Joukhador as Principal Solicitor of Thomas Booler Lawyers v New South Wales Commissioner of Police

Supreme Court of NSW|2017-09-18|Before: Beech-Jones J

Solicitor of Thomas Booler Lawyers (Plaintiff) New South Wales Commissioner of Police (First Defendant) Detective Senior Constable Daniel Opdam (Second Defendant) Stephen Lister (Third Defendant) Representation: Counsel: A Tokley SC; P Batley; F Graham (Plaintiff) P Singleton (Defendants)

Solicitors: Hearn Legal (Plaintiff) Henry Davis York (First and Second Defendant) Crown Solicitors Office, Submitting Appearance (Third Defendant) File Number(s): 2017/151403

Background

The plaintiff is a legal practitioner. Since 2005 he has been the principal of the legal practice, Thomas Booler Lawyers. This firm's practice areas include personal injury. In 2011 the principal office of the firm's practice moved to an address in Auburn.
On 5 April 2017 two search warrants issued by the third defendant were executed on the Auburn premises. A third search warrant was executed on premises then being used by the firm in Bankstown.
At the time of the execution of the search warrants, the plaintiff was handed the two search warrants for the Auburn premises and an occupier's notice for one of those search warrants. The occupier's notice for the other search warrant was later supplied to him. A search warrant and occupier's notice was also supplied in relation to the Bankstown premises. At some stage records of the items seized were also provided.
Other than the description of the premises to be searched, all three search warrants were relevantly identical. The search warrants included the statement that "The applicant [ie, the second defendant], has reasonable grounds for believing that the things listed in the description of items to be seized in the search warrant are connected with the following searchable offences: fraud, s 192E Crimes Act 1900". No other description or particulars of the suspected offences were provided.
The description of the items that could be searched for in the premises was as follows: "Thomas Booler Lawyers Business records relating to employees and wages Thomas Booler Lawyers trust account records including: - Receipts cashbook for period January 2012 to present - Payments cashbook for period January 2012 to present - Reconciliation and balance statements for period January 2012 to present - Client ledgers for all clients listed in Schedule of claims - Receipts and payments requisitions for clients listed in Schedule of claims - Transfer journals for clients listed in Schedule of claims Documents relating to clients/claims listed in Schedule of claims, including: - Claim forms - Medical/expert reports - File notes and correspondence Electronic storage devices including computers, hard drives, flash drives containing: - Electronic diaries - Documents relating to clients/claims listed in Schedule of claims, including: Claim forms Medical/expert reports Invoices and receipts File notes and correspondence Arslan & Associates Business records relating to employees and wages Business records relating to clients listed in Schedule of claims" (emphasis added)
The reference to "Arslan & Associates" in this part of the search warrant is a reference to a firm of interpreters who, as I understand it, provide interpreting services to the plaintiff when taking instructions from his client.
The reference to the "schedule of claims" in this part of the search warrant is a reference to a table that was annexed to the search warrant. The table set out an alphabetical list of approximately 160 to 180 clients of the firm, a reference to the insurer relevant to their claim, the insurer's internal reference number and the firm's reference number for that client.
It seems that a vast amount of material was seized when the warrants were executed. In an affidavit sworn 29 August 2017, the plaintiff summarised the material that was seized as including in excess of 29,000 pages of documents, 45,000 pages of documents in electronic format and a number of hard copy print-outs from the firm's practice management system that exceeded 12,000 pages. He stated that the total number of current and former clients who allegedly had privileged material seized was at least 290 and that the total number of current and former clients who had non-privileged material seized was more than 810.
Since the time of the execution of the warrant the plaintiff has been asserting claims for legal professional privilege in respect of the documents that were seized. On 19 May 2017, the plaintiff filed a summons in this Court which sought declaratory relief in respect of his claims of legal professional privilege over many or most of the documents that were seized. At some point, the solicitors for the plaintiff sought access to documents referred to in subclause 13(1) of LEPRA. As I will explain, this was refused because a certificate had apparently been issued by the Third Defendant under regulation 14 thereof. Those provisions are discussed below.
On 25 July 2017, the plaintiff's solicitors lodged a form in the Registry of this Court. The form was entitled "Application to the Registrar to request the production of a filing document or any other document from any other court or tribunal." This appears to be a form issued by the Registry to facilitate the production of material from other courts to this Court pursuant to UCPR 33.13. The items sought in the document are the documents listed in cl 13(1) of the LEPRA regulation, as well as other documents required to be retained pursuant to cl 14 of the LEPRA regulation.
The form makes provision for parties to specify why the documents have been requested and now they are relevant to the relevant case pending in this Court. The form lodged by the plaintiff stated as follows: "The plaintiff by notice of motion filed on 25 July 2017 is seeking to amend the summons in these proceedings. By that amended motion the plaintiff is seeking prerogative relief under s 69 of the Supreme Court Act 1970 to quash the warrants described above and declaratory relief under s 25 of the Supreme Court Act 1970...whether the warrants were validly issued or not."
I have already referred to UCPR 13.13 twice. That rule provides: 33.13 Documents and things in the custody of a court (1) A party who seeks production of a document or thing in the custody of the court or of another court may inform the registrar in writing accordingly, identifying the document or thing. (2) If the document or thing is in the custody of the court, the registrar must produce the document or thing: (a) in court or to any person authorised to take evidence in the proceeding, as required by the party, or (b) as the court directs. (3) If the document or thing is in the custody of another court, the registrar must, unless the court has otherwise ordered: (a) request the other court to send the document or thing to the registrar, and (b) after receiving it, produce the document or thing: (i) in court or to any person authorised to take evidence in the proceeding as required by the party, or (ii) as the court directs..
As foreshadowed by the above extract from the form filed in the Registry, on 4 August 2017 the plaintiff filed an amended summons. The amended summons added, inter alia, claims for relief quashing the warrants and orders requiring the delivery to the plaintiff of the material seized.
The grounds upon which the warrants were said to be invalid are pleaded in the amended summons as follows: "1. The search warrants do not state with sufficient particularity the searchable offence in relation to which the warrants were issued. 2. A description of the things which the search warrant authorised searching for, seizure of and removal from the premises is unjustifiably wide."

