Arno, L. v Forsyth, N.H.M

Re: LIANE ARNO; ALAN RICHARD BRADLEY; RICHARD DENIS O'DONOVAN; MAJOR PATRICK
EATON; PHILLIP GEORGE CURRY and PETER JAMES BUTTERFIELD
And: NEIL HARRY MARK FORSYTH
No. V G280 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Lockhart J.
Jackson J.

CATCHWORDS

ADMINISTRATIVE LAW - Search warrant authorising search of barrister's chambers and seizure of legal opinions and other memoranda therein - whether warrant bad on its face - whether invalidated by failure to recognize legal professional privilege - whether invalidated by failure to specify with sufficient particularity the offences alleged to have been committed, or the things of which seizure was authorised.

Judiciary Act 1903 s. 39B

Crimes Act 1914 (C'th) s. 10

Federal Court Rules O.29 r. 2(a)

Baker v. Campbell (1983) 153 C.L.R. 52 cons.

Bunning v. Cross (1978) 111 C.L.R. 54 ref'd to

The Queen v. Bell (1980) 146 C.L.R. 141 ref'd to

Bullivant v. Attorney-General for Victoria (1901) A.C. 196 ref'd to

Frank Truman Export Ltd. v. Metropolitan Police Commissioner (1977) 1 Q.B. 952 ref'd to

The Queen v. Cox & Railton (1884) 14 Q.B.D. 153 ref'd to

Entick v. Carrington (1765) 2 Wils. 275 ref'd to

Stanford v. Texas (1965) 379 U.S. 476 ref'd to

Australian Broadcasting Corporation v. Cloran (1984) 4 F.C.R. 151 ref'd to

The Queen v. Tillett; ex parte Newton (1969) 14 F.L.R. 101 ref'd to

Auckland Medical Aid Trust v. Taylor (1975) 1 N.Z.L.R. 728 ref'd to

Crowley v. Murphy (1981) 34 A.L.R. 496 ref'd to

Brewer v. Castles (No.2) (1984) 1 F.C.R. 55 Ref'd to

Rosenberg v. Jaime (1983) N.Z.L.R. 1 ref'd to

Alder v. Attorney-General of Alberta (1977) 5 W.W.R. 132 ref'd to

Trimboli v. Onley (1981) 37 A.L.R. 38 ref'd to

O'Reilly v. The Commissioner of the State Bank of Victoria (1983) 153 C.L.R. 1 ref'd to

R. v. Inland Revenue Commissioners; ex parte Rossminster Limited (1980) A.C. 952 ref'd to

HEARING

SYDNEY

#DATE 20:3:1986

ORDER

1. The appeal be dismissed.

2. The appellants pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

FOX J.: These proceedings were brought to challenge the validity of search warrants, which were granted by a Justice of the Peace in Victoria to the appellants, who are members of the Australian Federal Police force. The warrants were issued under s. 10 of the Crimes Act, 1914 (Cth), and purported to authorise the search and seizure of documents in the chambers and at the residence of the respondent Mr. Neil Forsyth Q.C. of Victoria. (In argument it was stated that a third warrant was issued, to be executed at the premises of his clerk.) The proceedings were commenced in reliance on s. 39B of the Judiciary Act, 1903. The case has proceeded in relation to the warrant respecting Mr. Forsyth's chambers, and I shall refer to it only.

The further amended statement of claim asserts several grounds of invalidity, including one as to the sufficiency of the evidence before the Justice of the Peace. We have not seen that evidence. It was decided to deal with one issue, namely whether the warrant was "bad on its face", as a separate issue under Order 29 r. 2(a) of the Rules of Court, and a Judge of the Court (Sweeney J.) held that it was, on various grounds. One ground was that the warrant failed "to recognize and give effect to the doctrine of legal professional privilege". Another ground related to the failure of the warrant to disclose with sufficient particularity the offences alleged to have been committed. The parties then agreed that a final declaration to that effect be made in the proceedings, which were treated as having thus been brought to an end. We have nevertheless been told that if we are of a contrary view, the matter will have to be referred back to the Judge, to deal with the other issues.
The warrant is lengthy, but should be set out, with the omission of a list of names:

"COMMONWEALTH OF AUSTRALIA CRIMES ACT 1914 SEARCH WARRANT

TO: Liane ARNO

Alan Richard BRADLEY

Richard Denis O'DONOVAN

Major Patrick EATON

Philip George CURRY

Peter James BUTTERFIELD

Australian Federal Police Officers attached to the Office of the Director of Public Prosecutions, Major Fraud Division, 200 Queen Street, Melbourne in the State of Victoria.

WHEREAS, I BRYAN JOSEPH CLOTHIER, a Justice of the Peace within the meaning of that expression in Section 10 of the Crimes Act, 1914, being satisfied by information on oath placed before me this day that there is reasonable ground for suspecting that there are in a place being the chambers of Neil H.M.Forsyth, Queen's Counsel, situated at Room 45, 11th floor, Latham Chambers, 500 Bourke Street, Melbourne, in the State of Victoria, certain things, being; legal opinions and advices and correspondence, conference notes, appointment books, telephone message books, notes of fees, accounts, fee slips, diaries, files, minutes, notes and records relating to legal opinions and advices prepared by the said Neil H.M. Forsyth during the period July 1st 1976 to June 30th 1982 in relation to the implementation of tax avoidance schemes associated with the following persons and entities:

(37 names were then set out) . . . .

and with other persons and entities associated with the implementation of tax avoidance schemes as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences; and in respect to which there are reasonable grounds for believing that the following offences have been committed;

(a) offences against Section 86(1)(a) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to commit an offence against a law of the Commonwealth, to wit, Section 231 of the Income Tax Assessment Act, 1936;

(b) Offences against section 86(1)(b) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to prevent or defeat the execution or enforcement of a law of the Commonwealth, to wit the Income Tax Assessment Act, 1936.

(c) Offences against section 86(1)(e) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to defraud the Commonwealth.

(d) offences against Section 29A of the Crimes Act, 1914, a law of the Commonwealth, that is to say, falsely pretending with intent to defraud, and thereby obtaining a benefit from the Commonwealth or causing a benefit to be given by the Commonwealth.

(e) Offences against section 231 of the Income Tax Assessment Act, 1936, a law of the Commonwealth, that is to say avoiding or attempting to avoid assessment or taxation by any wilful act, default or neglect, or by an

(sic) fraud, art or contrivance whatever.

