Zafra Legal Pty Ltd v Harris

Counsel for the Third Respondent: Mr P Bruckner with Mr RM Johnson

Solicitor for the Third Respondent: Zilkens Lawyers

Solicitor for the Tenth and Eleventh Respondents: Allens

BETWEEN: ZAFRA LEGAL PTY LTD ACN 611 458 489 Applicant

AND: WILLIAM HARRIS AND ROBERT KIRMAN AS JOINT LIQUIDATORS OF GH1 PTY LTD (RECEIVER & MANAGER APPOINTED) (IN LIQUIDATION) First Respondent

WILLIAM HARRIS AND ROBERT KIRMAN AS JOINT LIQUIDATORS OF MNWA PTY LTD (IN LIQUIDATION) Second Respondent

ALLEN BRUCE CARATTI (and others named in the Schedule) Third Respondent

JUDGE: BARKER J DATE OF ORDER: 15 JUNE 2018

1. The parties confer and by 6 July 2018 file a minute of proposed orders designed to reflect the orders proposed in the reasons for judgment including as to the question of costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 This proceeding WAD329/2017 is an interpleader proceeding under Pt 18 of the Federal Court Rules 2011 (Cth). On 4 July 2017, Zafra Legal Pty Ltd, the former lawyers for Mr Allen Bruce Caratti and companies associated with him and Ms Tina Bazzo and companies associated with her, applied for orders for the delivery up or possession of disputed property, being hard drives that it held. The hard drives contain electronic copies of documents seized under search warrants executed by the Australian Federal Police (AFP) in late January 2015, at premises associated with Mr Caratti and Ms Bazzo and their companies. The hard drives were initially given to Wilson & Atkinson, solicitors, by the AFP subsequent to the seizing of the documents in the circumstances discussed below. 2 On 28 July 2017, I made an order requiring Zafra Legal to deliver the hard drives to the Court, which it did. The Court currently holds the hard drives. 3 On 22 December 2017, I made further orders, by consent, to enable resolution of the competing claims to the hard drives of the liquidators and companies who and which are named as the first, second and fourth to eleventh respondents, on the one hand, and Mr Caratti (the third respondent), on the other; and listed the proceeding for hearing on 3 and 4 April 2018. 4 I should also mention the related proceeding WAD630/2017 - the injunction proceeding - in which, by originating application for relief under s 39B of the Judiciary Act 1903 (Cth) dated 12 December 2017, Mr Caratti seeks an injunction against the Commissioner of the AFP (the first respondent in the injunction proceeding) restraining the AFP from providing documents to the same liquidators and companies (the second to eleventh respondents in the injunction proceeding) pursuant to requests made by them to the AFP under s 3N of the Crimes Act 1914 (Cth) (the 3N requests) for copies of documents seized under the aforementioned search warrants; an injunction restraining the liquidators and companies from inspecting or further inspecting any documents provided to them pursuant to the 3N requests; and a mandatory injunction that the companies deliver up to Mr Caratti any such documents. Mr Caratti also sought interlocutory relief against the AFP in similar terms. 5 On 20 December 2017, I made an order by way of interlocutory relief that the AFP be restrained from providing copies of the documents pursuant to the 3N requests until further order. 6 Other orders I made that day contemplated a hearing of the injunction proceeding on 3 and 4 April 2018. 7 In the result, on 27 March 2018 I made an order that the two proceedings be heard together on 3 and 4 April 2018, with affidavits, evidence and submissions in each proceeding to stand as affidavits, evidence and submissions in the other proceeding. 8 At the hearing of this interpleader proceeding, the liquidators and the companies pressed their respective entitlements to possession of the hard drives or the contents thereof; which Mr Caratti resisted. 9 In short, the liquidators and the companies say that the hard drives constitute property of the companies including because they were supplied to the companies by the AFP at the request of Mr Caratti made on behalf of the companies. Mr Caratti disputes this factual assertion. He says the hard drives belong to him alone.

Issues 10 For convenience, where appropriate I will refer to the liquidators and the companies in each proceeding by name, but otherwise by the single collective term, companies. 11 The companies say the following issues are to be determined by the Court in the interpleader proceeding: (1) Whether Mr Caratti requested copies of the documents on the hard drives on his own behalf or on behalf of the companies; or both. (2) If Mr Caratti alone is found to have requested the copies personally, whether that request was lawful. (3) Whether the companies have a right to recover possession of or otherwise have a right to demand delivery up to them of the hard drives and/or some other documents, being electronic files. 12 Mr Caratti, having noted that the companies have not filed separate applications for their own relief in the interpleader proceeding, objects to relief being given to them beyond an entitlement to the hard drives, should they be successful. 13 Mr Caratti notes that he also has not filed an application for relief in his own behalf. 14 Mr Caratti says the issues in dispute in the interpleader proceeding accordingly concern whether the companies, by the liquidators, are entitled, in whole or in part or not at all, to the disputed property and, if the entitlement is only to a part thereof, whether a procedure should be put in place for determination of which part. 15 In substance the issues are as stated by the companies.

Evidence 16 At the hearing of the proceedings, a statement of agreed facts relevant to each proceeding, made pursuant to s 191 of the Evidence Act 1995 (Cth), was received into evidence by the Court. By reason of the order made that, amongst other things, the evidence adduced in each proceeding stand as evidence in the other, it is appropriate to record the facts agreed in relation to each proceeding as well as the affidavit and oral evidence adduced in each proceeding.

