2017-02-02 Construction, Forestry, Mining and Energy Union V Commissioner, Australian Federal


Case Title: / Construction, Forestry, Mining and Energy Union vCommissioner, Australian Federal Police (No 2)
Citation: / [2017] ACTSC 10
Submission Dates: / 9 and 17 December 2015
Decision Date: / 2 February 2017
Before: / Refshauge J
Decision: / 1.  The order for costs made on 12 October 2015 be confirmed.
2.  Otherwise, the first defendant pay 85 per cent of the plaintiff’s costs, including reserved costs.
Catchwords: / PROCEDURE – COSTS – Award of costs – general principles – costs of issues – justiciability – exercise of the Court’s discretion in relation to costs – different oral submissions than the stated grounds in the Originating Application – no adjournment or other such order sought to amend Originating Application – apportionment of costs – apportionment against lack of success by plaintiff on a number of issues – modified order as to costs –
r 1705 of the Court Procedure Rules 2006 (ACT) – r 1721(1) of the Court Procedure Rules 2006 (ACT)
ADMINISTRATIVE LAW – JUDICIAL REVIEW – Search and seizure – warrant – whether execution of warrant unlawful – requirement for copy of warrant to be made available to occupiers as soon as reasonably practicable – copy to be handed over prior to recording of production of warrant – requirement for copies of documents seized to be provided to occupiers “as soon as practicable” – copying of documents seized – requirement for police to provide receipt for everything seized – receipt to be provided as soon as reasonably practicable – seizure of computer material – probative value of information used to gain warrant issued to be executed at night – Crimes Act 1900 (ACT)
Legislation Cited: / Crimes Act 1900 (ACT), ss 195(1)(c), 197, 199, 200
Evidence Act 2011 (ACT), s 138
Court Procedure Rules 2006 (ACT), rr 60, 60(3), 60(4), 64, 1705, 1721(1), Pt 2.10
Dictionary to the Court Procedures Rules
Cases Cited: / Amaca Pty Ltd (formerly known as James Hardie & CoPty Ltd) v Hannell [2007] WASCA 158 (S)
Australian Prudential Regulation Authority v Holloway [2000] FCA 1245; 35 ACSR 276
Baulderstone Hornibrook Pty Ltd v Qantas Airways Ltd [2003] FCA 325
Beagle Holdings Pty Ltd v Equus Financial Services Ltd [2000] WASC 128
BHP Billiton Iron Ore Pty Ltd v National Competition Council (No2) [2007] FCA 557
Calderbank v Calderbank [1976] Fam 93; 3 WLR 586
Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd [2010] ACTSC 20; 4 ACTLR 114
Clarke and Chapman v Hart (1858) 6 HL Cas 532 at 667; 10 ER 1443
Colburt v Beard [1992] 2 Qd R 67
Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64
Commonwealth v Davis Samuel Pty Ltd(No8) [2014] ACTSC312
Commonwealth v Davis Samuel Pty Ltd (No 11) [2017] ACTSC2
Construction, Forestry, Mining and Energy Union vCommissioner, Australian Federal Police [2015] ACTSC362; 305 FLR 143
Cretazzo v Lombardi (1975) 13 SASR 4
Dare v Pulham (1982) 148 CLR 658
Electro Optic Systems v New South Wales [2013] ACTSC155
Foster v Farquhar [1893] 1 QB 564
Holt v TCN Channel Nine Pty Ltd (No 2) [2012] NSWSC968; 82NSWLR 293
HP Mercantile Pty Ltd v Diericex (No 2) [2012] NSWSC1430
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206; 73NSWLR 653
J-Corp Pty Ltd v Australian Builders Labourer’s Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70; 46 IR 301
Jeremiah v Lawrie [2016] NTCA 6
Latoudis v Casey (1990) 170 CLR 534
Lewis v Chief Executive of the Department of Justice andCommunity Safety (No 2) [2014] ACTSC 196
Mann v Carnell [2001] ACTSC 18, 159 FLR 466
Mickelberg v Western Australia [2007] WASC 140 (S)
NAMU of 2002 v Secretary, Department of Immigration &Multicultural & Indigenous Affairs [2002] FCA 961
New South Wales Crime Commission vPolice Integrity Commission (No 3) [2011] NSWSC 978
Oshlack vRichmond River Council (1998) 193 CLR 72
Re Birkman; Ex parte Pickering (1860) 1 QSCR 14
Renowden v McMullin (1970) 123 CLR 584
Rosselli v Rosselli (No 2) [2007] VSC 438
Trimboli vOnley(No3) (1981) 56 FLR 321
Victoria v Master Builders’ Association of Victoria (Unreported, Supreme Court of Victoria, Appeal Division, Tudgell, Ormiston and Eames JJ, 15 December 1994)
VTS IT Pty Ltd v Russell [2015] ACTSC 230
Wojic v Incorporated Nominal Defendant (No 2) [1968] VR533
Parties: / Construction, Forestry, Mining and Energy Union (Plaintiff)
Commissioner, Australian Federal Police (First Defendant)
Magistrate Lisbeth Campbell (Second Defendant)
Representation: / Counsel
Mr P Morrissey SC, Mr M Hosking Mr S Whybrow (Plaintiff)
Mr A Berger (Defendant)
Slater & Gordon Lawyers (Plaintiff)
Australian Government Solicitor (Defendants)
File Number: / SC 344 of 2015