YOU ARE HEREBY AUTHORISED, with such assistance as you think necessary, to enter at any time the said premises, if necessary by force, and to seize the said things more fully described above which you may find in the said place, as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the said offences, and in respect to which is suspected on reasonable grounds that the said offences have been committed, and for so doing this shall be your sufficient warrant.

GIVEN under my hand at Melbourne

in the State of Victoria this

18th day of June 1985

B.J. CLOTHIER

A Justice of the Peace and a

Stipendiary Magistrate in and

for the State of Victoria"

(A second warrant was in the same terms and authorised search of Mr. Forsyth's home)

It was sought to execute the warrant on the same day, 18 June, and an ex parte application for an injunction to restrain search and seizure was also made on behalf of the respondent on that day, and granted. The documents are at present held neutrally, awaiting the outcome of the litigation.
Several grounds have been submitted in support of the view that the appeal should succeed. It was argued that no assumption should be made that any particular document covered by the warrant was the subject of legal professional privilege, and that it could not therefore be said to be invalid. It was put that the issue was one to be decided at the time of execution.
To a point I think this submission is sound. The matters to be considered by the Justice before he issues a warrant pursuant to s. 10 are those set out in the section. He would not, of course, knowingly issue a warrant if it were plain on the material submitted to him that the things sought were the subject of legal professional privilege. This would however not necessarily be so even where the warrant is sought against a legal practitioner in respect of documents concerning a client, because the question whether or not privilege attaches is subject to a number of considerations, not least of which is the attitude of the client of the legal practitioner. It is the privilege of the client. The Justice of the Peace may in a particular case be able to take the matter further; the affidavit in support of the issue of the warrant should inform him on as much as is known relevant to the topic. In the present case, there were apparently a large number of clients. Mr. Forsyth was probably under a duty to claim privilege in the first instance, but the attitude of his clients is the primary determinant.
What was decided in Baker v. Campbell (1983) 153 CLR 52 was that the doctrine of legal professional privilege applied to documents the subject of a search warrant issued under s. 10. It was agreed or at least assumed, that privilege of the nature applicable in a court of law attached to the documents. The case was not directly concerned with the powers or duties of a Justice of the Peace asked to issue a search warrant under s. 10. The case proceeded on the footing that the warrant considered there was valid. The scope of the powers given under the warrant were however treated as limited.
The question whether there is privilege, and its extent, falls to be dealt with when it is sought to execute the warrant. Before a Justice could decide a question of legal professional privilege there would be the hopeless matter of seeing the documents to which it relates, how, and for what purpose, they came into existence and between whom the relevant confidences lay.
If documents the subject of privilege are examined or removed, those doing so will be liable to an action at law (in some cases, possibly criminal proceedings) and their admissibility in any subsequent legal proceedings will be subject to the rules respecting documents illegally obtained (Bunning v. Cross (1978) 141 CLR 54) The documents may also be excluded from admissibility in proceedings before administrative tribunals.
These sanctions may not be adequate so far as concerns the person whose premises are to be searched or whose documents they are, or for that matter satisfactory to the police. There may be a failure on the part of the police officers to advert to the problem, either generally or in a particular case, and they will probably, in any event, have an insuperable problem in determining just what is privileged and what is not. On the other hand, in order to effectuate the purpose of s. 10, and the public interest it represents, it may not be desirable to give an opportunity to the person whose premises are in question to remove or tamper with documents before any claim of privilege can be determined.
It is not easy to determine what practice should be followed to deal with this dilemma. The whole matter may have to be the subject of legislation. The solution will be found in agreement or by recourse to judicial proceedings. There is an existing requirement that the execution of a warrant be carried out "reasonably". This requirement should take full account of the factors concerning the possibility of documents being the subject of legal professional privilege.
It is unnecessary for me, in this case, to attempt to prescribe what course is best to be adopted. An important step, as it seems to me, will be for the matter to be dealt with adequately in police regulations or instructions. These will have to make provision for the giving of prior notice (of greater or less extent, depending upon the circumstances) to persons who may have documents (or other "things") in respect of which it appears that privilege may reasonably be claimed. The result may well be that these are immediately placed in neutral custody, pending a decision, or agreement, respecting their status. In some cases, the police officers may not have any desire to inspect or seize any documents, the subject of the warrant, to which privilege does attach.
In the present case, the warrant related to the chambers of a legal practitioner who might reasonably be expected to have many copies of legal opinions in his files. Some of these would not be the subject of the warrant and, assuming a valid warrant, they would have to be segregated. As to others, the police officers, even without an application for an injunction, would plainly be on notice that they may be the subject of privilege. In my view, subject to a matter I will mention, it would have been improper for them to have entered Mr. Forsyth's chambers without first consulting with him, or other persons having control of the chambers for the time being.
Legal professional privilege is not available where advice is sought in order to facilitate a crime or fraud, or even a civil offence (see The Queen v. Bell (1980) 146 C.L.R. 141 at pp. 145, 152-3, and 161-2; Bullivant v. Attorney-General for Victoria (1901) AC 196; Frank Truman Export Ltd v Metropolitan Police Commissioner (1977) 1 QB 952) The matter is discussed at some length in The Queen v. Cox and Railton (1884) 14 QBD 153, a decision of the Court for Crown Cases Reserved, comprising 10 judges (see also Baker, at pp. 86, 107 and 112). As the status of the documents in the present case is still undetermined, I will say no more of the ambit of this exclusion from privilege. Suffice to mention that in relation to a warrant under s. 10 of the Crimes Act there may be limited scope for the application of the privilege.
There is the further complication in this case that on 22 July, after the initial execution of the warrant, the respondent was charged on two counts of conspiracy under s. 86 of the Crimes Act with five of those named in the warrant, and two of inciting them, contrary to s. 7A of that Act. It has not been put to us from either side that the intended search was for the purpose of ascertaining the complicity of the respondent.
In my view, therefore the warrant is not invalid because it authorises search and seizure of documents which may prove to be the subject of legal professional privilege.
What does concern me more is another ground taken by the respondent, namely the width of the warrant, and the uncertainty of its scope. What it does is to recite that there are reasonable grounds for suspecting that there are (a) legal opinions and advices prepared by Mr. Forsyth, (b) correspondence, notes, etc. relating to legal opinions and advices prepared by Mr. Forsyth, (c) during a six-year period, (d) in relation to the implementation of "tax avoidance schemes", (e) "associated with" (the 37 named persons and entities) and (f) "with other persons and entities associated with the implementation of tax avoidance schemes", (g) "as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences" (see s. 10(b)), (h) "and in respect to which there are reasonable grounds for believing that the following offences have been committed" (see s. 10(a)). The persons said to have committed the offences are not named, but the first three offences are conspiracies, under, respectively paragraphs (a), (b) and (c) of s. 86(1) of the Crimes Act and the remaining two are specific offences under, in the one case the Crimes Act, and in the other, the Income Tax Assessment Act, 1936.
It seems to me that a warrant under s. 10 must indicate the "things" to which it relates by reference to some characteristic other than the offence which it is said to constitute or evidence. In the present case there is a general description of documents but they are to be those "in relation to the implementation of tax avoidance schemes". This is quite indefinite. The tax avoidance schemes referred to are those "associated with" the named persons and entities. This loose conjunction makes the indication of the documents even more vague. The implementation of the tax avoidance schemes is not however limited to the 37 persons and entities in question but relates also to "other persons and entities associated with the implementation of tax avoidance schemes".
This seems to me to make the warrant hopelessly wide and obscure. It approximates a general warrant. The recipient of the warrant cannot be expected to go through the exercise of deciding whether there are reasonable grounds for believing that the documents will afford evidence or that there are reasonable grounds for believing that the offences have been committed. The offences in fact cover a wide ground, three of them relating to conspiracies between unnamed persons.
I am of the view that the warrant is excessively wide and uncertain and is bad for this reason. I agree with the reasons of his Honour on this aspect of the case.
I am of the opinion that the appeal should be dismissed with costs.

