Australian Crime Commission v Stewart

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FEDERAL COURT OF AUSTRALIA

Australian Crime Commission v Stewart [2012] FCA 29

Citation: Australian Crime Commission v Stewart [2012] FCA 29
Parties: AUSTRALIAN CRIME COMMISSION v ANTHONY STEWART, JOHN CORNELL, PAUL HOGAN and RIMFIRE FILMS PTY LTD
File number: NSD 23 of 2010
Judge: STONE J
Date of judgment: 30 January 2012
Catchwords:

EVIDENCE – legal professional privilege – privilege claimed over documents obtained pursuant to search warrants and summons under the Australian Crime Commission Act 2002 (Cth) and Crimes Act 1914 (Cth) – whether Australian Crime Commission (ACC) entitled to inspect

EVIDENCE – whether documents subject to legal professional privilege – applicable principles – Evidence Act 1995 (Cth) not relevant – no issue of admissibility of evidence - issue to be determined under common law – legal professional privilege a fundamental common law immunity – whether reference to common law is to common law of Australia

PRIVATE INTERNATIONAL LAW – choice of law – whether right to inspect documents seized under Australian statute gives rise to choice of law question – question of statutory interpretation – no choice of law question – issue governed by Australian principles of legal professional privilege

PRIVATE INTERNATIONAL LAW – if choice of law question arises whether Australian choice of law principles apply 

Legislation: Australian Crime Commission Act 2002 (Cth)
Crimes Act 1914 (Cth)
Evidence Act 1995 (Cth) ss 118-122
Trade Practices Act 1974 (Cth) s 155
Trade Practices Legislation Amendment Act (No 1) 2006 (Cth)
Cases cited: A3 v Australian Crime Commission (No 2) [2006] FCA 929
Arrow Pharmaceuticals v Merck & Co Inc (2004) 210 ALR 593
AWB Ltd v Cole (2006) 152 FCR 382
Baker v Campbell (1983) 153 CLR 52
Balabel v Air India [1988] 1 Ch 317
Barnes v Commissioner of Taxation (2008) 242 ALR 601
Bourns Inc v Raychem Corp(No.3) [1999] 3 All ER 154
Bunbury v Bunbury (1839) 2 Beav 173
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Corporate Affairs Commission of New South Wales v Yuill (1991) 172 CLR 319
Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325
Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission (2002) 213 CLR 543
DSE Holdings Pty Ltd v InterTan Inc (2003) 135 FCR 151
Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49
Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404
Garsec Pty Ltd v His Majesty the Sultan of Brunei (2008) 250 ALR 682
Grant v Downs (1976) 135 CLR 74
Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529
Grofam Pty Ltd v Australia and New Zealand Banking Group Limited (1993) 45 FCR 445
IBM Corporation v Phoenix International (Computer) Ltd [1995] 1 All ER 413
In re Duncan [1968] P 306
Kennedy v Wallace (2004) 142 FCR 185
Kruger v Commmonwealth (1997) 190 CLR 1
Kuru v New South Wales
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Details
Case
[2012] FCA 29
Decision Date

CaseChat Overview and Summary

The case of Australian Crime Commission v Stewart revolves around a dispute concerning the entitlement of the Australian Crime Commission (ACC) to inspect documents obtained through search warrants and summons under the Australian Crime Commission Act 2002 (Cth) and the Crimes Act 1914 (Cth). The central legal issue before the court was whether the ACC had the right to inspect documents claimed to be protected by legal professional privilege. The court had to determine whether the documents were subject to legal professional privilege under common law principles and, if so, whether this privilege could override the statutory rights granted to the ACC. Additionally, the court examined whether the dispute raised questions of private international law concerning the choice of law applicable to the inspection of documents seized under Australian statutes.