Statement of Agreed Facts in WAD329/2017, the interpleader proceeding 17 The agreed facts in the interpleader proceeding are as follows. 18 Zafra Legal, is and was at all material times incorporated pursuant to the Corporations Act 2001 (Cth) and carried on the business of providing legal services. 19 Mr Caratti is and was at all material times a natural person. 20 The first, second, fourth and eleventh respondents, Mr William Harris and Mr Robert Kirman, are and were at all material times natural persons and are parties to this proceeding in their capacity as joint and several liquidators of: the sixth respondent, GH1 Pty Ltd (ACN 099 191 714) (administrators appointed) (receivers and managers appointed) ; the seventh respondent, MNWA Pty Ltd (in liquidation); and the eighth respondent, I.M.E. Nominees Pty Ltd (in liquidation) (IME). 21 The fifth respondent, Mr Kirman (and together with the first, second and fourth respondents, the liquidators), is and was at all material times a natural person and a party to this proceeding in his capacity as liquidator of the ninth respondent, ACN 142 745 337 Pty Ltd (in liquidation) (formerly known as Mammoth Civil Pty Ltd). 22 GH1, MNWA, IME and Mammoth Civil, the sixth to ninth respondents respectively are and were, at all material times, incorporated pursuant to the Corporations Act. 23 The eleventh respondents, Mr Harris and Mr Kirman, are natural persons and are parties to this proceeding in their capacity as joint and several liquidators of the tenth respondent, Whitby Land Company Pty Ltd (in liquidation). 24 Whitby is and was at all material times incorporated pursuant to the Corporations Act. 25 Search warrants were executed by the AFP in respect of eight premises in Western Australia including: 44-48 Wickham Street, East Perth; and 2 Duncraig Road, Applecross, on 28-30 January 2015 and 28 January 2015 respectively, resulting in documents being seized. 26 On or about 20 February 2015, Wilson & Atkinson sent a letter to the AFP. 27 On 21 July 2015 and 10 August 2015, Wilson & Atkinson received copies of the seized materials in the form of three hard drives (serial numbers WCAV9E956865, WCAVY0291105 and WCC4E4YFZY85). 28 Following the receipt of the hard drives by Wilson & Atkinson, the hard drives were transferred by Wilson & Atkinson to Zafra Legal, when Mr Daniel Steven Romano moved from Wilson & Atkinson to Zafra Legal. 29 At the time of the letter referred to at [26] above, Mr Caratti was a director (as that term is used in the Corporations Act) of Whitby. 30 On 19 April 2017, Mr Harris and Mr Kirman were appointed as joint and several administrators of GH1. 31 On 20 April 2017, Mr Harris and Mr Kirman were appointed the liquidators of MNWA. 32 On 24 April 2017, Mr Harris and Mr Kirman issued: a notice under s 438C of the Corporations Act in respect of GH1; and a notice under s 530B of the Corporations Act in respect of MNWA, to Zafra Legal requiring the production of books and records. 33 On 24 April 2017, Mr Harris and Mr Kirman issued a letter to Mr Caratti. 34 On 24 April 2017, the solicitors for Mr Harris and Mr Kirman sent a letter to Zafra Legal. 35 On 27 April 2017, Mr Harris and Mr Kirman were appointed the liquidators of IME. 36 On 22 May 2017, Mr Harris and Mr Kirman were appointed the liquidators of GH1. 37 On or about 23 May 2017, Zafra Legal sent a letter to the liquidators' solicitors. 38 On 24 May 2017, Mr Kirman was appointed the liquidator of Mammoth Civil. 39 On or about 19 June 2017, the liquidators' solicitors sent a letter to Zafra Legal. 40 On or about 23 June 2017, Zafra Legal sent a letter to the liquidators' solicitors. 41 On or about 30 June 2017, the liquidators' solicitors received a letter from the Australian Government Solicitors (AGS) acting on behalf of the AFP. 42 On or before 28 July 2017, Zafra Legal delivered the hard drives to the Court pending resolution of the matters in proceeding WAD329/2017. 43 On 23 August 2017, the liquidators issued notices under s 530B of the Corporations Act in respect of: IME; and Mammoth Civil, to Zafra Legal requiring the production of books and records. 44 On or about 18 September 2017, Zafra Legal ceased acting for Mr Caratti. 45 On 27 September 2017, Mr Harris and Mr Kirman were appointed the liquidators of Whitby by order of the Court. 46 On 28 September 2017, the liquidators of Whitby issued a notice under s 530B of the Corporations Act to Zafra Legal. 47 At the time of the execution of the warrants and presently, the registered office and registered principal place of business for: GH1; IME; and Mammoth Civil, was and continues to be 48 Wickham Street. 48 At the time of the execution of the warrants, the registered office and registered principal place of business of MNWA was 2 Duncraig Road. 49 On and from 9 August 2017, the registered office and registered principal place of business of MNWA became and continues to be 48 Wickham Street. 50 At the time of the execution of the warrants, Whitby's registered principal place of business was 2 Duncraig Road (this was changed as at 1 August 2017 to be 48 Wickham Street). 51 At the time of the execution of the warrants, according to records of the Australian and Securities Investments Commission (ASIC), Whitby's registered office was 2 Duncraig Road (this was changed as at 31 July 2017 to be 48 Wickham Street). 52 At the time of the execution of the warrants and presently: hard copy books and records of GH1, MNWA, IME, Mammoth Civil and Whitby were located at 48 Wickham Street; and electronic servers on which books and records of GH1, MNWA and Whitby were stored and were located at 48 Wickham Street, along with other electronic volumes and devices on which other books and records of GH1, MNWA and Whitby were stored. 53 At the time of the execution of the warrants, GH1 was the registered proprietor of both 44 and 48 Wickham Street. 54 At the time of the execution of the warrants, a solicitor had an office at 44-48 Wickham Street. 55 At the time of the execution of the warrants, documents of the companies and Whitby were kept at 44-48 Wickham Street. 56 At the time of the execution of the warrants, Mr Caratti carried on activities at 44-48 Wickham Street in his role as an officer of the entities of which he was an officer. 57 The liquidators currently hold some hard copy books and records and electronic copies of the books and records of GH1, MNWA, IME and Whitby. 58 At the time of the execution of the warrants, some mail of MNWA was received at 2 Duncraig Road. 59 From time to time, Mr Caratti would take home to 2 Duncraig Road documents of MNWA, to use them to carry out work in respect of the affairs of MNWA. 60 At the time of the execution of the warrants, some documents relating to MNWA were at 2 Duncraig Road. 61 Some of the original seized material are books and records of the companies. 62 At the time of the execution of the warrants: (1) Mr Caratti was present at each of 48 Wickham Street and 2 Duncraig Road, being: (a) at the time and presently, a director and secretary of MNWA; (b) at the time, a director and secretary of Mammoth Civil; (c) at the time, a former director and secretary of GH1 and IME; (d) at the time and presently, a director and secretary of Whitby; and (e) at the time a director and officer of other entities, as registered with ASIC. (2) Ms Bazzo was present at each of 48 Wickham Street and 2 Duncraig Road, being: (a) at the time and presently, a director and secretary of GH1; (b) at the time, an employee of MNWA; and (c) at the time a director and officer of other entities, as registered with ASIC. (3) Mr Isaac Ellison was present at 48 Wickham Street on 28 and 29 January 2015, being: (a) at the time and presently, a director and secretary of IME; (b) presently, the director and secretary of Mammoth Civil and MNWA; and (c) presently, a director and secretary of Whitby. 63 On 11 December 2017, the tenth and eleventh respondents were joined as respondents to this proceeding.