JUDGE2

LOCKHART J.: This appeal concerns the validity of a search warrant issued on 18 August 1985 by a Justice of the Peace authorising six officers of the Australian Federal Police to enter the chambers in Melbourne of the respondent, one of Her Majesty's Counsel, and to seize certain documents.

On the same day the police officers proceeded to execute the warrant, but in the course of the day the respondent applied to this Court, pursuant to s. 39B of the Judiciary Act 1903, for an interim injunction to restrain the execution of the warrant. The learned primary Judge ordered, by consent, that any documents seized pursuant to the warrant were to be handed to the Registrar of this Court and to be held by him until further order. This was done. Subsequently the parties agreed before the primary Judge that the Court should decide in the first instance the question of the validity of the warrant on its face and to this end his Honour directed, by consent, pursuant to Order 29 rule 2(a) of the Court's Rules, that this question be decided separately from any other question in the proceedings. His Honour heard the matter and later made an order declaring that the warrant was bad on its face and was therefore void. It is from that order of his Honour that this appeal is brought.
The parties chose to conduct the case before the primary Judge and this Full Court on the footing that the question of the warrant's validity on its face should be determined without reference to the information on oath which was before the Justice when he issued the warrant. Hence the information is not and has not been before the Court at any stage. This course was deliberately taken by the parties but it has certain unsatisfactory features. The cases show that questions of validity of search warrants are generally decided with the information before the Court and often turn on the terms of the information itself. More than one question argued before us would, I think, be difficult, if not impossible, to decide without knowledge of the contents of the information. I sound this cautionary note as a guide to future litigants in cases of this nature.

The primary Judge found the warrant was invalid on its face on the following grounds:

"1. it fails to disclose with any sufficient particularity the offences alleged to have been committed;

2. it fails to identify the things which may be seized in a way which makes it practicable for the person whose premises are being searched to form an opinion as to whether the seizure of a particular thing is authorised by it;

3. its operative clause lays down a test whether in respect to the goods to be seized 'it is suspected on reasonable grounds that the said offences have been committed' which depends upon the state of mind of the individual respondent who is the searcher and which may vary from respondent to respondent and is accordingly uncertain;

4. the application of that test may, because of the state of mind of the particular searcher, cover a wider class of things than that set out in the recital;

5. that test is a departure from the test set out in the recital, 'in respect to which there are reasonable grounds for believing that the offences have been committed', as to which the Justice was said to have been satisfied by information on oath;

6. the warrant fails to recognize and give effect to the doctrine of legal professional privilege."

His Honour rejected an argument that it was possible to overcome the defects in the warrant by severance in accordance with para. 46(b) of the Acts Interpretation Act 1901.
The search warrant is in the following terms:-

"COMMONWEALTH OF AUSTRALIA CRIMES ACT 1914 SEARCH WARRANT

TO: Liane ARNO

Alan Richard BRADLEY

Richard Denis O'DONOVAN

Major Patrick EATON

Philip George CURRY

Peter James BUTTERFIELD

Australian Federal Police Officers attached to the Director of Public Prosecutions, Major Fraud Division, 200 Queen Street, Melbourne in the State of Victoria.

WHEREAS, I BRYAN JOSEPH CLOTHIER, a Justice of the Peace within the meaning of that expression in Section 10 of the Crimes Act, 1914, being satisfied by information on oath placed before me this day that there is reasonable ground for suspecting thatthere are in a place being the chambers of Neil H.M. Forsyth, Queen's Counsel, situated at Room 45, 11th Floor, Latham Chambers, 500 Bourke Street, Melbourne, in the State of Victoria, certain things, being; legal opinions and advices and correspondence, conference notes, appointment books, telephone message books, notes of fees, accounts, fee slips, diaries, files, minutes, notes and records relating to legal opinions and advices prepared by the said Neil H.M. Forsyth during the period 1st July 1976 to 30th June 1982 in relation to the implementation of tax avoidance schemes associated with the following persons and entities:

(i) Donald Brookes LOCKYER

(ii) Winis Trading Pty Ltd

(iii) Famiti Pty. Ltd

(iv) Commercial Tax Services Pty Ltd.

(v) Geoffrey George MANNERS

(vi) John Michele VEREKER

(vii) Ian Douglas SWANSSON

(viii) Leslie Edward LITHGOW

(ix) Stephen Gerard CONNELL

(x) Damien John NOLAN

(xi) John Terence BROWN

(xii) Kappa Pty Ltd formerly known as Metropolitan Taxation Services (Aust) Pty Ltd.

(xiii) Robert HOWES

(xiv) Michael OADES

(xv) Stephen TIEN-PING SU

(xvi) Garry ALLEN

(xvii) Leopold ROSENTHAL

(xix) Euro-Asia Credit Corporation (Aust) Pty Ltd.

(xx) Transia Corporation Ltd

(xxi) Colin Halley COGHILL

(xxii) Ian David Stafford COLLIE

(xxiii) John Francis EDWARDS

(xxiv) Garrick Lewis GRAY

(xxv) Kiev Ltd

(xxvi) Kampala Airways Ltd

(xxvii) Freeman Brothers Ltd

(xxviii) Westminster Corporation Ltd.

