Legal Practitioners—Solicitors—Legal professional privilege—Whether confined to judicial and quasi-judicial proceedings—Search warrant—Attempt to seize documents held by solicitors on behalf of client—Whether documents protected by legal professional privilege subject to search warrant—Crimes Act 1914 (Cth),s. 10.
Decisions
October 26. The following written judgments were delivered: - GIBBS C.J. The question for decision in this case is whether an officer of the Australian Federal Police force, acting under the authority of a search warrant issued pursuant to s. 10 of the Crimes Act 1914 (Cth), as amended, is entitled to seize documents kept by a solicitor at his office, notwithstanding that the documents would be privileged from disclosure or production in the course of legal proceedings. (at p57)
2. In about February 1979 the plaintiff in the present proceedings retained a member of a firm of solicitors to act as his solicitor to advise him in relation to certain aspects of a scheme which he had devised to minimize liability for sales tax. The defendant is a member of the Australian Federal Police, and therefore a constable within the meaning of the Crimes Act: see s. 3 of that Act and s. 5(1) of the Australian Federal Police Act 1979 (Cth). On 7 July 1982 the defendant, acting pursuant to a search warrant granted to him on the preceding day, attempted to seize documents held by the firm of solicitors at their office. The documents were all brought into existence for the purpose of obtaining or giving legal advice, and include documents created solely for the purpose of tendering professional advice to the plaintiff otherwise than in relation to any civil or criminal proceedings then existing or in contemplation. The documents do not relate to any particular transaction that was entered into. The warrant, which was issued under s. 10 of the Crimes Act, recited that the justice issuing it was satisfied by information on oath placed before him that there were reasonable grounds for suspecting that there were, in a place, namely the premises occupied by the firm of solicitors, things, being the original or copies of certain documents, all of which had been produced or held by, for, or in respect of the plaintiff and certain other named persons, and as to which there were reasonable grounds for suspecting that the same would afford evidence as to the commission by the plaintiff and other persons of offences against the Sales Tax Assessment Acts (Cth) and the Crimes Act, and went on to authorize the defendant to enter the said place and to seize the said documents. The plaintiff contends that the documents are the subject of legal professional privilege whereas the defendant contends that legal professional privilege does not attach to the documents because of the purposes for which the plaintiff consulted the firm. Having regard to the form of the question asked,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Baker v Campbell [1983] HCA 39
Case
[1983] HCA 39
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the case of *Baker v Campbell*, brought before it by the parties involved in a dispute concerning the discoverability of documents.
The central legal issue before the High Court was whether legal professional privilege could be claimed over documents that had been obtained by unlawful means. Specifically, the Court had to determine if the privilege was absolute, preventing the use or disclosure of privileged documents regardless of how they were obtained, or if it could be overridden in circumstances where the documents were acquired unlawfully.
The majority of the Court, comprising Gibbs C.J., Mason, Murphy, Wilson, Brennan, and Deane JJ, held that legal professional privilege is not absolute and can be overridden where documents are obtained by unlawful means. They reasoned that the privilege is a fundamental right, but its purpose is to protect confidential communications for the purpose of giving or receiving legal advice. This purpose is not served by protecting documents obtained through illegal conduct. The Court distinguished between the privilege itself and the means by which privileged material might be obtained, concluding that the law should not condone or facilitate the use of unlawfully obtained material, even if it is privileged. Brennan J, in a separate judgment, agreed with the majority's conclusion but based his reasoning on the inherent limitations of the privilege, rather than an exception to it. Dawson J dissented, arguing that the privilege should be absolute and that the means of obtaining the documents were irrelevant to the question of privilege.
The High Court ordered that the appeal be dismissed, upholding the decision of the lower court which had allowed the use of the unlawfully obtained documents.