SOUTHERN STORM FISHING (2007) LTD v THE CHIEF EXECUTIVE, MINISTRY OF FISHERIES CA132/2013 [2015] NZCA 38

SOUTHERN STORM FISHING (2007) LTD v THE CHIEF EXECUTIVE, MINISTRY OF FISHERIES CA132/2013 [2015] NZCA 38 [23 April 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA132/2013[2015] NZCA 38BETWEEN SOUTHERN STORM FISHING (2007)LTDAppellantAND THE CHIEF EXECUTIVE, MINISTRYOF FISHERIESRespondentHearing: 10 March 2015Court: Ellen France P, Randerson and Cooper JJCounsel: R B Squire QC and K A van Wijngaarden for AppellantA M Powell and D G Fordyce for RespondentJudgment: 23 April 2015 at 11 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Ellen France P)Table of contentsPara NoIntroduction [1]Issues on the appeal [3]Background [6]The legal framework [15]The Fisheries Act 1996 [16]The principles in Gill [20]Treatment of legally privileged documents [26]The competing contentions [27]The relevant evidence [30]Our analysis [41]The scope of the search [49]The approach in the High Court [51]Discussion [53]Result and costs [64]Introduction[1] In July 2011, the Ministry of Fisheries undertook a warrantless search of the business premises of Southern Storm Fishing (2007) Ltd (Southern Storm) under s 199(2) of the Fisheries Act 1996 (the Act). That section relevantly permits entry and search where a fishery officer believes, on reasonable grounds, that an offence has been committed against the Act. The search and seizure was undertaken as partof the Ministry's investigation into alleged "dumping" of quota fish from the vesselOyang 75 during two fishing trips in 2011.1 Southern Storm is the permit holder forOyang 75's fishing operations. Documents and computers were seized as part of the search.[2] Southern Storm sought judicial review of the search and seizure. The proceeding was heard in the High Court by Mallon J. The Judge declined to grant declarations that the search and seizure was unlawful or unreasonable in breach of s 21 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).2 The Judge did so on the basis that any defects in the exercise of the search did not comprise unlawfulness of the kind for which judicial review should be entertained whilst the criminal investigation into Southern Storm's activities was still underway. The Ministry had not determined at that point whether charges would be brought against Southern Storm although no charges were ultimately laid against Southern Storm.3Southern Storm appeals.1 "Dumping" is an offence under s 72 of the Fisheries Act 1996.2 Southern Storm (2007) Ltd v The Chief Executive, Ministry of Fisheries [2013] NZHC 117 [Southern Storm v CE].3 By the time of the High Court judgment, charges had been brought and determined against five officers of the Oyang 75.Issues on the appeal[3] In dismissing Southern Storm's application for judicial review, Mallon J applied this Court's decision in Gill v Attorney-General.4 In Gill, this Court gave some guidance as to the circumstances in which judicial review applications of the exercise of search and seizure powers will be entertained when an investigation intosuspected criminal offending is still on foot. Southern Storm says the Ministry'sactions in this case fall within the types of cases in which Gill indicated judicial review was appropriate, in short, those where there is some fundamental defect such as an absence of jurisdiction. The question on appeal is, therefore, whether the Judge misapplied Gill.[4] Two issues arise from that question. The first is whether the Ministry'streatment of legally privileged material found during the search was a defect of a fundamental nature such that declaratory relief should have been given. The second issue is whether the scope of the search was a defect of that nature.[5] As we shall discuss, essentially for the reasons given by Mallon J, we consider neither of these matters gave rise to any fundamental defect. Further, the Judge was right that there are conflicts in the evidence on some key matters which were not suitable for resolution in the proceeding. Finally, we agree with the Judge there were other, more appropriate, avenues of redress available to Southern Storm. Accordingly, Mallon J was right to dismiss the application for judicial review. Before we examine these matters in more detail, we first set out the background and the legal framework.Background[6] We adopt the description of the factual background recorded by Mallon J.5[7] Southern Storm holds a permit for the fishing operations of the vesselsOyang 75 and Oyang 77. At the time of the Ministry's investigation, Oyang 75 had4 Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433.5 At [11]–[46].embarked on two fishing expeditions in New Zealand waters: the first on 8 March 2011 (trip one) and the second in May 2011 (trip two).