Statement of Agreed Facts in WAD630/2017, the injunction proceeding 64 The agreed facts in the injunction proceeding are as follows. 65 Mr Caratti, is and was at all material times a natural person. 66 The third, fifth, seventh and eleventh respondents, Mr Harris and Mr Kirman, are and were at all material times natural persons and are parties to this proceeding in their capacity as joint and several liquidators of: GH1; MNWA; and IME. 67 The ninth respondent, Mr Kirman (and together with the third, fifth and seventh respondents, the liquidators), is and was at all material times a natural person and a party to this proceeding in his capacity as liquidator of Mammoth Civil. 68 GH1, MNWA, IME and Mammoth Civil, the second, fourth, sixth and eighth respondents respectively, are and were at all material times incorporated pursuant to the Corporations Act. 69 Mr Harris and Mr Kirman, are natural persons and are parties to this proceeding in their capacity as joint and several liquidators of Whitby. 70 Whitby is and was at all material times incorporated pursuant to the Corporations Act. 71 Search warrants were executed by the AFP in respect of: 48 Wickham Street; and 2 Duncraig Road, on 28-30 January 2015 and 28 January 2015 respectively, resulting in books and records being seized. 72 On 19 April 2017, Mr Harris and Mr Kirman were appointed as joint and several administrators of GH1. 73 On 20 April 2017, Mr Harris and Mr Kirman were appointed the liquidators of MNWA. 74 On 27 April 2017, Mr Harris and Mr Kirman were appointed the liquidators of IME. 75 On 22 May 2017, Mr Harris and Mr Kirman were appointed the liquidators of GH1. 76 On 24 May 2017, Mr Kirman was appointed the liquidator of Mammoth Civil. 77 On or about 9 June 2017, the liquidators' solicitors sent a letter to the AFP. 78 On or about 30 June 2017, the liquidators' solicitors received a letter from the AGS acting on behalf of the AFP. 79 On or about 21 August 2017, the liquidators' solicitors sent a letter to AGS. 80 On or about 25 August 2017, AGS sent a letter to Zafra Legal. 81 On or about 1 September 2017, Zafra Legal sent a letter to AGS. 82 On or about 18 September 2017, Zafra Legal ceased acting for Mr Caratti. 83 On 27 September 2017, Mr Harris and Mr Kirman were appointed the liquidators of Whitby by order of the Court. 84 On or about 28 September 2017, the liquidators' solicitors were sent a letter from AGS. 85 On or about 3 October 2017, the liquidators of Whitby sought permission from the AFP, via its solicitors, AGS, to access the Property Seizure Records (PSRs) which identified the materials seized pursuant to the warrants. 86 On or about 4 October 2017, AGS confirmed that the AFP had no objection to the liquidators reviewing the PSRs (in respect of Whitby). 87 On or about 4 October 2017, the liquidators' solicitors sent a letter to AGS. 88 On or about 10 November 2017, the liquidators sent a letter to AGS requesting on behalf of Whitby a copy of certain seized materials from 48 Wickham Street and 2 Duncraig Road pursuant to s 3N of the Crimes Act. 89 On or about 10 November 2017, the Full Federal Court handed down its decision in NSD2087/2016, dismissing Mr Caratti's appeal (the appeal was from the judgment of Wigney J dismissing Mr Caratti's challenge to the validity of the warrants pursuant to which the relevant documents were seized). 90 On or about 1 December 2017, AGS sent a letter to Hardinlaw on behalf of Mr Caratti. 91 On or about 11 December 2017, Zilkens Lawyers on behalf of Mr Caratti commenced this proceeding. 92 On 8 December 2017, Mr Caratti filed an application for special leave to appeal in the High Court in respect of NSD2087/2016. 93 At the time of the execution of the warrants and presently, the registered office and registered principal place of business for: GH1; IME; and Mammoth Civil, was and continues to be 48 Wickham Street. 94 At the time of the execution of the warrants, the registered office and registered principal place of business of MNWA was 2 Duncraig Road. 95 On and from 9 August 2017, the registered office and registered principal place of business of MNWA became and continues to be 48 Wickham Street. 96 At the time of the execution of the warrants, Whitby's registered principal place of business was 2 Duncraig Road (this was changed as at 1 August 2017 to be 48 Wickham Street). 97 At the time of the execution of the warrants, Whitby's registered office was 2 Duncraig Road (this was changed as at 31 July 2017 to be 48 Wickham Street). 98 At the time of the execution of the warrants: hard copy books and records of GH1, MNWA, IME, Mammoth Civil and Whitby were located at 48 Wickham Street; and electronic servers on which books and records of GH1, MNWA and Whitby were stored and were located at 48 Wickham Street, along with other electronic volumes and devices on which other books and records of GH1, MNWA and Whitby were stored. 99 At the time of the execution of the warrants, GH1 was the registered proprietor of both 44 and 48 Wickham Street. 100 At the time of the execution of the warrants, a solicitor had an office at 44-48 Wickham Street. 101 At the time of the execution of the warrants, documents of the companies and Whitby were kept at 48 Wickham Street. 102 At the time of the execution of the warrants, Mr Caratti carried on activities at 48 Wickham Street in his role as an officer of the entities of which he was an officer. 103 The liquidators currently hold some hard copy books and records and electronic copies of the books and records of GH1, MNWA, IME and Whitby. 104 At the time of the execution of the warrants, some mail of MNWA was received at 2 Duncraig Road. 105 From time to time, Mr Caratti would take home to 2 Duncraig Road documents of MNWA, to use them to carry out work in respect of the affairs of MNWA. 106 At the time of the execution of the warrants, some documents relating to MNWA were at 2 Duncraig Road. 107 At the time of the execution of the warrants: (1) Mr Caratti was present at each of 48 Wickham Street and 2 Duncraig Road; (2) Mr Caratti was: (a) at the time and presently, a director and secretary of MNWA; (b) at the time, a director and secretary of Mammoth Civil; (c) at the time, a former director and secretary of GH1 and IME; (d) at the time and presently, a director and secretary of Whitby; and (e) at the time an officer of other entities, as registered with ASIC. (3) Ms Bazzo was present at each of 48 Wickham Street and 2 Duncraig Road. (4) Ms Bazzo was: (a) at the time and presently, a director and secretary of GH1; (b) at the time, an employee of MNWA; and (c) at the time a director and officer of other entities, as registered with ASIC. (5) Mr Ellison was present at 48 Wickham Street on 28 and 29 January, being: (a) at the time and presently, a director and secretary of IME; (b) presently, the director and secretary of Mammoth Civil and MNWA; and (c) presently, a director and secretary of Whitby.

Admission 108 Additionally, at the hearing on 3 April 2018, Mr Caratti made the following admission in each proceeding: For the purposes of the Court's determination of the relief sought in these proceedings (and not for any other purpose), paragraph 28(d)(i)(2) of the Companies' Second Amended Statement of Facts, Issues and Contentions filed 2 March 2018 is admitted, that is, Mr Caratti was at the time of execution of the search warrants a person who acted, and is presently a person who acts, in the position of a director or further or alternatively a person in respect of whom the directors of the Companies were/are accustomed to acting in accordance with his instructions and wishes.

In WAD329/2017, the interpleader proceeding: 109 The companies formally read the following affidavits: (1) Affidavit of Mr Matthew Peter Sunits made 4 July 2017. (2) Affidavit of Mr Kirman made 1 March 2018. 110 Mr Caratti formally read the following affidavits: (a) Affidavit of Mr Caratti made 22 March 2018. (b) Affidavit of Mr Darryl Kipping made 21 March 2018. 111 In the interpleader proceeding, the parties agree in respect of objections to evidence as follows: In respect of the affidavit of Mr Kirman made 1 March 2018, comprising 18 paragraphs, that [32] be read as inserting "from them" after the word "questionnaires". That [33], [34]-[35], [40], [43], [52], [55], [56], [57], p 134 and p 151 of Mr Kirman's affidavit of 1 March 2018 be not read. In respect of the affidavit of Mr Caratti, sworn 22 March 2018: (1) As to [51(5)], the first sentence be limited as to his belief. (2) Page 151 is not read. In respect of the affidavit of Mr Kipping made 21 March 2018, as to [31], the second, third and fourth sentences are not read.

In WAD630/2017, the injunction proceeding: (1) Subject to the next paragraph, the companies formally read the following affidavits: (a) Affidavit of Mr Kirman made 1 March 2018, comprising 49 paragraphs. (b) Affidavit of Mr Kirman made 1 March 2018, comprising 18 paragraphs. (c) Affidavit of Mr Brendan Ashley Payne made 10 March 2018. (d) Affidavit of Ms Victoria Willie made 2 March 2018. (e) Affidavit of Ms Linda Methven Smith made 2 March 2018. 112 In the injunction proceeding, the parties agree: That [30] of Mr Kirman's affidavit of 1 March 2018, comprising 49 paragraphs, should be read as inserting "from them" after the word "questionnaires" . That [31], [32]-[33], [45], [48], [49], p 139 and p 151 of Mr Kirman's affidavit of 1 March 2018, comprising 49 paragraphs are not read. As to the affidavit of Ms Smith made 2 March 2018, the parties agree in respect of exhibit LMS-1 that its use should be limited to proving the extent of involvement of Mr Caratti in the affairs of GH1, which is the stated purpose as per Ms Smith's affidavit at [7]. 113 I will not recount the content of the affidavits. The essence of much of the evidence deposed to is sufficiently provided in the following account of the viva voce evidence of key witnesses. I will also advert to other relevant affidavit evidence in the course of making my findings on key issues below.

