Commissioner of Australian Federal Police v Propend Finance Pty Ltd

[1997] HCA 3

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE and DETECTIVE SERGEANT ALAN TACIAK v PROPEND FINANCE PTY LIMITED, RICHARD SCHEINBERG HOLDINGS PTY LIMITED, CHUSAM NOMINEES PTY LIMITED, GINGES HOLDINGS PTY LIMITED, BEST & LESS (AUSTRALIA) PTY LIMITED, BARNEY RICHARD SCHEINBERG, ALBERT SCHEINBERG, BEREL GINGES and MICHAEL DUNKEL; F.C. 97/003
Evidence

(1997) 188 CLR 501

7 February 1997
Evidence

Evidence—Legal professional privilege—Search warrant—Copy of unprivileged documents made solely for the purpose of obtaining or giving legal advice or solely for use in legal proceedings—Evidence of illegal or improper purpose. Crimes Act 1914 (Cth) s 10.

Orders

ORDER

1. Appeal dismissed.

2. Cross-appeal allowed.

3. Vary Order 3 of the Orders of the Full Federal Court to read:

"Orders 4, 5, 6 and 8 be set aside; and (a) declare that legal professional privilege attaches to those copy documents (if any) which were made solely for the purpose of obtaining or giving legal advice or solely for use in legal proceedings and which were in the possession of the ninth respondent and were seized upon execution of the warrant, issued 2 September 1993, at the premises of the ninth respondent; and (b) order that the matter be remitted to a single judge of the Federal Court for determination of the application in accordance with that declaration and for determination of the question of costs reserved by Davies J."

4. The appellants pay the respondents' costs in this Court.

Decision

On appeal from the Federal Court of Australia. BRENNAN CJ.
1. Gaudron J has stated the facts out of which this appeal arises and the course of the litigation in the Courts below. Her Honour has also cited the authorities which establish that the doctrine of this Court is that legal professional privilege "is not merely a rule of evidence applicable in judicial and quasi-judicial proceedings, but is a basic doctrine of the common law"[1]. Although this was not my preferred view[2], I am bound now to accept it. As I pointed out in Baker v Campbell[3], the view that legal professional privilege qualified the power of search and seizure conferred by a warrant issued pursuant to s 10(1) of the Crimes Act 1914 (Cth) as it stood at the time - and as it stood with some immaterial variations when the warrants in the present case were issued[4] - necessitated the devising of some procedure for determining a claim of privilege if it should be raised during the execution of a warrant. Such a procedure was not devised by the courts, but the Law Council of Australia and the Australian Federal Police agreed upon "General Guidelines". The Guidelines set out the procedure to be followed if, in the execution of search warrants on lawyers' premises or the premises of Law Societies and like institutions, a claim of legal professional privilege should be made. The authority given by the warrants in the present case was to search and seize "in accordance with the procedure set out" in the General Guidelines.

2. The respondents made an application before Davies J in the Federal Court for judicial review of the applications for search warrants, of the decisions to issue the search warrants and of the conduct of the Federal Police in executing them. However, the principal relief claimed (though it was said to be "in the alternative") was for a declaration that certain documents for which legal professional privilege had been claimed and which, in accordance with the General Guidelines, had been seized but not inspected were "subject to legal professional privilege". One of the grounds on which the present appellants resisted this claim was that some of the documents for which legal professional privilege had been claimed were created for or in furtherance of the commission of the suspected offences set out in the search warrants.

3. Among the orders made by Davies J were declarations that -

"by reason of the allegation of offences ... and of the proof given in support thereof," certain documents listed in the order "are not subject to legal professional privilege"[5]. and "that copies of documents made for the purpose of obtaining legal advice, the originals of which are not subject to legal professional privilege are not privileged."[6]

4. In the Full Court, differing views were expressed on these questions. In the result, the declarations were set aside. The present appeal is brought to restore the order of Davies J.

Privilege attaching to copies of non-privileged documents

5. The respondents claim that the documents in question were produced solely for the purpose of obtaining professional legal advice in relation to litigation that was reasonably apprehended. In Baker v Campbell, though I would have construed s 10 of the Crimes Act as authorising, in general, the issue of a warrant to search for and seize documents to which legal professional privilege attaches, I would not have construed s 10 as authorising the seizure of documents[7] -

"(a) which are merely expressions of legal opinion; or (b) to which legal professional privilege attaches by reason of their having been brought into existence solely for use in litigation that is pending, intended or reasonably apprehended."

6. The problem that now arises relates to copies of unprivileged documents when the copies were brought into existence solely for use in obtaining legal advice or for use in apprehended litigation. When photocopying and multiple production by word processing have become commonplace, it may be difficult to distinguish between an original and a copy and it may seem artificial to do so. In J N Taylor Holdings Ltd v Bond[8] Debelle J said that, in general, "it would be absurd for the copy to be privileged while the original was not". And, in Lubrizol Corporation v Esso Petroleum Ltd[9], Aldous J said that he found it "incredible, in these days of the photocopier, the computer and the fax, that any distinction concerning privilege can be drawn between a copy and the original". Yet the purpose of bringing an original document into existence may not be the purpose of bringing the copy into existence and, since Grant v Downs[10], the protection of legal professional privilege has been confined to documents that have been brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings[11]. In that case, Jacobs J said[12]:

" I think that the question which the court should pose to itself is this - does the purpose of supplying the material to the legal adviser account for the existence of the material? I use the word purpose here in the sense of intention - the intended use. The question is one of fact. In some cases a mere general description of documents in an affidavit of discovery may indicate an affirmative answer without any need further to examine the documents or the circumstances in which they came into existence: Westminster Airways Ltd v Kuwait Oil Co Ltd[13]. In other cases both an examination of the documents and of the surrounding circumstances may be necessary."