(xxix) Reginald Keith KNIGHT

(xxx) Peter DUNN

(xxxi) Peter BRIGGS

(xxxii) Ian Patrick CORNELIUS

(xxxiii) Westralian Financial Services Pty Ltd

(xxxiv) Brian James MAHER

(xxxv) John Patrick DONNELLY

(xxxvi) Lee Gabriel HURLEY

(xxxvii) Grant Anthony DITFORT

(xxxviii) Ralph William MERELL

and with other persons and entities associated with the implementation of tax avoidance schemes as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences; and in respect to which there are reasonable grounds for believing that the following offences have been committed;

(a) offences against Section 86 (1) (a) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to commit an offence against a law of the Commonwealth, to wit, Section 231 of the Income Tax Assessment Act, 1936;

(b) Offences against section 86 (1) (b) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to prevent or defeat the execution or enforcement of a law of the Commonwealth, to wit the Income Tax Assessment Act, 1936.

(c) Offences against section 86 (1) (e) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to defraud the Commonwealth.

(d) offences against Section 29A of the Crimes Act, 1914, a law of the Commonwealth, that is to say, falsely pretending with intent to defraud, and thereby obtaining a benefit from the Commonwealth or causing a benefit to be given by the Commonwealth.

(e) Offences against section 231 of the Income Tax Assessment Act, 1936, a law of the Commonwealth, that is to say avoiding or attempting to avoid assessment or taxation by any wilful act, default or neglect, or by an fraud, art or contrivance whatever.

YOU ARE HEREBY AUTHORISED, with such assistance as you think necessary, to enter at any time the said premises, if necessary by force, and to seize the said things more fully described above which you may find in the said place, as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the said offences, and in respect to which it is suspected on reasonable grounds that the said offences have been committed, and for so doing this shall be your sufficient warrant.

GIVEN under my hand at Melbourne

in the State of Victoria this

18th day of June 1985

B.J. CLOTHIER

A Justice of the Peace and a

Stipendiary Magistrate in and

for the State of Victoria"

Section 10 of the Crimes Act was relied on as the source of authority for the issue of the warrant. It provides:

"10. If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in any house, vessel, or place -

(a) anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;

(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or

(c) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence;

he may grant a search warrant authorizing any constable named therein, with such assistance as he thinks necessary, to enter at any time any house, vessel, or place named or described in the warrant, if necessary by force, and to seize any such thing which he may find in the house, vessel or place."

