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[1999] FCA 591
Federal Court of Australia
1999-05-06
Mansfield J
Original judgment source is linked above.
REASONS FOR DECISION 1 By motion dated 13 April 1999, the first respondent, National Crime Authority, ("NCA") applied to summarily dismiss the application, and alternatively sought that it be permanently stayed, pursuant to O 20 r 2 of the Federal Court Rules ("the Rules"). The NCA contends that no reasonable cause of action is disclosed, and that the proceeding is an abuse of the process of the Court. 2 The power under O 20 r 2 should be "sparingly employed": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. It is accepted by the NCA that if there is a real question of fact or law to be determined, then its application may be refused: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; Webster v Lampard (1993) 177 CLR 598 at 602. The NCA contends that there is no real question of fact or law to be determined in the claim against it. It is also submitted that the claim against it is brought for the dominant purpose of challenging certain taxation assessments or anticipated taxation assessments against the applicant Jennifer Jean Woodroffe ("Ms Woodroffe"), against her husband and against certain associated corporate entities, and that there is no genuine claim for relief against the NCA. In that regard, reliance is placed upon Williams v Spautz (1991-1992) 174 CLR 509. 3 I rejected that application on 29 April 1999. These are my reasons for that decision. 4 Ms Woodroffe's application effectively seeks to challenge the issue and execution of a warrant issued on 22 May 1998 by Mr Gurry SM ("the warrant"). It also seeks to challenge the legality of the provision to the Deputy Commissioner of Taxation ("the DCT") of certain of the information procured on the execution of the warrant. 5 The warrant was issued under s 3E of the Crimes Act 1914 (Cth) ("the Crimes Act") to Charles Mark Williams ("Mr Williams') in respect of a house at 2 Prescott Terrace, Toorak Gardens ("the premises"). It records that the issuing officer was satisfied that there were reasonable grounds for suspecting that there were at the premises evidential material satisfying the three conditions specified in the warrant, namely the presence of documents at the premises, that those documents related to Ms Woodroffe or to one or more of four other individuals, six companies, two trusts, four businesses and four premises including the premises, and thirdly that there were reasonable grounds for suspecting that those documents would afford evidence of the commission of two specified offences: · that between the 1991 financial year and 22 May 1994, Ms Woodroffe and or Jeffrey Stokes Woodroffe ("Mr Woodroffe') defrauded the Commonwealth, contrary to s 29D of the Crimes Act, by evading tax, and · that in the same period, Ms Woodroffe and or Mr Woodroffe imposed upon the Commonwealth by untrue representations to the Australian Taxation Office with a view to gaining a benefit or advantage, contrary to s 29B of the Crimes Act. 6 The warrant noted that Mr Williams would, so far as practicable, follow the course of action concerning documents in respect of which there may be a claim for legal professional privilege set out in the document entitled 'Claims for Legal Professional Privilege: Premises other than those of a Lawyer, Law Society or Like Institution' ("the privilege notice"). It recorded that the privilege notice was attached to the warrant. 7 Ms Woodroffe's application was supported by affidavits (see O 4 r 6 of the Rules). Counsel for the NCA accepts that I may have regard to them for the purposes of its application, and that I should adopt the version of the facts put forward by Ms Woodroffe in those affidavits. It was put that, taking that material at its highest, it does not make out any legal or factual basis upon which Ms Woodroffe could succeed in her claims against the NCA. 8 In these reasons, I shall adopt that course. I do not therefore decide any disputed question of fact, nor am I taken to be finally accepting the accuracy of all or any of the factual material presented. I simply take the material at its face value. 9 There is material which indicates that Mr Williams is a Senior Investigator of the NCA in charge of an investigation being conducted by the NCA. There is also material which indicates that the procuring of the warrant, and its execution, were steps taken in the course of that investigation. That investigation at least to January 1999 was ongoing. 10 Ms Woodroffe contends that that material demonstrates a "triable issue". (I use that term as a convenient expression for the application of the appropriate test on the motion under O 20 r 2(1)(a)). She complains of the validity of the warrant, the propriety of the manner of its execution, and of the propriety of the provision of material obtained upon its execution to the DCT. The following describes, and so far as necessary addresses, the contentions on those three matters. 11 Section 11 of the National Crime Authority Act 1984 (Cth) ("the NCA Act") prescribes the general functions of the NCA. Its functions relate to "relevant criminal activities" or to "matters relating to relevant criminal activities". Section 11(1)(b) also identifies as part of its functions the investigation of matters the subject of references made under ss 13 and 14 of the NCA Act, but those two sections also identify matters relating to relevant criminal activities as the foundation for any references to the NCA. The term "relevant criminal activity" is defined in s 4, and contains within it the term "relevant offence". The term "relevant offence" is also defined in s 4. A "relevant offence" contains four defined elements, but Ms Woodroffe refers only to the first, namely an offence "that involves 2 or more offenders and substantial planning and organization". She contends that, so far as there is material before the Court, the warrant identifies the offence or offences being investigated and that neither of those alleged offences necessarily identifies a "relevant offence" because neither necessarily involves 2 or more offenders. It is for that reason, she contends, that Mr Williams did not