The court held that the determination of whether legal professional privilege applied to documents seized under a warrant did not involve a review of the decision to seize the documents. Instead, the court's role was to ascertain whether the documents were brought into existence for a privileged purpose and whether the privilege had been lost. The court emphasised that legal professional privilege was a fundamental common law immunity, and the issue of whether the privilege applied was to be determined by reference to Australian principles of legal professional privilege, not the Evidence Act 1995 (Cth). The court also clarified that no choice of law question arose in this context, as the issue was governed by Australian law. The rationale for legal professional privilege was rooted in the public interest in the administration of justice, which encouraged full and frank disclosure by clients to their lawyers, balancing against the need for access to relevant information in the interest of justice. The court resolved the tension between these competing policies by adopting the "dominant purpose" test over the "sole purpose" test for determining the applicability of legal professional privilege.

The court concluded that the ACC was not entitled to inspect the documents if they were subject to legal professional privilege. The common law principles of legal professional privilege provided the framework for determining the rights of the parties, and the court found that the documents in question were protected by legal professional privilege. Consequently, the court ordered that the ACC's application for inspection of the documents be dismissed. The decision underscored the importance of the common law in determining the scope of legal professional privilege in the context of statutory powers granted to investigative authorities.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The task of the Court in determining whether legal professional privilege attaches to a document which has been seized pursuant to a warrant or whose production has been compulsorily required does not involve review of the decision to seize the document or to require its production. This much is clear from the decision in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (Propend) which predates Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49 (Esso). Apart from the reference to “sole purpose” (which, following Esso, should be read as ‘dominant purpose’) the following comment of Brennan CJ in Propend at 513 remains authoritative:When a claim of privilege attaching to a document seized under a warrant comes to be determined judicially, the court must ascertain for itself whether the document was brought into existence solely for a privileged purpose and, if it be found or assumed that the document is a copy of an unprivileged original but was brought into existence solely for a privileged purpose, whether the privilege has been lost. In determining the claim of privilege, the court is not reviewing judicially an executive action but is determining a distinct controversy between the person who seeks to inspect the seized document and the person who seeks to maintain its immunity from inspection on the ground of legal professional privilege.Evidence Act not in issue As the present controversy is confined to privilege in relation to legal advice references to legal professional privilege in these reasons should be so understood. Therefore, whether the ACC has a right to inspect the Disputed Documents must be answered by reference to the common law and not to the Evidence Act 1995 (Cth) which addresses questions of admissibility of evidence that are not in issue here: see ss 118-122. The rationale for legal professional privilege In considering the issues posed by the claim of legal professional privilege for the Disputed Documents, it is important to bear in mind the rationale underlying the doctrine and the inherent tension between competing policies. In their joint judgment in Esso, Gleeson CJ, Gaudron and Gummow JJ said, at [35]: Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. In the ordinary course of events, citizens engage in many confidential communications, including communications with professional advisers, which are not protected from compulsory disclosure. The rationale of the privilege has been explained in a number of cases, including Baker v Campbell, and Grant v Downs itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth, Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker v Campbell, a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations. [Footnotes not included]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As the present controversy is confined to privilege in relation to legal advice references to legal professional privilege in these reasons should be so understood. Therefore, whether the ACC has a right to inspect the Disputed Documents must be answered by reference to the common law and not to the Evidence Act 1995 (Cth) which addresses questions of admissibility of evidence that are not in issue here: see ss 118-122. The rationale for legal professional privilege In considering the issues posed by the claim of legal professional privilege for the Disputed Documents, it is important to bear in mind the rationale underlying the doctrine and the inherent tension between competing policies. In their joint judgment in Esso, Gleeson CJ, Gaudron and Gummow JJ said, at [35]: Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. In the ordinary course of events, citizens engage in many confidential communications, including communications with professional advisers, which are not protected from compulsory disclosure. The rationale of the privilege has been explained in a number of cases, including Baker v Campbell, and Grant v Downs itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth, Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker v Campbell, a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations. [Footnotes not included] The High Court in Esso resolved the tension between competing policies by abandoning the “sole purpose” test that had been accepted in Grant v Downs (1976) 135 CLR 74 and adopting the “dominant purpose” test. The Disputed Documents