7. The test is anchored to the purpose for which the document was brought into existence; the use to which a document is put after it is brought into existence is immaterial. So, on a strictly logical application of the test, if a copy is made solely for the purpose of providing it to a legal adviser in order to obtain legal advice or for use in connection with apprehended litigation, the copy would be privileged. A test which focuses on the purpose for which a document is brought into existence, rather than on the information given by or contained in the document, creates practical problems in ascertaining the intention of the maker of the document. If there be two copies on a file, has one (and if so, which), or both, or neither been brought into existence for a privileged purpose? Though the test raises problems of that kind, it must be applied unless there is some countervailing principle. Is there any countervailing principle? That calls for a consideration of the reason for according legal professional privilege to protect a copy of an unprivileged original from seizure or inspection.

8. The reason why privilege is accorded to a document produced for use in litigation or for the obtaining or giving of legal advice is because "it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers": Grant v Downs[14]. Privilege protects the confidentiality of documents produced for the purpose of communication between a potential litigant and the legal adviser and confidentiality facilitates the administration of justice. In Grant v Downs, Stephen, Mason and Murphy JJ said[15]:

"This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure ... to the solicitor."

9. Communications may be documentary, as Mason J pointed out in O'Reilly v State Bank of Victoria Commissioners[16]:

"But if communications in written form are to be privileged they must still be confidential communications between solicitor and client made for the purpose of advice or for the purpose of use in existing or anticipated litigation. The documents must come into existence for, and be prepared for, that purpose. So in Grant a majority of this Court held that legal professional privilege is confined to documents which are brought into existence for that sole purpose."

10. If privilege were denied to a copy of an unprivileged document when the copy is produced solely for the purpose of seeking advice from a solicitor or counsel or for the purpose of use in pending, intended or reasonably apprehended litigation, there would be a risk that the confidentiality of solicitor-client communications would be breached. The way would be open for the execution of search warrants by the emptying out of, and sifting through, solicitors' files and counsel's briefs. That would undermine the adversary system[17] under which most litigation is conducted[18].

11. Authority and principle thus combine to establish that, prima facie, copies of non-privileged documents are privileged if the copies are brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending, intended or reasonably apprehended. But the prima facie rule is subject to a qualification next to be mentioned.

12. In judicial and quasi-judicial proceedings, the contents of a private document are proved by producing the original document if it is in existence and can be produced. The original is the best evidence of its contents. Secondary evidence by way of production of a copy is not generally admissible at common law unless the original is not available to the party seeking to tender the document[19]. And, if a party in litigation discloses in an affidavit of documents a material document that is no longer in the party's possession or power, the procedures of discovery enable the other party to trace the location of the document[20], to require the first party to state the contents of the document[21] if the contents be known[22] or, perhaps, to be provided with a copy if the first party can obtain access to the original[23]. In "The Palermo"[24], discovery of copies of unprivileged documents was refused by Butt J (the refusal being upheld by the Court of Appeal) on the ground that the copies were obtained "to form part of the brief". But in Land Corporation of Canada v Puleston[25] his Lordship said that he was "not inclined to extend ["The Palermo"] at all". In that case, when an original document which had been in the possession of the party's agent was not discovered, his Lordship ordered production of the original, "or affidavit sufficiently accounting for its destruction or loss. In latter case, order for production of extracts, properly verified by affidavit."[26] Thus, in proceedings in which discovery is available, the contents of an unprivileged original document can be proved as against a party who has had the original in his possession or power, even if a copy of the original is protected from inspection by legal professional privilege. When an unprivileged original can be produced or secondary evidence of its contents can be tendered in evidence, the according of legal professional privilege to a copy does not impair, although it does not hasten[27], the administration of justice.

13. But the procedures of discovery are not available in aid of the execution of a search warrant and, if legal professional privilege were accorded without qualification to a copy of an unprivileged document where the copy is brought into existence for a privileged purpose, the privilege might well frustrate the power to search and seize and thereby undermine the administration of justice[28]. An offender whose premises were to be searched for incriminating documents could secure immunity from seizure of a key document in his possession by destroying or disposing of the original, after having a copy made for the sole purpose of the apprehended litigation. The offender would then be free to produce the copy at trial if, but only if, it advanced his case[29]. This was the argument advanced by counsel in Chadwick v Bowman[30] but it was not necessary to deal with it in that case because the copies which were obtained by the solicitor in that case were found not to be privileged. However, Mathew J commented:

"I think that danger would follow if the privilege against inspection were made to cover such a case as this."

14. The problems that arise when legal professional privilege is given an operation outside judicial and quasi-judicial proceedings may require some modification either of the privilege generally or of its operation in particular situations in order to ensure that the administration of justice - criminal as well as civil - is not impaired[31]. No modification would be permitted if the privilege were claimed in response to an application for discovery or inspection in judicial or quasi-judicial proceedings. In such proceedings, the privilege, once it attaches, is not lost[32] unless it be waived by the holder of the privilege[33]. No balancing of interests is called for, as the balancing has been done in according recognition to the privilege[34]. But when the privilege is invoked in response to the exercise of a statutory authority to search and seize, some modification is required to avoid the frustration of the statute.

15. A problem of the same kind evoked the doctrine of imputed waiver of privilege. In Attorney-General (NT) v Maurice[35], Mason and Brennan JJ said[36] that an "implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege". Deane J said[37] that waiver of privilege -

"occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege."

