Commissioner, Ausn Federal Police v Propend Finance Pty Ltd

[1995] HCATrans 347

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S41 of 1995

B e t w e e n -

THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE & ORS

Applicants

and

PROPEND FINANCE PTY LIMITED & ORS

Respondents

Office of the Registry
  Sydney   No S42 of 1995

B e t w e e n -

PROPEND FINANCE PTY LIMITED & ORS

Applicants

and

THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE & ORS

Respondents

Applications for special leave to appeal

BRENNAN CJ
DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 NOVEMBER 1995, AT 10.32 AM

Copyright in the High Court of Australia

___________________

MR M. ROZENES, QC:   May it please the Court, I appear with my learned friend, MR P. ROBERTS, for the applicants in the first matter and for the first two respondents in the second matter.  (instructed by the Commonwealth Director of Public Prosecutions)

MR D.H. BLOOM, QC:   May it please the Court, I appear with MR A. ROBERTSON, SC  and MR N.J. WILLIAMS for the respondent in the first matter and for the applicant in the second.  (instructed by Minter Ellison)

MR ROZENES:   Your Honours, the first point is the copy documents point and our submission is that there is conflicting authority in Australia and elsewhere with respect to the status of copy documents in circumstances such as these, namely where it is conceded that the original document is not capable of supporting the privilege but where the copy of that document is made for the sole purpose of obtaining legal advice.  Those cases are set out in the schedule to the judgment of the dissenting judge, his Honour Mr Justice Lindgren.  They are also set out in some little detail in the judgment of Mr Justice Hill at application book 111 to 112.

Now those cases essentially fall into three broad categories.  The first one is sometimes called the absolute position, which simply is that privilege cannot attach to a copy of a non-privileged document no matter for what purpose it is prepared.  The second position at the other end of the scale is, I suppose, called the purpose position, and that is privilege will attach to the copy document if it is brought into existence for the sole purpose of submission to lawyers for advice or litigation.  The third position is an intermediate position which essentially looks to see what would happen if the copy document was disclosed, would it show, for example, what the communication was.  Of course there is no High Court authority at all on the matter.

The state of the authorities is such that it is impossible to predict confidently in any jurisdiction what the status of copy documents in the search warrant scene is and even if one were to rely now upon the majority judgment of the Full Court decision in this case, that is unworkable because at least two different tests have been put forward and possible three.  It is clear that Mr Justice Beaumont put forward the sole purpose test, Justice Hill the intermediate position, and the dissenting Justice, Justice Lindgren tested basically the other way around, saying that sole purpose is not enough and you have to look at other things.

BRENNAN CJ:   I do not understand those distinctions that you just put as coming from these judgments.  Can you demonstrate them?

MR ROZENES:   Yes, perhaps I will take your Honours to the judgments.  At application book page 77, commencing at line 35, his Honour says:

a broader inquiry is, in my opinion, called for; that is, in the particular circumstances in which the copy document came into existence, should it be treated as, in truth, part of the substantive process of the seeking or the obtaining of legal advice or of preparing for litigation?

We would say what that test does is that if the client produces a copy of a non-privileged document, a commercial transaction, let us say a contract for the sale of land or something, in order to produce it to his solicitor for the purpose of the solicitor giving advice as to whether it is a binding contract or what, then that document becomes privileged because the copy of the document is brought into existence for the substantive process of seeking legal advice.  So one looks at the reason for the production of the copy document rather than the reason for the creation of the original document.

BRENNAN CJ:   That cannot be right because we are still involved in the area of seeing whether or not the production of the copy was for the sole purpose.

MR ROZENES:   Yes.

BRENNAN CJ:   That has got nothing to say about the nature of the original, has it?

MR ROZENES:   No, your Honour, but imagine that is the fact, that the original document as a matter of fact cannot support a claim of privilege, because it is a commercial transaction.

BRENNAN CJ:   Be that so.  Then we have got another document which comes into existence solely for the purpose of giving legal advice. 

MR ROZENES:   Yes.