I propose to turn to the question whether the warrant is bad on its face for failure to recognise and give effect to the doctrine of legal professional privilege. It is well established that a search warrant should disclose jurisdiction on its face: R. v. Tillett, ex parte Newton (1969) 14 FLR 101 and cases cited therein by Fox J Counsel for the respondent contended that the failure of the Justice of the Peace who issued the warrant to make it clear in some fashion on its face that privilege did not attach or that it was likely that privilege did not attach to the documents mentioned in the warrant infringed this rule.
The argument has its genesis in the decision of the High Court in Baker v. Campbell (1983) 153 CLR 52 It had long been thought in Australia that the doctrine of legal professional privilege was confined to judicial and quasi-judicial proceedings and was restricted to compulsory disclosure in the course of such proceedings. The doctrine was regarded as being only a rule of evidence, a rule that did not extend to administrative proceedings and to extra judicial processes of search and seizure. It was argued before a Full Court of this Court in Crowley v. Murphy (1981) 52 FLR 123 that the doctrine may have a wider application but the Court held unanimously that the doctrine applied only in judicial or quasi-judicial proceedings and did not prevent a police officer, acting under the authority of a warrant issued pursuant to s. 10 of the Crimes Act 1910, from making a reasonable search of the office of a solicitor and seizing documents relating to the affairs of clients notwithstanding that the documents would be privileged from production in legal proceedings. This view was confirmed by the High Court by a majority in O'Reilly v. The Commissioners of the State Bank of Victoria (1983) 153 C.L.R. 1 (Gibbs C.J., Mason and Wilson JJ; Murphy J. dissenting). The High Court held that legal professional privilege was relevant only to judicial or quasi-judicial proceedings.
O'Reilly's Case was argued before the High Court in March 1982 and judgment was given on 16 December 1982; but in Baker v. Campbell (Murphy, Wilson, Deane and Dawson JJ.; Gibbs C.J., Mason and Brennan JJ. dissenting) the High Court constituted by a Full Court of seven Justices granted leave to the plaintiff to present a case which might require reconsideration of the correctness of O'Reilly's Case. Baker v. Campbell was argued before the High Court in February 1983. Baker v. Campbell came before the Full Bench of the High Court as a case stated by a single Justice of the High Court pursuant to s. 18 of the Judiciary Act 1903 asking the Court to answer the following question: "In the event that legal professional privilege attaches to and is maintained in respect of the documents held by the firm (ie. the firm of solicitors in question), can those documents be properly made the subject of a search warrant issued under s. 10 of the Crimes Act?" The question was answered in the negative.
It was assumed in Baker v. Campbell that legal professional privilege attached to the documents in question and the judgments must be read in this light. It was not directed to a case like the present where there is a real contest as to whether the doctrine of legal professional privilege does apply to render the relevant documents immune from search and seizure. There are indications in the reasons for judgment of some members of the Court who constituted the majority that questions of professional privilege would usually be tested after the issue of a search warrant and before or during its execution; but I do not think that the authority of the decision can be treated as going no further. The judgments of the majority attach a qualitative bar to documents covered by legal professional privilege falling within the scope of s. 10 which, in my view, must necessarily involve the Justice who issues the search warrant considering the question of privilege in appropriate cases.
The Justices who constituted the minority of the Court recognised that the extension of the doctrine of legal professional privilege to extra judicial searches and seizures could give rise to insurmountable practical difficulties. The majority judgments, however, whilst recognising that practical difficulties would arise, did not regard them as insurmountable. The present case provides a very good example of the considerable practical difficulties that can arise once the wider notion of legal professional privilege is accepted; and it is for this Court to seek to give some guidance for the solution of them.
It is timely to restate the principles for which Baker v. Campbell is authority. Notwithstanding some divergence in approach between the Justices who constituted the majority, the case is authority for the following propositions:
the doctrine of legal professional privilege is not confined to judicial and quasi-judicial proceedings but extends to administrative proceedings and to the extra judicial processes of search and seizure;
the doctrine is not merely a rule of evidence, but is part of the federal common law attaching to federal statutory powers of search and seizure unless excluded expressly or by necessary implication;
section 10 of the Crimes Act evinces no intention to exclude the common law rule;
section 10 should be construed as not including, in the things which it authorises to be inspected or seized, documents whose confidentiality would be protected in the courts by the doctrine of legal professional privilege.
Once the law recognises that the doctrine of legal professional privilege extends to extra judicial search and seizure the question immediately arises as to when and how questions of privilege are to be raised. Sometimes the privilege question will be raised at the stage of execution of a search warrant rather than at the time of its issue. A search must be conducted reasonably in order to be lawful and the requirement of reasonableness has infinitely variable application. In some cases the police officers conducting the search may, in order to conduct a reasonable search, be obliged to communicate with the person whose premises are to be searched or the person whose documents are expected to be found in the premises (whether they are his premises or not) either before or after entry and allow him the opportunity to obtain legal advice. The methods of search and seizure may also require discussion. There are numerous possibilities. But the searcher must remember that he is authorised by the warrant issued under s. 10 to do what otherwise would be a trespass. In the present case it was after the search warrant had been issued, but before execution of the warrant had been completed, that the matter of privilege was brought before a single Judge of this Court.
Nevertheless in my opinion it would be contrary to the reasoning of the majority in Baker v. Campbell for this Court to hold that it is only at the stage of execution of a search warrant that questions of legal professional privilege require consideration. Section 10 must, it seems to me, be now construed as excluding from the "things" which it authorises to be inspected or seized, documents whose confidentiality would be protected in the courts by the doctrine of legal professional privilege. As I said earlier, a qualitative bar is attached to documents covered by that privilege falling within the scope of s. 10. The protection afforded by the common law rule of immunity recognised in Baker v. Campbell would be set at nought or at least seriously eroded if Justices were able to pay no regard to the question of legal professional privilege and leave it to be determined solely in connection with the later processes of search and seizure. The proposition that the warrant should issue without any consideration being given by the Justice of the Peace to the question of professional privilege and that the privilege question should only be dealt with later by litigation or otherwise is untenable.
The duties of Justices, when issuing search warrants, cannot be stated in rigid or inflexible terms or indeed even comprehensively. Where there is nothing on the face of the material before the Justice to suggest that privileged documents may be the subject of the proposed search then the Justice is in no different position from that which applies with respect to other documents or things. In such a case it will be left to the process of search to deal with the question whether any documents which come to the attention of the searcher may be privileged.
Cases may arise where material before the Justice suggests the real possibility of privileged documents being discovered on the search. It is impossible to lay down any hard and fast rules to guide Justices in those circumstances. It may be sufficient in some cases if the Justice makes a note or enters an endorsement on the warrant that the searcher must not seize privileged material, thus leaving it to the process of search to deal with any question of privilege. As I said earlier a search must be conducted reasonably.
It may be possible in some cases for the Justice to lay down procedures in conjunction with the police officers who are to conduct the search relating to the conduct of that search in a way that affords reasonable opportunity for the person whose premises are to be searched or whose documents are involved to obtain legal advice and thus in a sense combine the functions of issue and execution of the warrant. Whether s. 10 or other sources of power would authorise the Justice in taking this course is perhaps a matter of debate; but if the doctrine recognised in Baker v. Campbell is to be effectively worked out in a sensible way some such view must, I think, be tenable. Rather than himself establishing some procedure for safeguarding rights of the persons affected the Justice may in some cases only issue the warrant if an affidavit is sworn by the police officer responsible for the proposed search stating the steps which he proposes to take to safeguard the rights of interested persons. An appropriate note or endorsement may then be placed on the warrant to alert the reader to the prohibition imposed on seizing privileged documents.
A Justice cannot, consistently with Baker v. Campbell, ignore altogether the possibility of immunity attaching to documents that on the face of their description in the sworn information before him would appear to attract legal professional privilege. Whether the Justice satisfies himself that it is likely that privilege does not render the documents immune from search and seizure but places a note or endorsement on the warrant that privileged material must not be searched and seized or establishes a procedure of the kind mentioned earlier and places a note or endorsement on the warrant of the kind just mentioned will depend upon the circumstances of each case.
Serious consequences may ensue if Justices do not consider the question of professional privilege. The person whose premises are to be searched may be absent from them at the time of execution or otherwise unaware of execution taking place or unable for a variety of reasons to approach the courts to restrain the execution of the warrant. The person who has property in the documents may similarly be unaware of the execution taking place or unable to approach the courts to restrain execution of the warrant. These are but some of many instances one can readily visualise that could occur in practice. But they illustrate the point that to confine the raising of the question of legal professional privilege to events after the issue of the warrant could in certain cases render nugatory the doctrine of immunity recognised in Baker v. Campbell. Indeed, for a Justice to leave the whole question of privilege to be sorted out on search and seizure by police officers is to abrogate his function and to delegate it to others.