16. Unfairness in the context of the execution of a search warrant might be found in maintaining the confidentiality of a privileged copy of an unprivileged original when neither the original nor its whereabouts is disclosed or any secondary evidence of its contents is made available. In such a situation, privilege becomes a cloak thrown over evidence which the execution of the search warrant is intended to reveal.

17. The purpose of s 10(1) of the Crimes Act would not be frustrated or impaired by according legal professional privilege to copy documents if original unprivileged documents that are connected with the commission of an offence in any of the ways specified in that section are in existence and are susceptible of seizure under a warrant or if unprivileged copies of the original are available and can be tendered to prove the contents of the originals. But where privileged copies of original documents are seized under a search warrant, some qualification of the privilege is required to ensure that the person executing the warrant should have access to the contents of an unprivileged original to the same extent at least as a party to litigation can obtain access to the contents of an unprivileged original against a party who has or has had the unprivileged original in his or her possession or power. I would state the qualification in this way: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the person seeking to execute the warrant and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the privileged copy loses the privilege. The loss of privilege can be avoided by the production of a copy of the original (which might be produced by copying the privileged copy) the accuracy of which is verified by a person having knowledge of the contents of the original. So long as a copy of the unprivileged original (with verification if necessary) or other secondary evidence of its contents is available to be tendered to prove the contents of the original, the privilege attaching to any copy of the original can and should be maintained. Otherwise, I would hold the privilege of the privileged copy to be lost.

18. No objection to the production of an unprivileged copy or other evidence of the contents of the original can be entertained on the ground that it might expose the party to a penalty or forfeiture. That ground affords an excuse for refusing discovery or inspection in civil litigation but, once legal professional privilege is treated as a rule of general application affecting, inter alia, extra-judicial processes for the enforcement of the criminal law[38], that ground cannot operate to frustrate those processes. For that reason, I have used the words "at least" in stating the extent of the access to the contents of an unprivileged original which a person executing a search warrant should be able to obtain.

19. To qualify legal professional privilege in the way I have proposed is to deprive a person who has only a privileged copy in his or her possession or power of any tactical advantage that the privilege and the absence of an unprivileged original would otherwise have conferred. But the privilege is not afforded in order to confer tactical advantages; it is afforded in order to facilitate the administration of justice.

Judicial review and declaratory relief

20. The application of these principles to the instant case presents some difficulty. The difficulty arises because the claim for declaratory relief seems to have been regarded as an incident of, or a step towards, the granting of relief by way of judicial review of the application for search warrants, the issuing of the search warrant and the conduct of the police in executing the search warrants. In truth, the determination of the claim for declaratory relief was not, and could not have been, determinative of the claims for judicial review. The fact that there were privileged documents (or documents that were prima facie privileged) in the premises in respect of which search warrants were sought says nothing as to the validity of the applications for warrants to search those premises, assuming that such applications were "decisions" or "conduct" amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or were reviewable pursuant to s 39B of the Judiciary Act. There was nothing to show that the applications were made in bad faith to obtain warrants authorising a search for and seizure of privileged documents. Nor was the decision to issue the warrants invalid. The issuing justice restricted the execution of the warrants so as to ensure observance of the guidelines for dealing with documents in the event that a claim of privilege was made. The conduct of the police in executing the warrants complied with the guidelines. In accordance with those guidelines, the documents for which privilege was claimed were not seized under the warrant but were sealed up and delivered to a third party. The guidelines provide, in effect, that when the documents are sealed up and delivered to a third party, the execution of the warrant be suspended pending the decision in proceedings to establish the privilege. If no such proceedings are taken or such proceedings fail, the documents are released into the possession of a police officer to be dealt with under the warrant. In this way, an accommodation is reached between the legislative intention expressed by s 10(1) and the decision in Baker v Campbell.

21. 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. To determine that controversy, the court must act upon admissible evidence, not upon hearsay. In the present case, Davies J had regard to the sworn information laid before the issuing justice. That material was admissible to establish the basis on which the search warrant was issued and thus to support the validity of the issue of the warrant, but it was not admissible to show that the copy documents found in the custody of solicitors were not privileged.

Ulterior purpose in communications with legal adviser

22. In determining whether a claim of legal professional privilege can be upheld, it is open to the party resisting the claim to show reasonable grounds for believing that the communication effected by the document for which legal professional privilege is claimed was made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest[39]. I state the criterion as "reasonable grounds for believing" because (a) the test is objective and (b) it is not necessary to prove the ulterior purpose but there has to be something "to give colour to the charge"[40], a "prima facie case" that the communication is made for an ulterior purpose[41]. The purposes that deny the protection of privilege for a communication[42] (whether documentary or oral) between a client and the client's solicitor or counsel include[43] the furthering of the commission of an offence[44].

23. When a party in curial proceedings is seeking to rebut a claim of privilege by asserting that the communication with the legal adviser was made for an ulterior purpose, the evidence of ulterior purpose must be admissible in those proceedings. It is not sufficient to rely on the information laid before the justice who issued the warrant. The informant is not necessarily a witness and, if he or she is a witness, the admissible evidence is what is then deposed to, not a statement made to or before the issuing justice. In the present case no admissible evidence was tendered, although Davies J at first instance recorded that counsel for the parties were content that he "should have regard to" the sworn information laid before the issuing justice.

24. Two issues that were relevant to the claim of privilege in respect of the copy documents seized under the warrant appear to await determination. The first is whether the privilege attached at all. That question may need to be re-litigated now that it has been held that a concurrence of counsel in the judge's "having regard to" the sworn information was an inappropriate means of proving the facts relevant to that issue. The second is (in my opinion) whether, if privilege attached, it was lost by reason of the unavailability of the original unprivileged documents or of any secondary evidence of their contents.