[8] The Ministry's investigation into dumping on board the Oyang 75 was triggered in late May 2011. After interviews with crew members and preliminary inspection of catch returns from trip one, the officer in charge of the investigation, Richard Burns, decided the investigation should move to the "termination phase".6This phase was to involve a search of the Oyang 75 and of Southern Storm'sbusiness premises. Operational orders and a scope of search were prepared. John Robinson, a senior fisheries investigator, in his affidavit said the search:Needed to determine [Southern Storm's] structure, financial structure, wasthere a financial imperative to dump, who were the decision makers, what Compliance measures were in place, crew movements between the three company vessels, the impact of the loss of the Oyang 70 at sea, market issues, ACE cost considerations and issues such as that.[9] A search team was assigned and briefed. The team was headed by an experienced fisheries investigator, Geoffrey Backhouse.[10] The search of Southern Storm's premises took place in the afternoon of 7 July 2011. Three representatives of Southern Storm were at the premises. They were shown the warrant of authority and Mr Backhouse advised he had reasonable grounds to believe the Oyang 75 had been illegally dumping quota species during trips one and two.[11] A little later Johannes Te Kaat, a consultant contacted by Southern Storm'slegal advisors, Oceanlaw New Zealand (Oceanlaw), arrived to monitor theMinistry's actions. There was an exchange between Mr Te Kaat and Mr Backhouseabout the purpose of the search.[12] Craig Fisken, a forensic accountant, arrived at the premises after Mr Te Kaat. He came on the instructions of Oceanlaw. Mr Fisken told Mr Te Kaat there was privileged material in both paper and electronic form on the premises. Mr Te Kaat said he then approached Mr Backhouse, advised him of the presence of such material6 Mr Burns is a warranted Fishery Officer.and asked that he apply "appropriate methodologies to deal with" the material. There is a conflict in the evidence about Mr Backhouse's response. Mr Fisken saidin his affidavit that he then left the premises because Mr Backhouse refused to allow him to identify privileged documents. Mr Backhouse did not recall that discussion but said he would not have allowed Mr Fisken into the search area.[13] A number of items were seized following the search including computers and various documents. Paper documents or folders of documents were examined during the search and decisions made about their relevance to the investigation. In total, 104 items were taken from the premises and from the Oyang 75. These items ranged from a single document to files and file boxes of documents. The items were returned to Southern Storm within a week of the search.[14] Subsequently, there was an exchange of correspondence between Oceanlaw and the Ministry about the extent of the search and the amount of privileged material seized. Southern Storm issued its judicial review proceeding. There was also debate about the terms of a protocol to govern the search of the material stored in electronic format, but there was no issue in the High Court or before us about any legally privileged documents stored in that format.The legal framework[15] There are two aspects to the legal framework, namely, the relevant provisions in the Act7 and the principles emerging from Gill. We discuss each in turn.The Fisheries Act 1996[16] Section 199(2) provides for a warrantless search in the investigation of an offence.8 The relevant power is expressed in the following terms:7 Section 199(2) of the Fisheries Act was the relevant provision at the time the search was carried out. Section 199 has been repealed and replaced with an amended s 199, and new ss 199A and 199B by s 248 of the Search and Surveillance Act 2012. There have also been changes to the copying (s 206) and seizure (s 207) powers. Section 351 of the Search and Surveillance Act preserved the previous law for the purpose of this proceeding.8 There are requirements for authorisation, for example by a District Court judge, where the power will involve entry into a private dwelling, or an enclosed garden or curtilage of such a dwelling or on a Maori reservation: Fisheries Act, s 200.(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.[17] A fishery officer also has power to copy documents. Section 206(1) states that in exercising powers under the 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:(b) if necessary, require a person to reproduce, or assist the fishery officer to reproduce, in a useable form, information recorded or stored in a document.[18] Section 206(2) states that any documents to which s 198A of the Summary Proceedings Act 1957 applies (books of account and accounting records) shall be dealt with in accordance with s 198A.99 Section 198A imposes various obligations and rights in relation to the seizure of such documents.[19] Section 207 of the Act confers a power to seize, relevantly, in these terms:(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.The principles in Gill[20] The Court decided judicial review was not the appropriate means of proceeding in the circumstances of Gill in essence because the proceeding waspremature. The criminal investigation was "in its early stages and not all of the seized material had been reviewed".10 Further, if criminal charges had been laid, the Court said there would have been various opportunities to challenge the warrant and its execution either before trial or in the course of it.