BRENNAN CJ:   What is there that ought to deprive that of protection?

MR ROZENES:   It creates, in our submission, a difficult conceptual position because it puts in the hands of the solicitor a document which, if it had been the original, would not have been privileged.

BRENNAN CJ:   That is right.

MR ROZENES:   And that is a matter that may be a matter of pure luck, one way or the other.

BRENNAN CJ:   Does it not simply mean that you do not issue your search warrants against solicitors’ offices.

MR ROZENES:   You can issue your search warrant against a solicitor’s office if it happened on this occasion that the document that was given to the solicitor was an original document and not the copy.

BRENNAN CJ:   That is a different matter.

MR ROZENES:   And the client may give, for example, the original document - he may come back from his meeting with his estate agent where he has signed a contract for the purchase land, may go straight to his solicitor and say, “This is what I have just done.  Can you tell me is everything in order?” and the solicitor says, “I’ll just copy this document”, and if the solicitor retains the original and gives the client the copy, then the search warrant executed upon the solicitor will produce the original document because it is not privileged.

TOOHEY J:   What are we arguing about here?  Are we arguing about the validity of these warrants?

MR ROZENES:   In the course of this case, your Honour, we are arguing about whether or not acknowledged copy documents in the possession of the solicitor are capable of supporting a claim of privilege.

TOOHEY J:   We do not know whether the documents which - there are documents in sealed envelopes somewhere, are there?

MR ROZENES:   There are documents in sealed envelopes.

TOOHEY J:   We do not know what they are, do we?

MR ROZENES:   No, but there are some admissions or concessions, if you like, your Honour, that some of them are copy documents of originals that themselves would not be privileged. 

TOOHEY J:   I am not sure that that is an answer, though, Mr Rozenes.  There is a problem as to whether the attack is on the right to inspect the documents or whether it is more deep rooted than that and affects the validity of the search warrants themselves.  Which aspect is in issue in this ‑ ‑ ‑

MR ROZENES:   Every aspect, your Honour, was in issue in this case.  The appeals that your Honours have before you today raise both the validity of the warrant - in other words, the three condition warrant, the means by which it was obtained, namely whether sufficient disclosure was made to the issuing Justice ‑ ‑ ‑

TOOHEY J:   Other grounds do, but does the matter that you are presently adverting to go to the validity of the warrants?

MR ROZENES:   No, it does not.

TOOHEY J:   That is what prompted my question.

MR ROZENES:   No, it does not, your Honour.

TOOHEY J:   It goes to the right to inspect the documents seized under the warrant, does it not?

MR ROZENES:   It goes to the question of whether or not these documents are privileged by mere fact that they were copy documents produced solely for the purpose of obtaining legal advice.

TOOHEY J:   Yes, but what is the practical consequence of that, that the documents having been seized, they are not available for inspection?

MR ROZENES:   That is so.  And the three situations that we have, when one looks at the authorities in this country, are that some judges in some courts have said that you can never accord privilege to a copy document in circumstances where the original is not privileged and cannot be privileged.  Others have said that it does not matter whether or not the original document is or is not privileged, the sole purpose test is satisfied once the copy is made for that purpose.  And others still have said there was no absolute rule one way or the other; one needs to look to see what would happen, if you disclosed the copy document, would you by that fact alone be disclosing the communication which is, of course, what legal professional privilege is designed to protect: communications, and not documents.

So if special leave were granted to resolve what we would submit is a vexed question and one which the judges at first instance described from time to time as this vexed question of copy documents, then there would be substantial argument as to whether or not, firstly, one or other of those absolute rules is right and, secondly, whether it is workable if it is not the case, if there is a middle ground, which we would submit would be very difficult to articulate.

DAWSON J:   How did this arise in these proceedings?  If the warrants are valid - let us assume the warrants are valid because this question does not touch their validity - and the police are insisting on taking these documents, the proper remedy would be to restrain them, would it not?