25. Although these reasons differ from those of their Honours in the Full Court, the orders made by that Court suffice to allow effect to be given to these reasons. I would therefore dismiss the appeal and cross-appeal.

DAWSON J.

26. I have had the advantage of reading the reasons for judgment of Toohey J and agree with them and with the orders which he proposes. I wish only to add the following comments.

Legal professional privilege and copy documents

27. The first question which arises is whether a copy of a document may attract legal professional privilege where the original does not. As Toohey J points out, it is confusing to regard legal professional privilege as attaching to documents rather than the information they communicate. Whilst it is not uncommon in judgments for the distinction to be ignored, to say that a document is privileged is merely a shorthand way of saying that the communication constituted by the document is privileged[45]. As I said in Baker v Campbell[46]:

"Legal professional privilege attaches only to communications made for the purpose of giving or receiving advice or for use in existing or anticipated litigation. Moreover, if the communication in question is in the form of a document submitted by a client to his solicitor for use in existing or anticipated litigation, privilege will attach to it only if it comes into existence solely for that purpose. The privilege cannot operate to put beyond the reach of the law documentary or other material which has an existence apart from the process of giving or receiving advice or the conduct of litigation."

28. The last sentence of that passage would better convey its true meaning if, instead of the words "documentary or other material", I had continued to refer to "communications" because it is the communication of information that is protected by legal professional privilege against disclosure. That is so even where a document is brought into existence for use in existing or anticipated litigation, although in that case the information communicated may be of a somewhat different kind. Privilege does not protect a document from disclosure as a mere physical object any more than it protects from disclosure any other physical object[47].

29. That is why a document which has been brought into existence otherwise than as a communication between client and legal adviser seeking or giving advice or for use in existing or anticipated litigation does not attract the privilege: it is not a communication which has its origin in that confidential relationship between client and legal adviser that it is the purpose of the privilege to protect. It is why a document which merely evidences a transaction - a contract, for example - which is not a communication seeking or giving legal advice or for use in the conduct of litigation (in the sense that it pre-exists any actual or anticipated litigation) does not attract legal professional privilege, even if it is subsequently given to the legal adviser for the purpose of seeking advice or for use in litigation. And it is one of the reasons why the preferred view is[48] that a communication constituted by a document will only be protected by privilege if the document is brought into existence for the sole purpose of seeking or giving legal advice or for use in legal proceedings. The view that it is sufficient if that is the dominant purpose of the communication constituted by the document disregards the implication that the communication then has an existence apart from the confidential relationship between client and legal adviser and constitutes a communication which ought not be protected against disclosure[49].

30. Brett MR had some of these considerations in mind in Pearce v Foster[50] when he said of the documents in question in that case:

"It seems to me, therefore, that they fall within the class of documents with regard to which there is a professional privilege, on the ground that they are brought into existence for the purposes or in the course of professional communications between solicitor and client. I do not think that, where documents are already in existence aliunde, the mere fact of their being handed to a solicitor for the purposes of the conduct of the action can create a privilege; but, where documents are brought into existence by a solicitor or through a solicitor for the purposes of consultation with such solicitor, with a view to his giving professional advice or to the conduct of an action, these are in the nature of professional communications, and are as such privileged."

31. The same considerations lie behind the question which Jacobs J in Grant v Downs[51] thought was appropriate to determine whether legal professional privilege existed or not, namely, "does the purpose of supplying the material to the legal adviser account for the existence of the material?"

32. The words of Brett MR in Pearce v Foster adopt an argument put by counsel. That argument concluded[52]: "So a mere copy of such document made for the purposes of the action is not necessarily privileged: Lyell v Kennedy[53]". Brett MR did not go so far in his judgment and it was unnecessary for him to do so for the purposes of the case before him, but it is, I think, the logical consequence of the argument which he accepted. That is illustrated by the Victorian case of Shaw v David Syme & Co[54].

33. In that case the transcript of shorthand notes of court proceedings which were held in public was held not to attract legal professional privilege, even though the transcript was brought into existence for the purpose of enabling solicitors to advise in respect of a libel action and to conduct the action. The transcript was treated as a copy of the shorthand notes, that is to say, it was not considered significant that the original was in shorthand and the copy was not. What is important is that it was held that the original was not a communication seeking or giving legal advice nor, being merely a record of proceedings which took place publicly and independently of anticipated litigation, was it brought into existence for the purposes of the anticipated litigation. Of the copy, that is to say, the transcript, Madden CJ, in delivering the judgment of the court, said[55]:

"It would, in our opinion, be wrong to say that, where a solicitor has said, 'Get me a copy of that document, the original of which if in my possession will be liable to be discovered,' and such a copy is obtained for him, that copy document has come into existence for the purpose of being put before the solicitor. The document in question is in effect merely a translation of a document which of itself and untranslated would be useless. Being in shorthand, it has to be brought into such a condition that ordinary persons can read it. Therefore it is, as I have said, merely a translation. We think this transcript was not brought into existence for the purposes of the litigation within the true meaning of the rule which gives the privilege here claimed, and it seems to be definitely established by Chadwick v Bowman[56] and Lyell v Kennedy[57] that if an original is not privileged a copy can be in no better position."

34. Thus it was accepted that if an original document does not attract legal professional privilege, a mere copy cannot do so. The reason for this is apparent from the emphasis placed by Madden CJ upon the fact that the copy was a mere translation. The communication constituted by the copy - the translation - was the same as it was in the case of the original. The information conveyed by the one was no more or less than the information conveyed by the other, so that the copy could be in no better position than the original so far as privilege is concerned. That is to say, if the communication constituted by the original did not (as it did not) seek or provide legal advice and was not (as it was not) made for the purpose of litigation, then the communication constituted by the copy could not be regarded differently.