[21] The Court appropriately acknowledged that there may nonetheless be grounds to challenge a search warrant by way of judicial review. Stevens J observed the Court had previously entertained such challenges by means of judicial review"where the defect in the search warrant is of a fundamental nature, where the matter could be said to go to the jurisdiction of the issuing officer" or where anotherfundamental defect "such as want of jurisdiction" is established.11[22] In this context, the Court noted the successful challenges to search warrants in Auckland Medical Aid Trust v Taylor12 and in Tranz Rail Ltd v Wellington District Court.13 Tauber v Commissioner of Inland Revenue is a more recent illustration of a case in which the warrant could be challenged by way of judicial review.14 In thatcase a "key issue" was the correct interpretation of the statutory provisions relating to the Commissioner's power of entry and ability to remove and retain documents.1510 Gill v Attorney-General, above n 4, at [19].11 At [20].12 Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728 (CA).13 Tranz Rail Ltd v Wellington District Court [2002] 3 NZLR 780 (CA).14 Tauber v Commissioner of Inland Revenue [2012] NZCA 411, [2012] 3 NZLR 549.15 At [21]. The provisions in issue were ss 16(4) and 16C(2) of the Tax Administration Act 1994.[23] The Court in Gill also observed that relief was discretionary. Stevens J stated:16 it would be open to a court considering a preemptive challenge in thecourse of a criminal investigation and prior to any decision to charge, to refuse to grant relief if it might involve the premature exclusion of evidence divorced from any consideration of proportionality issues.[24] Accordingly, the Court said:17We therefore consider that the use of the rather blunt instrument of judicial review should rarely be permitted to be used to challenge the issue, validity and execution of a search warrant, particularly in the course of an investigation into alleged criminal offending.[25] Southern Storm does not challenge these principles. The question on appeal is one of application of those principles to the facts of this case.Treatment of legally privileged documents[26] The submissions for the parties can be summarised in the way set out below.The competing contentions[27] Mr Squire QC for Southern Storm submits the Ministry's treatment of legallyprivileged material was a defect of a fundamental kind so as to bring this case within the description in Gill of those cases in which judicial review is appropriate. The submission is that the effect of what occurred made the whole search unlawful. In developing this proposition, Mr Squire says that the evidence shows the officers did more than glance at legally privileged documents. Further, even if they did only glance at the documents that a "mere glance" was sufficient to render the searchunlawful.[28] Mr Squire founds his submissions on the importance of legal professional privilege as recognised in cases such as B v Auckland District Law Society.18Further, he says the impact of the officers' approach was to put them in the position16 At [27].17 At [29].18 B v Auckland District Law Society [2003] UKPC 38, [2004] 1 NZLR 326.where they could rely on what they had read and might have retained whilst engaging in an ongoing investigation. Once the officers were aware of the presence of legally privileged documents, they should have taken steps to ensure that the privilege was protected. For example, Mr Squire suggested the officer should have asked Mr Fisken to come inside and identify the privileged material.[29] The respondent's submission is that the evidence in its present form suggests nothing but a cursory examination of legally privileged documents was undertaken. On that basis, what occurred was not a fundamental defect of the type referred to inGill. The Judge was right to decline the application for judicial review.The relevant evidence[30] The evidence before the High Court took the form of untested affidavits.19[31] We begin with the evidence of Mr Te Kaat. He said that, after discussion with Mr Fisken, he approached Mr Backhouse outside the premises of Southern Storm. Mr Te Kaat said he told Mr Backhouse of the presence of legally privileged material both in paper and electronic form. He said Mr Backhouse told him that any such material would be sealed and not read. That evidence is confirmed in part by Mr Fisken. Mr Fisken provided expert forensic accounting services to Southern Storm at the request of Oceanlaw. Mr Fisken said he heard Mr Te Kaat advising Mr Backhouse of the presence of privileged material. On Mr Fisken's account,Mr Backhouse responded that neither man could enter the premises and told him they would deal with any privileged documents appropriately.