MR ROZENES:   Yes.  What happened, your Honour, was in accordance with the guidelines that are attached now to warrants that are executed on solicitor’s offices, the documents over which privilege was claimed by the solicitor were specially sealed and delivered to the court.  The guidelines then make a provision for the party claiming the privilege to do so within a certain period of time.  That did not resolve by the court.  Whilst that was happening, judicial review was embarked upon in order to test the validity of the warrants, their mode of execution and various other matters.  So that issue became an issue in those proceedings and the documents were scheduled and descriptions of them were given and evidence was given about them.  The evidence that was given about this particular group of documents was that the documents were copy documents and the copies were made solely for the purpose of obtaining legal advice.

DAWSON J:   I do not want to be unduly technical, but these proceedings were about the validity of warrants and the question which you are raising does not go to that.

MR ROZENES:   These proceedings were about the validity of warrants, your Honour, but they also embarked upon the question of whether or not the privilege was properly claimable and, secondly, whether or not, in the Cox and Railton situation, that privilege did not apply because the documents were brought into existence ‑ ‑ ‑

DAWSON J:   Let us assume we gave special leave restricted just to this question of privilege.  What would we do in the end?

MR ROZENES:   Your Honours would determine whether or not the mere production of a copy from a non-privileged document is sufficient to clothe that document with privilege because its sole purpose of production was to put it to lawyers.

DAWSON J:   We might decide that question in the abstract, as it were, since we have not seen the document, but how would we dispose of the matter?

MR ROZENES:   That matter would, I imagine, go back, your Honour, because there are other matters that need to go back to the trial judge in this case ‑ ‑ ‑

BRENNAN CJ:   Let us analyse it piece by piece.  There is a challenge to the validity of the issue of the warrant and of the execution of the warrant?

MR ROZENES:   Yes.

BRENNAN CJ:   Then there was a cognate but distinct proceeding seeking a declaration that these documents were privileged, is that correct?

MR ROZENES:   As I understand it, yes, your Honour.

BRENNAN CJ:   So your application relates solely to the declaratory proceedings, is that right?

MR ROZENES:   I think that is right, your Honour.

TOOHEY J:   In other words, if the challenge to the warrant succeeded, your argument would really go by the board?

MR ROZENES:   Yes.

TOOHEY J:   So it really assumes that the applicants are not going to succeed on one or other of the grounds on which they challenge the warrant?

MR ROZENES:   Yes.  Can I say this, your Honours, that it is not clear how the proceeding to assert privilege arises in cases such as these because there needs to be a separate application - if there was no challenge to a warrant at all, about its validity or its execution, the law tells us the warrant cannot go to privileged documents.  The mechanism that has been put in place to ensure that it does not do that is to provide the guidelines for the issuing magistrate and for the executing police.

BRENNAN CJ:   Leading to proceedings for a declaration?

MR ROZENES:   And I think end up in proceedings for a declaration.

TOOHEY J:   In some cases, possibly proceedings for injunctive relief, depending how they are taken, yes.

MR ROZENES:   And they were heard at the same time as these proceedings.

TOOHEY J:   I mean this situation arose long before the guidelines were established.

MR ROZENES:   They did.

BRENNAN CJ:   Now, associated with the declaratory relief, there is the question of Cox and Railton.

MR ROZENES:   There is.

BRENNAN CJ:   So that your question is only part of the issues for determination.

MR ROZENES:   That is correct, your Honour.

BRENNAN CJ:   And you wish to agitate the Cox and Railton argument.

MR ROZENES:   We did agitate the Cox and Railton issue in the court below and on appeal and the question for this Court that we pose, as a special leave question, is whether the Court of Appeal was correct in saying that the sworn information laid before the magistrate for the purposes of the issuing of the warrant and relied upon by the applicants before the trial judge as showing or adding colour to a bald assertion of fraud or improper use was sufficient to so colour the bare assertion as to permit the court to sweep away the privilege.

BRENNAN CJ:   Now, if it is a question of declaratory relief distinct from the challenge to the validity of the issue of the warrant, how can that evidence be admissible?

MR ROZENES:   How can it be admissible in that form?