1.  On 25 August 2015, officers of the Australian Federal Police executed two search warrants on the premises of the ACT Branch of the plaintiff, the Construction, Forestry, Mining and Energy Union, at Dickson, ACT.

2.  The plaintiff sought judicial review of certain decisions of the police and the learned Magistrate, and ancillary orders relating to the conduct and items seized during the execution of the search warrant. On 2 December 2015, I upheld some of the challenges made by the plaintiff: Construction, Forestry, Mining and Energy Union vCommissioner, Australian Federal Police [2015] ACTSC 362; 305 FLR 143 (CFMEU v AFP).

3.  In making my decision, I ordered as to costs:

The first defendant pay the plaintiff’s costs of these proceedings, unless any party seeks another order by submissions in writing setting out the other order sought and the reasons why such other order should be made.

4.  The first defendant did make submissions in writing and the plaintiff responded. It is regrettable that a period of sick leave and the pressure of business of the Court has delayed the making of this decision.

5.  In my view, the first defendant should pay 85 per cent of the plaintiff’s costs, including reserved costs.

The application

6.  In order to understand the matters for decision, it is necessary to give a short summary of the proceedings.

7.  Following the hearings of the Royal Commission to inquire into Trade Union Governance and Corruption, a joint Federal-State Police Task Force was established and, as a result, the officers of the Task Force obtained a warrant to search the premises of the ACT Branch of the plaintiff.

8.  Police commenced the search on 25 August 2015. When entering premises for such a purpose, police are required to make available a copy of such a warrant to the occupiers of the premises. The plaintiff complained that it was not produced until after the police officers had entered the premises and had begun moving people out of their offices. I held that, while there was no reason why a copy of the warrant could not be produced as soon as officers entered the premises, and probably should ordinarily be done, the procedure did not actually comply with the requirements of the law but not in such a way as to render the search invalid: CFMEU v AFP at [187]-[188].

9.  When police arrived, officers directed the staff on and visitors to the premises to leave and to remain out of the area where the search was being conducted. Although the evidence was unclear about the details of that and, while I found that the police did, in breach of the law, impede the exercise by officers of the plaintiff of their right to observe the search, I did not find that police actually denied them the right they had to do so. I was critical of the way police acted but concluded that it did not justify a finding that the seizure of documents was thereby invalid, but it did breach the procedures required by law: CFMEU v AFP at [207]-[209].

10.  There was a complaint about the way documents were seized and that the police failed to take copies with facilities available to them on the premises, so as to leave copies with the occupiers as they had requested. I held that this was a reasonable request but that the failure to accede to it did not breach the procedures required to be followed by law: CFMEU v AFP at [213].

11.  The later provision of the police providing copies did not, in my view, occur as soon as practicable after the seizure, as required by law, but without complaint by the external lawyers for the plaintiff and in apparent acquiescence of the reasons given for the delay, exacerbated by some directions as to delivery given by those lawyers and so did not render the search invalid: CFMEU vAFP at [222]-[226].

