the POCA - and ss 202, 203, 206, 207, 208, 210, 211, 315 and 317 (a section that deals with the onus of proof)), but did not squarely address, during oral submissions, the constructional issue said by the Commissioner to be a necessary part of any consideration as to whether a contempt had arisen. As I have earlier noted, a submission that the POCA, in and of itself (and, to be clear, separate from the contempt principle relied upon), did not support the use of the production power in s 202 when the sole or dominant purpose of the use of that power was to secure evidence in proceedings under the POCA, was not pressed (see [32]-[34], above).
The written submissions advanced by the fourth defendant were to the effect that, upon its proper construction, s 202 does not authorise "the seeking of a production order, after the commencement of proceedings, for the sole or dominant purpose of obtaining material to assist in the proceeding" where to do so has the effect of giving the Commissioner "an unfair advantage not available to it by the normal procedures of the Court" (fourth defendant's submissions at [93]; fourth defendant's reply submissions at [3]). General reliance was placed upon the first instance decision in Authorised Officer Christine Tumney and, on appeal, in Nutricia.
[15]
The implied limitation on the exercise of the power in s 202: conduct tending to interfere with the administration of justice
[16]
Introduction: the contempt principle
Broadly stated, the issue raised by the fourth defendant concerns the interplay between the use of the production order power in s 202 of the POCA and the principles of contempt of court. Although there was no dispute about the substantive principle of contempt sought to be engaged by the fourth defendant, and limited disagreement - essentially definitional - about precisely what is involved once it constrains the exercise of the power, it is as well to explain aspects of the contempt principle relied upon by the fourth defendant to secure the relief claimed.
The expression 'contempt of court' is a generic one "which covers the various ways in which words or conduct unlawfully interfere with the administration of justice": Attorney-General for NSW v John Fairfax & Sons Ltd & Bacon (1985) 6 NSWLR 695, 707; Nutricia at [58]. The focus here, as explained shortly, is upon conduct, not words, as giving rise to the interference with the administration of justice. This category of contempt is usually described as involving the interference with the administration of justice: Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 558-559; [1993] HCA 74 ('Caltex'); Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [319] ('Lee').
The fourth defendant emphasised that it has been held that the "POCA does not affect the inherent power of a court invested with jurisdiction to make orders, including an order to stay proceedings, where those proceedings are considered to be an abuse of process or create a real risk of interference with the administration of justice" - citing Ruzehaji v Commissioner of the Australian Federal Police (2015) 124 SASR 355; [2015] SASCFC 182 at [56] and [58] (fourth defendant's submissions at [84]). That submission may be accepted: there cannot be (and was not) any issue about the power of the Court to protect its own processes and that that power may be exercisable in connection with the use of the statutory information gathering powers utilised in this case. It is reflected in the following statement of principle relied upon by the fourth defendant: "[t]he doctrine of contempt of court…focuses upon a court's right and, indeed, its obligation, to protect the integrity of its operations and to prevent interference with its administration of justice": Commissioner of Taxation v De Vonk (1995) 61 FCR 564, 569; [1995] FCA 994 ('De Vonk'); Elm Financial at [46] (fourth defendant's submissions at [85]).
[17]
The contempt principle: its application
It is convenient to commence the discussion and resolution of these issues with a short statement of how the fourth defendant alleges there has been an interference with the administration of justice and, thereafter, the nature, quality and degree of interference necessary in order for there to be a contempt.
The fourth defendant's overarching argument was that there had been a usurpation of the Court's power by the Commissioner's use of the power under s 202, and the deployment of material produced in response. It was argued that, by that conduct, the Commissioner secured distinct advantages not available through the court procedures so as to amount to an interference with the administration of justice, and a contempt of court (fourth defendant's submissions at [95]). Those advantages were argued to involve, and result from, the Commissioner's avoidance of the court-controlled procedure for the production of documents available to "ordinary" litigants in court proceedings - namely, issuing subpoenas to secure the material - and the use of the power in s 202 of the POCA instead.
Before dealing with what was said to constitute the advantages derived from the Commissioner's use of the s 202 power, it is necessary to say something about the nature of the enquiry and, in particular, what constitutes an advantage in the sense contemplated. That characterisation is essential: it is the attainment of that advantage through the exercise of the power under s 202 that is said to amount to the interference with the administration of justice.
[18]
The nature of the interference
It may be accepted, and it was accepted by each party, that "not every investigation into facts which are the subject of pending proceedings", by the exercise of a statutory power, constitutes an interference with the Court's processes amounting to a contempt of court: Pioneer Concrete at 468. In Caltex, McHugh J (at 588-589) explained why this was so, and the further requirement necessary in order for there to be an interference with the administration of justice, and a contempt (footnote omitted):
Obtaining evidence under a statutory power for the purpose of assisting a party in pending litigation does not necessarily constitute an interference with the procedures of the courts. The evidence gathering procedures of a party are not limited to the use of court procedures. No interference with the processes of the courts or the course of justice occurs merely because a party avails itself of a statutory power to obtain evidence during the course of pending litigation. The mere use of such a power during the pendency of litigation is not a contempt of court even when the sole purpose of the exercise of the power is to assist a party to obtain evidence for use in that litigation. To constitute a contempt, the party must exercise the power in such a way that it interferes with the course of justice. Thus, there might be a contempt if the exercise of a statutory power "would give such a party advantages which the rules of procedure would otherwise deny him" ... But something more is required than that the party exercised the power for the purpose of obtaining evidence for use in pending litigation.
This passage was referred to with approval in Nutricia at [54] and [182] - where Spigelman CJ said (at [182]):
Plainly, any party to proceedings, including judicial proceedings, is entitled to conduct whatever investigations it likes and obtain evidence in whatever manner it likes, for purposes of those proceedings. It is, however, contended that only the court, once seized, relevantly, of criminal proceedings, should exercise the governmental power to compel persons to answer questions or produce documents. Subject to constitutional restraints and valid legislation, this approach raises a separation of powers issue. The proposition that there can never be any overlap states the case too broadly.
Given the above, the interference with the administration of justice turns on an assessment of the advantage alleged to have resulted.
[19]
Discussion: the interference with legal proceedings
The fourth defendant submitted that the "advantages" that the Commissioner was able to obtain in using the power in s 202 - "rather than the Court's processes" - were clear. The advantages derived from the avoidance of the court-controlled production of documents available to "ordinary" litigants in court proceedings - specifically, the Commissioner avoided issuing subpoenas to secure the material. Having bypassed the production of material in that way, a number of consequences - either advantages to the Commissioner or disadvantages to the fourth defendant - were argued to result:
1. first, it was argued that "it may be inferred that [the fourth defendant] would have made (or would have had an opportunity to make) an application(s) to set aside, or limit the scope, of the subpoena(s) and make any necessary applications for the protection of her legal professional privilege or the privilege of the estate of her late husband" (fourth defendant's submissions at 91);
2. secondly, it was argued that there were differences - essentially limitations - that restricted the manner in which a litigant may legitimately seek documents under subpoena that do not apply to production orders under s 202 of the POCA (fourth defendant's submissions at 91); and
3. thirdly, it was argued that, in consequence of the material produced, there has been an enlargement of the issues in the proceedings (fourth defendant's submissions at 91 and [98]).
I will next deal with each of these arguments.
[20]
The loss of opportunity to make applications and/or claims
The fourth defendant, as noted above, argued that it could be "inferred" that she would have made, or had an opportunity to make, various applications had the court processes, rather than the issuing of production orders, been followed: these were said to involve applications to set aside, or limit the scope of, subpoenas and also to make claims for privilege - her own, and for the estate of her late husband (fourth defendant's submissions at 91).
I am unable to accept these submissions and, in particular, that there has been any disadvantage suffered by the fourth defendant nor any advantage conferred upon the Commissioner, as argued. That is for the following reasons.
First, in relation to the submission that an inference should be drawn that the fourth defendant "would have made" one or more particular applications, being to either set aside or limit the scope of any subpoenas issued, I am unprepared to draw any inference or to make any finding of the kind sought. The fourth defendant did not identify any evidence to support the drawing of that inference. That is not the only difficulty with the submission. Another relates to the fact that if - as is the case - this formed a key plank in the fourth defendant's case on "advantage", then it should immediately be observed that the fourth defendant did not seek to prove any counterfactual, nor draw attention to any evidence that might establish it: thus, in her affidavit, the fourth defendant did not suggest that she would have made such an application (the affidavit from her does not address the issue at all) and nor, for that matter, did the fourth defendant's solicitors suggest this. In relation to the evidence from the solicitors, the highest the evidence reached were statements (made in connection with each of the production orders) set out in the affidavit of Christopher Nehme sworn 8 September 2021 which were to the effect that "consideration" would have been given to "whether it was appropriate to advise [the fourth defendant] to make an application" had subpoenas, rather than production orders, issued (affidavit of Christopher Nehme sworn 8 September 2021, pars 35, 37, 39, 41, 43, 48, 50, 53, 59, 61, 65).
This is highly qualified evidence that, in my view, falls well short of providing any basis to infer that an application of any particular kind "would have [been] made".