procure a warrant through a member of the NCA under s 22 of the NCA Act but chose to seek a warrant under s 3E of the Crimes Act. She further contends that, if the NCA was not fulfilling its functions in respect of "relevant criminal activities", Mr Williams is not entitled in the course of the investigation to seek and obtain a warrant under s 3E of the Crimes Act. I note the ability of persons to be seconded to the staff of the NCA under s 49 of the NCA Act, and that Mr Williams may fall within that category of persons so as to be able to apply for a warrant under s 3E of the Crimes Act. 12 I accept that the warrant, in identifying the offences in respect of which it is sought, does not necessarily indicate the full extent of the NCA investigation. It is quite possible that it does not do so. Indeed, at the completion of submissions on the matter, counsel for the NCA sought to tender the reference under which the investigation was said to have been conducted. I declined to receive that document at that stage, as it had been sought by Ms Woodroffe's legal advisers before this proceeding was instituted and the NCA had declined then to provide it, and because at the point at which it was sought to be tendered it was but one further piece of evidence which might go to the merits of the application generally but would not necessarily present the full picture. I do not know what additional evidence there may be touching on the validity of the issue of the warrant, for example the material submitted to Mr Gurry SM in support of the application for the warrant. I did not regard it as fair to Ms Woodroffe on the notice to allow the NCA to respond by producing further evidence piecemeal to her contentions after they had been made. 13 The onus on the NCA on its motion is a heavy one. In the light of the contentions of Ms Woodroffe, I do not consider that she has so little prospect of success on this issue that she should have her application dismissed, or permanently stayed. As I indicated earlier, in such a ruling I am not to be taken as having formed any view either way on the merits of her claim, save to rule that it is not so unmeritorious as to warrant its dismissal. 14 Ms Woodroffe's second contention was that, despite the note on the warrant, the privilege notice was not attached to the warrant. There is evidence to that effect. Reliance was placed upon certain observations of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ in George v Rockett (1990) 170 CLR 104 at 110-111. Their Honours stressed the fact that the validity of a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. The fact that the warrant authorises the invasion of interests which the common law has always valued highly is reflected in legislative provisions ensuring strict compliance with conditions governing the issue of search warrants. I accept that it is arguable that similar considerations apply to the execution of the warrant in this case. The evidence also indicates that the privilege notice was left at the premises, and that Ms Woodroffe was able to obtain legal representation and her legal representative was aware of, and did assert, a claim to legal professional privilege in respect of certain documents seized during the execution of the warrant. 15 It is sufficient to observe that, notwithstanding these matters, in my view it is arguable that an absence of the privilege notice from the warrant upon which execution was made (if that is ultimately proved to be the fact) might affect the validity of the execution of the warrant. The NCA did not refer to any authority which clearly determines that the absence from a warrant, when it is executed, of a document such as the privilege notice, which was part of the warrant as issued, will not affect the validity of its execution. The resolution of the issue might depend on the circumstances in which the privilege notice ceased to be attached to the warrant as issued. 16 Thirdly, it is contended by Ms Woodroffe that the provision to the DCT of information and documents obtained by the NCA in the execution of the warrant is itself unlawful. There is evidence upon which it could be found that that provision of information and documents occurred. 17 It is contended that the NCA's authority to provide information and documents to other entities relevantly is defined in, and limited by, ss 12(1) and (1A) and 59(7) and (8) of the NCA Act. The NCA in its submissions in response did not refer to any other provisions of the NCA Act on that issue. In the case of s 12, it is further submitted that under its terms, the NCA is permitted and directed to assemble evidence it procures in the course of an investigation "that would be admissible in a prosecution" for an offence and then to give it to a "relevant law enforcement agency" or to give it to
"any person or authority (other than a law enforcement agency) who is authorised by or under a law of the Commonwealth or of the State or Territory to prosecute the offence". 18 The term "law enforcement agency" is defined to mean a police force or "any other authority or person responsible for the enforcement of the laws of the Commonwealth or of the States". In the case of s 59(7) it authorises the provision by the NCA of information concerning the commission or possible commission of offences against the laws of the Commonwealth or of a State or Territory that has come into the NCA's possession, but only to a law enforcement agency and only on the Chairperson's decision to do so. Section 59(8) permits the provision of information relevant to the taking of such remedies in the possession of the NCA, at the Chairperson's decision, to "authorities and persons responsible for taking civil remedies by or on behalf of the Crown". There is no evidence to indicate that the Chairperson has made any such decision, whether by himself or by any delegate under s 59A. The inference is available on the material before me that the provision of information to the DCT has been ongoing for some time, and that in a general way the NCA and the DCT have been working together in the review of material procured by the NCA in its investigation. Section 51 of the NCA Act imposes a general obligation of secrecy upon the NCA and its officers. 