UNITED FISHERIES LIMITED AND ANOR V MINISTRY OF FISHERIES HC WN CIV-2008-485-2452

UNITED FISHERIES LIMITED AND ANOR V MINISTRY OF FISHERIES HC WN CIV-2008-485-2452 16 December 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2008-485-2452UNDER The Judicature Amendment Act 1972 BETWEEN UNITED FISHERIES LIMITED First Applicant AND UFL CHARTERS LIMITED Second Applicant AND THE CHIEF EXECUTIVE OF THE MINISTRY OF FISHERIES Respondent Hearing: 8 December 2008 Appearances: Mr F Cooke with Mr M Sullivan for Applicant Mr A Powell with Mr C Lange for Respondents Judgment: 16 December 2008 at 12 pmJUDGMENT OF MALLON J ContentsIntroduction............................................................................................................... [1] Background............................................................................................................... [2] Reasonably necessary to preserve the position of the applicants ........................... [14] Strength or weakness of case .................................................................................. [21] Exercise of power to search premises................................................................. [22] Removal of computers and cloning .................................................................... [35] Breadth of search ................................................................................................ [46] Other discretionary factors...................................................................................... [50] Prejudice to investigation.................................................................................... [50] Prejudice to United Fisheries.............................................................................. [55] Balancing of the discretionary factors ................................................................ [58] Result ...................................................................................................................... [60] Costs ....................................................................................................................... [62]Introduction[1] On the morning of 5 November 2008 officers of the Ministry of Fisheries ("MoF") entered the applicants' premises and seized several files of documents, two laptop computers and one other computer, and also "cloned" portions of the central server at the premises. The seized computers were subsequently cloned and the computers returned. The applicants say that this search, seizure and cloning was unlawful. They seek an interim order preventing MoF from taking further action to examine or access the information obtained until the lawfulness of the search, seizure and copying can be determined at substantive hearing. MoF opposes the interim order application.Background[2] The search, seizure and cloning occurred as part of an investigation by MoF into alleged illegal fishing by the master and crew of FV Kapian Rusak, a Ukranian owned, Maltese flagged, vessel. The vessel had been fishing New Zealand waters under a time charter contract with the second applicant, which is a subsidiary of the first applicant. (I refer to the first and second applicants as "United Fisheries" because for present purposes there is no need to distinguish between the two companies.) [3] United Fisheries has an Allowable Catch Entitlement (ACE) for Ling of approximately 50 tonnes in Fishery Management Arena LIN5 and approximately 245 tonnes in Fishery Management Arena LIN6. MoF believes that the Kapian Rusak has caught substantial quantities of Ling from LIN5 and reported it as LIN6 in the returns required pursuant to the Fisheries Act 1996. MoF believes this to have occurred in the 2007 and 2008 fishing years. MoF says that the catch yield in LIN5 is much higher than in LIN6. It says that reporting catch from LIN5 as catch from LIN6 would avoid the need to acquire, at considerable cost, additional ACE for the over fishing in LIN5. The alleged illegal activity is known in the industry as "trucking".[4] When the Kapian Rusak arrived in port at Lyttleton on the morning of 5 November 2008 it was met by a large number of fishery officers who boarded the vessel and immediately cordoned it off. Mr Katzikas, a director of companies in the United Fisheries group, received a telephone call about this. He made his way to the port and was met by a Mr Southern, a fishery officer who Mr Katzikas understood to be in charge of the search. He was told that the officers were investigating potential misreporting of LIN5 and LIN6 in the Trawl Catch Effort Processing Returns ("TCEPRs"). [5] Mr Dovbysh, who supervises the Kapian Rusak on behalf of United Fisheries, was also at the wharf. He received a telephone call from a fishery officer advising him that fisheries officers had authority to enter his private home address in Christchurch and that his presence was required there. Mr Dovbysh informed Mr Katzikas of the telephone call and left the wharf shortly after this telephone call. [6] Mr Katzikas then telephoned Mr Southern (who by this stage was onboard the Kapian Rusak) and asked whether there were any other surprises he should be aware of. Mr Katzikas was told that there were two officers on their way to United Fisheries' premises in Christchurch and that they were intending to search