[21]
The avoidance of court-controlled production of documents
The fourth defendant outlined seven ways in which the use of the production order power conferred an advantage upon the Commissioner that would not otherwise be available under court processes - being the issuing of subpoenas for production (fourth defendant's submissions at 91). For the reasons that follow, I do not accept this submission: even if, contrary to my earlier findings, an application "would have [been] made" or there was an "opportunity" to make an application, the fourth defendant has not demonstrated that any of the seven matters, individually or collectively, conferred any advantage of the relevant kind upon the Commissioner.
It is useful at this point to also note what was not, squarely, addressed by the fourth defendant: why the "approximately 50 documents" were not amenable to a subpoena (or subpoenas). Rather, the arguments of the fourth defendant were divorced from the facts and reduced to theoretical differences (or perceived differences) between production orders that sought property-tracking documents, and property-tracking documents sought under subpoena. In my view, the fourth defendant has not shown that the "approximately 50 documents", nor the property-tracking documents more generally, were not amenable to subpoenas directed to the third parties, had they issued.
The first three matters raised by the fourth defendant were argued to arise out of distinctions between issuing a subpoena and the making of a production order (fourth defendant's submissions at 91(i)-(iii)). In that respect, the fourth defendant argued that, unlike a subpoena, a production order "does not have to be relevant to a fact in issue"; "does not have to be issued for a legitimate forensic purpose"; and "can be used for 'fishing'". The effect of what was submitted was that there were advantages that resulted from the approach taken by the Commissioner. I do not accept that submission.
In relation to issuing subpoenas, in order to justify a subpoena as having been issued for a legitimate forensic purpose, it need only be shown that the documents sought are "apparently relevant": Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65] ('Blacktown City Council'). To the extent the submission of the fourth defendant suggested a more stringent test - namely, relevance - it is inconsistent with what was decided in Blacktown City Council. As was explained therein, apparent relevance will be demonstrated if the documents sought to be produced "by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist" (at [65] - emphasis in original). Further, the word 'apparent' "admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant": at [68].
[22]
Enlarging the issues
The fourth defendant next submitted that a consequence of the Commissioner seeking, and securing material in response to, production orders is that the Commissioner has enlarged "the issues in the case" (fourth defendant's submissions at 91). The fourth defendant also argued that the Commissioner was "able to expand and introduce new issues in dispute in the Revocation and Exclusion Motion going back to 1992 in circumstances where [the fourth defendant] bears the onus of proof" (fourth defendant's submissions at [98]).
These submissions were not developed further. In particular, no attempt was made to identify the "new issues", nor the documents that are said to have had that effect. Nor, again, even assuming that "new issues" were created, was any submission directed to why that should not be allowed to occur in the context of those issues already in play in connection with the fourth defendant's revocation and exclusion motion or why that resulted in an impermissible advantage. Nor, finally, was the particular production order, that resulted in the production of this material, identified (or, if more than one, the production orders).
From the schedule of documents produced in response to the production orders, it appears - I emphasise, I was not taken to any of these documents during the course of submissions and they were not referred to in the written submissions - that the documents from this period are Mr Mavris' ATO records (documents number 79 and 80 in the schedule of documents). It appears from the description given to those documents, that they are summary documents prepared by the ATO "in respect of the income tax returns lodged by or on behalf of Mr Mavris". It should be observed, however, that no production order issued after the commencement of proceedings was directed to the ATO. (The ATO had previously disclosed material relating to Mr Mavris and the fourth defendant to the Commissioner on 18 June 2018, consistent one assumes with the ATO being part of the investigation (see [41], above)). Putting that issue to one side, it is a little difficult to accept - and, to be clear, I do not accept - that the ATO summary documents of the income of Mr Mavris would be anything other than relevant to the issues already arising in the defendants' revocation and exclusion motion, one of which was the source and legitimacy of the funds used to purchase the restrained properties.
[23]
Orders
For the above reasons, I make the following orders:
1. Order that the third further amended cross summons filed 18 December 2023 be dismissed.
2. Order the fourth defendant to pay the plaintiff's costs of, and incidental to, the third further amended cross summons and the further amended notice of motion filed 17 December 2021.
3. List the matter for directions on 26 July 2024 to make all necessary case management orders, with a view to fixing the matter for hearing.
[24]
Endnote
The parties accepted the applicable version of the POCA to be Compilation No. 48 dated 11 May 2018.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 10 July 2024
On 16 May 2019, Kennedy LCM made production orders directed to four third parties - namely, St George Bank; Bendigo and Adelaide Bank Ltd; National Australia Bank Ltd; and Bank of Sydney Ltd. Federal Agent Drummond affirmed an affidavit dated 16 May 2019 to support the making of the production orders. The orders made required production of property-tracking documents by 31 May 2019.
On 10 July 2019, Atkinson LCM made production orders directed to two third parties - namely, Commonwealth Bank of Australia Ltd and Ronayne Lawyers Pty Ltd. Federal Agent Drummond affirmed an affidavit dated 10 July 2019 to support the making of the production orders. The orders made required production of property-tracking documents by 25 July 2019.
On 19 July 2019, Milledge LCM made a production order directed to one third party - namely, BankWest. Federal Agent Drummond affirmed an (undated) affidavit to support the making of the production order. The order made required production of property-tracking documents by 2 August 2019.
Aside from the fourth defendant's overarching objection that the use of the power in s 202 following commencement of these proceedings conferred an advantage upon the Commissioner, and disadvantage upon her, so as to give rise to a contempt of court, no issue has been raised about any irregularity or non-compliance with the making of the production orders.
The fourth defendant served a third further amended cross summons on 17 October 2023. The Commissioner did not oppose the filing of that pleading, and leave was granted to file that amended cross summons in court at the commencement of the hearing of the separate determination on 27 November 2023. The third further amended cross summons was subsequently electronically filed on 18 December 2023. There are minor differences (or refinements) between this version of the amended cross summons and those which preceded it. Relevantly, those differences (or refinements) were to advance, as a (new) ground, that the use of the power in s 202 of the POCA "exceeded the legislative power of the Parliament, and was invalid" (third further amended cross summons, relief claimed, par A1); and to advance a (refined) ground that the Commissioner, in seeking to use the power in s 202 "after commencement of these proceedings … to obtain evidence for use in these proceedings … had a tendency to interfere with the administration of justice, and was a contempt of court" (third further amended cross summons, relief claimed, par A2). The first ground was resolved in the separate determination. The second ground arises for determination in the current hearing.
First, in each of the affidavits affirmed by Federal Agent Drummond in support of his applications for the issuing of production orders, he deposed to the criminal investigation as well as the proceeds of crime investigation. Further, in each of the affidavits, he made a request that the production order specify that information about the order not be disclosed because of a current AFP investigation. Thus, in his affidavit affirmed 24 October 2018, he made that request because "[t]he persons and entities specified above are the subject of a current AFP investigation…"; in the affidavit affirmed 16 May 2019, he also made that request in the same terms; and in the (undated) affidavit in support of the application made on 19 July 2019, he also made that request in the same terms as well as deposing that the "investigation is being centrally coordinated from NSW rather than in Western Australia…" (par 8.1).
The fourth defendant cross-examined Federal Agent Drummond about that subject matter, in essence putting the proposition that he provided the magistrate, in each of those affidavits, no "details" about those investigations. That may be accepted, but I do not regard that as detracting in any way from the evidence, particularly where there was no requirement to provide "details", nor "more details", as was submitted. The fourth defendant suggested that this was merely a "template", but I do not accept that submission - in part because, even if it were a "template", it was not suggested to Federal Agent Drummond that there was no ongoing investigation at the time he affirmed his three affidavits in support of the applications that were made to the Local Court magistrates and that the evidence in the affidavit was inaccurate or wrong.
Secondly, the evidence of Federal Agent Drummond, which I accept, was that the CACT investigation was broader than, and thus not confined to, the defendants or the assets the subject of the present proceedings: affidavit of Alexander Drummond affirmed 16 May 2024, par 12. Furthermore, his evidence was that the CACT investigation "was ongoing" at the time he sought the production orders in 2018 and 2019: affidavit of Alexander Drummond affirmed 16 May 2024, pars 19, 27, 35, 43, 51, 62, 70, 77, 85, 95, 103, 111, 119, 129, 137 and 147. Federal Agent Drummond deposed to the fact that the CACT investigation "became dormant" around late 2019: affidavit of Alexander Drummond affirmed 16 May 2024, par 154. Contrary to what the fourth defendant submitted, I do not accept that the wider investigation that I have described ceased by reason of the death of Mr Mavris, nor was it (somehow) rendered less likely (fourth defendant's reply submissions at 4(iii)) and Federal Agent Drummond was not cross-examined to either effect.
In my view, this evidence was not directly challenged and, to the extent that it may be taken to have been indirectly or implicitly challenged, I do not accept that it effectively detracted from Federal Agent Drummond's evidence on this topic. For example, Federal Agent Drummond was asked questions about the commencement of proceedings in this Court, the fact that he swore an affidavit in support of the orders made in July 2018 and his awareness that the fourth defendant had filed a revocation (and exclusion) motion in August 2018, culminating in the following exchange (T 13.4-13.8):
Q. Then the steps you took between 24 October 2018 and 19 July 2019 was that you obtained 17 production orders pursuant to section 202 of the POCA Act from the Local Court; that's right?