The doctrine of professional privilege gives rise to a dilemma. It is impossible for questions of professional privilege to be definitively determined otherwise than by the courts in the course of litigation between persons who seek to assert and resist claims of privilege. The processes of search and seizure of documents pursuant to search warrants do enable the courts in certain cases, like the present, to deal with these difficult questions; but it must in many cases be quite impossible for Justices of the Peace to be satisfied that documents to which professional privilege would ordinarily attach and which are mentioned in the information on oath before them are likely not to be privileged. But to say that a Justice may ignore these questions is in my view to deny the very proposition for which Baker v. Campbell is authority. These difficulties reinforce the view, if reinforcement is needed, expressed by me in Crowley v. Murphy at p. 142 that Justices of the peace are a numerous and eclectic class of persons in Australia without any requirement of legal training and, although they doubtless perform valuable public functions, the dangers inherent in investing them with powers of this kind are obvious.
Faced with a case where the information on oath suggests that documents which would normally be expected to attract legal professional privilege may be the subject of the proposed search the Justice may adopt one of the courses to which I have already referred. In other cases he may be able to satisfy himself that it is likely that legal professional privilege does not render the documents immune from search and seizure. In the present case we do not know what was said in the information on oath before the Justice of the Peace; but it is clear from the terms of the warrant itself, especially the description of the documents, that the material before him must have put him on notice that the documents which the Federal Police sought to inspect and seize were of a kind to which legal professional privilege would ordinarily attach. A fortiori since the premises to be searched were the chambers of a barrister. It is not suggested in this case that the Justice took any steps, whether by arrangements with the Federal Police or otherwise, to ensure that the processes of search and seizure were carried out with due regard to the rights of the respondent whose premises were to be searched or the rights of his clients whose privilege was involved. Indeed, it is plain from the evidence and the curial history of this matter that no such course was taken.
In the circumstances of this case and in the light of Baker v. Campbell in my opinion the Justice who issued the warrant should not have done so unless he was satisfied either that procedures would be adopted to safeguard the rights of the respondent and of his clients in relation to documents to which professional privilege would be expected to attach or that it was likely that professional privilege did not render the documents immune from search and seizure. In either case the warrant should have been appropriately endorsed.
If the Justice had been satisfied that it was likely that the documents were not immune from search (eg. being documents in furtherance of criminal or fraudulent activity of the kind appearing in the offences described in paras. (a) to (e) of the warrant) he should in my opinion have made that clear on the face of the warrant. There are various forms in which this could have been expressed but the warrant is completely silent on the matter. It was not enough in my opinion in the circumstances of this case for the warrant to merely state on its face that the Justice was satisfied of the particular matters mentioned in s. 10 itself.
Of course, if the Justice did not consider the question of professional privilege at all in relation to the documents which must have been described in the information then plainly the warrant would be bad. Regrettably, these are matters of which we have no knowledge as the information was not in evidence.
In my opinion the warrant is bad because the failure to state the matters relating to legal professional privilege to which I have referred amounts to a failure to disclose jurisdiction on the face of the warrant. Generally it will be sufficient for a warrant to recite that the Justice was satisfied by information on oath concerning the matters mentioned in para. (a), (b) or (c) of s. 10 but in the circumstances of this case and in light of the authority of Baker v. Campbell the omission from the face of the warrant of anything to indicate that the question of privilege was considered by the Justice or the likelihood that the documents described in the warrant were not immune from search and seizure vitiates the warrant.
Counsel for the respondents submitted that the warrant was bad on another ground, namely, that it was too general in that it did not describe with sufficient particularity the things to be seized, the offences alleged to have been committed and the facts constituting the alleged offences. This argument was put independently of the question of legal professional privilege.
It is necessary to sound a cautionary note when considering this question. When investigations are proceeding into alleged tax evasion on a large scale it may be impossible to define documents in search warrants other than in rather general terms. If the terms are so general or vague as to suffer from the vice of a general warrant then plainly it is bad; but it must be remembered that at the time the warrant is issued the matter is obviously at an investigatory stage and there will not be sufficient evidence in a form admissible at a criminal trial to prove the alleged offences. The purpose of the search is to obtain such evidence. It is necessary to reconcile the two competing public interests that offences involving tax frauds should be detected and punished on the one hand and the right of the individual to protection of the law from unjustified interference with his privacy and property on the other. It is in the public interest that those who commit offences involving fraud in relation to tax should be brought to justice. It is at least equally in the public interest that individual liberty should be protected by the courts whose function it is to protect individuals from abuse of power by the Executive arm of government. The balancing of the claims of the due administration of justice and those of the citizen whose rights must be jealously protected is not determined in a sterile vacuum but with due regard to the legislation involved and criminal activity suspected. The complexity of taxation frauds which often involve numerous persons and entities, and the concomitant difficulties associated with the gathering of documentary evidence to support the laying of charges highlights the dangers of too readily striking down warrants on the ground of generality in cases of this kind: see generally R. v. Inland Revenue Commissioners, ex parte Rossminster Limited (1980) AC 952, especially per Lord Diplock at p 1010
The warrant in this case however goes too far. It authorises the seizure of an extremely wide range of documents:-

"Legal opinions and advices and correspondence, conference notes . . . notes and records relating to legal opinions and advices prepared by the said Neil H.M. Forsyth during the period July 1st, 1976 to June 30th, 1982 in relation to the implementation of tax avoidance schemes associated with (37 named persons and corporations) and with other persons and entities associated with the implementation of tax avoidance schemes as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences; and in respect to which there are reasonable grounds for believing that the following offences have been committed . . . "

There follows five classes of offences expressed in wide terms.

It is difficult to imagine a wider range of documents that may be seized. Also they cover a period of six years and are defined with reference to a very broad description: "the implementation of tax avoidance schemes". It is arguable whether that expression means schemes for avoiding assessment or taxation within the meaning of s. 231 or tax avoidance schemes as ordinarily understood by lawyers, accountants and others familiar with the law and practice of taxation. I respectfully agree with the primary Judge that the latter meaning should be ascribed to the expression in the warrant.
The warrant is so general in its terms that it leaves it to the Federal Police officers who are to execute it to determine in their absolute discretion what documents they may seize within the very broad class of documents described in the warrant. Although the warrant names thirty-seven persons and corporations alleged to be associated with tax avoidance schemes it extends this class to infinity by going on to say: "and with other persons and entities associated with the implementation of tax avoidance schemes". The warrant does not identify the persons alleged to have committed the offences and the description of the alleged offences is itself exceedingly wide; three of them are conspiracies. These are all matters which must be considered in deciding whether a warrant is bad for generality. Of course, the existence of any of those matters taken in isolation, does not necessarily lead to the conclusion that the warrant is defective. In each case the warrant must be looked at as a whole and all of its provisions taken into account.
There is an independent ground for striking down the warrant, though the circumstances upon which it relies overlap with the considerations mentioned above. A search warrant should identify with sufficient particularity the "things" within the meaning of s. 10 which are authorised to be searched for and seized: Tillett's Case at p. 113; Trimboli v. Onley (1981) 37 ALR 38 at pp 46-47; and Australian Broadcasting Corporation v. Cloran (1984) 4 FLR 151 The warrant in the present case falls far short of this standard. The documents to be searched for and seized are described in very general terms over a six year period. Their ambit is sought to be confined by the requirement that they be "in relation to the implementation of tax avoidance schemes", itself a most general concept. Those tax avoidance schemes are then identified as being associated with the thirty-seven named persons and corporations and with "other persons and entities associated with the implementation of tax avoidance schemes". This description has the vice already mentioned.
In my opinion the warrant is far too wide and vague. It is akin to a general warrant and is bad for uncertainty.
I would dismiss the appeal with costs.

JUDGE3

JACKSON J.: On 18th June 1985 the appellants, officers of the Australian Federal Police, attended at the chambers of the respondent, a Queen's Counsel practising at 50 Bourke Street, Melbourne in order to execute a search warrant which had been granted that day for that purpose by a Justice of the Peace purporting to exercise the powers conferred upon him by s. 10 of the Crimes Act 1914.