those premises. As a result of this information, Mr Katzikas returned immediately to the United Fisheries' premises where he was met by two fishery officers who were waiting at the reception area for him. The officers advised him that they were there as part of the investigation into the alleged misreporting of LIN5 and LIN6 taken by the Kapian Rusak and that they intended to conduct a search of the premises and to seize any information, documents or records relevant to their inquiry. The officers advised that they intended to search, by use of a "key word" search, the computer systems of five particular individuals. [7] The search of United Fisheries' premises commenced at around 8 am. The two officers who were in the reception area, together with three further officers who had been waiting in vehicles outside, conducted the search. During the search the following were seized:a) Hardcopy documents. According to Mr Katzikas these were of a general nature containing references to the vessel and included complete sets of financial and catch information for the vessel's voyages from 2006 onwards and photocopies of the returns that had been furnished to MoF; b) Mr Katzikas' laptop. The laptop contains virtually the entire business records of the United Fisheries Group and includes communications with legal advisers on a range of company affairs. It also includes private and personal information including the private affairs of the Katzikas family trusts; c) A computer from the office of Mr Katzikas' brother (who is a shareholder and director of United Fisheries Holding Limited) which contains largely the same types of information as that held on Mr Katzikas' laptop; d) A laptop which monitors and records the vessel's position in real- time; e) A clone of the G drive (containing information generally accessible by staff of the United Fisheries Group), a clone of the H drive (containing folders specific to individuals and accessible only by those individuals), a clone of parts of the M drive (containing commercially sensitive information to which access is limited to management personnel) and complete copies of the email folders of six United Fisheries personnel (containing a wide range of information including commercial, legal, personal and family related information) – all of these from the central server at the United Fisheries premises. [8] Mr Katzikas informed the fisheries officers that some of the information being seized would be legally privileged. He was told that the information would besealed until the issue of privilege had been resolved. Mr Katzikas appears not to have raised any other objection to the actions of the fisheries officers. [9] On 5 November 2008 solicitors for United Fisheries wrote to MoF challenging the lawfulness of the search and seizure. It advised that proceedings would be filed and it sought confirmation that the information would not be accessed in the meantime. [10] On the morning of 6 November 2008 a fishery officer provided United Fisheries with a list of the documents that had been taken. This list did not include the electronic information. At this time Mr Katzikas' laptop and his brother's desktop computer were returned, their hard drives having been cloned by MoF prior to their return. (The process of cloning the laptop of the vessel's movements took longer but was completed by 20 November 2008 and the laptop was returned at this time.) [11] On 6 November 2008 MoF replied to the letter from United Fisheries' solicitors. It disagreed with the alleged unlawfulness of its actions, said that it would co-operate to identify and exclude privileged information and said that it was "solely interested in documents and files that relate to this investigation and as such are keen to work with you to ensure no irrelevant personal or any privileged documents are seized". [12] This response was unsatisfactory to United Fisheries and, following further correspondence which did not resolve matters, on 10 November 2008 United Fisheries commenced a proceeding under the Judicature Amendment Act 1972 seeking a declaration that the search and seizure operation was unlawful and directing that the material taken, cloned and copied be returned to United Fisheries. This was accompanied by the interim order application that is before me. [13] The documents and clones MoF obtained are now being held in tamper-proof evidence bags and MoF has agreed not to examine them pending the determination of the application for an interim order.Reasonably necessary to preserve the position of the applicants[14] If an interim order is not granted MoF intends to search the electronic information contained in the cloned data via key word searches. The key words to be used have not been provided to anyone in the United Fisheries group. [15] MoF also intends to put in place a process for information subject to legal privilege in accordance with its current practices. That process would involve an investigating accountant employed by MoF being the only person with access to the electronic records pending determination of any privilege issues. United Fisheries would be asked to identify records or categories of records within the electronic material in which privilege is claimed. The accountant would then locate the records and undertake an initial examination to assess whether