A. No. I would say that the steps I took were a continuation of the investigation that started prior to 19 July and went actively on from then.
Another example arose when Federal Agent Drummond was cross-examined about the content of paragraphs that were essentially in the same terms in the affidavits prepared in support of the applications for production orders (see the discussion on par 6.9 of the affidavit of Federal Agent Drummond at [56]ff, below). That cross-examination culminated in the following exchange (T 18.16-18.18):
Q. Would you agree that without the proceeds of crime proceedings, you wouldn't have sought the 202 order from the magistrate?
A. No.
There were other parts of the cross-examination where Federal Agent Drummond maintained the existence of, and distinction between, the proceedings and the investigation. For example, in the context of the affidavits affirmed in support of the applications for production orders, and the paragraphs of those affidavits that refer to "evidence…in support of the ultimate forfeiture of properties restrained" (again, see [56]ff, below), it was suggested that what was contained in that affidavit revealed Federal Agent Drummond's purpose. He rejected that proposition stating (T 39.49 - 40.4):
A. No, I don't. That paragraph I think for me sets out a link to the investigation… We're asking for these documents because it's relevant to the investigation…
Federal Agent Drummond, in effect, confirmed that evidence when re-examined - that is, he explained that the purpose of that particular paragraph "was to show the magistrate how it linked to our wider investigation. That there was relevance to, to the investigation" (T 66.40-66.43).
Before addressing the respective arguments, the following four matters should be noted. First, as to the approach to fact finding, ordinarily the process to determine facts (and the one adopted) involves consideration of "contemporary materials, objectively established facts and the apparent logic of events": Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]. Where witnesses are recalling events from some time ago, a court will, if possible, "place primary emphasis on the objective factual surrounding material and the inherent…probabilities, together with the documentation tendered in evidence": Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 at [15] - citing the reasons of the judge at first instance. As I later explain, however, there are a limited number of contemporary materials that are available to assist in resolving this issue of fact and, even then, those documents are limited in their usefulness. Secondly, as noted above, the finding as to purpose turns upon the evidence of Federal Agent Drummond: he was the relevant officer authorised to make the applications for production orders, and was the officer that did so. Thirdly, the fourth defendant did not suggest, or invite the Court to make a finding, that Federal Agent Drummond was "lying", lacked credibility or was otherwise unreliable. Fourthly, in connection with "purpose", there was a measure of common ground: it was expressly admitted by the Commissioner, in a letter served in response to a notice to admit facts dated 17 September 2021 served by the fourth defendant on the Commissioner, that "a purpose of applying for the production orders ultimately issued…was to gather evidence in the Proceedings" (emphasis added). Consistent with this, the Commissioner had also accepted, in correspondence to the solicitors for the fourth defendant dated 31 July 2020, that the powers under the POCA "were utilised to obtain documents from some of the Specified Entities to assist (or potentially assist) in the proceeding".
There were a range of matters, and strands of evidence, relied upon by the fourth defendant to support the finding sought - some of which were, understandably, given more prominence than others. The fourth defendant argued that these matters - essentially a circumstantial case - undercut Federal Agent Drummond's evidence that he did not seek the production orders for the sole or dominant purpose for securing evidence for use in the proceedings. It is convenient to broadly deal with them in the order in which they were raised in the written outline handed up during submissions (MFI 2).
The fourth defendant argued that Federal Agent Drummond was, at the time that production orders issued, unaware that subpoenas could be used in POCA proceedings. That was his evidence in his affidavit (affidavit of Alexander Drummond affirmed 16 May 2024, par 159), and this was confirmed during his cross-examination (T 11.43-11.45). It was submitted that, given that he was unaware that he could use subpoenas in the proceedings, it necessarily followed that, in effect, this was the only way that Federal Agent Drummond knew of to secure evidence (T 76.11-76.13). I do not regard this evidence as being of any particular significance and, in fairness, the fourth defendant did not place much emphasis upon it. That is because, even if Federal Agent Drummond lacked awareness that subpoenas could issue (and I accept he was unaware), I do not see that as determinative of his motivation to secure the property-tracking documents for the purposes of the proceedings only, as was argued. That is particularly so where, as here, there was an ongoing investigation: in fact, to use material obtained in the proceedings via subpoenas in order to facilitate that ongoing investigation would almost certainly be improper. Nevertheless, I accept it remains of some limited relevance for consideration in the context of all of the evidence on the "purpose" issue.
The fourth defendant next submitted that Federal Agent Drummond's evidence as to why he sought the issue of production orders was significantly informed by the content of the affidavits that he affirmed to support the Local Court magistrates making the various production orders. In particular, the fourth defendant relied upon specific parts of his affidavits that were argued to illuminate his purpose. Those parts of the affidavits relied upon by the fourth defendant were reasonably uniform in what they deposed to. It is sufficient to illustrate this by reference to par 6.9 of the affidavit of Federal Agent Drummond affirmed 24 October 2018, which provided:
The property tracking documents requested herein, will provide evidence as to the unlawful accumulation of wealth by [Mr Mavris] in support of the ultimate forfeiture of property restrained in the orders made by Justice [Schmidt].
As noted, the other affidavits affirmed by Federal Agent Drummond to support the making of the production orders were in the same (or essentially the same) terms as par 6.9 set out above: see par 6.9 of the affidavit affirmed 22 November 2018; par 6.9 of the affidavit affirmed 16 May 2019; par 6.9 of the affidavit affirmed 10 July 2019; and par 6.10 of the (undated) affidavit in support of the application made on 19 July 2019.
Federal Agent Drummond was cross-examined, broadly to the same effect, in relation to these paragraphs of his affidavits. The cross-examination did not, in my view, significantly extend what Federal Agent Drummond had deposed to in his affidavits. I will illustrate this by reference to par 6.9 of the affidavit affirmed 22 November 2018. That paragraph is, as I have noted, in identical terms to paragraph 6.9 of the affidavit affirmed 24 October 2018, set out in [56], above. When cross-examined, Federal Agent Drummond had his attention drawn to this paragraph resulting in the following (T 41.47-41.50):
Q. As at 22 November 2018 would you accept this proposition: that at least a purpose of you seeking these section 202 production orders was for the reason given to the magistrate at paragraph 6.9?
A. Yes.
Not only did the evidence elicited during cross-examination not add to what had been covered by those paragraphs of Federal Agent Drummond's affidavits, but it did not add, in my view, to what the Commissioner had admitted.
The fourth defendant emphasised that all of the affidavits of Federal Agent Drummond prepared in support of the applications for the issue of production orders contained a reference to the fact that the CACT "ran a parallel proceeds of crime investigation to the criminal investigation": affidavit of Alexander Drummond sworn 24 October 2018, par 6.6. The submission was not developed, but presumably reliance was placed upon the tense used - viz., "ran". That submission is unpersuasive, and I do not accept it. It says nothing about whether that investigation ceased, and in any event to the extent that it may be descriptive of something "ceasing", it may well be a reference to the fact that what was ceasing was that there was to be an investigation "parallel" to the criminal one. Further, the affidavit itself later deposes to the fact that the "persons and entities specified above are the subject of a current AFP investigation…". The fourth defendant submitted that these words were a "template" and, presumably, should be ignored. It may well have formed part of a template but, as I have earlier noted, that statement was not suggested to Federal Agent Drummond, when he was cross-examined, to be inaccurate or wrong. It was then submitted that "no detail" was provided in the affidavit. It may be accepted that there was limited detail, but it was not suggested (or otherwise demonstrated) that that information was in any way necessary in an affidavit of this kind or indeed relevant to what the particular magistrate was required to consider before making a production order given the terms of s 202 of the POCA.
It is relevant to the present discussion to refer to some other similar evidence from Federal Agent Drummond. His affidavit affirmed 16 May 2024 was one that he prepared for use in the hearing of the third further amended cross summons. The affidavit, inter alia, sought to address his "purpose" when seeking the production orders in 2018 and 2019. He addressed each of the production orders - albeit that he inadvertently omitted to address the "purpose" of seeking a production order in relation to Firmstone Lawyers - in that affidavit. The fourth defendant submitted (and I accept) that was an oversight and that his "purpose" should be considered on the same basis as the evidence that he gave in connection with the other production orders: T 86.44. That was the tenor of Federal Agent Drummond's evidence as well, which I accept: T 31.40-31.45.