Statutory Provisions

For the purposes of this application, it suffices to state the relevant provisions of LEPRA concerning the issue of the search warrants are ss 47(1), 48(2), 62(1) and 62(3) which relevantly provide: 47 Power to apply for search warrants (1) A police officer may apply to an eligible issuing officer for a search warrant (other than a criminal organisation search warrant) in respect of any premises if the police officer believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant. … 48 Issue of search warrants … (2) An eligible issuing officer to whom an application is made for a covert search warrant who is not satisfied that there are reasonable grounds for issuing the covert search warrant may, at the request of the eligible applicant (if the eligible applicant is a police officer), instead issue a search warrant that may not be executed covertly, but only if satisfied that there are reasonable grounds to do so. … 62 Information in, and consideration of, application for warrant (1) An eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information: (a) the name of the applicant and details of the authority of the applicant to make the application for the warrant, (b) particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved, (c) the address or other description of the subject premises, (d) if the warrant is required to search for a particular thing - a full description of that thing and, if known, its location, (e) if the warrant is required to search for a kind of thing - a description of the kind of thing, (f) if a previous application for the same warrant was refused - details of the refusal and any additional information required by section 64, (g) any other information required by the regulations. … (3) An eligible issuing officer, when determining whether there are reasonable grounds to issue a warrant, is to consider (but is not limited to considering) the following matters: (a) the reliability of the information on which the application is based, including the nature of the source of the information, (b) if the warrant is required to search for a thing in relation to an alleged offence - whether there is sufficient connection between the thing sought and the offence.
As I will explain, ground 2 of the plaintiff's amended summons is focused on so much of this legislative scheme that requires a connection between the "thing" being sought to be searched for and the relevant "searchable offence" specifically the requirement that the relevant eligible issuing officer give consideration to the existence of that connection.
Subclause 13(1) of the LEPRA Regulations specifies that documents "must be kept" in relation to the warrant. It provides: 13 Keeping and inspection of records (1) The following documents must be kept in relation to each warrant to which this subclause applies that is issued: (a) any written application for the warrant, (b) any record relating to the warrant made by or on behalf of an authorised officer or eligible issuing officer (as the case requires), (c) a copy of any occupier's notice, (d) a copy of any adjoining occupier's notice, (e) any report on the execution of the warrant (including a copy of any receipt provided to the occupier under clause 9 or 10).
Subclause 13(4) provides that the documents "must be kept for at least six years from the date on which the warrant or notice was issued", and in cases such as this "must be kept at the Local Court registry." On this application it was not in issue that if documents are kept at the Local Court Registry then "they are documents in the custody of another court" for the purpose of s 33.13.1.
Subclause 13(7) of the LEPRA Regulation enables an occupier to inspect the documents referred to in subclause 13(1), at the relevant court registry that keeps the documents. However, this is subject to cl 14 which provides: 14 Certified records not available for inspection (1) An eligible issuing officer may at any time issue a certificate to the effect that the officer is satisfied that: (a) a document or part of a document referred to in clause 13 contains matter: (i) that could disclose a person's identity, and (ii) that, if disclosed, is likely to jeopardise that or any other person's safety, or (b) a document or part of a document referred to in clause 13 contains matter that, if disclosed, may seriously compromise the investigation of any matter. (2) The document or part of the document to which the certificate relates is not to be made available for inspection under clause 13 (6) or (7). (3) The certificate is to be kept with the document to which it relates. (4) An eligible issuing officer (whether or not the one that issued the certificate) may revoke the certificate if satisfied (after consideration of submissions from any interested party) that disclosure of the matter to which it relates is no longer likely to jeopardise any person's safety or seriously compromise the investigation of any matter.
As stated, in this case the third defendant issued a certificate under subclause 14(1) of the LEPRA regulation. Hence the plaintiff was unable to inspect the documents specified in subclause 13(1), including the application for the search warrants. It was for this reason that he made application for access to the documents under UCPR 33.13 on 25 July 2017. It was common ground that, subsequent to the making of that application, the Registrar requested the relevant documents from the Local Court and has received them but has not yet "produced" them to the Court or any other person.
Further, as it is conceivable that the matters that justified the third defendant issuing the certificate under cl 14 could also justify a claim for public interest immunity, it was agreed that, if this Court was otherwise minded to direct that the documents be provided to the parties, it should allow the first and second defendants first access to the documents in order to consider, and if so advised, make a claim for public interest immunity.