the records appear to be subject to privilege. If the accountant agreed with the claim for privilege the document would be marked privileged and not accessed further. If he disagreed he would seek assistance from MoF legal staff and in the meantime the document would not be accessed further. A representative of the party claiming privilege would be entitled to be present during the location of the identified records. [16] At the end of this process the MoF investigating accountant would provide to MoF investigators the information from the electronic key word searches with any privileged records removed. [17] United Fisheries says that the search and seizure of the documents and the computers was unlawful and the proposed word search and process for dealing with privileged information will also be unlawful. It says that an interim order is reasonably necessary to preserve its position (as per s 8 of the Judicature Amendment Act 1972) because, if the orders are not made, the search that it alleges to be unlawful will take place. [18] MoF initially contended that an interim order was not reasonably necessary to preserve United Fisheries' position because:a) Any abridgement of United Fisheries' right to be free from an unreasonable search is minor and its concerns that the search was too wide and that a breach of privilege will occur will be addressed by MoF's proposed procedure; and b) An interim order would illegitimately interfere with an investigation. [19] However, in the course of argument, counsel for MoF accepted that, if the search and seizure that has already taken place abridged United Fisheries' rights, then MoF's proposed further examination would further abridge those rights. In that sense interim orders could be seen as reasonably necessary to preserve United Fisheries' rights. Counsel for MoF accepted that the degree to which United Fisheries' rights were potentially abridged and MoF's concerns about illegitimate interference with an investigation could instead be taken into account as factors relevant to the discretion whether to make an interim order. [20] I proceed on the basis that an interim order is reasonably necessary to preserve United Fisheries' position that it not be further exposed, through the examination of the information MoF holds, to an unlawful search. I turn to consider the matters relevant to my discretion as to whether to grant the interim order that is sought.Strength or weakness of case[21] The apparent strength or weakness of the substantive case is a factor relevant to the exercise of the discretion. There are a number of components to the claimed unlawfulness in this case.Exercise of power to search premises[22] MoF's search was conducted pursuant to s 199(2) of the Fisheries Act 1996. That section enables officers to conduct searches without a warrant. Its terms are as follows:(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— . (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.[23] In the written submissions for United Fisheries it was said that s 21 of the New Zealand Bill of Rights was important in interpreting the powers of investigation in the Fisheries Act. Reference was made to Tranz Rail Ltd v Wellington District Court [2002] 3 NZLR 780 at [28] to [30] where the Court of Appeal was not satisfied that a warrant was "necessary", as was required by the section under which it could be authorised, when there was no evidence as to why other investigatory steps were insufficient. Reference was also made to R v Laugalis (1993) 10 CRNZ 350 at 355-356 which raised the potential for unreasonableness if a more intrusive power is used when other less intrusive powers are available. At the hearing counsel for United Fisheries advised that this submission was not pursued for the purposes of the interim orders application. Accordingly I need not consider whether MoF was required to consider less intrusive powers before deciding to exercise its powers under s 199(2) and I simply note that this submission was not accepted by MoF. [24] Turning to the terms of s 199(2), the first requirement (s 199(2)(a)) is that a fishery officer believes on reasonable grounds that an offence against the Fisheries Act is being or has been committed. MoF says it has reasonable grounds to believe that the returns required by the Act are false and misleading in breach of s 230. It says that United Fisheries are liable for the actions of the master or any member of the crew of the Kapian Rusak in completing the false and misleading returns. United Fisheries does not challenge that this first requirement (s 199(2)(a)) is made out.United Fisheries does, however, challenge the second requirement (s 199(2)(b)(iii)), namely whether the officer had reasonable grounds to believe that any document or thing, which there is reasonable grounds to believe will be evidence as to the commission of an offence, may be located at its premises. [25] The evidence as to the reasonable grounds for the belief is set out in an affidavit from Mr Robinson. He is a fishery officer under the Fisheries Act with 19 years' experience in that role. He has a designation of senior investigator. He sets out in some detail why he believes the Kapian Rusak has engaged in "trucking". This belief has come from information received from the skipper of another vessel fishing in the same