The evidence in that affidavit concerning the "purpose" issue was broadly the same and, unsurprisingly, the cross-examination directed to that evidence was also broadly the same. This can be illustrated by reference to the "purpose" evidence relating to the production order directed to the firm of solicitors, Owen Hodge Lawyers. In pars 28-29 of his affidavit affirmed 16 May 2024, Federal Agent Drummond's evidence was:
28 My purpose of applying for the Owen Hodge Production Order was to further the CACT Investigation by investigating:
a. the existence, nature and extent of the links, if any, between the first and second defendants and Owen Hodge Lawyers;
b. the sources of funds to purchase the East Killara property, and whether the purchase and sale of that property were legitimate and arm's length transactions;
c. if the assets in the second defendant's name, or under his effective control, were assets for his benefit or for other people;
d. whether there were any further assets linked to the first, second and fourth defendants (whether registered in one or more of their names or not) which may have been recorded in Owen Hodge Lawyers' files, and whether those further assets were the proceeds of crime;
e. the first, second and fourth defendants' sources of income and whether these sources were legitimate and accorded with other information identified in the investigation; and
f. the first, second and fourth defendants' accumulation of wealth over time.
29 I did not seek the Owen Hodge Production Order for the sole or dominant purpose of obtaining evidence for these proceedings.
Federal Agent Drummond was cross-examined about these paragraphs (and the other similar ones) to the same effect. The cross-examination in connection with this part of his affidavit (and a similarly worded paragraph about the purpose of applying for a production order against another third-party - Galilee Solicitors Pty Ltd: affidavit, par 36) was as follows (T 35.1-35.32):
Q. Turning then to paragraph 28 of your affidavit, back to the Owen Hodge production order, and I won't have to go - this is very tedious, Federal Agent Drummond. So, 28A to F, you'd agree that those documents would be of assistance to the Commissioner in these proceedings. That's correct?
A. Yes.
Q. And that's what you told the magistrate in your affidavit, that the material that would be collected would be used as evidence in these proceedings?
A. (No verbal reply)
Q. If you need it, it's at page 379 of the supplementary court book, paragraph 6.9, "The property tracking documents will provide evidence that"‑‑
A. Yes.
Q. The next part of your affidavit is in relation to Galilee Solicitors and specifically you say again, at paragraph 36, you identify various topics that you were seeking the production order for, and again you would agree that these topics that you've identified at 36A to F would similarly be evidence that would assist the Commissioner in these proceedings?
A. Sorry, can you just repeat that last part?
Q. That the topics that are identified at 36A to F would provide evidence that would assist the Commissioner in these proceedings?
A. Yes.
Q. And that's what you told the magistrate? Because it's the same paragraph, 6.9‑‑
A. Yes.
Q. --of the affidavit. That's right?
A. Yes.
In the result, I do not consider that the cross-examination of Federal Agent Drummond in connection with the various paragraphs directed to "purpose" in his affidavit affirmed 16 May 2024, adds much to the fourth defendant's contention that he sought the various production orders for the sole or dominant purpose for use in these proceedings. Rather, this evidence merely confirmed what was already admitted and accepted by the Commissioner - viz., that a purpose in seeking the production orders was to gather evidence in the proceedings: see [49] and [53], above. The fact that the material produced would or might assist the Commissioner in the current proceedings does not, in my view, dictate that the production orders were issued for the dominant purpose alleged. Rather, in my assessment, that fact is not inconsistent with the concession made by the Commissioner about the use of the production order power: see [53], above. Separately, in my respectful view, the utility of the evidence elicited is debatable given that the questioning and thus the evidence does not, in my assessment, differentiate (or clearly differentiate) between purpose and effect. Whilst the latter is relevant to the former, it does not follow, as I later mention, that because the issue of production orders may have a particular effect that the purpose for its issue necessarily was the sole or dominant reason, as argued.
The fourth defendant placed some emphasis upon a particular part of the cross-examination of Federal Agent Drummond, submitting that, in substance, he accepted that his use of the phrase "sole or dominant" was "meant to capture that he always had the investigation in his mind and that to the extent documents were produced that revealed a further line of enquiry he would pursue that" (MFI 2, p 1). This evidence appeared to be the foundation for the submission that when Federal Agent Drummond made reference in his evidence to "an investigation" or "the investigation", he should be taken to mean the proceedings in this Court (or the litigation).
The evidence elicited during cross-examination that is relied upon was as follows (T 52.7-52.30):
Q. And you offer to obtain those, that information, by using section 202. That's correct?
A. Yes.
Q. So you wouldn't have made any section 202 orders except that corresponded with the material Mr Mark sought, is that correct?
A. Yes, I wouldn't have thought to have done that without his prompting.
Q. I think I've got to what you're asking the Court to accept is that if those documents produced material that revealed a further line of inquiry you would've pursued that line of inquiry, is that right?
A. Yes.
Q. Have I captured why you say you didn't have the sole or dominant purpose when you were obtaining the section 202 production orders?
A. (No verbal reply)
Q. I'll put it another way. Did you always have in your mind, no matter what was produced, that if those documents produced something that would be of interest to you to the extent there was still an investigation on foot, you would pursue those inquiries?
A. Yes.
Q. Have I got that right in terms of your use of the phrase "sole or dominant"? You always had in mind that you had this investigation and to the extent the documents revealed something you needed to investigate, that that's what you would do?
A. Yes. So--
I confess to finding parts of this evidence and its overall objective unclear, and that was my impression of the evidence as it was adduced during the hearing. The questioning (and earlier questioning which commenced some pages earlier in the transcript from around T 49.22) is about "an investigation" or "this investigation". The evidence from Federal Agent Drummond, which I accept, is that the investigation was descriptive of the criminal investigation, the CACT investigation and the proceedings, and not only one part of that, as the fourth defendant argued. (I have separately dealt with the broader issue of "the investigation", including the specific way that Federal Agent Drummond's evidence should be understood). However, for present purposes, it should simply be noted that I do not accept that this evidence somehow aids in better understanding the position on Federal Agent Drummond's "purpose" and nor do I accept that Federal Agent Drummond is accepting that where in his evidence he refers to "an investigation" or "the investigation", he should be taken to mean the proceedings in this Court (or the litigation), or that the investigation and the proceedings are one and the same.
The fourth defendant also submitted that it was important to understand the chronology of key events. It was argued that, when that chronology was understood, the timing of when Federal Agent Drummond sought the production orders was significant: it was submitted that the production orders were not sought until after the revocation and exclusion motion had been filed (on 17 August 2018) and the fourth defendant had filed, on 9 October 2018, her written notice of the grounds upon which the revocation order was sought. The submission, in effect, appeared to be that it should thus be inferred that the production orders were issued as being responsive to the fourth defendant's application and the content of the notice and, by extension, for the dominant purpose of those proceedings.
I do not accept this strand of the fourth defendant's argument, for the following four reasons.
First, the evidence demonstrated that, in fact, Federal Agent Drummond had given specific consideration to issuing production orders before the fourth defendant had filed her revocation and exclusion motion. Exhibit C (being a OneNote document produced by Federal Agent Drummond containing notes on the investigation) records the following:
1. That production orders under s 202 had issued prior to the commencement of proceedings in this Court by the Commissioner. In the top left-hand corner of that exhibit, there is a reference to: "Bank accounts identified from POC s202 material". That entry was made on 18 July 2018.
2. The entries in that section of the document refer to STG account #9174, and a production order directed to St George Bank for financial records relating to that account number was sought by Federal Agent Drummond in his application, and affidavit in support, dated 16 May 2019, requiring production by 31 May 2019.
3. Another entry refers to bank accounts held by the first defendant with the Bank of Sydney. That entry was made on 23 July 2018. I note that production orders issued to that financial institution required production of documents by 31 May 2019.
4. Other entries are titled "Identified Conveyance document locations" and refer to accounts held "via NAB" in connection with the property in Oliver Street, Bexley North. That entry was made on 18 July 2018. I note that production orders issued to NAB also required production by 31 May 2019.
5. The reference to "[p]urchase and sale to be obtained from Bowles Lawyers" was inserted on 23 July 2018. This referred to property in William Street, Woolloomooloo. I note that an application for a production order directed to Bowles Lawyers seeking, inter alia, documents relating to the property at that location was made by Federal Agent Drummond on 24 October 2018.
6. The entry beneath the heading: "Other properties to be identified" was made on 23 July 2018. That entry notes reference to a number of entities:
Owen Hodge [Lawyers]
Bowles Lawyers;
Galilee Solicitors;
EY Lawyers;
Judy Howard Conveyancing; and
Fox Stevens conveyancing.
Thus, contrary to what the fourth defendant submitted, there is clear evidence of production orders issuing prior to the commencement of the proceedings in this Court and, further, specific consideration given to issuing production orders to a range of third parties (upon whom production orders were subsequently served) prior to the filing of the fourth defendant's revocation and exclusion motion and the service of the notice.
Secondly, in relation to the submission about the importance of the chronology of events, Federal Agent Drummond was cross-examined about the dates of the filing of the revocation and exclusion motion and the receipt of the notice. Although he did not, understandably, recall the dates when the motion was filed and the notice was served, he did not accept that he took these matters "into account" when determining what s 202 notices he would issue (T 49.17-49.21). He was not cross-examined further upon this issue, nor was it suggested to him that he in fact did take those matters into account. I accept his evidence on this issue.