Approach to Access

The first issue that arose between the parties concerned the approach the Court should adopt in considering whether to direct production under UCPR 33.13(3)(b)(ii) of documents obtained from another court. The first and second defendants submitted that the matter should be approached on the basis that the documents had been subpoenaed from a third party. They submitted that the Court should therefore apply the test that is applied when documents are produced on subpoena and an application is made for access to such documents, namely, that the moving party demonstrate a legitimate forensic purpose and, according to the plaintiff's counsel, establish "a concrete basis for believing the documents will materially assist the party seeking the documents."
The plaintiff contends that is not the correct approach. He contends the Court should simply apply a test appropriate to applications for discovery, namely, by merely asking whether documents have apparent relevance to the issues in proceedings.
In the end result, I do not consider it necessary to decide this issue. Instead, I will assume in the first and second defendants' favour that the matter should be determined on the basis that the documents produced by another Court under UCPR 33.13 are, in effect, provided pursuant to a subpoena. That said, there is much to support their contention in that UCPR Pt 33 is entitled "subpoenas"; UCPR 33.3(2)(b) precludes the issue of subpoena to a court and forces a party to invoke UCPR 33.13; generally courts are not litigants, or at least active litigants, in proceedings but are akin to third parties providing documents and UCPR 33.13 appears to envisage a procedure for production and access similar to that used for subpoenas.
The parties also disputed the appropriate test which should be applied in determining whether to order the production of documents on subpoena and then making provision for access.
The plaintiff was content to adopt my analysis in O'Shane v Harbour Radio [2014] NSWSC 93 at [36] to [40], specifically my consideration of the "on the cards" test enunciated in Alistair v The Queen (1985) HCA 85, 154 CLR 404.
The first and second defendants' counsel, Mr Singleton, respectfully submitted that, insofar that in O'Shane I applied the "on the cards" test to civil proceedings, I erred. Instead he submitted that the Court should adopt a more stringent test apposite to civil proceedings which he formulated in the manner I have referred to earlier, namely, there must be a "concrete basis for believing the documents will materially assist the party seeking the documents".
Again, for the purpose of deciding the matter, I will assume without deciding that the first and second defendants preferred approach is the correct one.
That said, I repeat three points I made in O'Shane at [39] to [40] concerning the approach to subpoenas. First, as the test for production is applied prospectively, the party seeking production will "usually not know what documents will be caught or what they will say". Second, there is always a possibility, which may be a strong one, that the documents will not assist and may in fact damage that party's case. Thirdly, it may be the case that the documents sought will assist the case of both parties.