BRENNAN CJ:   Yes, in that proceeding.  In other words, if it is a question of review of the issue of the warrant, one can see very readily how it would be, because it is part of the material, it is there before the issuing justice.  But if we are concerned with the declaratory relief as a separate and distinct proceeding, the warrant having been executed, how can you go to some prior piece of evidence that was before the issuing justice and utilise it?

MR ROZENES:   It was part of the proceedings for the declaratory relief, your Honour, it was not separate from it.

BRENNAN CJ:   It was part of the proceedings that were heard together with.

MR ROZENES:   Yes, but once the solicitor or the client claimed the privilege, the response to the claim of privilege was the Cox and Railton point.

BRENNAN CJ:   Oh yes.  So then the question is what evidence do you have of it.

MR ROZENES:   For that purpose.

BRENNAN CJ:   For that purpose.

MR ROZENES:   That is the question that we seek to raise for the consideration of this Court because the assistance that judges of first instance have in dealing with that issue prior to the decision of the Full Federal Court in this case was a statement in Bullivant where Lord Halsbury spoke of something, something and whatnot, without quite telling anybody what the whatnot was; the judges in Darbishire speaking about something that gives colour to the bald assertion; other judges speaking of prima facie proof; everybody conceding that it does not mean going out and proving the substantive issue of fraud, and nor can it because ‑ ‑ ‑

BRENNAN CJ:   That could be accepted for the purposes of this argument.  It is a question of admissibility of evidence, not the nature of the evidence that must be adduced.

MR ROZENES:   We would say it is something that gives satisfaction to the court that a bare assertion of fraud is not there.  And the example we pose is that if it was to be limited, as this appellate court limited it to admissible evidence not of a hearsay nature, then imagine if the informant deposed that in the course of his investigation he had received from a reliable witness an admission on the part of the solicitor that this scheme was an absolute rort and that the only reason for embarking upon it was to defraud the Commonwealth, then if that had to be established in admissible form it would not be sufficient for the informant to even tender the statement of this reliable third party.

DAWSON J:   Unless the solicitor was part of the scheme.

MR ROZENES:   Unless the solicitor was part of the scheme.  But what does the informant need to prove, and how does he go about doing so, other than assertion?  In this case, if one looks at the transcript of the debate in the Full Federal Court, it proceeded almost entirely on this proposition, that had the informant been called to depose to the contents of the information, saying that he had it from reliable people and on proper bases and was then available for cross-examination, that may have resolved the matter.  Now, that argument does not translate into the judgment of the court and we cannot say much about that.  But at the moment, we would submit that if the test is that the evidence has to be in admissible form, in other words the various witnesses need to be produced from here, there and everywhere to prove the fraud, then what is going to happen is that the application for a warrant and the dealing with the privilege issue is turned into a trial of the substantive action.

BRENNAN CJ:   Why cannot the person who laid the information before the justice be called to give evidence of the same matters?

MR ROZENES:   If he did - and we concede that, your Honour, that that is clearly something that troubled the Full Federal Court - what would he say?  He would say, “I have honest and reasonable belief that this happened and I have spoken to X over here and Y over there and I have got these documents and I have got these certificates”.  Much of that would be inadmissible hearsay in that sense, and yet it would be the sort of material we would say would be sufficient to give colour to the bald assertion that this is all part of a fraud, and yet would fall short of establishing the fraud which, if one talks about admissible evidence in the strict sense, then hearsay, of course, is ‑ ‑ ‑

BRENNAN CJ:   That is not the issue; the issue is whether or not there is this prima facie material.  So the evidence would not be hearsay, it would be original evidence.

MR ROZENES:   If the only issue is is there evidence, without calling it evidence, then that is a position that we would all be satisfied with.  I am not sure it is a position that our learned friends would be satisfied with.

TOOHEY J:   Before you sit down, Mr Rozenes, it is fair to say, I suppose, that if you go to page 163, what you describe as the specific questions of law raised, (i), (ii) and (iii), those are the questions?

MR ROZENES:   I think we have reformulated the third question in our outline of argument slightly, but with that observation, your Honour, they are the questions, yes.