Thirdly, some wider background is important when evaluating this issue and when giving consideration to the "chronology of key events". There had been an investigation, in the lead up to the arrest of Mr Mavris, from at least 2017 as I have earlier found (see [41]ff, above), which was continuing. There was, following his arrest and death in late May 2018, some urgency that required proceedings to be commenced and restraining orders sought, notwithstanding the investigation continued: the sale of four of the Pyrmont Properties were scheduled to settle on 20 July 2018 (affidavit of Alexander Drummond affirmed 19 July 2018, par 12). The fact that the investigation continued, and there was an explanation for why proceedings were commenced, is not unimportant and gives necessary context: it is not a case where the investigation had run its course and been finalised, and thereafter proceedings had been commenced in the ordinary way; in that assumed scenario, one can readily see that any question about purpose would be quite unlikely to arise. But, as I have said, that is not this case.
Fourthly, the various matters raised by the fourth defendant (or that are otherwise relevant to what the fourth defendant has raised) that I have outlined above do not, in my view, individually or collectively, favour the inference that the fourth defendant appears to seek - namely that, given the fourth defendant had filed her revocation and exclusion motion, the issuing of the production orders necessarily was for the sole or dominant purpose of those proceedings. Contrary to what was argued by the fourth defendant, I do not consider that these matters support that inference, essentially for the reasons that I have given when addressing each of them.
The fourth defendant submitted that the effect of Federal Agent Drummond's evidence was that he sought production orders in October 2018 because he had been instructed to re-prioritise Operation Sawel (MFI 2, p 2). The ultimate thrust of this submission was not altogether clear, but appeared to be that, in some way, this tended to support the view that the purpose of seeking the production orders was the proceedings and, possibly, that the proceedings really were Operation Sawel. It may be accepted that the evidence of Federal Agent Drummond was to the effect that he had been instructed to re-prioritise Operation Sawel. But, again, I am unpersuaded that this adds to the question of purpose and it was not, at least clearly, identified why it did. That is particularly because Federal Agent Drummond's evidence was that Operation Sawel in fact covered not only the criminal investigation, but the controlled delivery and the entire criminal assets investigation associated with that (T 50.21-50.24; 51.17-51.26). Thus, if anything, this evidence, in my view, tends to support the Commissioner's position, not the fourth defendant's. It also appeared to be argued that the timing of the issue of the production orders, in October 2018, was a fact relevant to, and supportive of the fourth defendant's argument on, "purpose". I disagree. There is other evidence from Federal Agent Drummond, which I accept, that in my view explains why there was a delay (if that be the correct description of what occurred) between the commencement of the proceedings and the production orders that were sought, and issued, in October 2018 - namely, there was a linked criminal investigation. That evidence, in my view, negates any inference that otherwise might have been available based upon the argument of the fourth defendant.
The fourth defendant made reference to what was contained in the diary entries of Federal Agent Drummond in late October and on 1 November 2018. Although the fourth defendant did not rely upon them all, I will set out all the diary entries in evidence - dated 25 October, 26 October, 31 October and 1 November 2018. The entries relevantly were as follows:
1. 25 October 2018:
Respond to enquiries about s 202 production orders re: OP SAWEL. Fox Stevens conveyancing, Darren Bowles for Bowles lawyers as well as enquiries @ M Law group regarding Michael DOUHEIHI who did work @ Firmstone lawyers.
1. 26 October 2018:
Call to Michael Duihie - lawyer at EY lawyers formally (sic) Firmstone & Galilee. Sent production order via email…
1. 31 October 2018:
Op Sawel production order work identifying further targets of s. 202s. + review + catalogue information that has come in
1. 1 November 2018:
Op SAWEL exclusion application work for fresh production orders
The fourth defendant relied upon the 25 October 2018 diary entry as being the first reference in Federal Agent Drummond's diary relating to production orders (MFI 2, p 2), in aid of an overall submission that there was no documentary evidence of any consideration of issuing production orders before the commencement of proceedings. In my view, this submission is only partly correct given the content of exhibit C and, in any event, does not significantly advance the "purpose" issue - in the way argued by the fourth defendant - particularly given the cross-examination on that diary entry, referred to next.
When cross-examined about this, Federal Agent Drummond's evidence was, in effect, that, in connection with the entries on 25 and 26 October 2018, there was nothing within those entries "that go to the purpose, one way or the other, of obtaining the 202 production orders" (T 38.26-38.28). In relation to the diary entry of 31 October 2018, there was no material cross-examination upon it but, in connection with the diary entry dated 1 November 2018, Federal Agent Drummond accepted that the work referred to in the diary was classifying that "work in relation to [the fourth defendant's] exclusion application" (T 40.48-41.5). In my view, this evidence, such as it is, does not meaningfully advance the fourth defendant's position in connection with "purpose". The general tenor of the cross-examination was directed to establishing how Federal Agent Drummond had allocated his time on 1 November 2018 and, at least initially, he contested that he utilised his time on that day to obtain further production orders for the exclusion application, or at least did not clearly accept that he did (T 40.33-40.38). Nevertheless, later, as the fourth defendant submitted, Federal Agent Drummond accepted that he classified the work as relating to the exclusion application. The evidence did not develop whether that classification was in relation to those production orders that had recently issued, or any future ones.
The fourth defendant relied upon a number of emails that involved a forensic accountant qualified by the Commissioner, Shaun Mark. The emails relied upon were as follows:
1. Email from Alexander Drummond to Shaun Mark dated 30 April 2019:
Hi Shaun,
How are you going with Op Sawel?
Please let me know what information you require via S202 and I will request it.
Kind Regards,
1. Email from Mathew Short, an AFP litigation lawyer in the criminal assets litigation group, to Federal Agent Drummond dated 8 May 2019:
Hi Alex,
I have been provided a list of documents which Shaun requires.
Could you please pop around when you are free tomorrow so we can discuss.
Thanks,
In relation to the content of these emails, the fourth defendant pointed out that, on 16 May 2019 four production orders issued - namely, to St George Bank, Bendigo and Adelaide Bank Ltd, National Australia Bank Ltd and Bank of Sydney Ltd (see [20], above). However, as I have earlier noted, consideration was given to the need for production orders issuing to at least some of these entities - St George Bank, National Australia Bank and Bank of Sydney - in July 2018: see [70], above.
The fourth defendant also relied upon the following emails that were sent in July 2019 as follows:
1. Email from Mathew Short to Federal Agent Drummond dated 3 July 2019:
Hi Alex,
Have we now received any of the tracings we were waiting on?
1. Email from Federal Agent Drummond to Mathew Short dated 4 July 2019:
Hey Mate,
They arrived yesterday.
I need to get a further production order to find out what CBA account the bank cheque for $470,000 went to.
Hope to have that sent off by Monday.
1. Emails between Federal Agent Drummond and Shaun Mark dated 17 July 2019. These emails referred to a loan from Bank of Western Australia in connection with refinancing a property in Victoria Road, Marrickville. Ultimately, when Mr Mark requested information about that transaction, Federal Agent Drummond sent an email to Mr Mark as follows:
If you want it no dramas I can put in a s202 tomorrow.
In relation to these emails, the fourth defendant pointed out that on 10 July and 19 July 2019, three production orders issued - to the Commonwealth Bank, Ronayne Lawyers and BankWest (see [21]-[22], above).
Federal Agent Drummond was cross-examined about the email dated 30 April 2019. He did not accept that his purpose for seeking production orders was for preparing the expert report for Mr Mark nor did he accept the proposition that the purpose for the issuing of them was "solely" to provide Mr Mark with documents for his report. Rather, he distinguished, in his evidence, between the use of that material in his investigation on the one hand and the use of that material by Mr Mark for the preparation of his report on the other (T 43.45-43.49). Later, however, Federal Agent Drummond accepted that, in relation to the content of that email, he would not have sought a production order without the prompting of Mr Mark (T 52.7-52.9), but the overall effect of his evidence, including his re-examination, (which I accept) was that he maintained the distinction between the use of that material in his investigation, and the use of the material by Mr Mark for the preparation of his report. In relation to the email dated 8 May 2019, Federal Agent Drummond's evidence when cross-examined was not altogether clear, but the upshot of it was that he had been told that "certain documents were needed by Mr Mark for his expert report", and that Mr Short's role in the emails that passed was because he was "coordinating with Mr Mark his forensic accounting report as an expert for this litigation" (T 53.21-53.28).
Later, when cross-examined about a letter dated 11 June 2019, Federal Agent Drummond accepted that "[o]ne of the reasons for" the production orders issuing at that time "was to assist Mr Mark in finalising his expert report" (T 55.32-55.34). Federal Agent Drummond also accepted that the material produced in response to the four production orders that issued in May 2019 "could be used as evidence by the Commissioner in these proceedings" (T 56.44-57.2). Again, as with many of the matters that were raised by the fourth defendant, this evidence is not, in my view, at odds with what the Commissioner had accepted - viz., that a purpose of seeking the production orders was to gather evidence in the proceedings (see [53], above). Further, the evidence elicited does not distinguish between purpose and effect; the critical issue being considered is the former, not the latter. That evidence "could be used" clearly proves effect but it does not, in my view, in and of itself, prove the particular purpose - albeit that it may, and probably is, a step towards proving that matter. But what did not follow, here or elsewhere (on the question of "purpose" generally), was specific cross-examination directed to Federal Agent Drummond's reason or motivation for why he sought production orders to issue.