Allen Caratti 114 Mr Caratti was cross-examined for the companies on his affidavit dated 22 March 2018. 115 Mr Caratti confirmed that Mr Romano at Wilson & Atkinson, and later at Zafra Legal, did a great deal of legal work for him or entities associated with him, including GH1 or Gucce Holdings Pty Ltd, Mammoth Nominees Pty Ltd (also known as MNWA), Lakeview Rise, Whitby and IME, once known as Starbrake Pty Ltd (as distinct from Starbrake Holdings Pty Ltd). 116 Mr Caratti confirmed that when the Wickham Street seizure took place there were books and records at the property owned by companies including GH1, MNWA, IME and Whitby. He could not recall if there were any books and records of Mammoth Civil. He did not think there were a lot of books or records at Duncraig Road. 117 He confirmed that he telephoned Mr Romano from the Wickham Street premises when officers of the AFP arrived to execute the search warrant. In answer to the question whose interests he was trying to protect when he rang Mr Romano, Mr Caratti answered: Well, when I read the warrant, the warrant related mainly to me personally, and the - the charges on it, or the allegations of the charges, was based around me personally. 118 He acknowledged that Ms Bazzo was also the subject of one of the charges or allegations. 119 He agreed that when he rang Mr Romano he had in mind that he may also be able to provide assistance to Ms Bazzo. 120 When asked, given that he was a director and a person able to make decisions on behalf of the other companies mentioned, whether he was interested in protecting the interests of those companies as well, Mr Caratti responded: No. I was interested in protecting - after I read the warrant, I could see that the warrant was based around allegations of some criminal charges in relation to me personally and Ms Bazzo. 121 When challenged that it had entered into his mind to protect the interests of companies associated with Wickham Street, Mr Caratti said it "was about me and protecting my interests". 122 Mr Caratti accepted that he appreciated the AFP might use the company documents seized against him. When expressly asked "You did think that?", he answered in the affirmative. He then accepted that it was in his interests to obtain legal advice from Mr Romano about whether or not the police were entitled to seize those documents. 123 When asked whether it was also in the interests of the companies, he responded that he was "more thinking about my own interest because that was the only one on the search warrant and the allegations of criminal activity". 124 When Mr Romano attended and made claims of legal professional privilege, while Mr Caratti only had a recollection, he thought Mr Romano did so on his behalf and did not recall claims being made on behalf of Mr Bazzo or the companies. 125 Mr Caratti was then asked: "In relation to the companies that you were a director or secretary of, did you instruct Mr Romano to make any claims of privilege for and on behalf of those companies?". He replied: I'm not sure whether the privilege was to - that we requested the documents - a copy of all the documents so we could make legal privilege claims or if - or if it was done at the time. I can't quite recall which one it was done. 126 The question was then asked: "As a director of those companies, at the time the search is being executed … did you think that it was your obligation, as a director, to make claims of privilege for and on behalf of those companies?". Mr Caratti responded: Yes, I would have done. 127 When the question was pressed: "Did you make those claims?", he responded: "I can't recall if we did then or we did later". 128 When asked whether he thought there might have been some claim to privilege at the time of the search warrant, he thought so, and when asked on whose behalf those claims were made he said: "On my behalf and on my behalf as the director of those companies", being Mammoth Nominees and Gucce Holdings. He could not recall which others. He could not remember if the blanket claim was made on behalf of all entities that had holdings at the Wickham Street premises. 129 He confirmed that one of the reasons for requesting copies of the documents seized subsequently was to enable a privilege review to be conducted. Mr Romano, he said: He was to conduct a - look at that on behalf of me as director of those entities, and he was taking instructions from me. 130 When it was put to him that he, as a director, was acting on behalf of the companies in so doing, Mr Caratti responded: I was taking - seeking advice from Daniel [Romano] to see whether we had - that I could then advise the company which to take legal privilege against. 131 When further pressed to the effect that one of the purposes for taking legal advice from Mr Romano concerned the preservation of any claims of legal professional privilege the corporations associated with him may have, he responded: "As a director, I was asking for that - that advice, yes". 132 Mr Caratti was also taken to a copy of a letter from Wilson & Atkinson dated 9 February 2015 - the 9 February costs agreement letter - shortly after the search warrants were executed. He confirmed that the letter disclosed correct email addresses for him and Ms Bazzo. He insisted the first time he had seen the document was in this court proceeding and he was not sure if it was sent. He agreed, however, that if it was sent he would have seen it. I find below that Mr Romano sent it, by email and most probably by hard copy too. 133 Notwithstanding the reference to Gucce Holdings in the 9 February costs agreement letter, Mr Caratti insisted that he was sure that Mr Romano knew it was he who was the client. He said that on this particular matter, which was a personal matter, he was the client. 134 Mr Caratti also indicated that when instructions were given to challenge the search warrant in the Federal Court he instructed the lawyers on behalf of himself and Ms Bazzo. 135 He confirmed that the purpose amongst others of the search warrant proceedings was to get back the things that had been seized that were owned by the companies. 136 He also confirmed that at the time the search warrants were executed, Mammoth Nominees, Gucce Holdings and Starbrake Holdings were involved in taxation review proceedings in the Administrative Appeals Tribunal (AAT). However, he was reluctant to accept that recovery of the seized documents was relevant to the maintenance of those proceedings - apart from Starbrake Holdings. 137 Mr Caratti was also asked about his use of the expression "entities associated" with him in his affidavit at [67(5)] - which he said included Starbrake Holdings and Gucce Holdings. 138 I will make findings below on relevant aspects of Mr Caratti's evidence.

Darryl Kipping 139 Mr Kipping was cross-examined by senior counsel for the companies on his affidavit made 21 March 2018, read in the interpleader proceeding. 140 Mr Kipping conducted his own legal practice from a part of the premises at 48 Wickham Street, as well as conducting work for Mr Caratti, Ms Bazzo and their companies. 141 He explained, in cross-examination, that from time to time he would be instructed to act for a particular entity amongst the various entities related to Ms Bazzo and Mr Caratti. They included Gucce Holdings (now known as GH1), Whitby, Starbrake Pty Ltd (now known as IME). 142 He did not believe, however, he worked for Mammoth Civil. 143 Mr Kipping explained that he had access to all files available within the building if he needed to access them, other than in Ms Bazzo's office and the storeroom (which were locked); and that included access to files relating to those companies in which legal advice from external lawyers had been given. The access he had was to hard copy documents. 144 He said he did not have access to electronic documents unless they had been emailed to him by Mr Caratti or Ms Bazzo or someone else in their office. 145 He explained that in his own office he would have hard copy or electronic documents concerning companies associated with Ms Bazzo or Mr Caratti. 146 Mr Kipping confirmed that he told an AFP officer at the time of the seizure that material in his office was legally privileged. He agreed he made a "blanket claim" of privilege. 147 He said he did that because he was not aware of what the warrants were or what they related to. 148 Mr Kipping also explained the process by which different documents and files were identified for the purposes of seizure by the AFP. 149 Mr Kipping's evidence is not contentious.