19 In the light of those provisions, it is then contended that the provision of information and documents to the DCT was not authorised under s 12 because that section operates only when the NCA investigation has progressed to the point where it can submit a "prosecution brief" to the relevant authority. It is arguable from the material before the Court that that point has not been reached. Reference is made to the obligation to "assemble" the evidence and the need for the evidence to have the character of being admissible in a prosecution. It is put that a comparison of s 12 and s 59(7) supports that construction. Thus, it is put, s 12 does not authorise the release of the information to the DCT because the NCA investigation has not reached the stage of a "prosecution brief". It is also contended that the DCT is not a "law enforcement agency", although it may fall within the list of eligible recipients of a prosecution brief under the other "person or authority" category (quoted above). In that regard, the need to give meaning to the other person or authority category is said to lead to a restricted meaning to be given to the category of persons or authorities encompassed within the definition of "law enforcement agency", for example the Director of Public Prosecutions under the Director of Public Prosecutions Act 1983 (Cth). If that argument is correct, it means that the DCT is not a person to whom the NCA is entitled to provide information, even at the Chairperson's decision, under s 59(7). In addition, it is contended under s 59(7) that the information could not be released to the DCT at this point because the point has not been reached where the Chairperson's discretion to do so may lawfully be exercised. That point is said to be either the time when there have been charges laid and prosecuted to completion, or at least the identification of an offence by the completion of a "prosecution brief". Counsel referred in this connection to the use of the words "possible commission of offences" in s 59(7) and to the fact that similar words do not appear in s 59(8). Although the wording of ss 12(1) and (1A) is different from the wording of s 59(7), the argument about prematurity is essentially the same. In respect of s 59(8), and also s 59(7), it is also argued that the evidence that there have been communications between the NCA and the DCT over some time supports the inference that the Chairperson or his delegate has made no decision of the nature contemplated by those subsections. It is alternatively argued that, on this application, there is simply no evidence that such a decision was made by the Chairperson or his delegate, and evidence of such a decision having been made would readily have been adduced by the NCA. Thus it is said to be arguable as a matter of fact that no such decision has been made, with the consequence that those subsections also do not authorise the release of the information to the DCT. Finally, in respect of s 59(8), it was also contended that it could only operate to release information to the DCT after the institution and completion of any prosecution against Ms Woodroffe, or alternatively when a "prosecution brief" had been completed. 20 I presently see no merit in that last mentioned argument. Section 59(8) permits the Chairperson to make a decision to release information "whenever it appears" to be appropriate to do so. The category of information to which it refers is that which "may be relevant" for the purposes of taking civil remedies. There is no reason to treat the reference in s 59(7) to the commission or possible commission of offences as indicating a legislative intention somehow to restrict the words in s 59(8) so that they apply only when any prosecution has been completed, or a "prosecution brief" prepared; the subsections are directed at different types of proceedings. If that were the only point relied upon by Ms Woodroffe, I would be disposed to grant the application on the motion. 21 Subject to the comments in the preceding paragraph, I do not consider it necessary or appropriate to determine the arguments outlined above on this application, although I acknowledge in certain circumstances it may be appropriate to do so: Theseus Exploration NL v Foyster (1972) 126 CLR 507 per Gibbs J at 515. There may be evidence touching upon the resolution of certain of the matters argued which may be adduced at the hearing. It is sufficient to indicate that I do not consider that the NCA has demonstrated that there is no "triable issue" (in the sense explained above) to warrant the dismissal or permanent stay of the proceedings at this point on the question of whether the NCA was entitled to provide to the DCT information and documents obtained upon execution of the warrant. 22 I am not persuaded that Ms Woodroffe is abusing the process of the Court by the institution and maintenance of these proceedings against the NCA. It may well be that her ultimate intention is to avoid the DCT issuing amended taxation assessments against her, but I do not think that it follows that she does not properly seek in these proceedings to have determined the validity of the issue and execution of the warrant, or the validity of the release to the DCT of information procured under its execution. Nor do I think that it follows that she does not properly desire in these proceedings to obtain the relief (or some of it) against the NCA specified in the application. I have reached that view notwithstanding the breadth of certain of the orders identified in the application as against the NCA. 23 Accordingly, I reached the view that the NCA motion of 13 April 1999 should be dismissed and I so ordered. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.
Associate: Dated: 14 May 1999 Counsel for the Applicant: Ms L Powell QC, with her Mr N Rochow and Mr D Wardle
Solicitor for the Applicant: Douglas Wardle
Solicitors for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: Ms A McDonald
Solicitors for the Second Respondent: Australian Government Solicitor
Dates of Hearing: 20, 21 & 23 April 1999
Date of Order: 29 April 1999
Woodroffe
National Crime Authority
(1964) 112 CLR 125
(1949) 78 CLR 62
(1993) 177 CLR 598
(1990) 170 CLR 104
(1972) 126 CLR 507