In connection with the emails dated 17 July 2019, the cross-examination of Federal Agent Drummond did not extend markedly beyond what was stated in, or is reasonably implied by, those emails - namely, that Federal Agent Drummond could endeavour to secure the information from those entities by a production order (T 57.11-57.48).
I have given particular consideration to the role of Mr Mark because, as I have earlier noted, his involvement is a possible point of distinction between the production orders that issued in 2018, and those that issued in 2019. Ultimately, I remain unpersuaded that the involvement of Mr Mark places a different complexion on Federal Agent Drummond's purpose in seeking production orders, as the fourth defendant argued. Rather, I accept, essentially as Federal Agent Drummond set out in his affidavit affirmed 16 May 2024, pars 151-153 (which I do not regard as undercut by his cross-examination), that his purpose was wider, involving the CACT investigation, albeit that he was, as the Commissioner essentially submitted, using Mr Mark to assist with those investigations.
In my view, the fourth defendant has failed to demonstrate, and persuade me, that Federal Agent Drummond, when applying for the issue of the production orders, did so for the sole or dominant purpose to obtain documents for use in these proceedings. I have, to this point, where appropriate, addressed and made findings about many if not most of the submissions advanced by the fourth defendant. I add the following further reasons.
First, the "contemporaneous" documents were limited and, even then, reveal little beyond what was essentially admitted by the Commissioner. For example, par 6.9 of Federal Agent Drummond's affidavit used to support the issuing of production orders, and the evidence elicited about that particular paragraph, does not satisfy me that the Commissioner used the power for the sole or dominant purpose to obtain documents for use in these proceedings. Further, in relation to exhibit C, that document tended to reinforce that position, in my view.
Secondly, I have found that there was an ongoing investigation. On the fourth defendant's "case theory", this was an inessential element, and that may be accepted: it is still open for Federal Agent Drummond to have a particular purpose in mind when seeking a production order irrespective of whether there is a wider investigation beyond the proceedings. But the fact there was one, and the consequence of that on why Federal Agent Drummond did things, was not firmly grappled with on the case that the fourth defendant advanced, in my respectful view.
Thirdly, to the extent the fourth defendant's essential or principal point was that, in substance, the "investigation" referred to by Federal Agent Drummond was the proceedings and that, in consequence, all references by him to "the investigation" should be understood as referring to the proceedings, I do not accept it. To the extent that this submission was anchored in the evidence of Federal Agent Drummond at T 52.7, I do not accept that this evidence establishes as much and nor does a wider assessment of his evidence.
Fourthly, and picking up a point made when dealing with the various strands of evidence relied upon by the fourth defendant, in my view, the evidence elicited in cross-examination did not, at least clearly, distinguish between purpose (that is, why something was done) and effect (that is, the result of doing that thing). Thus, for example, the acceptance by Federal Agent Drummond that documents produced in answer to a production order "could be used" or "would assist the Commissioner in the proceedings" addresses the latter issue but does not, in relation to the former, resolve whether the purpose was the sole or dominant one. Evidence of that kind is a step towards proving a particular purpose but does not, in my view, without more, establish that purpose. And that is as far as the cross-examination went. Again, it is worth observing that the Commissioner has admitted, in effect, that a purpose of applying for the production orders was to gather evidence in the proceedings.
Fifthly, I accept Federal Agent Drummond's evidence as to his purpose for seeking the production orders. As I have earlier noted, the fourth defendant did not seek an adverse finding about the manner in which he gave his evidence.
Given my ultimate finding, and my acceptance of Federal Agent Drummond's evidence in connection with the issue of "purpose", in my view, it necessarily follows that the fourth defendant's claim must be dismissed. In any event, as I later explain, in my view, by using the production order powers in s 202 of the POCA, the Commissioner did not secure any advantage of the relevant kind and to the relevant degree and, to be clear, I do not accept that the fourth defendant was disadvantaged in any way.
Before dealing with the fourth defendant's case on contempt, it is necessary to say something about the issue of construction raised by the fourth defendant in the written submissions filed, but not pressed at the hearing - namely, whether the power in s 202 could be used for the sole or dominant purpose of securing evidence in the proceedings (see [32], above).
It was also argued that "no legislation, including the POCA, pursues its purposes at all costs" and that "[n]owhere in the text has Parliament acted to authorise use of the power in contempt of court" (fourth defendant's reply submissions at [6] and [7]). The fourth defendant submitted that whilst it was accepted that the power in s 202 of the POCA "does not cease to be available after proceedings have commenced - however, the power in s 202 of the POCA cannot be used for the sole or dominant purpose of obtaining evidence in this proceeding" (fourth defendant's reply submissions at [8]).
As to these submissions (particularly the last one), as I have already noted, the fourth defendant expressly abandoned any construction argument seeking to constrain s 202, aside from the implied limitation on the exercise of the power so as not to authorise its use in circumstances that would amount to an interference with the administration of justice, and thus a contempt. Further, the submissions are, in substance, the contempt principle (explained below: see [105]ff) and the authorities relied upon do not, in my view, provide support for any wider principle that would constrain the use of the power in s 202 of the POCA.
Two matters relating to the construction of s 202 should be noted. First, there is no question about the permissibility of using the power in s 202 of the POCA following the commencement of proceedings: the power is not a pre-litigation provision and, thus, spent once proceedings under the POCA are commenced; rather, the power is available after the commencement of proceedings under Chapter 2 of the POCA: Mazzco No. 3 at [92]. Secondly, consistent with what I have later concluded, the use of the power is delimited by a further interpretive principle - namely, absent express language (or necessary intendment), a legislative provision will not be construed so as to authorise its use in the circumstances that would amount to an interference with the administration of justice and thus a contempt of court.
It is not, in my view, immediately obvious why, given the above, the section would or should be construed as containing a further implied limitation - to the effect that although the section can be used following the commencement of proceedings under the POCA, but not in a way that would amount to an interference with the administration of justice, a proceeds of crime authority is nevertheless not authorised to use the power for the sole or dominant purpose of securing evidence in the proceedings.
I have hesitated on whether I should resolve this issue (as invited by the Commissioner): I am particularly conscious of only having submissions from one party (on what would be an important point of principle), with the other determining not to make any given the forensic stance adopted. I am also mindful that resolving the issue is ultimately inessential to a determination of the fourth defendant's claim for relief: I have resolved the contested issues of fact about "the investigation" and "purpose" adversely to the fourth defendant and, further and in any event, determined that the Commissioner secured no advantages in using the production order power (nor was the fourth defendant disadvantaged by that use).
In those circumstances, I have not determined the further issue of construction raised by the Commissioner.
The power of the Court to prevent an abuse of its own process is wide: it authorises the Court to punish (or restrain) a litigant who, by steps taken separate from the proceedings, engages in conduct which interferes with the administration of justice in this Court. Relevant to what the fourth defendant argues, that interference may occur in circumstances where a party to proceedings seeks to advantage themselves in the litigation by the taking of steps that are not permitted by the processes of the Court: Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460, 467-468 and 473; [1982] HCA 65 ('Pioneer Concrete').
The fourth defendant submitted that the principles of contempt operate, in the present case, as an implied limitation on the general conferral of power in s 202: the provision should not be construed so as to authorise its use in circumstances that would amount to an interference with the administration of justice and thus a contempt. That principle, which the Commissioner did not contest, is supported by a number of authorities, notably Pioneer Concrete at 473; Caltex at 558; Nutricia at [119]; Lee at [319].
In Pioneer Concrete, it was expressed by Mason J in these terms (at 473):
A statute expressed in general terms should not be construed so as to authorize the doing of any act which amounts to a contempt of court.
Later, Mason J expressed the following (at 473):
Section 155, cast as it is in general terms, does not address itself to the question of contempt of court. It should therefore be read as not authorizing any action on the part of the Commission which would amount to such a contempt. Whether this leads to the conclusion that any action by the Commission which amounts to a contempt would necessarily stand outside the power which the section confers is a larger and more difficult question. It is possible to read the section as conferring power on the Commission to act in accordance with its terms, but subject to the law of contempt, so that action taken under the section is subject to the exercise by the Federal Court of its contempt powers. This appeals to me as a more sensible construction of the sub-section, one which avoids locating the ambit of the power at the point, not readily identifiable, where contempt begins. There are advantages in keeping questions of power and contempt separate.
The second passage of the reasons of Mason J distinguished between the question of power and the question of contempt, preferring the view that the relevant section confers a power to act according to its terms, but that the exercise was subject to oversight by the Court's ability to control its processes and the substantive law of contempt. In Nutricia at [119], Spigelman CJ, like Mason J, considered that "questions of power and contempt should be kept separate", and that when dealing with contempt a court should deal with that issue directly, "rather than indirectly through the prism of statutory interpretation". Nevertheless, Spigelman CJ acknowledged that dealing with the matters "separately", rather than as an implied limitation on a generally expressed power, was at odds with the position adopted by the Full Federal Court in De Vonk (at 572-573, 585, 588-589), and considered that De Vonk should be followed: at [119]-[122]. That approach is, I would observe, consistent with what was said in Lee at [319].