[32] Mr Fisken said that it appeared there were four invoices covering the period from early March 2011 to June 2011 from him to Southern Storm. He said that, ifviewed, the reader would obtain "a substantial indication of the matters [he] wasreviewing at the instructions of Southern Storm's solicitors".[33] We turn then to the evidence of Mr Robinson, who briefed the search team. Mr Robinson could not remember if a question about legal privilege arose. He was19 There was no application for cross-examination in the High Court.confident that Mr Backhouse would deal with legally privileged material appropriately if located during the course of the search. By that he meant that such material would not be read or removed from the site.[34] Mr Backhouse's affidavit evidence was that he told Mr Te Kaat that he wouldnot read or take away privileged documents. He said he did not say he would seal the relevant documents. Mr Backhouse cannot recall any discussion with Mr Fisken about allowing Mr Fisken inside to identify legally privileged material.[35] Mr Squire relies on a passage from Mr Backhouse's affidavit. From thatpassage, it is apparent that, over the time that the officers were on the premises of Southern Storm (approximately six hours 25 minutes), they examined documents before removing them. Mr Backhouse said this:We did not take documents on the basis that they could later be sifted for relevance. If that had been done it would have taken very little time to remove all of the records to our vehicles. The substantial time taken was a result of our going through all of the documents on site, to find those that were evidence as to the offending. Given the number of documents taken for photocopying it was impossible to physically examine each individual document or folders of documents in any detail but they were all examined and decisions made about their relevance to the investigation. We certainly did not take all of the documents from the premises.[36] However, Mr Backhouse went on to explain that while he could not recall specific mention of legally privileged documents from the briefing, he was aware of the possibility and knew that they were not to be examined or taken for copying. His affidavit includes the following statement:I knew that the company's legal advisers were Mr Sullivan's firm, Oceanlawso anything from or to that company would obviously be in that category and could readily be identified. I had reinforced with my team that if they came across any legally privileged documentation they should not read it and not take it for copying.[37] Mr Backhouse said that documents were left in situ until James Hill, the exhibits officer, had time to record their details. The officers took away loose documents that were relevant and they removed files or folders of documents when it appeared that the whole file or folder contained relevant material.[38] It does appear that some legally privileged material was inadvertently removed. When Mr Burns was organising photocopies of documents which had been removed he said he came across invoices from Oceanlaw to Southern Storm. He said the invoices were spread out amongst other bill payments. He adopted a precautionary approach and decided to separate the invoices from the other documents. These were put in an envelope and stored in a locked cabinet. He saidthat "except for my first glances" he had not examined these invoices.[39] Mr Robinson looked through the majority of the documentary exhibits some time later. He said that he found a letter inside a file box from Ace Transactions. He considered that document could be privileged. Mr Robinson said he did not read or copy the document but left it in a file box marked for return to Southern Storm.[40] We add that it seems, although this is not entirely clear on the record, that the number of documents subject to legal professional privilege in issue was minimal. There was obviously concern about the officers seeing invoices from the solicitors, Oceanlaw and, particularly, about them sighting the four invoices from Mr Fisken. There was evidence that those four invoices contained privileged information relevant to the investigation.Our analysis[41] The issue before us is whether what occurred should have been treated as a fundamental defect of the sort referred to in Gill.[42] The first point to note is that, on the evidence before the Court, the available inference is that the officers made only a cursory examination of any privileged material before setting it aside. In the passage relied on by Mr Squire to support the proposition the examination was more considered, it appears Mr Backhouse is making a general comment about the overall approach taken, namely, that documents generally were assessed for relevance. In this part of the affidavit, Mr Backhouse does not appear to be dealing with the approach taken to legally privileged material. Rather, the natural meaning of his affidavit read as a whole is that the second of the paragraphs we have set out above addresses the approach taken to the specifics oflegally privileged material. As Grant Fletcher, the Ministry's regional solicitor notes in his letter of 12 July 2011 to Oceanlaw, some documents may have needed a"cursory" examination to determine whether or not they were relevant and/orprivileged.