Daniel Romano 150 Mr Romano was subpoenaed by Mr Caratti to give evidence. In evidence in chief he explained that, at material times, at Wilson & Atkinson he was the solicitor for Mr Caratti. He also acted for Ms Bazzo. Additionally, he acted for a number of companies associated with them, including Gucce Holdings (now GH1), Mammoth Nominees, Starbrake Pty Ltd (now IME) and Starbrake Holdings. 151 When acting for Mr Caratti or Ms Bazzo, Mr Romano said there was a general practice that he would bill his legal fees for entities associated with Ms Bazzo, to Gucce Holdings; and would bill his legal fees for entities associated with Mr Caratti, to Mammoth Nominees. He said that practice was irrespective of who the retainer was with. I understood him to be saying, and in any event, infer that this was a standing arrangement expressly agreed between him, Mr Caratti and Ms Bazzo. 152 He confirmed that on the day the AFP search warrants were executed at 48 Wickham Street, he received a call from Mr Caratti to attend the premises and that he did so. He said he received instructions whilst at the premises from Mr Caratti. He said his role was to advise on the warrants and in particular whether they were valid and also what Mr Caratti needed to do to comply with them. 153 He said he also made claims of legal professional privilege while he was at the premises and did so by saying words to the effect of, "Stop searching because legal professional privilege claims are being made". He confirmed the nature of the claim was a blanket claim of privilege. 154 He said he made the blanket claim of privilege on behalf of Mr Caratti personally, as an individual. 155 Mr Romano was taken to a number of documents of Wilson & Atkinson which referred to the "client", namely: A letter to the AFP dated 20 February 2015. An email dated 15 February 2015 at 11.55am from Mr Sunits to Helen Drew at the AFP. A letter dated 21 May 2015. A letter dated 16 June 2015. In each case he said the "client" was a reference to Mr Caratti. 156 In short, by reference to a range of correspondence relating to the documents seized at 48 Wickham Street, Mr Romano was insistent that his client was Mr Caratti alone. 157 He was then taken to the 9 February costs agreement letter (from about a week after the warrants were executed), which purported to be a fee retainer letter prepared by Wilson & Atkinson. He said that whilst there was provision at the end of the document for Mr Caratti and Ms Bazzo to sign, in the particular capacities stated, for Gucce Holdings, to "his knowledge" neither had ever signed the letter. 158 He said, however, that he "believed" that the document was emailed to the addressees in the method indicated on the letter. 159 Mr Romano said that as of 9 February, he did not have any knowledge of the documents that had been seized by the AFP. He explained that "we" - which I infer to be a reference to Wilson & Atkinson - did not receive copies of the documents that were seized until some time later. However, he "believed" they received copies of the property seizure records and he "would've had a cursory review of the sorts of documents that were on the records". I infer this is indeed what happened. 160 Mr Romano said he did not seek to enter into a retainer with each of the entities whose documents had been seized. 161 Mr Romano was taken to the letter of Wilson & Atkinson dated 20 February 2015 which stated a number of purposes for which the requested documents were required. He addressed the purposes. He again confirmed that he considered his client was Mr Caratti alone. 162 In cross-examination, Mr Romano was first asked about those companies that, at the time the request for copies of documents seized was made by Wilson & Atkinson, had taxation review proceedings pending in the AAT. He confirmed that they included Starbrake Holdings as trustee for Starbrake Holdings Trust and Gucce Holdings. He said he was instructed to make an application to stay those proceedings pending the outcome of the Federal Court proceeding challenging the validity of the warrant. He confirmed that if the warrant challenge was successful then the outcome would have been the return to the companies of the documents subject of the warrant seizure. 163 In respect of the warrant proceeding in the Federal Court, Mr Romano said that his instructions were from Mr Caratti. 164 He also confirmed that he made a blanket privilege claim when the documents were seized under the warrants. He advised Mr Caratti. He did not believe he provided any advice to Ms Bazzo about privilege. 165 Nor did he recall whether he provided any advice to Mr Caratti about making claims of privilege in relation to the entities associated with him or Ms Bazzo that he had acted for in the past. 166 Counsel then took Mr Romano to the 9 February costs agreement letter. He confirmed the email addresses shown on the document were those ordinarily used by him to communicate with Mr Caratti and Ms Bazzo. While Mr Romano said he did not have a recollection of sending the email or instructing someone else to do so, he believed it was it was his ordinary practice to send a hard copy of documents sent by email. He could not recall whether he would have done that on the occasion of this costs agreement document. 167 I consider, having regard to the whole of his evidence, that the emails were in fact sent by Mr Romano to the addressees and that the hardcopy was most probably sent. There is nothing in Mr Romano's evidence to suggest he did not follow his usual business practice. The tenor of his evidence was such that I take him not to have suggested he did not send the 9 February costs agreement letter by one means or another or both. 168 He was taken to the paragraph in the letter which stated that: If you do not advise us of your objections to the terms of this costs agreement, and you continue to instruct us, you will have thereby accepted our offer to enter into this costs agreement, and we will act on the basis of this costs agreement. Mr Romano confirmed the start date of the costs agreement stipulated was 27 January 2015, the day of the execution of the search warrant at the Wickham Street premises. 169 When challenged that the terms of the costs agreement indicated that the client of Wilson & Atkinson was Gucce Holdings, Mr Romano drew attention to the fact the letter was sent to Ms Bazzo and Mr Caratti at Gucce Holdings. He was then asked to observe that the signing clauses stated: I confirm that I am duly authorised to instruct you on behalf of Gucce Holdings Proprietary Limited. 170 When asked whether, for the purpose of the costs agreement, the client was Gucce Holdings, Mr Romano responded: I can see that now, but my practice was to - as I said, I was getting invoiced ..... invoice from Gucce Holdings. Therefore, I, by practice, just had the costs agreement in the name of Gucce Holdings, so - - - 171 When it was put to him that he would ordinarily invoice Mammoth Nominees for work done in respect of Mr Caratti's entities, and so did that not mean the client for the particular matter was Mammoth Nominees, Mr Romano responded "Possibly not. Yes.". 172 Mr Romano ultimately said, when challenged that the client, for the purposes of the costs agreement, was Gucce Holdings, that: I'm not sure. That's maybe a matter of construction. I can - I can see the logic in your question. 173 Mr Romano maintained his view that it was a "matter of construction" whether the client was Gucce Holdings or Mr Caratti. But he added (transcript 65, lines 3 and 4): I can see now, looking at those words you've put me to, that Gucce Holdings may be a client. 174 In relation to the tax review proceedings in the AAT, Mr Romano believed there were also separate proceedings between Mammoth Nominees (as MNWA was earlier known) and the Commissioner of Taxation. 175 Mr Romano said that when Mr Caratti instructed him to make a blanket claim for privilege over the documents at the time of their seizure, he received the instructions over the telephone and did not believe that, at the time, there was any discussion between him and Mr Caratti about the need to make claims on behalf of the related entities. 176 In response to the question whether, at material times, at any time he advised Mr Caratti concerning the making of claims of privilege on behalf of his related entities whose materials had been seized, Mr Romano said that at the time of the seizure, he was not aware of what was being seized but subsequently when they were given the property seizure records by the AFP, they became aware of the nature of the documents that were seized. 177 When asked whether, at that point, further claims of privilege were made, he said "Not in respect to the Wickham Street premises". 178 In re-examination, Mr Romano said that, at material times in respect of the search warrants, he did not receive instructions from Ms Bazzo, Gucce Holdings or Mammoth Nominees.