area as the Kapian Rusak, analysis by MoF staff of the Vessel Monitoring System (VMS) data (showing the movements of the Kapian Rusak), analysis of the TCEPRs and of the Catch Landing Returns (CLRs) compiled for the vessel, and information obtained from a MoF Observer on board the Kapian Rusakon one of the voyages. [26] Mr Robinson then sets out the grounds for his belief that evidence relating to the commission of an offence will be found at United Fisheries. He says: a) As permit holder, United Fisheries is responsible for ensuring correct completion and lodgement of the returns to MoF; b) It would be standard practice for there to be an agreement between theKapian Rusak and United Fisheries as to how the Kapian Rusak will be utilised over the fishing year and what ACE is available to be fished; c) The type of documents to be found at United Fisheries' premises would include briefing documents, fish plans, charter agreements, used TCEPR and CLR books, ACE transactions, compliance contracts between United Fisheries and the vessel owners and both written and electronic records;d) There might also be found a red book, which the observer onboard theKapian Rusak had seen being used to record tow by tow information, since the two obvious places this book might be found in a search were on the vessel and at United Fisheries' premises; e) Communication between the vessel and shore as to the location and species and quantity of fish being caught was vital; f) United Fisheries had an incentive to maximise all available ACE (and "trucking" could achieve that); and g) United Fisheries ought to have known about the misreporting by theKapian Rusak and it was therefore "either complicit in the offending or negligent by allowing it to continue". [27] United Fisheries says that this information does not satisfy s 199(2)(b)(iii). It submits that the statutory test does not enable MoF to go to a place where evidence of an offence may be found and to look through everything to see if anything relevant can be found. It says that the evidence indicates a reasonable ground for belief of misreporting by the master or crew of the vessel. It says that this is not evidence which could give rise to reasonable grounds for believing that particular documents that would be evidence of the offence may be located at United Fisheries' premises. It says that nothing has been put forward by Mr Robinson as to what he believes will be in the types of documents he has referred to (ie. the documents at [26] c) above) that "will" be evidence of an offence. It says the closest Mr Robinson gets to doing this is with reference to the red book ([26] d) above) but he does not say why he believes that book may be at United Fisheries' premises rather than on the vessel. [28] United Fisheries says that the position is the same as that which came before the High Court in South East Resources Ltd v Chief Executive, Ministry of Fisheries & Ors HC WN CP 211/01 18 December 2001. This case also involved an alleged unlawful search and seizure of a charter and permit holder in respect of suspected"trucking" by a vessel. In granting interim relief declaring that the Crown ought not to take further action arising from the search the High Court said:[19] Whilst there may have been reasonable grounds for believing that the masters of the three vessels chartered by the plaintiff were committing misreporting offences, and that there may be some vicarious liability for the charterer and permit holder, that in itself would not in my view alone justify a search based on the provisions of S.79 [equivalent to s 199(2)]. There must be a reasonable ground to believe there will be evidence as to the commission of offence [sic] against this act [sic] located in the computer records. The two relevant requirements are that a fishery officer believes on reasonable grounds that an offence is being or had been committed, and that the officer had reasonable grounds to believe that there was a record, document or thing that would be evidence as to the commission of the offence. [20] All statutory powers of search must be construed in accordance with S.21 New Zealand Bill of Rights Act 1990. However, in this case, I think one only needs to follow the wording of the Act referred to above. Looked at objectively as the Court is entitled to do, I am left without any information as to what it was might be found on the computer. Obviously their [sic] could be information directly suggesting that the plaintiff was encouraging trucking and giving directions accordingly. There is nothing to suggest that and the affidavits do not suggest that the mere relationships of ship owner and charterer allows such direction or that such directions may follow as of right. If the chartering agreement so provided I would no doubt have been told.