[43] Glancing at the documents in this way obviously means the officers infringed the privilege. However, there is authority for the observation made by Mallon J that, in itself, this cursory examination did not necessarily make the search unlawful or unreasonable.20 The Judge refers to Australian authority "to the effect that in some circumstances it will be lawful for those executing a search to glance at a document over which privilege is claimed for the purpose of determining whether it might becovered by the privilege".21 She also cites Calver v District Court at Palmerston North (No 1) in which Miller J commented on situations where a police officer may need to examine a document in order to decide whether it was legally privileged.22We doubt that the search was in this way rendered unreasonable but, in any event, we are satisfied in the circumstances as we have outlined them there was no fundamental defect of the type referred to in Gill.[44] As the Judge noted, the affidavit evidence suggests the officers were"conscious of the need to protect privilege".23 The problem is that their system fordoing this was "to put them to one side without looking at them any further".24 Asthe Judge explained with reference to the Law Commission's report Search and Surveillance Powers:25 the difficulty with the approach that the Ministry adopted here is that it undermines the privilege. Any possibility that the fisheries officers mayview privileged information "is likely to create a perception that the material will inform the investigation".26 Is it realistic for Southern Storm to accept that the investigators only glanced at the Oceanlaw letterhead on a document20 Southern Storm v CE, above n 2, at [78]–[82].21 At [82] citing JMA Accounting Pty Ltd v Commissioner of Taxation [2004] FCAFC 274, (2004) 211 ALR 380 and Allitt v Sullivan [1988] VR 621 (VSC); referred to in Avowal Administrative Attorneys Ltd v District Court at North Shore (2009) 24 NZTC 23,252 (HC) at [47] and Trollope v Rambaldi as Trustee of the Bankrupt Estate of Barry Barton Trollope [2009] FCA 74 at [39].22 Calver v District Court at Palmerston North (No 1) (2004) 21 CRNZ 371 (HC) at [47]. See alsoA Ltd v The Director of the Serious Fraud Office HC Auckland CIV-2005-404-6833, 28 March 2007 at [87]–[91].23 Southern Storm v CE, above n 2, at [83].24 At [83].25 Law Commission Search and Surveillance Powers (NZLC R97, 2007).26 At [12.28].without seeing any more of its content? In this case Southern Storm's concern might be heightened because, on the basis of Mr Fisken's evidence,it seems that there may have been privileged information directly relevant to the matters being investigated. It is unclear on the evidence exactly what the fisheries officers understood could be the subject of privilege or how they would be identified other than any documents to or from Oceanlaw, as this was not set out in any written material provided to the team or apparently discussed in detail in the briefing to the search team.[45] This Court in Chief Executive, Ministry of Fisheries v United Fisheries Ltdemphasised the need for a procedure to be put in place where a search involves legally privileged material.27 Glazebrook and Ellen France JJ stated:28 where legally privileged material is involved, a reasonable exercise of thesearch power will entail taking steps to protect such material. The use of an independent barrister and an independent computer expert are obvious ways of meeting concerns of this nature.[46] The suggestion made by Southern Storm is that Mr Fisken should have been allowed inside the premises to identify the privileged material. Mr Powell for the Ministry properly makes the point that Mr Backhouse denied discussing with Mr Fisken the possibility of Mr Fisken identifying the privileged material. However, it does seem that the officers were advised that privileged material would be found on the premises.[47] In the circumstances, we agree with Mallon J that a different system would have been preferable. The Judge put it in this way:29The Ministry were searching the business premises of Southern Storm. There was at least the prospect that they would encounter legally privileged documents. They were then directly advised of this by Mr Te Kaat. This was not 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 Mr Backhouse had asked Mr Fisken to at least identify where the privileged documents would be found. Without at least asking this question, they were not in a position to know whether there was a practical solution to the claim that privileged documents were present. Potentially they could have had an independent solicitor supervise the search and/or have sealed any documents identifying as including potentially privileged material without looking at them.27 Chief Executive, Ministry of Fisheries v United Fisheries Ltd [2010] NZCA 356, [2011] NZAR 54.28 At [81]. See also at [59] per Baragwanath J. But see Law Commission, above n 25, at [12.81]–[12.91] and [12.95]–[12.108] for a discussion of the advantages and disadvantages of independent supervision, in relation to search of material held by lawyers.29 At [84].