Did Mr Caratti request the disputed material on his own behalf or on behalf of the companies; or both? 179 Mr Caratti, in his statement of facts, and in the evidence he gave at the hearing, including during cross-examination as set out above, contended that his solicitors, Wilson & Atkinson, acting for him alone, requested copies of the seized materials from the AFP pursuant to s 3N of the Crimes Act, being the documents subsequently provided on the hard drives to his then solicitors. 180 He says that he wanted to obtain copies of the materials because he was the subject of the warrants and also because, as a director of the company, he wished to ensure he met his obligations as a director under corporations law and more generally. 181 The companies contest Mr Caratti's factual assertion and say the position is that, even if Mr Caratti's solicitors made the request for copies under s 3N just for Mr Caratti, Mr Caratti's instructions to his solicitors also encompassed the companies whose documents had been seized. This is the first issue stated above. 182 The companies also say that, in the event of a finding that only Mr Caratti made the 3N request, then they contest his entitlement to have done so and so to now retain possession of the hard discs. That is the second issue stated above, to which will turn below. 183 The companies submit that the assertions of Mr Caratti on the first issue are implausible, at least so far as they concern the documents seized at 48 Wickham Street, and that Mr Caratti should be regarded as having made the request, at least in respect of 48 Wickham Street, in his capacity as a director of and therefore on behalf of each of the companies. 184 In making this submission, the companies rely on the following circumstances, namely that: The companies conducted their business operations from 48 Wickham Street. This is evidenced by the fact that the registered office and principal place of business for GH1, IME and Mammoth Civil was, and continues to be, 48 Wickham Street. From 9 August 2017, and presently, the registered and principal place of business of MNWA became and continues to be 48 Wickham Street. At the time the search warrants were executed and presently, the hard copy books and records of GH1, MNWA, IME and Mammoth Civil were and are located at 48 Wickham Street. At the time the search warrants were executed and presently, the electronic servers on which books and records of GH1 and MNWA are stored were and are located at 48 Wickham Street, along with other electronic volumes and devices upon which other books and records of GH1 and MNWA are stored. GH1 stored its books and records at 48 Wickham Street and meetings of the directors of the company were held at 48 Wickham Street. At the time the warrants were executed Mr Caratti was present at 48 Wickham Street, he, at material times, being a director and secretary of MNWA, a director and secretary of Mammoth Civil, a former director and secretary of GH1 and IME, and a person who acted in a position of director of the companies whose documents were seized. At the time the search warrants were executed, Ms Bazzo was present at 48 Wickham Street, she being at the time a director and secretary of GH1, and at the time an employee of MNWA. At the time the search warrants were executed, Mr Ellison was present at 48 Wickham Street, he being at the time a director and secretary of IME (and presently the director and secretary of Mammoth Civil and MNWA). 185 The companies also say, in support of their submission that Mr Caratti's factual contentions are implausible, that: Mr Caratti has admitted that at the time of the execution of the warrants, GH1 was the registered proprietor of 48 Wickham Street and therefore GH1 had a right to exclusive possession, or alternatively possession of 48 Wickham Street; or a right to be considered the occupier of the premises to the exclusion of others including Mr Caratti, noting that whilst Mr Caratti asserts he had rights of access to the premises to access documents, that right of access did not give rise to him being considered an "occupier" for the purposes of s 3N of the Crimes Act. Mr Caratti has also admitted that at the time of the execution of the warrants, the documents of the Caratti group entities were kept at 48 Wickham Street and that some hard copy books and records of each of the companies were located there and electronic servers on which some books and records of the companies were stored there. Mr Caratti has admitted that some of the originally seized materials are books and records of one or more of the companies. Mr Caratti was and is presently a director and secretary of MNWA, director and secretary of Mammoth Civil, and a former director and secretary of GH1 and IME and notwithstanding his denial, the evidence demonstrates he was a person who acts in the position of director. 186 Put quite shortly, the companies submit that the Court should conclude that: Mr Caratti was present at 48 Wickham Street in his capacity as a director of each of the companies, or alternatively as a representative of the companies, by virtue of his office as a director or alternatively pursuant to the authorisations Mr Caratti contends were provided to him by entities including the companies; and Mr Caratti's requests were made, at least in respect of 48 Wickham Street, in his capacity as a director of each of the companies and therefore for the purposes of s 3N of the Crimes Act, being a person who apparently represented the companies as occupiers of premises. 187 As noted above, Mr Caratti has made a formal admission for the purposes of the Court's determination of the relief sought in these proceedings (but not for any other purpose), that [28(d)(i)(2)] of the companies' second amended statement of facts, issues and contentions filed 2 March 2018 is admitted, that is, he was at the time of execution of the search warrants a person who acted, and is presently a person who acts, in the position of a director or further or alternatively a person in respect of whom the directors of the companies were/are accustomed to acting in accordance with his instructions and wishes. 188 Mr Caratti's affidavit evidence and submission prior to being cross-examined on his affidavit and when cross-examined in the proceeding, is as follows. 189 As to the unsigned 9 February costs agreement letter, he does not recall seeing the document. He maintained that evidence in cross-examination. 190 Mr Caratti said he did not know why the document was addressed to Mr Caratti and Ms Bazzo of Gucce Holdings (of which he was not a director), nor why the document made provision for signing by Gucce Holdings, MNWA and himself. 191 He said there was no apparent attempt by Wilson & Atkinson to have, as clients in respect of the search warrant retainer, all the other myriad entities in relation to their seized books and records. 192 He noted the proposed work referred to in the 9 February costs agreement letter included, "(b) representing you with the Court proceedings to set aside the warrants". He said there was no suggestion that Gucce Holdings provided instructions in respect of the search warrant proceedings. The only applicant in the search warrant proceedings was him, Mr Caratti. 193 Mr Caratti said he understood that the retainer was between Wilson & Atkinson and him, and not subject to the 9 February costs agreement letter. 194 Mr Caratti says it cannot be in dispute that, when Wilson & Atkinson made the request to the AFP for copies of the seized materials, that request was made for him. He says that is corroborated by numerous references in the request and other correspondence between Wilson & Atkinson and the AFP to "client" in the singular: "the client", "our client", "your client". He was the "client". 195 Mr Caratti notes that, as at the date of his request by his solicitors of 20 February 2015 for copies of documents seized, the search warrants had only recently been executed; the challenge to them had only recently been commenced; it was proposed to issue notices to produce; points of claim had not yet been filed; his lawyers were still seeking a copy of the sworn complaint; and his evidence was not yet due to be filed. 196 Mr Caratti says he understood that his lawyers needed a copy of what was seized in order to assist consideration by them of how to advise him in respect of the challenge to the search warrants, taking into account broader considerations of Mr Caratti's interests in connection with possible criminal proceedings. 197 He says this, unsurprisingly, was his principal reason for wanting copies of documents to be prepared for his lawyers. 198 He says the documents later received from the AFP, on the hard discs, were reviewed by his lawyers for this purpose (however privilege has not been waived over advice given by his lawyers), which was regarded as important. For example, he says, on 21 May 2015, his lawyers wrote (as explained in the affidavit of Mr Sunits): Having access to the copies of the seized material and having time to review such material is critical to our client's readiness to proceed to a hearing in the current proceedings. 199 Further, on 13 August 2015, Mr Caratti's lawyers wrote (as explained in the affidavit of Mr Sunits): None of the material is catalogued in any meaningful way and much of the time required to review the material is directed to cataloguing the material so that the outcomes of our review can be recorded in a way which will not only assist us in our preparation, but also will be of immense assistance to the Court at the hearing. … It is … difficult to see how a comprehensive review of the seized material is not necessary for the purposes of these proceedings. 200 Mr Caratti submits that following execution of the search warrants, there is, typically, a requirement to review what is seized for privilege, and that a difficulty that arises is identifying the purpose for which copies were created. Another difficulty that arises is the fact that a lawyer was based at the Wickham Street premises. 201 Mr Caratti says a reason for copies of seized documents being created for Mr Caratti's lawyers was to enable them, on his behalf, to commence a privilege review. 202 Mr Caratti submits the privilege review could be conducted by Mr Caratti personally or with the benefit of advice from his lawyers. A person whose lawyers conduct a privilege review needs to be a person with permission to review material. Mr Caratti was such a person. He had authority to access most of what had been seized, so no confidentiality could be breached. Authority was obtained from Hank Schokker for him and his lawyers to receive a copy which corroborates that the production of a copy to his lawyers depended on him being a person to whom such material was not confidential. 203 He adds that no such authority rested with any of the companies. At best, such authority could only have existed with respect to some of the material. The provision of the whole of the copies to Mr Caratti's lawyers corroborates, he says, that the copies were for him. In addition, he says, there is no suggestion that Wilson & Atkinson had a retainer with each of the companies whose documents may have been seized. 204 Mr Caratti also submits the evidence shows that provision of the copies to Mr Caratti's lawyers gave rise to an additional potential advantage, that his lawyers could use it to advise him on tax appeal proceedings that were underway in the AAT, or which could in the future arise concerning him or entities associated with him. It did not follow, from this potential advantage, that the copies were received on behalf of any such respective entities. 205 Mr Caratti submits he was entitled to receive the whole of the copies. The respective entities were not. The fact that copies of the whole were requested, and the fact that the copies were made available to lawyers for Mr Caratti corroborates, he says, that the copies were received for him, and not for any respective entity or entities. 206 He adds, the potential for use for tax proceedings was not the principal reason for the copies being created and received by Mr Caratti's lawyers. The documents were not used for such purpose. 207 Mr Caratti submits he was a person who, on execution of the warrants, was entitled to be present and that there were numerous bases upon which he had such entitlement. 2 Duncraig Road was his residence. As to his entitlement to be present at Wickham Street, he says he was not relevantly constrained. Indeed he claims he was relevantly an "occupier" of the premises. He says he was useful in his personal capacity to Ms Bazzo and entities associated with her, and he himself was an officer of many companies (not confined to the companies) whose affairs were administered from Wickham Street. 208 Mr Caratti contends his entitlement to occupy did not depend on his authority as a director of the companies. The provision of the copies to his lawyers was not as agent of any entity. 209 Mr Caratti submits he caused the copies to be created specifically for his lawyers, who received and retained them and used them to give confidential legal advice to him. Confidential communications between a client and the client's legal adviser are privileged, he properly submits, if made for the dominant purpose of submission to the legal adviser for advice (whether connected with litigation or not) or for use in existing or anticipated litigation. He also notes that a copy of a document created with one of these purposes as the dominant purpose, is also privileged: Commissioner of Australian Federal Police and Another v Propend Finance Pty Limited and Others (1997) 188 CLR 501; [1997] HCA 3. This proposition is also not in dispute. 210 I turn now to my findings on this question. 211 I should observe at the outset that, whether or not Mr Caratti has already used or would like to use copies of documents on the hard drives for the purpose of obtaining his own personal legal advice and therefore may be able to claim some privilege in the further use of those documents is not determinative of the issues currently before me. 212 Having carefully considered the evidence given by Mr Caratti I am not satisfied and do not accept his assertion that Wilson & Atkinson made a request pursuant to s 3N of the Crimes Act for copies of the documents seized from 48 Wickham Street on his part alone. 213 I accept the detailed submissions made by the companies and set out above at [181]-[186] in this respect and do not need here to repeat them. The points made are, in my assessment, obvious ones. 214 I consider in giving his evidence, Mr Caratti was artificially at pains throughout to do two things. One, to keep insisting that Wilson & Atkinson only ever acted for him personally in requesting documents because he was the target of the AFP investigation. The other, to the extent that he had in mind his role as a director of relevant companies, that he was only ever wanting to take steps or get advice that would enable him personally to act as a good director, but never on behalf of the companies at any relevant point in relation to the document seizure matters that arose by virtue of the execution of the warrants. 215 I do, however, accept that Mr Caratti, at material times, wished to act to protect his own personal interests. I consider the request for copies of the seized documents made by Wilson & Atkinson was, in all the circumstances, made on behalf of Mr Caratti personally but also on behalf of the companies whose documents had been seized pursuant to the warrants. 216 It is, having regard to all the facts adverted to in the submissions of the companies referred to, difficult to separate out the conduct of Mr Caratti alone, from the conduct I consider Mr Caratti engaged in on behalf of the relevant companies. 217 In circumstances where the relevant companies operated out of Wickham Street; Mr Caratti was integral to the operation of those companies out of Wickham Street; the documents of the companies were seized from Wickham Street; the relevant companies, in my judgement, were "occupiers" of Wickham Street for relevant purposes, the request made by Wilson & Atkinson, pursuant to s 3N should be taken to have been made in truth and substance, not only on behalf of Mr Caratti personally (as I accept he personally wanted the documents for his own purposes) but also on behalf of the relevant companies (because the documents were theirs and they wished to have possession of them, including so that Mr Caratti could have access to them or enable other persons, such as his lawyers, to have access to them). As I have suggested, Mr Caratti's testimony was calculated to avoid admitting the dual nature of the request made. I do not accept his testimony to that extent. I consider it implausible. 218 I should add that, while the 9 February 2015 costs agreement letter is not determinative in resolving this question, it does lend support to the view that Mr Caratti did not make the 3N request just for himself. I have set out above that I accept and find that Mr Romano sent that letter by email to the named recipients, including Mr Caratti. I have no doubt about that. Mr Caratti said that if it had been sent, he would have seen it, although he claimed he did not recall seeing the letter until these proceedings. I do not accept that that was the case. I find he saw it. 219 The consequence of that finding is, that by the default terms of the letter, Gucce Holdings was to assume the costs liability for the work done by Wilson & Atkinson in relation to the document seizure issues that lay ahead. This, in turn, tends to disclose that Wilson & Atkinson were not intended to act only for Mr Caratti. Mr Romano was familiar with acting for Mr Caratti or Ms Bazzo and companies associated with them whereby a particular entity was responsible for meeting the legal costs concerned. That, I find, was the position here - Mr Romano was acting not only for Mr Caratti, but also the relevant companies. 220 In the result, I find the 3N request made by Wilson & Atkinson, which resulted in the hard drives being provided to them, was made on behalf of both Mr Caratti personally and the relevant companies.