TOOHEY J:   Thank you.

BRENNAN CJ:   Yes, Mr Bloom.

MR BLOOM:   Your Honours, in terms of the copy document point, we of course join with our learned friends in applying for special leave because we have the same difficulties the opposite way around, with three different judgments in the Full Court of the Federal Court. 

If your Honours were to go, please, to page 44 of the application book your Honours will see there the orders of Justice Davies at first instance.  Order No 6 is the order in question, a declaration:

that copies of documents made for the purpose of obtaining legal advice -

and if I might just pause there, the unchallenged evidence was that all these copies were made for that sole purpose -

the originals of which are not subject to legal professional privilege are not privileged.  Examples of such documents -

are then given.  Now, document 676 first referred to there was a copy document copied for the sole purpose of inclusion in a brief to counsel and was so included.  On Justice Lindgren’s approach to the privilege for copy documents, the privilege would be denied to that copy because the original was not privileged.  On Justice Beaumont’s approach, the privilege would apply because of the sole purpose and the reason for which that document was brought into existence.  On Justice Hill’s approach it may or it may not be, depending upon whether at the time when the document is seized it is then still in the brief, because Justice Hill favoured an approach which would see, contrary to what Justice McHugh of this Court has said in Giannarelli v Wraith, privilege being divested from a document which was otherwise subject to the privilege. 

The problem is, your Honours, that the Full Court of the Federal Court dealt with this matter without the benefit of the reasons of this Court in Carter’s Case, and it is the reasons of the majority in Carter’s Case in pointing out that the privilege is absolute and unqualified and in pointing out that the balancing exercise is done at the point before the privilege is conferred and not thereafter, that leads to the problem.  Certainly Justice Lindgren performed the very sort of balancing exercise, in finding for our learned friends’ point of view, which the Court was later in Carter to say was impermissible.  Justice Hill favoured the proposition that somehow the privilege could be overridden or divested, again subject to what was said by the Court in Carter’s Case. 

Your Honours, the cases which are relied upon to support the proposition that copy documents are not privileged, in both England and Australia, are cases relating to discovery.  None of them are cases relating to search warrants.  They proceed, both in England and Australia, upon the assumption that there is some greater public interest in expedition of a trial over the interest in professional privilege.  They say that in the interests of a speedy trial it would be a silly thing if an original document exists and it is not privileged, to confer privilege upon the copy.

DAWSON J:   If we confine the proceedings - if special leave were granted, it be confined to that question and is there any other question which you want to agitate?

MR BLOOM:   Yes, your Honour, there are a number of other questions which we seek to raise.

DAWSON J:   Yes, I thought so. 

MR BLOOM:   The first of them ‑ ‑ ‑

BRENNAN CJ:   Mr Bloom, what is your attitude to the grant of special leave to deal with the question of the admissibility of evidence of the material laid before the issuing justice?

MR BLOOM:   We oppose it, but in so saying we have also our own special leave application which must fasten, if on anything, on section 35A(b) of the Judiciary Act. The difficulty is that their Honours in the Full Court found unanimously that there was no admissible evidence tendered in proof of the allegations of fraud. That being so, the order which we say they should have made is the order which one would have expected that his Honour below would have made, namely the contrary of his order No 5 relating to fraud. That order appears back again at page 44. His Honour declared that:

by reason of the allegation of offences.....and of the proof given in support thereof -

Now, the Full Court said there is no proof given in support thereof in that ‑ ‑ ‑

TOOHEY J:   Can I just interrupt you.  Is that a reference to what was put before the justice who issued the warrant only or does it include other material that was made available to the court for the purpose of determining whether there was proof of prima facie evidence of fraud?

MR BLOOM:   Solely the information, your Honour, solely the information which was before the justice.

TOOHEY J:   But it is being used at this point for a different purpose, not to support the warrant or to bring down the warrant but as the source of evidentiary material upon which a conclusion can be reached as to whether there is sufficient evidence of fraud or not?