35. The point is also illustrated by Lambert v Home[58], a case similar to Shaw v David Syme & Co. There it was held that a transcript of the shorthand notes of proceedings in open court was not privileged even though the transcript was made for use in future litigation. The transcriber had, in the words of Buckley LJ, "done nothing more than reproduce in a physical form that which came into existence in its relevant form when the witness spoke in the box. The writer is comparable to a gramophone or a photographic camera. The document as distinguished from its contents is not relevant"[59]. The same reasoning applies here. It is the contents of the document - the information which it communicates - that is the important thing. The copy distinguished from its contents is not important, for legal professional privilege attaches to the contents of a document rather than the document itself.

36. In Vardas v South British Insurance[60], Clarke J said of Lambert v Home that it "rejected in categoric terms the notion that a copy of a document made for use in litigation was privileged although the original was not". Clarke J disagreed with a decision of Hunt J earlier in the same year[61] where he concluded that "[i]f the sole purpose of submission to the party's legal advisers for advice accounts for the existence of the copy, it should be privileged". Hunt J cited Grant v Downs[62]and National Employers' Mutual General Insurance Association Ltd v Waind[63] in support of that conclusion, relying in particular on the well-known principle stated by Mason J in Waind[64] that legal professional privilege is concerned with the purpose for which the particular document was brought into existence rather than the purpose for which the information which it records was obtained. Expressing the distinction in that way may, perhaps, be misleading. The law is concerned with the purpose for which the information contained in the document was communicated, rather than the purpose for which the information itself was originally obtained. The former purpose remains unchanged upon the making of copies of the document. Clarke J had that in mind when he said[65] that Grant v Downs and Waind "were not concerned with, and do not deal with, the purpose of the mechanical reproduction or copying of a document. I regard the distinction between the collating and recording of information in a document and the mere reproduction of that document as one of substance."

37. No doubt if the communication constituted by the copy in Shaw v David Syme & Co and Lambert v Home had been accompanied by some further communication which constituted the giving or seeking of legal advice or additional documentation for use in legal proceedings, the further communication would have been privileged. No doubt also a copy may be made of an unprivileged document or unprivileged documents in such a selective way as to render the copy or copies a communication of information which is different from or additional to the information conveyed by the original or originals. In that event, the copy or copies would be privileged.

38. In Lyell v Kennedy[66], documents which were copies of unprivileged originals were held to attract privilege because the selection involved in the making of the copies by a solicitor "might shew what his view was as to the case of his client as regards the claim made against him"[67]. That is to say, the selected copies or the portions selected might by their very existence reveal the basis upon which the solicitor was proceeding and thus the nature of his advice to his client. It is implicit in the decision in Lyell v Kennedy that a mere copy of an unprivileged original document which does not reveal such additional information attracts privilege no more than the original. However, as was pointed out by Byrne J in Roux v Australian Broadcasting Commission[68]:

"In the modern context where indiscriminate photocopying is the norm, it may be more difficult than in earlier days of manuscript copying to establish that there has been the interposition of professional skill and judgment in the selection of the materials to be copied so that their production discloses implicitly some confidential privileged information."

39. Lyell v Kennedy,and the earlier decision in Chadwick v Bowman[69], appear to have been misunderstood in England for a time, perhaps because those cases did not spell out the true reason why a copy document does not attract privilege if the original does not do so. But the cases which seem to have applied a different principle were called into question by Lord Denning MR in Buttes Oil Co v Hammer (No 3)[70]where he said:

"If the original document is privileged ... so also is any copy made by the solicitor. But, if the original is not privileged, a copy of it also is not privileged - even though it was made by a solicitor for the purpose of the litigation: see Chadwick v Bowman[71]. There are some cases which appear to give a privilege to copies on their own account, even when the originals are not privileged. They range from The Palermo[72] down to Watson v Cammell Laird & Co (Shipbuilders and Engineers) Ltd[73]. But those cases are suspect. They were adversely commented on in the Sixteenth Report of the Law Reform Committee on Privilege in Civil Proceedings (1967)[74]. Since Waugh's case[75] it is open to us to reconsider them. In my opinion, if the original is not privileged, neither is a copy made by the solicitor privileged. For this simple reason, that the original (not being privileged) can be brought into court under a subpoena duces tecum and put in evidence at the trial. By making the copy discoverable, we only give accelerated production to the document itself. That was pointed out by Winn LJ's committee in the Report of the Committee on Personal Injuries Litigation in July 1968[76]."

40. The reason why a copy document attracts no greater privilege than the original is, as I have endeavoured to explain, more fundamental than that given by Lord Denning MR. It is true that to make the copy discoverable may only be to give accelerated production to the document itself, but that is an argument which has its foundation in policy rather than logic. There are exceptions to the general rule that is in the interests of justice that relevant documents be produced, and in this country that is so whether the production be for the purposes of litigation or the purposes of search and seizure preceding litigation. One of the exceptions exists where there is legal professional privilege and it exists in order to preserve the confidential relationship between client and legal adviser, a relationship which is to be fostered and preserved for the better working of the legal system. However, that relationship is not impaired and the interests of justice are best served if the client or his legal adviser on his behalf is compelled to disclose a copy of a document when production of the original might be compelled without any ground for objection. That may, I think, be said to be so as a matter of policy.

41. Notwithstanding the limited basis upon which Lord Denning MR justified his conclusion in Buttes Oil Co v Hammer (No 3), that conclusion appears now to be accepted in England, although again upon grounds of policy rather than principle[77]. In Australia there has been a division of judicial opinion, but the correct view is, for the reasons of policy and principle which I have identified, that a copy of a document which does not attract legal professional privilege is in no different position from the original. That view is supported by Australian authority[78].

