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

1. [1]

   This is an application by the plaintiff, Marcel Joukhador, for a direction under Uniform Civil Procedure Rule 43.13(3)(b)(ii) to a Registrar of this Court requiring the production to the parties of certain documents sent to the Registrar by the Local Court. The first and second defendants, namely the Commissioner of Police and Detective Senior Constable Daniel Opdam, seek a direction under that rule that the Registrar return the documents to the Local Court.

2. [2]

   The documents the subject of the application consist of material placed before the third defendant, who is a Registrar of the Local Court, in support of an application for the issue of search warrants in respect of business premises occupied by the plaintiff. The third defendant is also an “eligible issuing officer” for the purposes of the Law Enforcement Powers and Responsibilities Act 2002 (“LEPRA”). The third defendant has not played any active part in the proceedings to date.

3. [3]

   To explain the context in which these applications are made, it is necessary to first set out the history of the issue and execution of the search warrants and the challenge to them, as well as the relevant statutory provisions.

Background

1. [4]

   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.

2. [5]

   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.

3. [6]

   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.

4. [7]

   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.

5. [8]

   The description of the items that could be searched for in the premises was as follows:

6. [9]

   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.

7. [10]

   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.

8. [11]

   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.

9. [12]

   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.

10. [13]

    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.

11. [14]

    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:

12. [15]

    I have already referred to UCPR 13.13 twice. That rule provides:

13. [16]

    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.

14. [17]

    The grounds upon which the warrants were said to be invalid are pleaded in the amended summons as follows:

Statutory Provisions

1. [18]

   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:

2. [19]

   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.

3. [20]

   Subclause 13(1) of the LEPRA Regulations specifies that documents “must be kept” in relation to the warrant. It provides:

4. [21]

   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.

5. [22]

   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:

6. [23]

   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.

7. [24]

   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

1. [25]

   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.”

2. [26]

   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.

3. [27]

   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.

4. [28]

   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.

5. [29]

   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.

6. [30]

   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”.

7. [31]

   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.

8. [32]

   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

1. [33]

   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.

2. [34]

   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.

3. [35]

   Thus, in George v Rockett, the Court stated (at 117):

4. [36]

   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):

5. [37]

   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):

6. [38]

   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).

7. [39]

   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.

8. [40]

   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.

9. [41]

   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:

10. [42]

    Beyond this, the plaintiff does not know the nature of the allegations that are being investigated.

11. [43]

    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.

12. [44]

    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.

13. [45]

    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).

14. [46]

    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.

15. [47]

    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.