[48] However, assuming the treatment of the legally privileged material gave rise to an issue of reasonableness, it is difficult to characterise what occurred as so deficient as to comprise a fundamental defect. It may appear anomalous, given the importance of legal privilege, to approach the matter as one of degree. It is nonetheless relevant in assessing the court's proper response in an application forjudicial review seeking a discretionary remedy that the officers did take steps to try to protect privilege and any invasion was minimal. Further, there were at the time,as Mallon J said, "potential remedies available to Southern Storm outside thisjudicial review application which do not risk interfering with an existing investigation and which will enable the evidence as to what occurred to be fullytested".30 The Judge referred in this context to the possibility of an application to challenge the admissibility of evidence under s 30 of the Evidence Act 2006. Other avenues of redress may include an action for trespass or for redress under the Bill of Rights. In all the circumstances, relief was appropriately declined on this ground.The scope of the search[49] Southern Storm's case is that the officers acted as though they had a generalwarrant and in doing so went beyond their powers.31 In oral argument Mr Squire emphasised two points. First, both in the pleadings and the correspondence subsequent to the search and seizure, the Ministry relied on its power to audit Southern Storm. In other words, the Ministry sought to justify the width of its actions not only on the basis of s 199(2) but also on the audit power. Secondly, Mr Squire says the officers did not inform the representatives of Southern Storm present at the premises of the intention to search and seize material pursuant to the audit power. This meant, Mr Squire submitted, that Southern Storm did not knowthe "metes and bounds" of the search and seizure.32[50] In response, Mr Powell notes that the Crown did not rely on its pleading in the High Court. More importantly, Mr Powell says that the difference between the30 At [85].31 The case proceeded on the basis that the principles applicable to a search under a warrant under s 198 of the Summary Proceedings Act 1957 were applicable: Chief Executive, Ministry of Fisheries v United Fisheries Ltd, above n 27, at [37].32 Auckland Medical Aid Trust v Taylor, above n 12, at 749 per McMullin J.pleading and the correspondence and the evidence of the other officers as to the breadth of their task requires a factual determination. Resolution of that issue is not suitable for judicial review.The approach in the High Court[51] On this aspect, Mallon J noted that there was evidence from Mr Robinson as to why the Ministry needed material of the kind sought under the search.33 That evidence was supported by the affidavit evidence from Mr Backhouse. The latter said that only files considered relevant were seized for copying. The Judge observed that Mr Fisken had a different view.34 She noted that his challenge would require a factual determination for which judicial review was not a suitable instrument. In any event, the Judge found that even if some irrelevant material had been taken for copying that would not necessarily make the search and seizure unlawful under the Act or unreasonable under s 21 of the Bill of Rights.35[52] In conclusion, with reference to United Fisheries, Mallon J said:36I consider that the Ministry were acting 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 is whether it exercised its powers reasonably. On the evidence of Mr Backhouse, the Ministry took the time to make decisions about relevance in respect of each file that was taken, even though every document was not examined in detail. If that evidence is to be challenged, this is not the appropriate time or manner to do so. As is said in Gill "issues of excessiveseizure are usually fact-intensive" and "wholly unsuited to judicial review."Whether the Ministry acted reasonably in taking the items which they did is better determined in a context other than judicial review where the facts can be fully tested. I therefore decline to order relief under this ground of review.Discussion[53] Support for the proposition the officers had a secondary audit purpose comesfrom the pleadings and the letter of 12 July 2011 from the Ministry's regionalsolicitor. In the statement of claim, Southern Storm pleaded that the documents33 At [64].34 At [65].35 At [66].36 At [71] (footnote omitted).seized and removed "except those relevant to the investigation, were seized and removed for the purpose of an audit of [Southern Storm's] business structures andcopying pursuant to s 206 [of the Act]". In response, the statement of defence averred that documents not relevant to the investigation were seized "for thepurposes of the administration of the Fisheries Act 1996, including an audit of [Southern Storm] business structure. Those documents were seized and taken for copying (if necessary) under ss 199 and 206 [of the Act]."