[29] MoF says that there are reasonable grounds for a belief that evidence of the offending that is not on the boat is likely to be found at United Fisheries' premises. This is because United Fisheries is the permit holder responsible for the returns and for seeing that there is available ACE to cover the fishing activity and it is the party with whom all the ship to shore communications are made. MoF submits that the power in s 199(2)(b)(iii) is similar in scope to the grounds on which a search warrant can be issued under s 198 of the Summary Proceedings Act 1957. It submits that, just as under s 198 the applicant for a search warrant is not required to particularise why a particular document or category of document will be evidence of an offence, nor is that degree of particularity required under s 199(2) of the Fisheries Act. MoF says that the whole purpose of the investigation is to gather evidence because the investigator does not know precisely how it occurred. MoF submits that this does not turn the power into a general search because the search is confined by reference to the alleged offending. It does not authorise a search of records for offending in general.[30] MoF says that the decision in South East Resources is wrong in that it focused on whether there were reasonable grounds to believe that the charter company permit holder was encouraging or directing the trucking. It says that the charter company/permit holder could still have documents that are evidence of "trucking" by the vessel operators even if the charter company/permit holder was unaware of and not directly involved in the trucking. It also says that the opposition to the interim relief sought in that case was deficient because the affidavits before the Court did not disclose what the alleged offence was despite the plaintiff's request for that information. It says that this seems to have led the Court to wrongly conclude that the relevant offence was one of aiding, abetting, counselling or procuring the trucking. [31] United Fisheries accepts that there need not be an allegation that it was directly involved in the trucking but submits that, in the absence of that allegation or information as to why the charter company/permit holder would have evidence of the vessel operator's trucking activities, there is no reasonable basis for a belief that documents that will be evidence of an offence may be at United Fisheries' new premises. [32] Neither party seeks on this interim orders application a concluded view by this Court on the respective arguments. The issue is one of statutory interpretation but there may be further relevant evidence, for example evidence from Mr Robinson as to the kind of information within the categories of documents he has referred to which he has reasonable grounds to believe will be evidence of an offence. However, even without that further evidence, it seems to me that this aspect of United Fisheries' case is weak. [33] In my view United Fisheries places too much emphasis on "will" in s 199(2)(b)(iii). The requirement is qualified both by the "reasonable grounds for belief" and by the "may" components of this subsection. That is, the fishery officer does not have to be satisfied that in a particular kind of document which United Fisheries will have he will find evidence of the commission of the offence. He need only believe on reasonable grounds that a document or documents, that he hasreasonable grounds to believe will be evidence of an offence, may be held at United Fisheries' premises. [34] In this case evidence of the offence will include documents or other records as to what the vessel caught, and from where, and what was recorded in the returns. Given the degree of communication that is likely as between the permit holder and the vessel, and the responsibility the permit holder has for the returns, it seems to me that fishery officers would have reasonable grounds to believe that documents, which there are reasonable grounds to believe will be evidence of the offence, may be located at United Fisheries' premises. So for example there may be reasonable grounds to believe that records of the vessel's movements will be evidence of the offence and that these records may be at United Fisheries' premises. It does not matter for the purposes of s 199(2)(b)(iii) that the records United Fisheries holds as to the vessel's movements will also be held by the vessel and MoF.Removal of computers and cloning[35] MoF has a number of ancillary powers. Section 206 provides a power to take copies of documents and to remove them for that purpose. Specifically it provides:(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 reasonable in the circumstances [36] MoF also has a power of seizure in s 207. That power, so far as is relevant for present purposes, is as follows:(1) A fishery officer may seize– (c) Any article, record, document, or thing which he or she believes on reasonable grounds is evidence of the commission of an offence against this Act.[37] United Fisheries says that the right to seize materials under s 207 is a right to seize a record or document or thing when the Fishery Officer has reasonable groundsto believe it is evidence of an offence. It says that the power is limited to the evidence itself. It says that the computers were not themselves evidence and nor was there any basis for concluding the information within them was. It says that the power to copy records or documents under s 206 only arises to the extent that the Fishery Officers are "exercising powers under this Act". It says that there is no power to copy irrelevant material because the power to search under s 199(2), for which the copying has been done, is limited to documents that there are reasonable grounds to believe will be evidence of an offence. [38] MoF's primary response is that the power to take documents or