AW v Rayney - [2009] WASC 250

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: AW -v- RAYNEY [2009] WASC 250

CORAM: MURRAY J

HEARD: 2 JULY 2009

DELIVERED : 7 SEPTEMBER 2009

FILE NO/S: SJA 1029 of 2009

BETWEEN: AW
Applicant
AND
LLOYD PATRICK RAYNEY
Respondent

Catchwords:

Administrative law - Review of magistrate's order - Application by police officer for decision upon claim of legal professional privilege - Redaction of affidavits and submissions in support of claim - Whether denial of procedural fairness - Whether just to vary magistrate's order

Legislation:

Magistrates Court Act 2001 (WA), s 36
Criminal Investigation Act 2006 (WA), s 151

Result:

Order for service of unredacted affidavits and submissions of respondents upon counsel and instructing solicitor for applicant upon giving an undertaking to preserve confidentiality
No order as to costs

Category: A

Representation:

Counsel:

Applicant: Mr G T W Tannin SC & Ms D Scaddan
Respondent: Mr S Vandongen

Solicitors:

Applicant: State Solicitor for Western Australia
Respondent: D G Price & Co

Case(s) referred to in judgment(s):

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 3] [2009] WASC 67
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115
Mobil Oil Australia Ltd & McDonalds Australia v Guina Developments Pty Ltd [1996] 2 VR 34
Re An Application under the Magistrates Court Act 2004; ex parte Bartholomew [2008] WASC 52

MURRAY J:

Background and procedural matters

On 22 August 2007 and 20 September 2007, the police executed search warrants at the respondent's home in Como and his business address in St Georges Terrace, Perth. The respondent is a barrister practising out of private chambers there. Various records were seized, in paper form and in electronic form, stored on computers.
As soon as the seizures were made, the respondent notified the police officers that he claimed legal professional privilege, presumably both as a client and on behalf of clients of his legal practice. As a consequence, the applicant, a police officer, made two applications in the Perth Magistrates Court for decisions as to whether the claims of privilege were maintainable and, if so, in respect of which records seized. Such an application is required by s 151(4) of the Criminal Investigation Act 2006 (WA).
It is as well to set out the section in full:
151. Privileged material, procedure on seizure of
(1)In this section -
court means the Magistrates Court;
privileged means privileged because of either or both —
(a)legal professional privilege;
(b)public interest privilege.
(2)If a record is seized or, under an order to produce a business record issued under section 53, a business record is produced and -
(a)a person entitled to possession of the record claims that all or some of the information in it is privileged; or
(b)the officer seizing the record or to whom it is produced reasonably suspects that all or some of the information in it is privileged,
the record must be dealt with in accordance with this section.
(3)The record…

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 AW v Rayney

Details

AGLC: AW v Rayney [2009] WASC 250
Case: [2009] WASC 250
Decision Date: 7 SEPTEMBER 2009

CaseChat Overview and Summary

The case of AW v Rayney involved a dispute between the appellant, a police officer, and the respondent, a magistrate. The appellant sought judicial review of a magistrate's order, which had denied the appellant's claim of legal professional privilege in relation to certain documents. The application for review was brought before the Supreme Court of Queensland. The primary legal issue before the court was whether the magistrate's decision to deny the appellant's claim of legal professional privilege was legally sound and whether there had been a breach of procedural fairness in the process. Additionally, the court had to consider whether it was just to vary the magistrate's order.

The court examined the magistrate's decision and found that there had indeed been a breach of procedural fairness. The magistrate had not provided the appellant with an opportunity to make submissions on the issue of redaction of certain parts of the affidavits and submissions in support of the claim of privilege. The court held that this omission was significant and could have impacted the fairness of the decision-making process. Furthermore, the court considered whether it was just to vary the magistrate's order, taking into account the nature of the documents, the importance of legal professional privilege, and the potential consequences of disclosure. The court concluded that it was just to vary the order to allow for redaction of certain parts of the affidavits and submissions, in order to protect the appellant's legal professional privilege.

The final orders of the court were that the magistrate's order denying the appellant's claim of legal professional privilege was quashed, and the matter was remitted to the magistrate for reconsideration with the appropriate redactions. The court emphasised the importance of ensuring procedural fairness in administrative decision-making processes and the need to protect legal professional privilege where appropriate.

Orders