A BOUTIQUE intellectual property and information technology practice called Axis Legal Pty Limited has just completed Supreme Court proceedings that saw the Court declare invalid a search warrant obtained by a state government body.
In April last year, a senior Office of Fair Trading (OFT) investigator applied for and obtained a search warrant to enter premises occupied by Microwave Safety Systems Pty Ltd (MSS), Axis’ client.
In applying for the warrant, the senior investigator claimed to have reasonable grounds for believing that there was evidence at MSS’ premises of a contravention of the Fair Trading Act, the firm said.
Accompanied by armed police officers, a team of OFT officers carried out the warrant in April 2007 seizing documents and all computers from MSS’s office, which has a staff of 2 to 3 people. MSS had no notice that it was being investigated by the OFT.
MSS commenced legal action in the NSW Supreme Court against the Commissioner for Fair Trading to get its documents and computers back and to seek a declaration that the warrant was invalid, said Rohan Singh, senior solicitor at Axis Legal.
The case involved a significant dispute about whether or not a copy of a particular document (Exhibit B) appeared on MSS’ website, and a dispute about whether MSS failed to cooperate with the senior OFT investigator in his inquiries and investigations prior to the warrant application since both these issues were relied upon by the senior OFT investigator in his warrant application, said Singh.
But this month, Justice Ian Harrison of the NSW Supreme Court handed down his decision, finding that the warrant is invalid.
In his written judgment, Justice Harrison stated: “In my opinion, no person in the position of [the senior investigator] could have held a belief on reasonable grounds that evidence of a contravention of a provision of the Act could have been found at the premises.”
Justice Harrison also found that a copy of Exhibit B never appeared on MSS’s website and agreed with MSS. “There were no reasonable grounds upon which [the senior investigator] could have formed a belief that the plaintiff [MSS] had been uncooperative in any way at all.” MSS’s damages claim against the Commissioner for Fair Trading is ongoing, the firm said.