Materially Assist the Plaintiff's Case

Senior counsel for the plaintiff, Mr Tokley SC, submitted that the materials sought were relevant to ground 2 of the Amended Summons. He contended that there is a sufficient likelihood that material will assist his client's case such that his client can meet whatever is the relevant formulation of the test is to be applied for the provision of documents under UCPR 33.13(3)(b)(ii). Mr Singleton submitted that there was no basis for concluding that.
Mr Tokley SC pointed to the discussion in George v Rockett (1990) 170 CLR 104 and the necessity to demonstrate reasonable grounds for believing there exists the requisite connection between the suspected offences and the objects sought to be seized before an application for a search warrant can be validly granted.
Thus, in George v Rockett, the Court stated (at 117): "It is by reference to the means of identification of the object of the search that the sufficiency of both reasonable grounds for suspecting and reasonable grounds for believing must be judged. Where a specific object is identified, the question whether there are reasonable grounds for believing that, if it exists and is found, it will afford evidence as to the commission of an offence is a discrete question to be answered according to the facts set out in the complaint. Where the object is identified by description, the broader and less specific the description, the more difficult it is likely to be to satisfy the requirement of reasonable grounds for believing that a thing answering the description will afford evidence of the commission of an offence. Conversely, the narrower and more specific the description, the more difficult it may be to satisfy the requirement of reasonable grounds for suspecting that the designated object is in the particular location." (emphasis added)
Further, in describing the relevant strengths and weaknesses of the drafting of the search warrants in wider and narrower terms, the Court stated (at 118): "The wider and less specific the description of the object, the wider will be the powers of seizure which the warrant confers. On the other hand, as has been seen, the wider and less specific the description of the designated object, the more difficult will be the task of persuading the justice that there are reasonable grounds for belief that the object so described will, if found, afford evidence of the commission of the particular offence. Thus, the requirement of "reasonable grounds for believing" in par. (b) performs the important function of preventing the authority to search and seize which a warrant confers from being worded in unjustifiably wide terms." (emphasis added)
In George v Rockett, the Court gave an example of the difficulties presented by search warrants drafted in wide terms by considering a case where it is said there are reasonable grounds for believing that the books of the company would record evidence of misappropriation by an executive. The Court stated (at 119): "Suppose the sworn complaint placed before a justice establishes reasonable grounds for suspecting that the books and records of a listed public company in respect of a particular financial year contain an entry which will afford evidence that an executive of the company has appropriated a sum of money to the credit of his personal account with a particular bank and the complaint shows that there is evidence that the executive had no authority so to apply the money. In such a case, the complaint would establish reasonable grounds for suspecting that the particular entry existed and reasonable grounds for believing that, if it did exist, it would (i.e. "will") afford evidence of the commission of an offence. The complaint before the justice would, in those circumstances, be adequate to justify the issue of a warrant to search for and seize any written entry to the designated effect in the company's books and records for the relevant year. It would, of course, be necessary that the suspected entry be identified with sufficient precision. On the other hand, the material before the justice could not justify the issue of a warrant authorizing search for or seizure of all the books and records of the company for the particular year. First, if the object of the authorized search and seizure were described in terms of "all those books and records", the material before the justice would not establish that the object so described would afford evidence of the commission of an offence. That material would only have established reasonable grounds for suspecting that the object (i.e. the books and records for the relevant year) contained an entry that would afford such evidence. Secondly, even if the material before the magistrate had gone so far as to establish reasonable grounds for believing that such an entry existed somewhere in those books and records, the description of the object of the authorized search and seizure would be unjustifiably wide. It would extend to authorizing search for, and seizure of, records which were unrelated to the particular entry and which were not suggested to afford evidence of the relevant kind." (emphasis added)
In George v Rockett, the High Court found that while there may have been evidence to demonstrate a reasonable basis for believing that the items sought, namely, extracts from the Police Commissioner's diary, were in existence, there was an insufficient material placed before the issuing magistrate to warrant the conclusion that there were reasonable grounds for believing that they were evidence of the commission of an offence (at p 120). Accordingly, it was held that the relevant magistrate did not have power to issue the warrants (at p 122).