If Mr Caratti alone is found to have requested the copies personally, was the request lawful? 221 Further, and alternatively, the companies say that: they do not accept that Mr Caratti personally was an occupier for the purposes of s 3N, as he has failed to expressly articulate the base on which he was an occupier, especially in respect of 48 Wickham Street; and accordingly, in the event that the request was made and the copy was obtained in respect of 48 Wickham Street on behalf of Mr Caratti personally, on the asserted basis he was an occupier of that premises for the purposes of s 3N, then he "unlawfully" requested and obtained the copy of the disputed materials. 222 While the companies submit Mr Caratti has not articulated the basis upon which he was himself an "occupier" for s 3N purposes, and should merely be considered a representative of the company occupiers for s 3N purposes, it is arguable that he was, along with those companies, an occupier of the premises. 223 Even if it could be concluded that Mr Caratti was not relevantly an occupier for the purposes of s 3N of the Crimes Act at the time Wilson & Atkinson made the 3N request, I do not consider that would necessarily mean the request made on Mr Caratti's behalf personally was "unlawful". 224 It was for the AFP to determine how it should respond to the s 3N request that it received. No evidence has been led as to how the AFP treated the request. It may well have assumed that the request was made on behalf of the occupier companies whose materials had been seized, particularly at Wickham Street. But then again, it might simply have thought that, as Mr Caratti was the target of their investigation that led to the execution of the search warrants at Wickham Street and operated businesses from those premises, the request for copies of the documents seized was made by him personally and that arguably he was an occupier. Or it may have regarded the request as one made by both Mr Caratti and on behalf of the companies as occupier in each case. 225 More to the point, I do not consider it can be said that a citizen who believes they have a right to make a request under s 3N, and does so, can be said to have acted "unlawfully" if it later transpires they were not qualified to do so because they were not an occupier of the premises from which the documents requested were seized. . 226 In the event that the AFP were to provide copies of materials seized to a person who was not qualified to make a s 3N request, then an interesting question would arise whether the AFP would be in a position to recover those documents. I do not need to resolve that issue in these circumstances, as it is not been squarely raised. On the face of it, a person who received documents when they were not qualified to make the 3N request might simply assert that the AFP would have to live with the legal or administrative error or faulty exercise of judgement that it made in providing the person with the documents. While a person who is not qualified to make a 3N request plainly cannot compel the production of copies of documents seized, that is not to say that the person who made the request acted unlawfully in so doing and, if they were given the copies of documents they requested, one not entitled to possession of them. 227 While the companies allege Mr Caratti was not entitled to make the request I have found he made, I do not consider that makes his possession of the hard drives "unlawful", such that only the companies are entitled to their possession. Moreover, I am not satisfied that Mr Caratti was not relevantly an occupier for s 3N purposes at material times, along with the companies. 228 I do not find, in these circumstances, that the s 3N request made on behalf of Mr Caratti was unlawful.