12.  The plaintiff complained that receipts for the items seized were not completed until after police had vacated the premises taking with them the seized items, following execution of the first warrant. I held that this did not breach the requirement to provide a receipt for the documents, though, in the circumstances, it provided a significant issue as to continuity and identity of the documents which may be relevant in subsequent proceedings: CFMEU v AFP at [229]-[231].

13.  Police then sought to “re-seize” the items that had been seized in the search conducted under the second warrant. I held that this was invalid as the items had already been seized, but this did not invalidate the original seizure: CFMEU v AFP [239]-[242].

14.  The way in which police seized electronically stored material was also subject to challenge as the police took material that included both evidential material and non-evidential material. While the authorities were not clear, I held the method adopted by police in this case did not breach the duties imposed by law on police executing the search warrant: CFMEU v AFP at [263].

15.  Police were unable to complete the search by 9:00pm, after which time the authority to search had ended. Police sought a second warrant, which was granted, but I held that it was invalidly granted and that the item seized under it had to be returned: CFMEU vAFP at [161]-[162].

16.  As a result of my findings, I discharged an interlocutory injunction that had earlier been made, save as to the item seized under the second warrant, in respect of which I continued the injunction permanently. I also made declarations that the procedures required by law to be observed in relation to making a copy of the warrant available as soon as practicable and not impeding the occupiers from observing the execution of the search had not been observed, though I held that the breaches were not such as to render invalid the search under the first warrant.

Relief Sought

17.  The plaintiff’s Originating Application was issued on 15 September 2015, some 21days after the search. While speedily and relatively promptly done, it cannot be said to have been issued with particular urgency.

18.  The relief sought was extensive: six declarations, an order for delivery of the items seized and removed, an order for destruction of other items, and an order for costs.

19.  I set out below in numerical sequence the orders sought in the Amended Originating Application and, after each, comment on them since the first defendant relied on the results of the consideration of each for his submissions. The first two were as follows:

1.  A declaration that the search warrant purportedly issued by the second defendant on 25August 2015 in relation to the plaintiff’s premises at 3 Rosevear Place, Dickson was invalid because s 194 of the Crimes Act 1900 did not authorise the second defendant to issue a search warrant in relation to premises when there was already a search warrant issued under s 194 in force in relation to those premises.

2.  A declaration that the search warrant purportedly issued by the second defendant on 25August 2015 in relation to the plaintiff’s premises at 3 Rosevear Place, Dickson was invalid because there was no evidence or other material to justify the second defendant’s finding that it was necessary to authorise the warrant to be executed at any time, on the basis that it was ‘necessary to do so to prevent the concealment, loss or destruction of evidence’.

20.  I did not make a formal declaration of invalidity of the second warrant, which is the one described in these orders sought, but did find it invalid: CFMEU v AFP at [161]. That finding justified the continuation of the injunction. I rejected the argument suggested as a ground for the first order sought, namely that there cannot be concurrent warrants: CFMEU v AFP at [133], [137].

21.  The ground asserted for the second order sought was, in formal terms, not accepted either. That is, I held that there was evidence logically probative of the satisfaction required for the issuing officer, the second defendant: CFMEU v AFP at [155]. I held, however, that the vice was that there was other important information relevant to that decision which was not disclosed and which the obligation of full disclosure required, and which may have led to the second defendant not having the necessary satisfaction required for the warrant to be issued: CFMEU v AFP at [157]-[158], [161].

22.  While strictly correct, as the first defendant submitted, that this second ground was not made out, the basis of my finding was logically related to the asserted ground. I do not consider that the grounds pleaded, in an application such as this, need to be construed with inflexible rigidity as long as unfairness is not caused. It is, after all, not in the nature of a pleading. The facts and argument that formed the basis for my finding were clearly set out in the written submissions of the plaintiff and the affidavits filed in support of the application, and the first defendant cannot have been taken by surprise at the hearing of the application by any of the submissions made, even though the characterisation of them was legally somewhat different.