As to this last matter, I would add that neither party suggested that any different outcome would result from approaching the matter "separately", rather than as an interpretive principle in the present case - presumably because here, ultimately, the critical question is whether there has been, in the requisite sense and to the requisite degree, an interference with the administration of justice.
The Commissioner did not contest the proposition that the language of s 202, and the provisions of the POCA more generally, did not provide any clear expression (or necessary intendment) that would permit the conclusion that authorised the Commissioner taking steps to secure an advantage that would amount to an interference with the administration of justice and a contempt of court. Rather, the focus of the Commissioner's response was that, on no view could it be said that the Commissioner secured an advantage of the requisite kind by seeking production orders, and relying upon some of the material that was produced, with the result that a finding of contempt was simply not open.
In relation to this enquiry, it is important to emphasise the following matters. The "interference" with the administration of justice is used in the sense of requiring "impermissible interference", "improper interference" or "undue interference": Pioneer Concrete at 467 and 473; Nutricia at [141]. Thus, "mere 'advantage' will not… constitute an impermissible interference with court proceedings so as to amount to a contempt of court", nor is "any advantage…sufficient": Nutricia at [145] and [187]; Caltex at 558-559. To that same, or similar, end, it is not the case that any "effect" on extant proceedings will constitute a contempt: what is required is a finding "that a contempt of court has occurred or is threatened, being a 'real risk' of interference with the administration of justice" or "whether there is a 'substantial risk of serious injustice', not whether there might be such a risk": Nutricia at [143] and [180]. The criterion for relief was explained in Lee at [320] as follows (footnotes omitted):
It is important to recognise, however, that a contempt of court of the relevant kind occurs "only when there is an actual interference with the administration of justice" or "a real risk, as opposed to a remote possibility" of such an interference and that the "essence" of contempt of that kind is a "real and definite tendency to prejudice or embarrass pending proceedings" involving "as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case". The finding of such a real risk or definite tendency necessarily requires more than abstract assertion: it requires the finding at least of some logical connection between the action that is impugned and some feared impediment to the conduct of the proceedings that are pending, which impediment can properly be characterised as an interference with the administration of justice or, more specifically in a particular case, as unfairness to an accused.
The Commissioner submitted that it was an essential element of contempt, in the present context, that the statutory power be used in a manner "that gives a party an advantage which the rules of procedure would otherwise deny to the party" - citing Pioneer Concrete at 467-468 and Nutricia at [52]-[54], [115], [198] (Commissioner's submissions at [6.6]). That is a matter of some importance, which I will briefly explain.
In the course of submissions, both parties recognised that a measure of caution must be exercised when seeking to identify principles of general application from the authorities, given the facts in each case serve very much to explain the particular findings and the particular outcomes. That is especially so in the area of "advantage" so-called, which can be illustrated by the facts in some of the decisions to which I was referred. I will mention two: Brambles Holdings Ltd v Trade Practices Commission (No. 2) [1980] FCA 120; (1980) 44 FLR 182 ('Brambles') and Nutricia.
In Brambles, proceedings for recovery of penalties and for injunctions arising out of alleged contraventions of the Trade Practices Act 1974 (Cth) ('the TPA') were commenced by the Trade Practices Commission. Shortly prior to the time when the proceedings were "ready for trial", the Commissioner served notices, under s 155 of the TPA, upon the defendants. Those notices asked questions "clearly relevant to the main proceedings" (at 183). It was common ground that in those proceedings "discovery cannot be obtained nor answers to interrogatories compelled from a person against whom proceedings have been brought" (at 189). The Court concluded that s 155 did not vest power in the Commissioner to serve such a notice after proceedings had been commenced where that notice was directed to obtaining answers from a defendant which were relevant to the court proceedings against it (at 189). The finding made was that it was "perfectly clear that the service of the notice was for the purpose of obtaining information… which could not be obtained by a process in the court because discovery and interrogatories were denied to the Commission" (at 192). Accordingly, it was held that the giving of the notice "was an attempt to achieve by threats an advantage in proceedings already before the court which could not otherwise have been obtained and therefore… was a clear interference with the court" (at 192). Put simply, the advantage to the Commissioner in that case arose from the issuing of notices to secure answers to questions from the defendants that were relevant to the proceedings, in proceedings where discovery and interrogatories could not be sought - viz., the process undertaken was to circumvent the prohibition within the proceedings of the court processes and in circumstances that were not authorised by the TPA.
The position in Nutricia involved the NSW Food Authority issuing upon Nutricia a number of notices, pursuant to s 37 of the Food Act 2003 (NSW), requiring Nutricia to provide information and/or documents. Two of those notices were set aside. Prior to the issue of the notices, the authority instituted criminal proceedings against Nutricia for alleged contravention of the Food Act. Relevantly, in connection with the two notices that were set aside, they contained a detailed set of questions "accurately characterised as interrogatories"; it was accompanied by "an express statement that the information sought related to the charges" in the criminal proceedings; and the notices asked questions, "the answers to which would establish elements of the criminal charges" against Nutricia: Nutricia at [6]-[7]. Put shortly, it was held that there was no power in the rules of court (the Supreme Court Rules 1970 (NSW)) to require a defendant "in summary criminal proceedings" to answer interrogatories administered by the prosecutor: Nutricia at [13], [34]-[45]. And, further, to require those answers would amount to obtaining an advantage which could not be obtained in the proceedings in the Court: Nutricia at [13], [46].
There are a number of factual distinctions between the circumstances of these cases, and the present one including the following. What occurred here was the issuing of production orders directed to third parties and not the fourth defendant or indeed any of the defendants; the "approximately 50" documents produced were property-tracking documents and may fairly be described - as the Commissioner did - as routine property-tracking documents held by one or more of those third parties; and there was not, at the time any of the production orders issued or any time thereafter, any extant criminal proceedings against any of the defendants nor any question about, or relating to, privilege against self-incrimination or the accusatorial process more generally. Importantly, these cases illustrate that the advantage occurred because a statutory power to obtain evidence (specifically answers to questions the subject of the prosecution) was utilised when that very process was denied in the proceedings by the rules or processes of the court. This last matter was the, or at least a, substantive point made by the Commissioner: the Commissioner argued that, unlike these cases, and contrary to what the fourth defendant submitted, there was no serious question about the ability of the Commissioner to secure these documents through the court processes, such that it was not open to find that the Commissioner secured an advantage in the relevant sense. As I later explain, that is a submission I accept, and findings that I make.
Secondly, in relation to an (assumed) application to set aside a subpoena that sought property-tracking documents from a recipient of a production order, no attempt was made to adduce any evidence directed to establishing there was a basis to make any application of that kind. I will illustrate. If, as the fourth defendant would have it, there was a basis to set aside a subpoena seeking property-tracking documents to one or other of the recipients to the production orders, then that is something that, presumably, could have been shown on the evidence. It was not. It might also have been demonstrated by submissions directed to one of the production orders and the material produced in response. But it was not. To the extent that there was some general evidence in the affidavit of the solicitor for the fourth defendant (affidavit of Christopher Nehme sworn 8 September 2021, referred to above), I would simply observe that no attempt was made to rely upon that evidence in submissions and, in any event and in my view, that evidence rose no higher than some very general statements about "giv[ing] consideration" to advising the fourth defendant to make an application had subpoenas, rather than production orders, issued for the property-tracking documents. Put simply, I am not persuaded there was, if subpoenas rather than production orders had issued seeking production of the property-tracking documents, any basis to set those subpoenas aside.
Relatedly, in my view, the fourth defendant's submissions about losing an opportunity to make one or other applications to the Court - if subpoenas had issued, rather than production orders - raises no more than a highly theoretical prospect of an application of some kind being made in connection with a subpoena to an unspecified production order recipient. Again, to be clear, no attempt was made to demonstrate what in terms that opportunity in fact was, nor the value of that opportunity. Put simply, I am not persuaded any opportunity was lost.
Thirdly, in relation to an (assumed) application to limit the scope of any subpoena that sought property-tracking documents from a recipient of a production order, then the same issues arise as they do in connection with the (assumed) application to set aside a subpoena that sought property-tracking documents from a recipient of a production order referred to in [133], above. Which third parties would be involved? What would the substance of the application be? What arguments would be advanced? The submissions did not address, by reference to the evidence, these or similar questions. Put simply, I am not persuaded there was, if subpoenas rather than production orders had issued seeking production of the property-tracking documents, any basis to "limit the scope" of any such subpoenas. Again, as with the (assumed) application to set aside a subpoena that sought property-tracking documents, in my view, the fourth defendant's submissions about losing an opportunity to make one or other applications to the Court - if subpoenas issued, rather than production orders - to limit the scope of any subpoena raises no more than a highly theoretical prospect of an application of that kind being made in connection with an unspecified production order recipient. As with the (assumed) application to set aside a subpoena that sought property-tracking documents from a recipient of a production order, no attempt was made to demonstrate the value of any opportunity said to have been lost. Put simply, I am not persuaded any opportunity was lost.