things is not limited to documents or things for which there are reasonable grounds for a belief that they will be evidence of an offence. MoF say that the power to remove for copying is broad enough to accommodate the process of removing the computer for the purpose of making a cloned copy of the information on the hard drive. MoF accepts that, because cloning will involve the copying of every document on the hard drive, it cannot be said that every document copied will be relevant. Indeed it accepts that the vast majority will not be. MoF says that having taken the documents the word search will mean that only relevant documents are looked for and when located will be looked at. MoF further submits that the hard drive of a computer is a "thing" relevant to the investigation. It further submits that United Fisheries' consent to what was taken may be established at trial. [39] Both parties refer to Tranz Rail, Calver v District Court at Palmerston North(2004) 21 CRNZ 371 and A Firm of Solicitors v District Court at Auckland [2006] 1 NZLR 586 in support of their submissions. MoF also refers to Jacks v The Hastings District Court & Anor HC WN CIV-2004-441-93 16 December 2004. Each of these cases concerned searches in which computers were removed and clones of the contents obtained. However all of these cases were searches under warrants issued under different statutory wording than the present. [40] Tranz Rail, for example, concerned a warrant under the Commerce Act 1986. The powers conferred by the warrant included the power "where necessary, to take copies of documents, or extracts from documents, that [the person executing thesearch warrant] believe[s] on reasonable grounds may be relevant" (emphasis added). There was no power to take copies of irrelevant documents. [41] A Firm of Solicitors concerned a warrant under s 10 of the Serious Fraud Office Act 1990. Again the power to remove documents or things was limited to documents or things that "may be relevant to the investigation or may be evidence" of the offence (s 12(1)(d)) and the power to take copies of documents was limited to documents that "may be relevant to the investigation" (s 12(1)(e)) (emphasis added). There is no power to remove or take copies of documents known to be irrelevant. [42] Calver and Jack involved search warrants under s 198 of the Summary Proceedings Act. A warrant issued under s 198 includes (under s 198(5)) a power to seize any thing for which "there is reasonable ground to believe will be evidence as to the commission of any such offence". Again there is no power to seize documents known to be irrelevant. [43] The power in s 206 of the Fisheries Act is not limited in the way that the powers in these other cases are. It enables fisheries officers to make or take copies of any record or document and for that purpose to take possession of and remove any such record or document from where they are kept. The only qualifications to this are that the fishery officer be exercising his or her powers under the Act and that any removal be for such time as is reasonable in the circumstances. Section 206 contrasts with s 207 where, if something is to be seized (rather than taken for copying and then returned), that can only be done where the thing seized is believed on reasonable grounds to be evidence of an offence. [44] In this case the fishery officer has taken possession of and removed the records or documents by taking the computers in which they are stored. It has done so for the purpose of taking copies of the documents in the computer which in turn is to enable those documents to be searched for documents relevant to the offence. Having taken the copies for the purposes of conducting its search it has returned the computers promptly.[45] The issue is again one of statutory interpretation. It is not apparent that any further evidence will assist with the interpretation. However the issue was not fully argued and neither party has asked me to express a concluded view on this aspect of the case. Without expressing a concluded view it does seem to me that MoF had a wider power than the powers at issue in the cases referred to by the parties. It could take documents for copying providing it was doing so in the exercise of its powers under the Act and providing it retained them only for such period as was reasonable in the circumstances. The computer is taken only to take the documents it contains just as when taking hardcopy documents a folder or box might be taken. The copies once obtained could then be searched under s 199(2).Breadth of search[46] Of more potential concern in my view is the possible width of the search. The clones contain a large amount of irrelevant information. While MoF may inevitably need to look at some irrelevant information if only to establish that it is irrelevant, it is not clear how wide the scope of MoF's search will be. A search conducted under warrant must be as specific as is possible in the circumstances. A search conducted without warrant must still be directed to searching for documents which there are reasonable grounds to believe will be evidence as to the commission of an offence. [47] Neither United Fisheries nor the Court have been told the word search that will be used. I accept that MoF would want to maintain flexibility about this because, as the