Act Integrity Commission v Levy (a pseudonym) - [2022] ACTSC 240

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	ACT Integrity Commission v Levy (a pseudonym)
Citation:	[2022] ACTSC 240
Hearing Date:	31 August 2022
DecisionDate:	5 September 2022
Before:	McCallum CJ
Decision:	Stand the matter over to 9am on Wednesday 14 September 2022 before McCallum CJ.
Catchwords:	INTEGRITY COMMISSION — EXAMINATION POWER — Summons to produce mobile phone — Claim of client legal privilege — Whether mobile phone is indivisible item — Whether statute poses binary choice requiring phone either to be returned to its owner or to handed over to Integrity Commission notwithstanding claim or privilege
Legislation Cited:	Independent Commission Against Corruption Act 1988 (NSW) Legislation Act 2001 (ACT), ss 6, 171 Evidence Act 2011 (ACT), Div 3.10.1 Integrity Commission Act 2018 (ACT), Pt 3.6, Div 3.6.2, ss 6, 19, 148, 150, 152, 161, 162, 163
Cases Cited:	Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501 HJ (a pseudonym) v IBAC [2021] VSCA 200
Texts Cited:	Perry Herzfeld and Thomas Prince, Interpretation (2^nd ed, 2020, Law Book Co of Australasia) Ruling on section 37(5) of the Independent Commission Against Corruption Act (1988) in relation to the production of a mobile phone by a witness (Ruling of the NSW Independent Commission Against Corruption (Hon Peter Hall QC, Chief Commissioner), 14 October 2019)
Parties:	ACT Integrity Commission ( Applicant) Catherine Levy (a pseudonym) ( Interested Party)
Representation:	Counsel S Robertson ( Applicant) I King ( Interested Party)
Solicitors ACT Integrity Commission ( Applicant) Mills Oakley ( Interested Party)
File Number:	SC 300 of 2022

McCALLUM CJ:

These proceedings raise an important question as to the power of the ACT Integrity Commission to deal with privileged documents during an investigation.

The Integrity Commission is established by s 19 of the Integrity Commission Act 2018 (ACT). Its objects are set out in s 6 as follows:

6 Objects of Act
The objects of this Act include—
(a) providing for the identification, investigation and exposure of corrupt conduct; and
(b) providing for the commission to prioritise the investigation and exposure of serious corrupt conduct and systemic corrupt conduct; and
(c) achieving a balance between the public interest in exposing corruption in public administration and the public interest in avoiding undue prejudice to a person’s reputation; and

(d) assisting in the prevention of corrupt conduct; and
(e) cooperating with other integrity bodies; and
(f) educating public officials and the community about the detrimental effects of corrupt conduct on public administration and the community and the ways in which corrupt conduct can be prevented; and

(g) assisting in improving the capacity of the public sector to prevent corrupt conduct.

In aid of those objects, the Commission has extensive powers. Part 3.6 of the Act confers on it, in particular, examination powers which expressly abrogate some, but not all, privileges that might be enjoyed by a person the subject of the examination.

The Commission in exercise of those powers required the interested party, who is…

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.

Continue reading Act Integrity Commission v Levy (a pseudonym)

Details

AGLC: Act Integrity Commission v Levy (a pseudonym) [2022] ACTSC 240
Case: [2022] ACTSC 240
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory was presented with a case between the ACT Integrity Commission and Catherine Levy (a pseudonym), referred to as the "interested party" in the proceedings. The central issue revolved around the power of the ACT Integrity Commission to deal with privileged documents during an investigation. Specifically, the Commission required Levy to produce two mobile phone handsets during an examination, which she claimed contained privileged communications between her and her lawyer. The court was tasked with deciding whether the mobile phones were subject to privilege and, if so, whether the phones could be returned to Levy or if they should be handed over to the Commission.

The legal issue at the heart of the case was whether the mobile phones, as indivisible items, could be subject to a claim of privilege and, if so, how the court should proceed. The Integrity Commission argued that the handsets were not subject to privilege as they did not disclose a communication, document, or its contents. Conversely, Levy argued that the handsets should be regarded as privileged and returned to her, allowing the Commission to issue a new summons for the non-privileged files. The court had to determine the proper construction of the relevant legislation, particularly sections 161, 162, and 163 of the Integrity Commission Act 2018 (ACT), in the context of claims of privilege over documents contained on the mobile phones.

Chief Justice McCallum concluded that the handsets should not be viewed as indivisible items but rather as containing documents, some of which might be privileged. The court found that section 163(3) of the Act specifically required the court to determine whether the document or other thing is subject to privilege. The Chief Justice highlighted that the statute's language and purpose indicated an intention to preserve the common law privilege in relation to client legal privilege. The court also noted that it was not necessary to stretch or distort the plain language of section 163(4), which provides that the judge and any authorized person could open and inspect the secured document or other thing to make the determination. This interpretation was supported by the decision in HJ (a pseudonym) v IBAC [2021] VSCA 200, where a similar approach was approved.

Therefore, the court ruled that it had the authority to authorize an appropriately qualified person to inspect the contents of the handsets and determine which parts were privileged. The court ordered the matter to be stood over to allow the Commission to devise a protocol for this inspection process, ensuring that Levy's solicitor could participate in identifying the privileged portions of the handsets. This approach aimed to balance the interests of both the Commission and Levy while adhering to the statutory framework and principles of privilege.

Orders