TLC Consulting Services Pty Ltd v White
[2003] QCA 131
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- Notable Unreported Decision
- Appeal Determined (QCA) - Appeal Discontinued (HCA)
- TLC Consulting Services Pty Ltd v White[2003] QCA 131
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TLC Consulting Services Pty Ltd v White[2003] QCA 131
TLC Consulting Services Pty Ltd v White[2003] QCA 131
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED EX | 21 March 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 March 2003 |
JUDGES: | de Jersey CJ, Davies JA and Atkinson J |
ORDERS: |
|
CATCHWORDS: | STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – where computer server contained irrelevant information – whether computer server a “record” TRADE AND COMMERCE – TRADE PRACTICES AND RELATED MATTERS – ENFORCEMENT AND REMEDIES – PROCEDURE – EVIDENCE – POWER TO OBTAIN – OTHER CASES – where particularity of warrant limited – whether warrant formally valid Acts Interpretation Act 1954 (Qld), s 36 Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952, approved |
COUNSEL: | M Griffin SC, with B Thomas for the appellant |
SOLICITORS: | Crown Solicitor for the appellant |
THE CHIEF JUSTICE: The respondent company operates an introduction agency. Prior to 17 October 2002 the Queensland Office of Fair Trading had received a large number of complaints concerning the respondent's operations. The appellant is a senior investigations officer employed by the Office of Fair Trading. He carried out an investigation into the operations of the respondent with a view to possible prosecution for breach of the Act. Section 89 subsection 3 of the Fair Trading Act provides:
"A Justice who is satisfied upon the complaint of an inspector that there is reasonable cause to suspect that any place has been or is being or is likely to be used in connection with a contravention of this Act or for the keeping of records relating to a contravention of this Act may issue the Justice's warrant directed to the inspector to enter the place specified in the warrant for the purpose of the inspector exercising in the premises the powers conferred on an inspector by this Act."
On 16 October 2002 the appellant swore a complaint with a view to obtaining the issue of a warrant. A Magistrate issued a warrant that day. The following day the appellant executed the warrant at the respondent's offices at Bundall. The appellant seized the respondent's computer server and removed it from the respondent's premises. The appellant did so in reliance on his power under section 89(1)(e)(i) of the Act to "...take possession of...records relating to...services supplied or to be supplied or relating to any matter the subject of an investigation under this Act". The respondent challenged the appellant's decision to seize and remove the server, by proceedings under the Judicial Review Act. The learned primary Judge set aside the appellant's decision and ordered that the server be returned to the respondent. A preservation order was subsequently made pursuant to which the contents of the server's hard drive were copied and deposited with Registrar of this Court.
The learned Judge held that the server did not amount to records within the meaning of section 89(1)(e)(i). The appellant challenges that finding. The term "records" is defined by section 5 of the Act to include "any record of information however compiled, recorded or stored and any books, documents or writings", which conforms to the natural meaning of the word. See Sunrise Auto Ltd v. FCT (1995) 61 FCR 446 at 462-3.
Assuming the server contained presently relevant information, then one would prima facie think it fell within that definition as being a "record of information...however stored". Further, the term "document" is defined by section 36 of the Acts Interpretation Act 1954 to include, among other things, "any disc, tape or other article or any material from which...writings...are capable of being produced or reproduced (with or without the aid of another article or device)" and there is evident no "contrary intention" such as would preclude the application of that definition to section 5 of the Fair Trading Act.
Mr Richter, QC, who appeared for the respondent, styled a server as "a repository of records" of information but not, in terms of section 5, a "record of information". But that was, in my view, a distinction without a difference. That the server contains records plainly does not mean that overall it should not be considered a record, in this case a record containing various species of information.
He referred to section 89(1)(e)(i) as to the inspector's power to make copies of records at the premises, inappropriate in the case of a server containing a number of species of information, hence his submission that it was not intended a server constitute records for the purposes of the provision. In my view the answer to that submission is that the subsection merely empowers the inspector to do certain things some of which, in this case, would not be apt to a server. The provision does not delineate what are records. It simply accords powers which may or may not be exercised and which, depending on the form of the particular record, may or may not be apt.
The language of the provisions is, in my view, clear and anambiguous, yielding a comprehensible obvious construction in its application to this case. That being so, the restrictive process of reading down urged for the respondent - as to which see Ousley v. The Queen (1997) 192 CLR 69 at 141 - would be unjustified.
Her Honour correctly observed that "a computer server is physically the repository electronically of numerous separate records" but for reasons I have expressed that does not mean that it ceases to be a record. She also held, without assigning any particular reason, that the extended meaning of "document" under section 36 of the Acts Interpretation Act is incapable of embracing the server. It is difficult to see why the passage I have extracted earlier is not wide enough to accomplish that.