Admissibility of hearsay to excludelegal professional privilege

42. The other question which arises is whether hearsay evidence was admissible to establish that certain of the documents in question failed to attract legal professional privilege because there was a sufficient indication that they were brought into existence in furtherance of a crime or fraud. That limit upon the ambit of legal professional privilege was first recognised in R v Cox and Railton[79]. It is only those communications passing between a legal adviser and his or her client in professional confidence which are privileged and a communication made by the client for assistance in the commission of a crime or fraud lies outside any legitimate professional relationship. The issue in the present case is the nature of the evidence required to establish that the privilege is excluded on this ground.

43. The cases make it plain that those seeking to exclude legal professional privilege do not have to prove that the communication in question was in furtherance of a crime or fraud. In Bullivant v Attorney-General for Victoria[80], which was a case of fraud, the Earl of Halsbury LC said: "you must have some definite charge either by way of allegation or affidavit or what not". In O'Rourke v Darbishire[81] Viscount Finlay said: "there must be, in order to get rid of privilege, not merely an allegation ... of a fraud, but there must be something to give colour to the charge". That test was accepted in Attorney-General (NT) v Kearney[82] by Gibbs CJ, with whom Mason and Brennan JJ agreed. Gibbs CJ added[83] the further words of Viscount Finlay[84]:

"The statement [ie the allegation of fraud] must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact ... The Court will exercise its discretion, not merely as to the terms in which the allegation is made, but also as to the surrounding circumstances, for the purpose of seeing whether the charge is made honestly and with sufficient probability of its truth to make it right to disallow the privilege of professional communications."

44. In requiring less than proof of an allegation of crime or fraud to displace legal professional privilege, the law has made a compromise in the public interest between the competing principles which require, on the one hand, the availability of all relevant evidence and, on the other, the protection of professional confidence. It has done so in favour of the availability of all relevant evidence by placing the threshold for the displacement of the privilege a considerable distance short of proof of the allegation of crime or fraud. No doubt that is so because it is in the public interest that the law should not countenance even the possibility of legal professional privilege being raised as a cloak to hide criminal or fraudulent activities. Proof - that is to say, admissible evidence of the existence of the crime or fraud - is not required. It is enough that circumstances are made to appear which sufficiently point to the bona fides and credibility of the allegation. It is apparent that for this purpose hearsay evidence cannot be excluded. Thus in O'Rourke v Darbishire Lord Sumner said[85]:

"The stage in the action is only an interlocutory one, and the materials must be weighed, such as they are, without the apparatus of a formal trial of an issue. On such materials the Court must judge whether the claim of privilege is displaced or not."

45. In the same case Lord Parmoor said[86]:

"Whether the circumstances brought to the notice of the Court in a particular case are sufficiently explicit to establish a prima facie case of definite fraud, either by allegation, affidavit, or in some other way, will depend on the special facts in each case: R v Cox[87]. But something more is required than mere pleading, or than mere surmise and conjecture."

46. Lord Wrenbury said[88]:

"the plaintiff must show to the satisfaction of the Court good ground for saying that prima facie a state of things exists which, if not displaced at the trial, will support a charge of fraud. This may be done in various ways - admissions on the pleadings of facts which go to show fraud - affidavits in some interlocutory proceedings which go to show fraud - possibly even without admission or affidavit allegations of facts which, if not disputed or met by other facts, would lead a reasonable person to see, at any rate, a strong probability that there was fraud, may be taken by the Court to be sufficient."

47. Of course, in interlocutory proceedings hearsay is ordinarily admissible in the form of affidavit evidence upon the basis of information and belief, but it is apparent that in determining whether the privilege is displaced not even affidavit evidence is necessarily required.

48. The proceedings in the present case in which Davies J determined that there was sufficient substance to the allegation of crime or fraud to displace the privilege in relation to certain documents may not perhaps be accurately described as interlocutory proceedings for they resulted in a declaration which was not part of any proceedings otherwise on foot. The true nature of those proceedings can only be seen by reference to the "General Guidelines between the Australian Federal Police and the Law Council of Australia as to the execution of search warrants on lawyers' premises, Law Societies and like institutions in circumstances where a claim of legal professional privilege is made"[89]. Under those guidelines, documents in relation to which legal professional privilege is disputed are placed by the legal adviser, under the supervision of the police officer seeking to execute the warrant, in a sealed container. The container is then jointly delivered into the custody of some independent person. That is to enable the question of legal professional privilege to be determined and that is how the proceedings before Davies J arose.

49. The real question before Davies J, despite the form of relief he ultimately gave, was whether the police officer was entitled to seize the documents which he wished to seize and to which the search warrant could not validly have extended if they were documents which attracted legal professional privilege. That is to say, the question which Davies J was required to decide was whether the police officer was entitled to implement the decision (the implementation being cut short by the invocation of the guidelines) which he reached, namely, the administrative decision to seize the documents in question notwithstanding the assertion of legal professional privilege. He was entitled to do so if it was sufficiently apparent that the documents came into existence in furtherance of a crime or fraud. Clearly in reaching his conclusion upon that question the police officer could act on the materials available to him and was not confined to admissible evidence. Thus if the proceedings before Davies J be considered as, in effect, a review of the police officer's decision, then clearly his Honour was entitled to have regard to the same materials as were available to the police officer. On the other hand, if they were independent proceedings to determine whether legal professional privilege was displaced, then they were in substance, if not in form, interlocutory proceedings or at least the kind of proceedings in which it is established that hearsay evidence is not excluded. As Toohey J points out, much of the evidence before Davies J was not hearsay, but in any event, in my view, his Honour was entitled to have regard to hearsay evidence in concluding that the documents in question did not attract the privilege.