On the same day the respondent, (and other persons whose interests were said to be affected by the warrant) instituted the present proceedings in the Court pursuant to s. 39B of the Judiciary Act 1903. After various interim orders were made on that day and later, the proceedings continued as proceedings in which the present respondent was the only applicant. The parties then agreed that in order to seek to save time and expense the Court should first decide the question, as the primary judge put it, of "the validity or otherwise of the warrant on its face". Accordingly, it was ordered by consent pursuant to Order 29, that the question whether the search warrant (and another search warrant not now in issue) was "void and of no effect" should be tried separately.
The primary judge answered that question by finding that "the warrant was bad on its face", stating his reasons for doing so as being:-

"The defects in the warrant on its face are:

1. it fails to disclose with any sufficient particularity the offences alleged to have been committed;

2. it fails to identify the things which may be seized in a way which makes it practicable for the person whose premises are being searched to form an opinion as to whether the seizure of a particular thing is authorised by it;

3. its operative clause lays down a test whether in respect to the goods to be seized "it is suspected on reasonable grounds that the said offences have been committed" which depends upon the state of mind of the individual respondent who is the searcher and which may vary from respondent to respondent and is accordingly uncertain;

4. the application of that test may, because of the state of mind of the particular searcher, cover a wider class of things than that set out in the recital;

5. that test is a departure from the test set out in the recital, "in respect to which there are reasonable grounds for believing that the offences have been committed," as to which the Justice was said to have been satisfied by information on oath;

6. the warrant fails to recognize and give effect to the doctrine of legal professional privilege."

He held also that the terms of the warrant were not such as to attract the operation of any principle of severance.

Each of the bases adopted by the primary judge is put in issue by the appellants, and it is convenient before turning to those bases to set out the terms of the warrant in question. They are:-

"WHEREAS, I BRYAN JOSEPH CLOTHIER, a Justice of the Peace within the meaning of that expression in Section 10 of the Crimes Act, 1914, being satisfied by information on oath placed before me this day that there is reasonable ground for suspecting that there are in a place being the chambers of Neil H.M. Forsyth, Queen's Counsel, situated at Room 45, 11th floor, Latham Chambers, 500 Bourke Street, Melbourne, in the State of Victoria, certain things, being; legal opinions and advices and correspondence, conference notes, appointment books, telephone message books, notes of fees, accounts, fee slips, diaries, files, minutes, notes and records relating to legal opinions and advices prepared by the said Neil H.M. Forsyth during the period July 1st 1976 to June 30th 1982 in relation to the implementation of tax avoidance schemes associated with the following persons and entities:

(i) Donald Brookes LOCKYER

(ii) Winis Trading Pty Ltd

(iii) Famiti Pty Ltd

(iv) Commercial Tax Services Pty Ltd

(v) Geoffrey George MANNERS

(vi) John Michele VEREKER

(vii) Ian Douglas SWANSSON

(viii) Leslie Edward LITHGOW

(ix) Stephen Gerard CONNELL

(x) Damien John NOLAN

(xi) John Terence BROWN

(xii) Kappa Pty Ltd formerly known as Metropolitan Taxation Services (Aust) Pty Ltd

(xiii) Robert HOWES

(xiv) Michael OADES

(xv) Stephen TIEN-PING SU

(xvi) Garry ALLEN

(xvii) Leopold ROSENTHAL

(xviii) . . .

(xix) Euro-Asia Credit Corporation (Aust) Pty Ltd.

(xx) Transia Corporation Ltd

(xxi) Colin Halley COGHILL

(xxii) Ian David Stafford COLLIE

(xxiii) John Francis EDWARDS

(xxiv) Garrick Lewis GRAY

(xxv) Kiev Ltd

(xxvi) Kampala Airways Ltd

(xxvii) Freeman Brothers Ltd

(xxviii) Westminster Corporation Ltd

(xxvix) Reginald Keith KNIGHT

(xxx) Peter DUNN

(xxxi) Peter BRIGGS

(xxxii) Ian Patrick CORNELIUS

(xxxiii) Westralian Financial Services Pty Ltd

(xxxiv) Brian James MAHER

(xxxv) John Patrick DONNELLY

(xxxvi) Lee Gabriel HURLEY

(xxxvii) Grant Anthony DITFORT

(xxxviii) Ralph William MERELL

and with other persons and entities associated with the implementation of tax avoidance schemes as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences; and in respect to which there are reasonable grounds for believing that the following offences have been committed;

(a) Offences against Section 86 (1)(a) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to commit an offence against a law of the Commonwealth, to wit, section 231 of the Income Tax Assessment Act, 1936;

(b) Offences against section 86(1)(b) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to prevent or defeat the execution or enforcement of a law of the Commonwealth, to with the Income Tax Assessment Act, 1936.

(c) Offences against section 86(1)(e) of the Crimes Act, 1914, a law of the Commonwealth, that is to say, conspiracies to defraud the Commonwealth.

(d) Offences against Section 29A of the Crimes Act, 1914, a law of the Commonwealth, that is to say, falsely pretending with intent to defraud, and thereby obtaining a benefit from the Commonwealth or causing a benefit to be given by the Commonwealth.

(e) Offences against section 231 of the Income Tax Assessment Act, 1936, a law of the Commonwealth, that is to say avoiding or attempting to avoid assessment or taxation by any wilful act, default or neglect, or by any fraud, art or contrivance whatever.

YOU ARE HEREBY AUTHORISED, with such assistance as you think necessary, to enter at any time the said premises, if necessary by force, and to seize the said things more fully described above which you may find in the said place, as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the said offences, and in respect to which it is suspected on reasonable grounds that the said offences have been committed, and for so doing this shall be your sufficient warrant.

GIVEN under my hand at Melbourne in the State of Victoria this 18th day of June 1985.

A Justice of the Peace and a Stipendiary Magistrate in and for the State of Victoria."

