Case: Kennedy v Baker [2004] FCA 562 , 135 FCR 520
Outcome: applied
further concern in respect to the manner in which the warrant was being executed at the O'Keefe's Lane premises emerges from a separate Affidavit filed on behalf of the Applicants. The deponent to that Affidavit , Mr Edward Mazzoni, is the director of corporate services of an entity called Pakshun Enterprise Pty Ltd. Mr Mazzoni attended the O'Keefe's Lane premises and sets forth a statement made by Federal Agent Needham as follows: "We will need to take all of the servers and some of the hard drives today because we are not able to image them here. We agree to provide your lawyers with copies of the images once they have been imaged and we will also return the computers to you at that time." Accepted literally, that is a statement acknowledging that the search which the warrant authorises to be conducted of the premises at O'Keefe's Lane is not to be undertaken there but at some other undisclosed place. Accepted literally, it is also the expression of an intent to " take all of the servers " irrespective of whether or not there has been any attempt at " operating " the equipment as required by s 3L(2) with a view to determining what may be found upon the " hard drives ". Again, at a final hearing that part of the conversation deposed to by Mr Mazzoni may be put in a broader context. And s 3L(1A) may not clothe the Respondents with sufficient authority to copy the data on the disks in the manner in which they did. Irrespective of whether " data " is to be construed in the manner as concluded by Branson J in Kennedy v Baker [2004] FCA 562 at [60] , 135 FCR 530 at 537 to 538, the issue which gives rise to the serious question to be tried remains a question as to whether the manner of execution of the warrants was such as to provide " reasonable grounds " for the belief referred to in s 3L(1A). Nor is it considered that s 3K necessarily provides the authority to remove " the servers and some of the hard drives ". Such evidence as there presently is available provides little basis for any conclusion to be reached that it was " significantly more practicable " to move equipment for the purposes of s 3K(2)(a)(i). Forensic experts were assisting in the search. And, even if s 3K(2)(a)(i) was satisfied, there remains concern as to whether s 3K(2)(a)(ii) had been satisfied. On either view, it is considered that at this stage a serious question arises in respect to whether the manner in which the warrant was executed on the O'Keefe's Lane premises in respect to the computers found on those premises has exceeded the authority conferred by the legislation and by the terms of the warrant as issued. Section 11 of the Judicial Review Act provides for the manner in which an application under that Act is to be made and s 11(1)(c) imposes ( inter alia ) a requirement to lodge an Application in the Registry within 28 days of the decision the subject of review. It is ss 5, 6 and 7 of that Act that confer jurisdiction upon this Court pursuant to the terms of that Act. If the jurisdiction of this Court which is sought to be invoked is to include that conferred by the Judicial Review Act , it may be that the Amended Application fails to comply with O 4 r 3(1)(b) of the Federal Court Rules : cf Kennedy [2004] FCA 562 at [5] , 135 FCR at 523 per Branson J. Whether any further amendment is sought to be made to the existing Amended Application , however, remains a matter for the Applicants to address and for the docket judge who has this proceeding assigned to him to resolve. Section 11(1)(c) assumes present relevance because the events now the subject of the present proceeding took place on 15 April 2009 and the initial Application was not lodged until 7 September 2009 &#8212; a period some four months out of time. Reliance upon s 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act ') may not present such a problem for the Applicants &#8212; but reliance upon s 39B could not permit review of the decision of the " issuing officer " to issue the warrants, that officer not being an " an officer ... of the Commonwealth ". If an extension of time were granted, the decisions to issue the warrants would also be susceptible to review pursuant to the Judicial Review Act . Decisions to issue warrants, it may be accepted, are decisions of an " administrative character " ( Harts Australia Ltd v Commissioner, Australian Federal Police [2001] FCA 175 at [26] , 65 ALD 463 at 470 per Drummond J) and decisions made " under an enactment " ( Kennedy [2004] FCA 562 at [7] , 135 FCR at 524 per Branson J).