It was common ground before her Honour that, "there are some records on the server which (the appellant) was entitled to seize and that there are some records which (the appellant) was not entitled to seize. There was no consensus as to the extent of the records to which (the appellant) was entitled."
It was submitted for the respondent that the relevant record, to fall within section 89, must relate solely to the particular service in question or the subject of a particular investigation being undertaken, although there was some retreat from that written submission in the course of oral argument. The statute does not impose such a limitation. There is no reason to conclude that because the contents of the disk drive of the server relate to other matters, in addition to those immediately relevant, the server does not constitute a record "relating" to those matters immediately relevant. In my view, the learned Judge erred in reaching a contrary conclusion. It is not necessary to deal with the appellant's separate argument based on Ghani v. Jones (1970) 1 QB 693.
By a notice of contention the respondent separately challenged the learned Judge's rejection of the contention that the warrant was formally invalid. The particulars of the invalidity rest in its not specifying the purpose for which it was issued, containing only a general reference to contraventions of the Fair Trading Act, and not stipulating the basis of the reasonable suspicion that the premises had been or were being or were likely to be used in contravention of the Act. It was not necessary, however, that the warrant descend to such detail and particularity. The only requirement as to the content of the warrant statutorily prescribed, by section 89 subsection 3, is that it be, "directed to the inspector to enter the place specified in the warrant for the purpose of the inspector exercising in the premises the powers conferred on an inspector by this Act."
The body of the warrant was as follows:
"Whereas I, the undersigned Magistrate, am satisfied by the complaint on oath of Paul Michael White, an Inspector appointed pursuant to Section 19(1) of the Fair Trading Act 1989, that there is reasonable cause to suspect that:-
a place namely premises described as commercial premises situated at TLC Consultancy Services, Level 2, Corporate Centre One, Bundall Road, Bundall in the State of Queensland; (the place or "the premises")
Has been, or is being or is likely to be used in connection with the contravention of or for the keeping of records relating to a contravention of the Fair Trading Act 1989, concerning Misleading or Deceptive Conduct, Unconscionable Conduct, False or misleading representations, and accepting payment for services without intending or being able to supply as ordered,
Therefore, I issue this Warrant directed to you to ender the place for the purpose of you exercising in the premises the powers conferred on an inspector by the Fair Trading Act 1989."
Contrary to the respondent's submission the warrant specifies the basis for its issue in conformity with the statutory requirement under section 89 subsection 3, and see Ousley supra at page 110. It specifies its purpose consistently with section 89 subsection 4 and there was no requirement, statutory or otherwise, that it contain more detail of possible offences, which I observe may not by then have been known - as to which see Parker v. Churchill (1985) 9 FCR 216 at 219 - or of the basis for the reasonable suspicion.
There is no requirement furthermore that the warrant specify the particular powers which may thereafter be exercised by the inspector. The Act itself specifies those powers in section 89(1). Then as section 89(4) provides, the warrant is for one month sufficient authority to the inspector to enter the subject premises and to exercise there all the powers. These things are statutorily prescribed. There is no requirement that the statutory prescription be repeated in the warrant. It sufficed that the warrant referred to the statute.
It is really not necessary to go further, but the approach I have indicated is plainly supported by Inland Revenue Commissioners v. Rossminster Ltd (1980) AC 952 if further support be needed. In the end, there is no need to augment further her Honour's expression of reasons for rejecting the challenge to the formal validity of the warrant. I would respectfully adopt those reasons. I would make the following orders:
- Order that the appeal be allowed with costs to be assessed.
- Save so far as they relate to the mirror copy of the hard drive of the server deposited with the Registrar set aside the orders made in the Supreme Court on 20 December 2002.
- In lieu thereof order that the application for statutory order of review filed on 24 October 2002 be dismissed with costs to be assessed.
- Direct that the Registrar release to the appellant or the appellant's representative nominated in writing the mirror copy of the hard drive of the server deposited with the Registrar.
- Order that the respondent forthwith deliver the server to the appellant or the appellant's representative at such time and place as may be agreed between the parties or as may be directed by the Court in default of such agreement.
DAVIES JA: I agree.
...
THE CHIEF JUSTICE: I think it is agreeable certainly that paragraph 5 be deleted from the orders I just announced but in lieu thereof I would make an order in these terms:
Direct the respondent to file in the Court within seven days an affidavit by its appropriate officer detailing the circumstances whereby it is not possible for the respondent at this stage to deliver the server to the appellant.
ATKINSON J: I agree with the reasons and the orders proposed by the Chief Justice.
THE CHIEF JUSTICE: Those are the orders.
THE CHIEF JUSTICE: There will be an order that if, in the course of examining the mirror copy of the hard drive of the server the relevant officers of the appellant identify a document to which legal professional privilege could reasonably be considered to apply, those officers will not further examine the document. The application for a stay is refused.