TOOHEY J.

50. The circumstances giving rise to this appeal are detailed in other judgments. It is necessary to make only brief mention of them in these reasons. I come immediately to the two questions raised for decision by the appeal. In doing so, it is not possible to divorce these questions entirely from the form of the proceedings taken by the respondents in the Federal Court, that is, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and pursuant to s 39B of the Judiciary Act 1903 (Cth).

51. The first question is whether, and in what circumstances, legal professional privilege attaches to a communication in a copy document when no privilege attaches to the original. The second question is, in effect, whether hearsay material may be used to displace legal professional privilege where the claim of privilege relates to a document which is said to have come into existence in furtherance of an illegal or improper purpose.

The views of the primary judge and the Full Court

52. In allowing in part an appeal by the respondents[90], all members of the Full Court of the Federal Court (Beaumont, Hill and Lindgren JJ) rejected the view of the primary judge, Davies J, that a copy document could not be the subject of legal professional privilege if the original document was itself not privileged, even though the copy was made for the sole purpose of obtaining legal advice, unless particular legal expertise was used in the selection of the documents[91]. However their Honours were not in entire agreement as to the test to be used to determine when the privilege might operate in respect of a copy of a non-privileged document.

53. Beaumont J saw the relevant inquiry in these terms: "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"[92]. Hill J approached the matter on the footing that the privilege attaches to communications, whether they be recorded in documents or are oral. It follows, said his Honour, "that copies of documents otherwise not the subject of legal professional privilege are themselves the subject of such privilege only where the copies are made for the sole purpose of obtaining advice upon matters contained in or concerning the original and in circumstances where to compel production of the copy would or could operate to reveal the subject matter upon which advice was sought"[93]. Lindgren J thought that "the public policy which supports the existence of legal professional privilege is satisfied if copy documents stand in the same position in relation to privilege as the original"[94]. His Honour accepted that in some cases this formulation of the law might seem inadequate. He instanced the situation where inspection may reveal a line of thinking, whether of lawyer or client, which led to the selection of the copies or to the form in which the material had been assembled. Again, a copy document may bear highlighting, underlining or even annotations. Yet again, copied documentation may be so integrated and mixed up with privileged original material that the former cannot be inspected without the latter being seen or its nature revealed. Lindgren J did not see these as exceptions to any principle but rather as falling within the general principle he had enunciated. The examples given applied equally to original documents[95]. Thus, in terms of general principle, Lindgren J's approach was close to that of Davies J.

Legal professional privilege

54. I accept that privilege may attach to a communication in the form of a copy of a non-privileged document, but only in the limited circumstances to which Lindgren J referred. Reference to copy documents tends to obscure the fact that privilege does not attach to a piece of paper. It attaches to a communication, written or oral, and it is the communication that is at issue. While it is natural to speak of legal professional privilege in terms of documents, it is the nature of the communication within the document that determines whether or not the privilege attaches[96]. It is as a consequence of this distinction that a legal adviser may be "required to give evidence of observed fact, notwithstanding that he observed that fact while acting in the course of a retainer and would not have observed the fact had he not been so retained"[97].

55. As always, it is helpful to see what the author of the monumental treatise on evidence has to say. Wigmore identifies the general principle of privileged communications in the following way[98]:

"[F]our fundamental conditions are recognized as necessary to the establishment of a privilege against the disclosure of communications: (1) The communications must originate in a confidence that they will not be disclosed. (2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. (3) The relation must be one which in the opinion of the community ought to be sedulously fostered. (4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation."

56. Although this formulation employs the language of "confidence" and "confidentiality", the author makes it clear in what follows that confidentiality of itself does not create the privilege. Legal professional privilege relates to production, not admissibility[99]. Wigmore's formulation is important because of the emphasis it places on the communication rather than the form the communication takes. This distinction is not always maintained in the authorities. As Hill J noted[100], there are passages in judgments of this Court that speak of the privilege in relation to "documents"[101]. But, when such passages are taken in context, it is apparent that it is the information in the document with which the Court is concerned. For that reason, the question whether privilege attaches to a communication in a copy document is not answered simply by asking whether the original document is itself privileged.

57. Before considering further the legal principles involved in this aspect of the appeal, it is as well to recall some of the circumstances which gave rise to the appeal. Documents in the possession of the respondents had been seized by the Australian Federal Police in execution of several search warrants. The validity of the warrants was upheld by the primary judge and by the Full Court. That matter has not been pursued in this Court. The relief which was sought by the respondents, and against the granting of which by the Full Court this appeal is brought, was a declaration that certain of the documents seized "are subject to legal professional privilege" and an order for their return. Some of these documents had been seized at the offices of a solicitor who was a director of the first respondent, Propend Finance Pty Limited ("Propend"). Included in the material for which privilege was claimed on behalf of Propend was a quantity of documents in the solicitor's office which were copies of documents which themselves were not privileged. Davies J held[102]:

"There are many bundles of documents in the schedule in respect of which, in my opinion, privilege fails for the reason that the original documents themselves are not shown to be the subject of legal professional privilege. At the present time, the evidence does not show that there was any particular legal expertise used in the selection of the documents."

58. The present respondents successfully challenged that approach before the Full Court.

59. The importance of legal professional privilege has been emphasised in many decisions of this Court and of other courts. A recent instance is Carter v Northmore Hale Davy & Leake[103]. At the same time a number of cases have sounded a warning against widening the privilege lest the need for the courts to have access to all relevant documents should be unduly undermined[104]. Wigmore has said of legal professional privilege[105]:

"It is worth preserving for the sake of a general policy, but it is nonetheless an obstacle to the investigation of the truth. It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle."