[54] In the letter from the regional solicitor, this excerpt appears: the process that is occurring is an inspection of the company's documentsas part of an investigation into an allegation of fish dumping, as well as an audit of its business (which is fishing) structures. I would not go as far assaying "a large part" of the materials seized go only to the audit. It is possible that a document could be relevant to both, or peripheral to both areas.[55] As Mallon J noted, the pleading was not relied on by the Ministry in the High Court.37 The further difficulty for Southern Storm's argument is that the affidavitevidence of Mr Backhouse does not support the pleading and nor is it consistent with the letter from the regional solicitor which post-dates the search.[56] Mr Backhouse said at the briefing prior to the search he made some notes tofamiliarise himself with the case. He said of "particular relevance" was that they were investigating the first two fishing trips made by the Oyang 75. He went on to note the allegations were that quota species and non-quota species had been dumped during these two trips even though the second trip carried fisheries observers. He continued:Fisheries Investigator Robinson emphasised that we were looking at possible offences in relation to illegal discarding of quota species under s 72 [of the Act], and breaches of s 230 of the Act which relates to providing false or misleading information in the fishing returns.[57] Accordingly, there was no suggestion in the evidence of Mr Backhouse that the officers were to undertake a search for audit purposes. Mr Backhouse also explained the relevance of the fishing records and various other documents to the particular facts and thus the scope of the search. As noted in the passage we have37 At [63].cited earlier, Mr Backhouse said that substantial time was taken at the premises as aresult of going through the documents "to find those that were evidence as to theoffending".[58] Mr Backhouse's evidence is consistent with the operational orders under which the officers were acting. The stated "mission" of those orders was as follows:To gather evidence of offending against [the Act] in relation to the fishing activities of the FV Oyang 75 including the alleged dumping of fishing and any subsequent misreporting by persons onboard the FV Oyang 75 and its permit holder Southern Storm (2007) Ltd for the period March 2011 to June 2011.[59] By reference to the various categories of items taken, Mr Fisken said that thescope and nature of the documents seized went "well beyond" anything related to thefishing activities of the Oyang 75.[60] Mr Burns in his affidavit disputed Mr Fisken's view that the only relevantmaterial was that relating directly to the fishing activities of the Oyang 75. Mr Burns said the relevant evidence, and therefore the search, is broader. Mr Burns explained why that was so in relation to each of the categories of documents seized.[61] Mr Robinson similarly noted that to determine offending "including motiveand collusion, requires a focused but broad examination of fishing and fishing company records which may be held on board the vessel and/or at shore basedpremises". He also explained in some detail why the search needed to encompass financial details in relation to Southern Storm. It is in this context that Mr Robinsonreferred to s 206 (the power to copy) as allowing the officers to look at "peripheralissues which may not have been direct evidence of dumping". In context, thatappears to be a reference to the scope of material that may be relevant in assessing whether an offence has been committed.[62] It is not disputed that there was a basis for the fisheries officers to believe on reasonable grounds that an offence had been committed against the Act. Interviews with the crew confirmed dumping had occurred and crew members apparently claimed that they were directed to dump.[63] The allegations accordingly boil down to a challenge of excessive scope. On the basis of the material before us it is not obvious that the scope was exceeded. To take the matter any further would necessitate resolving the dispute arising from Mr Fisken's evidence as to the permissible scope of the search as well as the issuesarising out of the pleadings and the solicitor's letter. We are not in a position toresolve these and nor would it be appropriate to do so. We therefore agree with the Judge that whether the Ministry acted reasonably in taking the items they did "isbetter determined in a context other than judicial review where the facts can be fullytested".38Result and costs[64] For these reasons, the appeal is dismissed. The parties agree costs should follow the event. That is the appropriate course. We make an order that the appellant pay the respondent costs for a standard appeal on a band A basis and usual disbursements. We were advised no order as to costs has been made in the High Court as yet.Solicitors:Oceanlaw, Nelson, for AppellantCrown Law Office, Wellington, for Respondent38 At [71].