MR BLOOM:   That is so, and it was in form simply annexed to an affidavit of someone else, not the informant, who did not even swear to the truth of it on information and belief.

TOOHEY J:   But if you isolate it from the issue of the warrant and carry it over to the question of inspection of documents, then it becomes pretty closely linked with the main point which has been urged by Mr Rozenes, does it not?

MR BLOOM:   It is so linked, yes, your Honour.

TOOHEY J:   It would be difficult to isolate the two in that sense.

MR BLOOM:   Yes.  I wish I could say the same about the other two matters, your Honour, but I have yet to come to those.

TOOHEY J:   Yes.  But for the purposes of the present application, you would appear to accept that both matters urged by Mr Rozenes are appropriate for the grant of special leave.

MR BLOOM:   The first of them, most certainly; and the second of them is linked, yes.

TOOHEY J:   Grudgingly, perhaps, the second of those.

MR BLOOM:   Yes, your Honour.  And as long as it enables me to put a submission in due course as to the appropriate order that should have been made below, then I would probably join with him again in ‑ ‑ ‑

BRENNAN CJ:   I do not think we need trouble you any further with it.  We will be granting special leave in relation to those points.

MR BLOOM:   If your Honours please.

DAWSON J:   But you have something more?

MR BLOOM:   I do, and I wonder if my 20 minutes starts now or it started ‑ ‑ ‑

BRENNAN CJ:   It can start now again, if you have got something distinct.

MR BLOOM:   I will try not to use it all anyway, your Honour.  These go, of course, to the validity of the warrant and the first issue is the three condition warrant.

TOOHEY J:   Have you not got a problem here having regard to the special leave applications in other matters that were before the Court and in which special leave was refused, where decisions which I imagine you seek to challenge in this proceeding were endorsed or otherwise not thought to give rise to a question of special leave?

MR BLOOM:   Your Honour, I appeared, of course, in one of those, Dunesky, or Lego, which it was part of, and Justice Deane demonstrated there that my submission was too wide.  I do not make such a wide submission today.  I have also had the benefit, of course, of reading what the Chief Justice said in the special leave application in Grollo and we do say, and indeed our submission in this respect is not contested by our learned friends in their submissions, that this is a case where there was no satisfactory material before the Justice pointing to the existence of unidentified or unidentifiable evidentiary matter in the premises in question.

TOOHEY J:   But if that is all there is to it, it is very hard to find a special leave point in that, is it not?

MR BLOOM:   When one adds to that fact the common use of the three condition warrant, the fact that there are still State statutes containing equivalents to old section 10, the fact that on this aspect section 3E of the current Crimes Act is relevantly the same, because we are talking about the suspicion, not the next step, and that remains the same under both section 3E as it was under section 10, so in all of those senses this being on the uncontested submission a case where there was no satisfactory material before the Justice to point to the existence of unidentified or unidentifiable evidential material, this is, where the others were not, given the other general aspects of the three conditional warrant, an appropriate vehicle for the grant of special leave.

BRENNAN CJ:   It might be an appropriate vehicle, but there are other problems, are there not?

TOOHEY J:   Do you challenge or seek to challenge as a basis for special leave the decisions of the Full Court in Dunesky or Lego?

MR BLOOM:   Yes, your Honour.

TOOHEY J:   Notwithstanding what this Court has said about those decisions on the other applications for special leave?

MR BLOOM:   Yes, your Honour, and the difficulties come about because in Dunesky the Full Court sat five and the correctness of Lego, certainly on the Karina Fisheries point, was put in issue in Dunesky but their Honours declined to deal with the question.  Your Honours recall - and if I might just go to the Karina Fisheries point very shortly - that in Karina Fisheries a Full Court had said in obiter dicta that there was a need for full disclosure of all material facts, a material fact being that which might - not necessarily would - influence the Justice in the drawing up of the warrant.             In both Dunesky and in this case the Full Court of the Federal Court assumed that that still was the correct test, without deciding whether the different test in Lego was the preferred test, and then went simply to questions of whether there had been full and true disclosure. 

