CC v Rayney
[2013] WASCA 125
•17 MAY 2013
CC -v- RAYNEY [2013] WASCA 125
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 125 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:131/2012 | 11 APRIL 2013 | |
| Coram: | McLURE P BUSS JA NEWNES JA | 17/05/13 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CC LLOYD PATRICK RAYNEY |
Catchwords: | Criminal law and procedure Legal professional privilege Privilege waived No live issue between the parties Turns on own facts |
Legislation: | Criminal Investigation Act 2006 (WA), s 151 |
Case References: | AW v Rayney [2010] WASCA 161 Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 Jardin and Jardim Investments Pty Ltd v Metcash Ltd and Metcash Trading Ltd [2011] NSWCA 409 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CC -v- RAYNEY [2013] WASCA 125 CORAM : McLURE P
- BUSS JA
NEWNES JA
- Appellant
AND
LLOYD PATRICK RAYNEY
Respondent
Catchwords:
Criminal law and procedure - Legal professional privilege - Privilege waived - No live issue between the parties - Turns on own facts
Legislation:
Criminal Investigation Act 2006 (WA), s 151
Result:
Application for leave to appeal dismissed
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr J F O'Sullivan
Respondent : No appearance
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : No appearance
Case(s) referred to in judgment(s):
AW v Rayney [2010] WASCA 161
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674
Jardin and Jardim Investments Pty Ltd v Metcash Ltd and Metcash Trading Ltd [2011] NSWCA 409
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355
(Page 3)
1 McLURE P: This is an application for leave to appeal from an order made by Commissioner Sleight on 17 May 2012 varying an order made by Magistrate Whitbread disallowing a claim for legal professional privilege in relation to a single document. The Commissioner upheld the claim for legal professional privilege.
2 On 25 May 2012 the appellant commenced this appeal. On 11 December 2012 the respondent wrote to the appellant enclosing a copy of the document and advising him that privilege was waived.
3 On 13 December 2012 the respondent wrote to the court indicating that privilege had been waived and expressed the view that the appeal no longer served any useful purpose and that he no longer wished to take part in it.
4 Pursuant to directions made on 14 December 2012 the parties filed and served written submissions on whether the appeal should proceed. That is the preliminary issue for determination in this appeal.
5 Courts do not ordinarily, as a matter of principle, determine proceedings which involve issues that are moot, hypothetical or not otherwise live as between the parties: Jardin and Jardim Investments Pty Ltd v Metcash Ltd and Metcash Trading Ltd [2011] NSWCA 409 [30] - [31]; Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355 [27]; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, 355 - 357. In such cases the court may (but not must) exercise its inherent power to permanently stay or dismiss the appeal.
6 The appellant's sole concern in this appeal is the Commissioner's statement of the test of legal professional privilege. Costs are not an issue for the appellant. Section 151 of the Criminal Investigation Act 2006 (WA), which provides for the procedure to be followed when seized documents are the subject of a claim of legal professional privilege, does not displace or alter the scope or application of the common law principles relating to legal professional privilege: AW v Rayney [2010] WASCA 161 [16]. As to the test of legal professional privilege the Commissioner said:
Whether the privilege is advice privilege or litigation privilege, it protects the communications between a solicitor and client relating to legal services [26]. (emphasis added)
(Page 4)
7 He later referred to the test as being whether a document is a communication between client and solicitor 'concerning' the litigation in progress [34].
8 Connectors such as 'in relation to' or 'concerning' are capable of describing a spectrum of relationships ranging from direct and immediate to tenuous and remote. As a consequence, there is greater scope for error in the application of the test to the facts of a particular case. It is preferable to rely on the traditional formulation of legal professional privilege which is by reference to the dominant purpose of the relevant confidential communication: Grant v Downs (1976) 135 CLR 674; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; TheDaniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543.
9 However, in circumstances such as the present where the issues are moot and there is no contradictor, it is unnecessary and undesirable to go further and determine the issues in the appeal. Accordingly, I would refuse leave to appeal and dismiss the appeal.
10 BUSS JA: I agree with McLure P.
11 NEWNES JA: I agree with McLure P.
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