I turn first to consider the finding of the primary judge that the warrant failed to disclose with sufficient particularity the offences in relation to which it was issued, and also the finding that it failed sufficiently to identify the things which might lawfully be seized pursuant to it, i.e. the defects referred to by the primary judge as 1 and 2 in the passage which I have quoted above.
As the observations of McCarthy P. in Auckland Medical Aid Trust v. Taylor (1975) 1 NZLR 728 at 733 and of Fox J in The Queen v. Tillett, Ex parte Newton (1969) 14 FLR 101 at 113-114 show, it is clear that provisions such as s. 10 of the Crimes Act are not to be construed as authorizing something akin to the "general warrant" condemned by the House of Commons in consequence of Entick v. Carrington (1765) 2 Wils 275 (see XVI Hansard's Parliamentary History of England at 207) and specifically prohibited in the United States by the Fourth Amendment to the Constitution (see the discussion in Stanford v. Texas (1965) 379 US 476) More specifically, the requirement that the warrant:-

"describe the particular offences in relation to which the seizure is authorised so as to enable the persons to whom they are addressed and the persons whose premises are to be searched to know the exact object of the search"

(per Lockhart J. in Australian Broadcasting Corporation v. Cloran (1984) 4 FCR 151 at 153) has been insisted upon See The Queen v. Tillett, Ex parte Newton (supra) at 163, Crowley v. Murphy (1981) 34 ALR 496 at 515, Brewer v Castles (No2) (1984) 1 FCR 55 at 60-61 and Australian Broadcasting Corporation v. Cloran (supra) at 153-154. Similar views have been taken in New Zealand (see Auckland Medical Aid Trust v. Taylor (supra) at 737, 743, 744-745, Rosenberg v. Jaine (1983) N.Z.L.R. 1 at 5 and in Canada (Alder v. Attorney-General of Alberta (1977) 5 WWR 132 at 146-147)

A further aspect of the need for particularity, a need brought about by similar considerations, is that the warrant should identify sufficiently specifically what items are authorized to be searched for and seized (The Queen v. Tillett, Ex parte Newton (supra) at 113, the Canadian and New Zealand cases there referred to, Australian Broadcasting Corporation v. Cloran (supra) at 154, Auckland Medical Aid Trust v. Taylor (supra) at 743, Rosenberg v. Jaine (supra) at 5, 6-7 and Trimboli v. Onley 1981 37 A.L.R. 38 at 46-47).
As Lockhart J. observes in this case, the practical application of these requirements will vary, of course, from instance to instance but I think that it is plain that the search warrant in this case does not satisfy those requirements either in relation to the way in which the documents which are to be the subject of the seizure are defined, or in relation to the way in which the offences in question are also defined.
The search warrant commences by enumerating a number of types of documents as being the "certain things" to which it refers and were it not that the range of those documents as so stated is qualified by the words:-

". . in relation to the implementation of tax avoidance schemes associated with the following persons and entities:

( the names of 37 persons and companies then follow)

and with other persons and entities associated with the implementation of tax avoidance schemes".

the warrants should be sufficiently wide to cover all legal opinions and advices given by the respondent on any topic during a period of six years.

The words which I have quoted above, however, do not confer the required degree of particularity. They fail to do so because, despite the initial reference to the 37 named persons and companies, the addition of the words "and with other persons and entities associated with the implementation of tax avoidance schemes" means that the warrant authorizes the seizure of all opinions, advices etc given by the respondent in relation to the implementation of tax avoidance schemes during the six year period in question.
It is then contended for the appellants that the generality of the warrant is reduced by the presence of the words:-

"as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of the following offences; and in respect of which there are reasonable grounds for believing that the following offences have been committed;"

followed as they are by the list of offences.

I am not able to accept that contention. Indeed I think that the manner in which the offences are stated in the warrant shows vividly that not only is the warrant insufficiently particular in relation to the documents the subject of it, but also that it is insufficiently particular in relation to the matter of statement of the offences in question.
In this regard the warrant does not refer to the possible commission of a particular offence or of particular offences. What is contained in the warrant is an allegation that "offences" against various provisions of the specified enactments may have been committed by persons not further identified (but, as was made clear in argument, at the time of grant of the warrant not including the respondent) at times, places and in each case in a manner not in any way specified.
In these circumstances, I do not regard the warrant as being sufficiently particular in either of the respects to which I have referred, and I think that the primary judge was correct in treating it as not authorized by s. 10.
I would for this reason dismiss the appeal.
At the hearing of the appeal, however, the Court was urged to express a view in any event upon the issue of legal professional privilege which was before the primary judge. I am not inclined to do so but I think that I should state my reasons for the adoption of that course.
The competing contentions before us on the issue of legal professional privilege relate to the effect to be given to the decision in Baker v. Campbell (1983) 153 CLR 52
The appellants contend that the effect of that decision is that a search warrant may lawfully be granted under s. 10 in respect of a document to which legal professional privilege attaches, but that the document may not lawfully be seized under the warrant if the privilege still attached at that point. To put it shortly, legal professional privilege is relevant at the time of seizure under, not at the time of the grant of, the search warrant. The respondent, on the other hand, contends that the effect of Baker v. Campbell (supra) is that a search warrant may not validly be granted in respect of a document to which legal professional privilege attaches, i.e. the existence of legal professional privilege in respect of a document should be treated as a limitation upon the class of documents which may be the subject of an exercise of the power conferred by s. 10. The respondent also contends that a search warrant is "bad on its face" if the documents, the seizure of which it authorizes, are documents which usually would attract legal professional privilege (such as "counsel's opinions") and if the warrant contains "on its face" no statement showing that legal professional privilege did not exist, or no longer exists in respect of the document.
It does not seem to me that the Court in Baker v. Campbell (supra) was seeking to resolve the precise question whether the fact that the legal professional privilege attaches to a document should be treated as a limitation upon the ambit of the power to grant the warrant (and in consequence to search for and seize under it) or as a limitation only upon the power to search for and seize documents thereunder. The form of the question stated to the Court in that case, which related to documents to which privilege attaches "and is maintained", suggests that the Court was dealing only with the position at the time of attempted seizure and was not dealing with the position at the time of grant of the warrant.
Assuming, however, that the existence of legal professional privilege in respect of a document should be treated as meaning that a search warrant may not lawfully be granted in respect of such a document, I do not think that the issue whether a warrant has lawfully been granted in respect of such a document is to be determined simply by the fact that the description of the document in the search warrant is such that it would normally indicate a document to which legal professional privilege would attach.
It seems to me that in such circumstances the question whether privilege attaches is one to be determined by matters dehors the warrant itself and I note that in Brewer v. Castles (No.3) (1984) 52 A.L.R. 583 when Beaumont J. struck out of a search warrant a reference to "opinions of counsel" as being beyond power, he did so only after referring (at 583) to the fact that there was no suggestion in the evidence that the documents had lost the status of being the subject of legal professional privilege.
In the present case it is clear on the pleadings, and it was made clear by counsel before us, that the issue whether the documents were originally, or remained, privileged was a live issue, which yet remained to be determined, if the attack on the warrant on other grounds failed. In these circumstances I do not think that it could be said at this stage of the proceedings that the warrant was "bad on its face" because it referred to documents which might ultimately be held to be the subject of legal professional privilege.
As I have said, however, I prefer to decide the case on the issue of the degree of particularity of the search warrant and on that basis I would dismiss the appeal.

[1986] FCA 84

20 MARCH 1986