search progresses, refinements may be necessary. But in the absence of information about the scope of its intended search, and because there is insufficient information before the Court as to what the categories of documents referred to by Mr Robinson might contain, it is arguable that MoF's intended approach is premised on an overly broad view of what it can search for. [48] Added to that, United Fisheries also says that the search will be unlawful because it will be conducted without protocols to ensure that it will not invade their rights to privilege. It refers to Independent Fisheries Ltd v Chief Executive of the Ministry of Fisheries [1999] NZAR 169 in support of the point that search andseizure powers do not override privilege and must be conducted subject to those rights. MoF accepts that a search cannot be undertaken for privileged documents. It says that its proposed process is intended to ensure that privilege is protected. [49] I accept United Fisheries' concerns about MoF's intended approach to privileged information. MoF's process still involves MoF personnel (the accountant who will carry out the initial examination and MoF legal personnel to whom issues may be referred) viewing privileged information. A preferable procedure in my view would be for MoF to appoint an external lawyer to consider the claims for privilege, for any disputes to be resolved by the Court or by some other independent process, and for any documents over which privilege is claimed not to be accessed until privilege claims have been resolved in this way.Other discretionary factorsPrejudice to investigation[50] MoF submits that its investigation may be prejudiced if it is delayed by an interim order. An affidavit from Mr Driscoll, the national manager of investigation services for MoF, refers to the potential for evidence to be amended or changed prior to the investigation being completed. It says that lines of inquiry may go cold because, for example, MoF may lose the chance to interview foreign crew on the basis of information disclosed in the documents. It also refers to the statutory timeframe under which investigations are to be carried out and says that judicial review proceedings have the potential to interfere with these timeframes. [51] It submits that the interruption of an investigation into suspected offending is entitled to considerable weight. It submits that the investigation has high public utility. It says that fairness to other commercial operations requires that those who "cheat the system" are detected and punished and such cheating impacts upon the sustainability of New Zealand's fishing resources. [52] MoF also says that if its investigation is halted pending the determination of judicial review proceedings, and if as a result of the proceedings it is unable to usethe evidence it has obtained, then United Fisheries will have achieved a better outcome than is available under s 30 of the Evidence Act. It submits that a judicial review proceeding can in this way deprive an enforcement authority of the opportunity to use evidence which is found to be improperly obtained without determination from the Court as to whether that is a proportionate response to the impropriety. It further submits that, from the premature intervention of judicial review proceedings, a suspect may gain an illegitimate advantage if, in opposing the application, an investigator is required to disclose to the person being investigated aspects of its investigation. It says that an interim order in this case could be used as a precedent for others who may seek to delay or thwart a criminal investigation. [53] I accept the investigation in this case has high public utility and that it should not be unnecessarily interfered with. I agree that this factor is entitled to considerable weight. I consider this is particularly so because Parliament has provided fishery officers with a power to search and seize without warrant. Parliament has not considered it necessary that the exercise of the power be subject to the prior scrutiny of a judge. If that prior scrutiny is not considered to be necessary it is not clear that interference in the midst of the exercise of their powers should be readily permitted. [54] Against that, I accept that the interference that the interim order in this case would entail is to some extent limited. To the extent that the search of United Fisheries' premises was looking for evidence of the movements of the ship and the returns that were actually submitted MoF already has that information itself. To the extent that the search was looking for details of what was actually caught and where, a contemporaneous search of the vessel took place and interviews of the master and the crew have already taken place. The documents obtained from United Fisheries will be retained in their present form and will be able to be accessed if United Fisheries' application is unsuccessful. In the meantime, as has been proposed by United Fisheries, MoF can exercise its power under s 201 to require United Fisheries to produce information and documents. There is no suggestion that a delay from an interim order would put MoF in breach of the statutory timeframes for its investigation and the laying of an information.Prejudice to United Fisheries[55] MoF submits that for participants in this industry