In this case a Full Court on an interlocutory basis, as this case wended its way around, said that full and true disclosure of all material facts

could be made in a case where there were enormous quantities of documents held by the police which fell within the terms of the warrant and which, if that had been disclosed, it was our submission to the Justice might have led to a much less heavy sort of warrant and maybe not even a three condition one.  But disclosure of that could be made simply by disclosing that the Australian Taxation Office had received documents from the taxpayers and made copies thereof and that the Justice should be expected to infer that which was to be the subject of the express disclosure if the Karina Fishers test applied. 

So on the non-disclosure point there was the correctness of the test which is in issue: is it the Lego test or the Karina Fisheries test, because that is still not clear and that is a matter which will remain unclear next time it gets to a Full Court of the Federal Court.  And secondly, how does one discharge it, if it is the Karina Fisheries duty?  Can one simply discharge a duty to disclose something by disclosing not that but material from which an inference might be drawn?  In our respectful submission, the answer to that should be no.  But they are, in our respectful submission, important questions.  And they are, although not on the declaratory proceedings, they are inextricably bound up with the questions in this case between the parties and would not, in our respectful submission, either of them, add considerably to the hearing.  We would expect that the whole hearing, with all four matters aboard, would still take no longer than a day.

Your Honours, if I might go back then to the three condition format.  The question asked, in our respectful submission, by Justice Deane in the special leave application in Lego shows that a warrant in the three condition format will be appropriate where there is material before the Justice showing reasonable grounds for suspicion that there exists on the premises evidential material which has not yet been identified or which cannot be identified.  But because this is a case where there was no satisfactory material before the Justice pointing to the existence of unidentified or unidentifiable documents, and rather the information pointed only to material already held in copy form either by the police or the Australian Taxation Office, this is an appropriate case for special leave on that three condition point as well.  If your Honours please.

BRENNAN CJ:   Thank you, Mr Bloom.  We do not need to trouble you, Mr Rozenes, in reply to Mr Bloom’s application. 

There will be a grant of special leave on the application of the Commissioner for the Australian Federal Police relating to the two questions of the test to be applied to determine the privilege attaching to copies of documents which are themselves not subject to professional privilege and the admissibility of the evidence that was available to the trial judge to determine the Cox and Railton point.

The application by Mr Bloom in relation to the sufficiency of the material laid before the issuing Justice is not a question which, in itself, attracts a grant of special leave to this Court.   The question of the test to be applied in determining the sufficiency of disclosure of material to the issuing Justice is not a question which, at this stage of the development of the authorities on that topic, ought now to attract the grant of special leave to this Court.  For that reason, special leave will be refused.

Now, the question arises whether or not it would be desirable to have some written submissions on this matter prepared by the parties and exchanged before the hearing.  That question reltes both to the desirability of limiting the material that would have to be contained in an appeal book and to the issues that would fall for determination.  Mr Rozenes, would you like to nominate a timetable?

MR ROZENES:   I think we could probably accommodate those queries in three weeks or four weeks.

BRENNAN CJ:   Twenty-eight days.  Mr Bloom?

MR BLOOM:   Twenty-eight days before the hearing, is that what I understand by ‑ ‑ ‑

BRENNAN CJ:   No, 28 days from now.

MR BLOOM:   From today, I see. 

BRENNAN CJ:   That takes us then into - Mr Bloom, you do not have to do it 28 days from today.  You have to do it some time after that first period of 28 days and there are a certain number of dies non which follow that 28 days, I think.

MR BLOOM:   Yes.  If we could have 21 days, your Honour, given the holiday seasons approach.

TOOHEY J:   It is that time of the year, Mr Bloom.

BRENNAN CJ:   Yes, I think have another 28 days, Mr Bloom.

MR BLOOM:   If your Honours please, thank you.

BRENNAN CJ:   I should have announced earlier that the Deputy Registrar certifies that Ms Wendy Elder, Justice of the Peace, the third respondent in this matter, submits to the decision of the Court save as to costs.

AT 11.12 AM THE MATTER WAS CONCLUDED