Southern Storm (2007) Ltd v The Chief Executive, Ministry of Fisheries Hc Wn

• Jurisdiction: New Zealand
• Court: High Court
• Judge: Mallon J
• Judgment Date: 08 February 2013
• Neutral Citation: [2013] NZHC 117
• Date: 08 February 2013
• Docket Number: CIV-2011-485-1670

[2013] NZHC 117

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1670

UNDER The Judicature Amendment Act 1972

IN THE MATTER OF an application for judicial review

BETWEEN

Southern Storm (2007) Limited

Applicant

and

The Chief Executive, Ministry of Fisheries

Respondent

Counsel:

R B Squire QC and M Sullivan for the Applicant

A Powell for the Respondent

The issues were: whether judicial review of search and seizure was appropriate when criminal proceedings were pending; and whether proper steps had been put in place to protect legally privileged material.

Held: In the context of the FA, there was a need for caution in entertaining judicial review applications of the exercise of search and seizure powers when an investigation into suspected criminal offending was still on foot. Southern Storm's application for relief could only be entertained if it was a clear case of an unlawful search and seizure, and relief might be declined in the exercise of discretion if the relief would prematurely exclude evidence that was potentially admissible under s30 Evidence Act 2006 (“EA”) (improperly obtained evidence).

The issue was not a clear case of unlawfulness which should properly be entertained at this stage of an investigation. The information seized included information about the motive to engage in dumping and information about the decision makers which explained why information in relation to the other vessels had been seen as relevant.

Any challenge should be the subject of cross-examination and findings of fact could then be made. The conflict in the evidence made judicial review unsuitable. Even if some irrelevant material had been taken for copying, that would not necessarily make the search and seizure unlawful under the FA or an unreasonable search and seizure under the NZBORA. The Ministry had acted within their powers to take files where they believed on reasonable grounds that the files contained relevant information, even though they might also contain irrelevant information. The issue was whether it exercised its powers reasonably. Whether the Ministry had acted reasonably in taking the items was better determined in a context other than judicial review where the facts could be fully tested.

Parliament could only abrogate privilege by statute in an express and unequivocal manner. At the relevant time the FA did not, although it did incorporate the procedures set out in s198A Summary Proceedings Act 1957 (procedure where certain documents seized from solicitors' offices) where the search related to documents at a solicitor's office. In the absence of specific statutory procedures, common law must supplement the legislation.

The Ministry acted in accordance with Chief Executive, Ministry of Fisheries v United Fisheries Ltd in relation to the search and seizure of the computer hard drives. The computer hard drives had been cloned and the Ministry had negotiated with Southern Storm as to the appropriate process for searching the cloned hard drives in order to protect privileged information. Pending agreement on a process for the search or the resolution of this proceeding, the Ministry had refrained from searching the hard drives.

A glance at a privileged document infringed the privilege but that in itself did not make the search unlawful or unreasonable. Those searching the premises had been conscious of the need to protect privilege. Their system for doing so was to put them to one side without looking at them any further. There had been the prospect that they would encounter legally privileged documents and were then directly advised of that by Southern Storm. It had not been a situation where no-one was present to assist or where a blanket claim for privilege had been made.

It would have been better if the Ministry had asked Southern Storm to at least identify where the privileged documents would be found. Without asking this question, they had not been in a position to know whether there was a practical solution to the claim that privileged documents were present.

There had been no true unlawfulness. Although there could be an issue about the reasonableness of what had occurred, there were potential remedies available to Southern Storm outside the judicial review application, which did not risk interfering with an existing investigation and which would enable the evidence as to what had occurred to be fully tested.

Application dismissed.