there is a more limited expectation of privacy than could be expected by a person in their home or car. It submits that the participants are operating in an industry where fisheries officers have the power to examine records without warrant for the purposes of the administration of the Act (s 199(1)). It says that if the search of the premises, and the seizure of the computers and the cloning of them, was unlawful then that has already taken place. It says that to the extent the applicants were deprived of the use of their computers this was a temporary deprivation. It says that the proposed word search will be used to extract relevant and non-privileged documents. [56] It also submits that the issue is one of "timing rather than deference". It refers to South East Resources (2001) Ltd v Chief Executive Ministry of Fisheries[2004] NZAR 715 where the High Court declined to make a declaration under the Declaratory Judgments Act at an interim stage of the investigation. One of the reasons the Court refused to do so was that the legality of the respondent's actions could be raised in any criminal proceedings which might follow the investigation and the validity of the respondent's actions as they affected the plaintiff's property rights could be the subject of civil proceedings. [57] I agree that these are relevant factors. To some extent any further infringement of United Fisheries' rights that may occur will be limited and I agree that if an interim order is not granted the validity of MoF's actions can be considered in the context of any criminal prosecution that may follow or, for example, in civil proceedings for trespass or detinue.Balancing of the discretionary factors[58] Overall, on the basis of the relatively limited argument before me, I am not persuaded that United Fisheries has a strong case that the search, seizure and cloning were unlawful nor that MoF's intended search of the material obtained will be unlawful. I am concerned that the interim order sought interferes with an investigation by requiring the search to be subject to the kind of prior judicialscrutiny that Parliament has not considered necessary. If an interim order is not made United Fisheries has other potential remedies if it later establishes that the search and seizure were unlawful. [59] On balance, however, I have nevertheless decided to grant the interim order. I do so because there is no doubt that the search and seizure were invasive. Extensive information has been obtained. Much of this information is irrelevant to the investigation and some of this irrelevant information is commercially sensitive, private and/or privileged. An interim order will serve to hold the position pending the parties having the opportunity to make full submissions on whether the relief sought in the judicial review application should be granted. There appears to be no specific prejudice in this particular investigation by the temporary interference that the interim order will entail.Result[60] I make the following orders: a) The respondent is to take no further action to examine or otherwise access the documentation, computers and cloned computer records taken from the applicants by the Ministry of Fisheries' search and seizure operation on 5 November 2008 until further order of the Court; b) An early date for the hearing of the substantive proceeding is to be set in consultation with counsel; c) The respondent has leave to apply to discharge the order in a) at short notice if there is any change in the position such that it believes that any delay in the hearing of the substantive hearing is causing material prejudice to its investigation; d) By consent the fourth and fifth words of the second to last line in paragraph 92, the 10 th and 11th words of the first sentence inparagraph 93 and the second and third words of the second line in paragraph 101 of the affidavit of Mr John Robinson sworn on 26 November 2008, and the memorandum of counsel for the applicant filed on 5 December 2008, are not to be made available through any search of the Court file without further order of the Court. [61] In the meantime the parties remain free to resolve a method for searching the information in a way that is satisfactory to both parties. The parties could, for example agree to put in place some of the kinds of procedures discussed in A Firm of Solicitors at [107] and [108].Costs[62] United Fisheries submitted that costs should follow the event. It sought costs on a 3B basis with an allowance for second counsel. MoF submitted that costs should be on a 2B basis and that there should be no allowance for second counsel. [63] I consider that costs on this application are better considered when the merits of the substantive proceeding have been determined. I therefore reserve costs. I record that senior counsel for both parties made use of their second counsel in the course of the hearing and so this is a case where an allowance for the costs of second counsel would be appropriate. I agree with the B classification and leave open whether category 2 or 3 is appropriate for consideration at the time the substantive proceeding is determined. Mallon JSolicitors: M Logan, Oceanlaw New Zealand, PO Box 921 Nelson (ph: 03 548 4136, fax: 03 548 4195) A Powell, Crown Law Office, PO Box 2858, Wellington (ph: 04 472 1719, fax: 04 473 3482)