Fourthly, in relation to applications in connection with "privilege" over the documents produced, the fourth defendant submitted that she "would have made (or would have had an opportunity to make)…any necessary applications" to protect any privileged communications - both her own claim, and for the estate of her late husband (fourth defendant's submissions at 91). It is necessary to deal separately with the submissions directed to the fourth defendant in her own capacity, and those directed to her in her capacity as the executor of the estate of her late husband.
In relation to her own claim for privilege, I am unprepared to draw any inference (or to make any finding) that the fourth defendant would have made any such application. The fourth defendant did not identify any evidence to support the drawing of that inference. As with the earlier submissions (dealing with "applications", had subpoenas issued: see [131], above), that is not the only difficulty with this submission. Another relates to the fact that the fourth defendant did not seek to prove that she would have done so: her affidavit did not address this issue at all, and nor did the affidavits of her solicitors. There is a further matter that is also relevant to this issue - namely: what are the privileged documents? No submissions were directed to explaining how the fourth defendant had such a claim, nor identifying any documents that were produced in response to the 17 production orders that were the subject of any proper claim for privilege. In my view, it has simply not been demonstrated that the fourth defendant had any claim for privilege over any of the documents that were produced in response to the production orders. Further, I do not accept the fourth defendant "would have made" any "privilege" claim, nor that she lost any "opportunity", as submitted.
In relation to claims for privilege made by the estate of Mr Mavris (which the Commissioner accepted could be made), different considerations arise. It may be inferred, and thus accepted, that, had subpoenas issued, the fourth defendant as executor of the estate would have made any appropriate claim for "privilege" over documents produced. The submissions, however, did not address how any such claims conferred an entitlement on the fourth defendant, in her own capacity, to the relief sought. Nevertheless, a number of matters warrant emphasis, and tell against acceptance of the fourth defendant's submissions. Those matters are as follows.
Although documents produced in response to one or other production orders included some documents that were "potentially" identified as being subject to legal professional privilege, they were produced to the solicitors for the fourth defendant by the Commissioner on 29 April 2021 (affidavit of Christopher Nehme sworn 8 September 2021, par 16; letter from the Commissioner dated 28 April 2021. It appears that those documents relate to some (unknown number of) communications from a law firm, Firmstone Legal: affidavit of Christopher Nehme sworn 8 September 2021, pars 14-16; letter from the Commissioner dated 28 April 2021. No submissions were directed to any of this evidence by either party. The solicitor also gave some generalised evidence about it being "reasonable to assume" that some of the material that was sought was "subject to legal professional privilege" or "capable of being subject to legal professional privilege" (see, for example, affidavit of Christopher Nehme sworn 8 September 2021, pars 62-63), but no attempt was made to prove that these documents in fact were privileged, nor that there were any others that might be, or were, privileged.
Thus, the fourth defendant, despite having access to all the material produced in response to each of the 17 production orders since 29 April 2021, did not attempt, either by evidence or submissions, to identify by description those documents, and the number of documents, that were the subject of proper and valid claims for privilege and which third party produced them. These matters, in my view, impress as being not unimportant - far from it: the fourth defendant argues she "would have made", or potentially "would have made", an application about privileged documents had subpoenas, rather than production orders, issued, but has not proven there is any viable claim in relation to any document that was produced in response to the production orders. Further, the fourth defendant seeks an overall finding that the Commissioner is in contempt of court, justifying the imposition of a suite of serious sanctions, including that the Commissioner be restrained from using all documents produced under the production orders, yet this detail is missing. I will give one illustration of the problem presented by the absence of this detail. Let it be assumed that there was one document out of the 1,116 documents produced that was privileged. The tenor of the fourth defendant's argument is that by reason of the production of that single document, in and of itself, and without knowing anything about the document or its materiality (and putting to one side the fact that any claim for privilege over the document related to another party, and not the fourth defendant in her own capacity) mandates a finding that the Commissioner has been advantaged, and the fourth defendant disadvantaged, justifying the relief that is sought.
Further, the fourth defendant has not demonstrated that any of the "approximately 50" property-tracking documents obtained and deployed by the Commissioner could be, or were, the subject of any viable claim for legal professional privilege, nor was this suggested during submissions. The fact that they have been used by the Commissioner without any specific objection taken by the fourth defendant rather tends, at least practically, to demonstrate that they do not attract any privilege.
There is a further matter. It was not suggested that the Commissioner generally, nor Federal Agent Drummond specifically, had had access to - or used in any way - any privileged documents. It is, therefore, not a case concerning a party improperly (or otherwise) taking advantage of information that is privileged.
I am unpersuaded that the Commissioner has secured any advantage in the circumstances, or anything approaching this. Rather, I consider that what has been raised by the fourth defendant rises no higher than a highly theoretical complaint about having been disadvantaged without actually demonstrating what that disadvantage was and why it was material.
I return to the present case. Aside from advancing these submissions, the fourth defendant did not seek to demonstrate (by submission or otherwise) that any particular production order, or any number of them, lacked a legitimate forensic purpose or that the property-tracking documents sought in those production orders lacked apparent relevance.
In relation to the making of a production order, a magistrate may make a production order requiring a person to produce (or make available) one or more property-tracking documents (s 202(1)(a) and (b)) but is not to make the order unless the magistrate is (relevantly) satisfied that the person "is reasonably suspected of having possession or control of such documents" (s 202(2)(a)). Section 202(5) defines "property-tracking document". It is convenient to illustrate this further requirement by reference to s 202(5)(a), which provides:
(5) Each of the following is a property‑tracking document:
(a) a document relevant to identifying, locating or quantifying property of any person:
(i) who has been convicted of, charged with, or whom it is proposed to charge with, an *indictable offence; or
(ii) whom there are reasonable grounds to suspect of having engaged in conduct constituting a *serious offence;
(Underlining added)
Each of ss 202(5)(a)-(e) defines a property-tracking document as being a document "relevant to" an identified subject matter. The fourth defendant's submissions did not engage with the terms of this section; the confined submission put was in the terms earlier identified. Given the terms of s 202(1), (2) and (5), it is difficult to accept that there is any appreciable difference between what might be amenable to a subpoena and what can be the subject of a production order. In my respectful view, there is not. To the extent there are differences, I consider them to be immaterial, as the Commissioner essentially submitted, and very much theoretical.
Whilst it may be accepted that it is impermissible for a subpoena to be used to "fish", as the fourth defendant argued, it does not follow, in my view, that such a course is permissible in connection with a production order. No attempt was made to explain how that could occur given the terms of s 202 (nor, as I have already noted, was the section referred to as part of the arguments advanced) and, perhaps more relevantly, no attempt was made to explain how that occurred in connection with any one of the 17 production orders issued. On the contrary, I consider that the nature of the material (namely, property-tracking documents, as defined) together with the requirement in s 202(5) that the property-tracking document be "a document relevant to identifying, locating or quantifying property of any person" convicted etc. of an offence provides the relevant nexus.
I do not consider that any of the matters raised, individually or collectively, are likely to give rise to any disadvantage to the fourth defendant nor, to be clear, to confer any advantage upon the Commissioner.
The fourth defendant then argued that, unlike a subpoena, a production order "can be made without notice" to the fourth defendant (or the Court), "does not require access to be given to" the fourth defendant and "is issued outside of the Court for which production is sought" (fourth defendant's submissions at 91(iv), (v) and (vii)). These matters may be accepted as minor points of distinction, but I consider them to be, at best, neutral. Even accepting they are points of distinction, in my view, contrary to what the fourth defendant submitted, it does not follow (and I do not accept) that these matters have the result of advantaging the Commissioner, or disadvantaging the fourth defendant. No attempt was made by the fourth defendant to demonstrate how, in practical terms or at all, the Commissioner had been advantaged by any one or more of these matters or that she had been disadvantaged. Further, as has been earlier noted, the mere fact that the statutory power has been exercised, in accordance with its terms, is insufficient to give rise to an advantage of the requisite kind, and a contempt of court.
In relation to each of the seven matters raised by the fourth defendant, it is, in my view, important to note that she has had all the material that has been the subject of the production orders for nearly three years. If, as was submitted, there were, as a practical reality, advantages conferred upon the Commissioner that were denied by the Court's processes, then the fourth defendant has simply failed to demonstrate this. I do not consider that, by the use of the production order power, the Commissioner secured any advantage of any kind in the proceedings, nor do I consider that the fourth defendant was disadvantaged in any way by the Commissioner doing so. Further, nothing raised by the fourth defendant persuades me that the material sought by the production orders could not have been secured by a subpoena.
In my view, the fourth defendant has failed to prove that the Commissioner, by the use of the production order power, has secured any advantage; nor has the fourth defendant been disadvantaged, as argued. That is so irrespective of whether the documents are the ATO documents, or otherwise. Again, as with the other arguments raised by the fourth defendant, the arguments rise no higher than a highly theoretical complaint about having been disadvantaged without actually demonstrating what that disadvantage was, and why it was material.