Two matters should be noted about George v Rockett. First, the reference to "unjustifiably wide terms" in the extract in [36] is replicated in ground 2 of the amended summons. As formulated, it does not properly identify a basis for judicial review, although that does not represent an impediment to the success of this application. It will be necessary for the plaintiff to translate that assertion into grounds that reflect the more established grounds, eg, a failure to take into account a relevant consideration or a contention that the Third Defendant could not have been satisfied of the relevant statutory test because of the material that was placed before him.
Second, some care must be taken in applying the observations in George v Rockett which concerned a particular statutory regime for the issue of search warrants to applications for search warrants under LEPRA. Nevertheless, subsection 62(3) of LEPRA obliges the eligible issuing officer to, at the very least, "consider" whether "there is a sufficient connection between the thing sought [by the warrant] and the offence." For the purpose of this application, it is at least sufficiently arguable this requires an active consideration by the eligible issuing officer as to whether there is a sufficient connection between the things sought by the warrant and the relevant offence the subject of the warrant. In that respect, the discussion in George v Rockett is apposite.
I have already stated the offence listed in the search warrant was "fraud". In his affidavit the plaintiff states that when the search warrants were executed he was advised by one of the officers involved that he was a "suspect". After the search warrants were executed he has received some heavily redacted statements from some of his clients waiving legal professional privilege. One of those statements recounts as follows: "I have been informed by police that they are investigating Thomas Booler Lawyers in relation to unauthorised deductions for costs and disbursements. I have also been informed that documents relating to my claim have been uplifted from Thomas Booler Lawyers by police in connection with that investigation."
Beyond this, the plaintiff does not know the nature of the allegations that are being investigated.
I have also set out above the documents sought by the search warrants. The scope of the documents sought in relation to each client is very wide and appears to expand beyond matters which would only be relevant to an allegation that there had been unauthorised deductions for costs and disbursements. However, by far the broadest category of documents sought is that part of the search warrant that seeks "business records relating to employees and wages". This part of the search warrant is unrestrained in time and thus extends as far back as 2005 when the plaintiff became the principal solicitor at Thomas Booler Lawyers. The documents sought extend beyond those relating to employed solicitors or even paralegals. They presumably include receptionists and the like. Further, the documents sought not only concern payments made to those employees but all documents which relate to all employees. This must extend to a significant number of documents that do not concern any client, any legal costs and disbursements, the affairs of any insurer, the circumstances surrounding the retaining of an interpreter or the firm's dealings with any doctors or medical reports.
There is no doubt that with sufficient ingenuity one can conceive of a fraud so wide in scope and on such a large scale that it would justify seizing documents within this category. However, equally, there is also a real prospect that this category of documents, namely "business records relating to employees and wages" is an "over-reach" that is, it extends beyond anything that has sufficient connection to whatever allegation of fraud is being made.
To use the defendant's phraseology, there is a concrete basis for believing that the scope of the documents sought by the search warrant may not have a sufficient connection with the offences that are being investigated. If that is the case, then in turn there is a concrete basis for believing that the eligible issuing officer did not "consider" whether "there is a sufficient connection between the thing sought and the offence" as they were required to do under subs 62(3) of LEPRA. It follows from this conclusion that, subject to any considerations of public interest immunity, I will make an order for the production of the documents to the parties under r 33.13(c)(ii). [Matter stood down. Parties provided agreed short minutes and made submissions on costs.]
The parties have debated the appropriate order for costs. I think it appropriate that the plaintiff have some costs as he has been successful on a discrete issue. There are two caveats to that. The first is that, if the end result of a public interest immunity claim is that he does not obtain access to any document then the relevant judicial officer who determines that may consider that the defendants should have their costs of that application. Secondly, it is not obvious from the ground 2 pleaded in the Amended Summons why it was necessary to obtain these documents in order to make good the claim that the search warrant was invalid. That was, however, spelled out with some clarity in the plaintiff's written submissions dated 4 September 2017.
Accordingly, I order the first and second defendants to pay the plaintiff's costs of and incidental to this application on and from 6 September 2017.

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: 22 September 2017

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