A3 v Australian Crime Commission (No 2) - [2006] FCA 929

FEDERAL COURT OF AUSTRALIA
A3 v Australian Crime Commission (No. 2) [2006] FCA 929
A3 & ANOR v AUSTRALIAN CRIME COMMISSION & ANOR
NSD373 OF 2006
EMMETT J
21 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD373 OF 2006

BETWEEN:

A3
FIRST APPLICANT

P
SECOND APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
FIRST RESPONDENT

CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE:

21 JULY 2006

PLACE:

SYDNEY

REASONS FOR INTERIM CONCLUSIONS

The first respondent, the Australian Crime Commission (‘the Commission’), is conducting a special investigation pursuant to a determination made by its Board under s 7C of the Australian Crime Commission Act 2002 (Cth) (‘the Commission Act’). By notice issued pursuant to s 29 of the Commission Act (‘the Notice’), a firm with an office in Sydney (‘the Firm’) was required to produce to an office of the Commission documents described in the Schedule to the Notice. The Schedule referred to documents pertaining to any or all of a number of individuals and entities, including the first applicant (‘A3’) and the second applicant (‘P’). The Firm produced a number of documents to the Commission in compliance with the Notice.
However, P and A3 claim legal professional privilege in respect of a number of the documents produced to the Commission. The basis of the claim is that each of the disputed documents was prepared for, or evidenced a communication made for, the dominant purpose of the giving of instructions for, or the obtaining of, legal advice, or the provision of legal services, for or on behalf of A3 or P. The Commission, on the other hand, disputes that the documents were prepared for or evidenced communications made for those purposes. The Commission also contends that, even if the documents were prepared for or evidenced communications made for those purposes, there are reasonable grounds for believing that any such communications were made in the furtherance of a crime or fraud or other impropriety, such that legal professional privilege did not attach to any of the documents in dispute.
The Commission proposes to adduce evidence in support of the latter contention, but asks for an order that parts of that evidence not be made available to anyone other than counsel and solicitors for the Commission. The Commission also asks that access to part of the evidence to be relied on in support of the proposed order restricting access also be restricted. The question of whether access to the evidence should be restricted in that way arises because an examiner of the Commission proposes to examine A3, under the provisions of the Commission Act, in several weeks’ time. The Commission is concerned that disclosure of the evidence to be relied upon by the Commission in support of its application to restrict access could be prejudicial to the conduct of the examination.
I have previously ruled that, in the present circumstances, I would be disposed to restrict access, but have not yet determined the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FCA 929
Decision Date: 21 JULY 2006

CaseChat Overview and Summary

In the Federal Court of Australia, the case of A3 v Australian Crime Commission (No 2) [2006] FCA 929 involved a dispute over legal professional privilege. The applicants, A3 and P, claimed privilege over certain documents produced to the Australian Crime Commission (the Commission) during a special investigation. The Commission argued that the documents were not protected by legal professional privilege as they were prepared for or evidenced communications made in the furtherance of a crime or fraud or other impropriety.

The central legal issue before the court was whether the documents in question were prepared for or evidenced communications made for the dominant purpose of obtaining or giving legal advice, thereby triggering legal professional privilege. The court needed to determine if the applicants had established that the documents were created for the purpose of obtaining or providing legal advice or if there were reasonable grounds to believe that the communications were made in the furtherance of a crime or fraud, which would negate the privilege.

The court examined the evidence presented and concluded that the documents were predominantly created for the purpose of obtaining or providing legal advice. The court found that the communications were related to legal advice concerning the affairs of P, and A3 was acting as an agent for P in giving instructions and receiving advice. The court did not find any evidence suggesting that the communications were made for the purpose of furthering a crime, fraud, or other impropriety. Consequently, the court ruled that the documents were protected by legal professional privilege.

The court's decision was based on the balance of probabilities, finding that the documents were made for the purpose of obtaining or providing legal advice. Given this conclusion, the court did not need to address the Commission's contention that the privilege did not apply due to the documents evidencing communications made in the furtherance of a crime or fraud. The court did, however, indicate its disposition to restrict access to certain evidence in the Commission's possession, pending further determination of the scope of such restrictions.

Orders