JUDGMENT OF Mallon J

Contents

Introduction	[1]
The Fisheries Act/Regulations	[4]
The facts	[11]
The background	[11]
Preparations for search	[15]
The search	[23]
Items seized	[32]
Review of items seized	[34]
Subsequent events	[36]
Privileged information	[44]
Current status of seized material	[45]
Whether judicial review appropriate	[47]
Scope of search	[60]
Submissions	[60]
My assessment	[64]
Legal professional privilege	[72]
Submissions	[72]
Discussion	[74]
Result	[86]

Introduction

1 Southern Storm seeks judicial review of a search and seizure conducted by the Ministry of Fisheries at its business premises. The search and seizure was conducted as part of the Ministry's investigation into alleged “dumping” of quota fish from the vessel Oyang 75 during two fishing trips in 2011. Southern Storm is the permit holder for that vessel's fishing operations. Charges have since been brought and determined against five officers of the Oyang 75. The Ministry has not yet determined whether charges will be brought against Southern Storm.

2 Southern Storm seeks declarations that the search and seizure was unlawful under the Fisheries Act 1996 and unreasonable in breach of s 21 of the New Zealand Bill of Rights Act 1990 (“NZBORA”). It also seeks an order that the Ministry return the documents seized and copied. The grounds on which it seeks this relief are that:

• (a) the search and seizure is said to have been more extensive than permitted by s 199 and s 207 of the Fisheries Act because information irrelevant to the investigation into dumping was taken from the premises; and

• (b) no proper steps were put in place to protect legally privileged material.

3 The Ministry opposes Southern Storm's application. It says that judicial review is not appropriate at this stage of the investigation. It also says that the search and seizure was lawful and executed in a reasonable manner.

The Fisheries Act/Regulations

4 Permit holders have certain reporting obligations under the fisheries regulatory regime. Permit holders such as Southern Storm must complete and provide trawl catch, effort, and processing returns (“TCEPRs”) 1 and catch landing

returns (“CLRs”). A separate TCEPR must be completed for each day's fishing. 2 A CLR must be completed at the end of each fishing trip. 3

5 Under the regulatory regime, it is an offence for any commercial fisher to return to or abandon in the sea any fish of legal size, or for which no legal size is set, that is subject to the quota management system (known as “dumping”). 4 Dumping may occur either because the fisher wants to maximise the quality of the return, or to dispose of non-targeted species which takes up room in the hold. The practice maximises the return for the fisher/permit holder. It also means fish taken from the sea is under-reported, which may result in the setting of a wrong Total Allowable Commercial Catch (TACC) increasing the risk that a species will be over-fished.

6 It is also an offence for any person to make a false or misleading statement in a TCEPR. 5 Although the obligation for completion and filing of the returns is imposed on the permit holder, the day to day completion of TCEPRs is undertaken by officers of the vessel usually on each day while the vessel is at sea. Any acts or omissions of the crew of vessels registered in the name of a body corporate are deemed to be acts or omissions of a body corporate. 6

7 Fishery officers have the power to carry out searches without a warrant in the investigation of an offence. That power is in these terms:

199 Powers of entry and search

• …

• (2) If a fishery officer believes, on reasonable grounds,—

  • (a) That an offence is being or has been committed against this Act; and

  • (b) That—

  • …

    • (ii) Any record or information required by or under this Act to be kept, completed, or provided; or

• (iii) Any article, record, document, or thing which there is reasonable ground to believe will be evidence as to the commission of an offence against this Act,—

• may be concealed or located or held in any vessel, vehicle, conveyance of any kind, premises, place, parcel, package, record, or thing—

• then, for the purpose of the enforcement of this Act, that officer may at any reasonable time enter or pass across any land in order to enter, examine, and search any such premises or place, or any such vessel, vehicle, or conveyance of any kind (by stopping or opening where necessary), and may examine and search (by stopping or opening where necessary) any such parcel, package, record, or thing.

• (3) A fishery officer may detain any vessel, vehicle, conveyance of any kind, parcel, package, record, document, article, gear, apparatus, device, container, fish, aquatic life, seaweed, or thing for such period as is reasonably necessary to enable the fishery officer to carry out an examination or search under this section.

199 Powers of entry and search

8 A fishery officer also has the power to take copies of documents. That power is in these terms:

206 Power to take copies of documents

• (1) In exercising powers under this Act, a fishery officer may—

  • (a) Make or take copies of any record or document, and for this purpose may take possession of and remove from the place where they are kept any such record or document, for such period of time as is...