Do the companies have a right to recover possession of, or otherwise have a right to demand delivery of the hard drives and/or some other documents, being electronic files? 229 Having found that the request for the copy documents that resulted in the hard drives being given by the AFP to Wilson & Atkinson (and later held by Zafra Legal) involved a request under s 3N by both Mr Caratti and the companies, I consider each now has a right to possession of the material supplied; if not to the hard drives themselves, then to the electronic files or materials on the hard drives. 230 I should here note the terms of s 438C and s 530B of the Corporations Act, pursuant to which relevant liquidators required Mr Caratti to produce the hard drives to them and in respect of which they seek declaratory relief. 231 Section 438C of the Corporations Act provides as follows: 438C Administrator's rights to company's books (1) A person is not entitled, as against the administrator of a company under administration: (a) to retain possession of books of the company; or (b) to claim or enforce a lien on such books; but such a lien is not otherwise prejudiced. (2) Paragraph (1)(a) does not apply in relation to books of which a secured creditor of the company is entitled to possession otherwise than because of a lien, but the administrator is entitled to inspect, and make copies of, such books at any reasonable time. (3) The administrator of a company under administration may give to a person a written notice requiring the person to deliver to the administrator, as specified in the notice, books so specified that are in the person's possession. (4) A notice under subsection (3) must specify a period of at least 3 business days as the period within which the notice must be complied with. (5) A person must comply with a notice under subsection (3). (6) Subsection (5) does not apply to the extent that the person is entitled, as against the company and the administrator, to retain possession of the books. Note: A defendant bears an evidential burden in relation to the matter in subsection (6), see subsection 13.3(3) of the Criminal Code. (7) An offence based on subsection (5) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 232 Because, in my view, Mr Caratti personally, as well as on behalf of the relevant companies, through his solicitors received copies of the seized documents, and because the relevant companies, in my view, are also entitled to possession of the materials on the hard drives, I do not consider Mr Caratti is bound to hand over his personal copy of hard drives under this provision. 233 Section 530B of the Corporations Act provides: 530B Liquidator's rights to company's books (1) A person is not entitled, as against the liquidator of a company: (a) to retain possession of books of the company; or (b) to claim or enforce a lien on such books; but such a lien is not otherwise prejudiced. (2) Paragraph (1)(a) does not apply in relation to books of which a secured creditor of the company is entitled to possession otherwise than because of a lien, but the liquidator is entitled to inspect, and make copies of, such books at any reasonable time. (3) A person must not engage in conduct that results in the hindering or obstruction of a liquidator of a company in obtaining possession of books of the company. (3A) Subsection (3) does not apply if the person is entitled, as against the company and the liquidator, to retain possession of the books. Note: A defendant bears an evidential burden in relation to the matter in subsection (3A), see subsection 13.3(3) of the Criminal Code. (4) The liquidator of a company may give to a person a written notice requiring the person to deliver to the liquidator, as specified in the notice, books so specified that are in the person's possession. (5) A notice under subsection (4) must specify a period of at least 3 days as the period within which the notice must be complied with. (6) A person must comply with a notice under subsection (4). (6A) Subsection (6) does not apply to the extent that the person is entitled, as against the company and the liquidator, to retain possession of the books. Note: A defendant bears an evidential burden in relation to the matter in subsection (6A), see subsection 13.3(3) of the Criminal Code. (6B) An offence based on subsection (6) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (7) In this section: liquidator includes a provisional liquidator. 234 For the same reasons, I do not consider that Mr Caratti is obliged to hand over his personal copy of the hard drives, at least the electronic copies of documents thereon, to the companies under this provision. 235 But that does not mean that the requests issued on 24 April 2017 by Mr Harris and Mr Kirman under s 438C and s 530B of the Corporations Act to GH1 and MNWA respectively requiring the production of books and records of the companies are ineffective in respect of the material belonging to those entities that are on the hard drives. 236 Similarly, the liquidators notices issued under s 530B on 23 August 2017 to IME and Mammoth Civil in respect of the books and records of those companies stored on the hard drives were also effective to require the production of those documents that belong to those entities. 237 And, the notice issued by the liquidators of Whitby under s 530B of the Corporations Act on 28 September 2017 to Zafra Legal requiring the production of copies of documents belonging to it on the hard drives are also effective in a similar way. 238 In those circumstances, the answer to the question posed is, yes, the companies are entitled to demand delivery up to them of the hard drive or the electronic files on the hard drives but not to the exclusion of Mr Caratti's right to possession. 239 I would, in these circumstances, simply make a declaration that the relevant companies and Mr Caratti are each entitled to possession of the hard drives and order that the hard drives or a copy of the materials thereon be given to each of Mr Caratti and the companies. 240 Finally for the reasons I have given in the related proceeding, I would not order any stay on the granting of relief and orders made in this proceeding.

Orders 241 I consider a declaration and orders to the following effect to be indicated, but before making them I will hear from the parties as to the terms of the relief proposed and, in particular, the practical implementation of the orders as well as on the question of costs: (1) The Court declares that each of Mr Caratti and the respondents (in relation to those files that belong to each respondent) are entitled to the possession of the hard drives or the electronic files thereon. (2) The Court orders that: (a) The hard drives be given to Mr Caratti and those copies of the electronic files thereon belonging to the respective respondent companies be given to the liquidator thereof. (b) Such other orders as may be appropriate. I certify that the preceding two hundred and forty-one (241) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

SCHEDULE OF PARTIES WAD 329 of 2017 Respondents Fourth Respondent: WILLIAM JAMES HARRIS AND ROBERT MICHAEL KIRMAN AS JOINT AND SEVERAL LIQUIDATORS OF I.M.E. PTY LTD ACN 107 942 059 (IN LIQUIDATION) Fifth Respondent: ROBERT MICHAEL KIRMAN AS LIQUIDATOR OF ACN 142 745 337 (IN LIQUIDATION) Sixth Respondent: GH1 PTY LTD ACN 099 191 714 (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) Seventh Respondent: MNWA PTY LTD ACN 101 717 177 (IN LIQUIDATION) Eighth Respondent: I.M.E. NOMINEES PTY LTD ACN 107 942 058 (IN LIQUIDATION) Ninth Respondent: ACN 142 745 337 (IN LIQUIDATION) Tenth Respondent: WHITBY LAND COMPANY PTY LTD (IN LIQUIDATION) ACN 115 233 193 Eleventh Respondent: WILLIAM HARRIS AND ROBERT KIRMAN AS JOINT AND SEVERAL LIQUIDATORS OF WHITBY LAND COMPANY PTY LTD (IN LIQUIDATION) ACN 115 233 193