60. This view was endorsed by Mason J in O'Reilly v State Bank of Victoria Commissioners[106]. I do not understand his Honour to have retreated from that view in Baker v Campbell[107]. The importance of the disclosure and production of all relevant documents in the possession, custody or power of parties to litigation has been stressed again and again. Legal professional privilege is an exception to that principle and can only be justified as serving the public interest which gives rise to the exception[108]. Not only that but, as Aldous J observed in Lubrizol Corpn v Esso Petroleum Ltd[109], a judge must be able to explain why the particular exception sought to be maintained is in the public interest. The difficulties of explanation are accentuated when there is a departure from the basic proposition that if an original document is not privileged, nor is a copy of that document[110].

Legal professional privilege: copy documents

61. In Buttes Oil Co v Hammer (No 3) Lord Denning MR said[111]:

"If the original document is privileged ... so also is any copy made by the solicitor. But, if the original is not privileged, a copy of it also is not privileged - even though it was made by a solicitor for the purpose of the litigation".

62. His Lordship thought that the reason why this was so was because the original, not being privileged, "can be brought into court under a subpoena duces tecum and put in evidence at the trial". But, with respect, that cannot afford a sufficient reason because it is the communication that is sought to be privileged, not the document. It may be that inspection of the copy document would disclose some confidential privileged communication. Nevertheless Lord Denning's basic proposition holds good[112].

63. An early case in which the privilege attaching to copy documents was at issue is Lyell v Kennedy[113]. The documents were in the possession of the defendant's solicitor but they were copies of public records or other documents which were described as publici juris. The Court of Appeal held that the copies and extracts from the originals were privileged if made or obtained by the professional advisers of a party for his defence to the action and were the result of the professional knowledge, research and skill of those advisers. Bowen LJ said[114]:

"A collection of records may be the result of professional knowledge, research, and skill, just as a collection of curiosities is the result of the skill and knowledge of the antiquarian or virtuoso, and even if the solicitor has employed others to obtain them, it is his knowledge and judgment which have probably indicated the source from which they could be obtained."

64. As to Lyell v Kennedy, I agree with the view expressed by Byrne J in Roux v Australian Broadcasting Commission that[115]:

"the decision in that case to uphold the privilege was in fact based on the premise that to permit inspection of the solicitors' copies, would show to the plaintiff what was the view of the defendant or its lawyers as to the issues in the plaintiff's case".

65. Legal professional privilege is concerned with protecting the confidence of communications between lawyer and client. If therefore an original document is not privileged, a copy of that document is not privileged merely because the lawyer receives it from his or her client, even if it is to assist in the conduct of litigation. Where privilege is claimed for the contents of a document, it is necessary to look at the purpose for which the document recording the information came into existence, not the purpose for which the information was obtained[116]. If the document was not brought into existence for the purpose of litigation, its contents are not privileged even if the information which it contains was obtained for that purpose. "Therefore, if a solicitor gets from a third person for use in conducting the client's case a document that was not created in circumstances that attract privilege, on discovery the client must produce the document to the other side."[117] There must be something in the circumstances in which a copy of a non-privileged document came into existence in order to attach privilege to the copy. An illustration is where a lawyer makes annotations on a copy document, for the purposes of the conduct of litigation. On the other hand, it might be said that once annotated the copy document is different from the original. In that event only the annotation may be privileged. Selective copying is unlikely to attract the privilege, particularly at the present time "where indiscriminate photocopying is the norm"[118]. If the position of the copy in a collection of documents or something else about the copy tends to indicate the manner in which the litigation is to be conducted, privilege may attach. That is a limited situation indeed and, in the ordinary course, there is no reason why the document in question should not be removed from the collection so that it may be inspected[119]. It must be accepted that the exercise of professional skill in the assembly of material does not offer a very certain test but it is, I think, a necessary qualification to the general proposition that a copy document does not attract privilege if the original is not privileged.

66. It is argued that to refuse privilege to a copy document because the original is not privileged will encourage resort by investigators to the documents in a solicitor's office rather than carrying out ordinary investigative procedures. This is an argument based on inconvenience rather than on principle. This is not to underestimate the inconvenience that may sometimes be involved though, in the case of warrants executed on the premises of lawyers, the problems have to some extent been alleviated by the General Guidelines between the Australian Federal Police and the Law Council of Australia, dated 7 June 1990[120]. And the argument tends to overlook the fact that in civil proceedings an affidavit of documents must disclose the existence of all documents that are or have been in the possession or power of the deponent, including documents for which privilege is claimed.

67. If a third party shows to the solicitor for a party to litigation a non-privileged document and the solicitor takes the document into his or her custody for the sole purpose of claiming the privilege, it is clear that the document is not protected by privilege[121]. As Byrne J observed in Roux[122]:

"It seems to me to be absurd in these circumstances to say that where the solicitor does not retain the original, but makes a verbatim transcript or a photocopy of the document for the relevant sole purpose, that copy document acquires immunity which the original does not have."

68. To take as a basic proposition that a copy of a non-privileged document does not attract privilege does not in any way undermine the importance of the privilege. Rather it sets logical bounds to the privilege[123].

69. Although, on the question of legal professional privilege and copy documents, the Full Court allowed the appeal from Davies J, it should not be thought that all members of the Full Court took an entirely different view of the matter from the primary judge. All their Honours were of the view that the submission to a legal adviser of a copy of a non-privileged document does not of itself attract legal professional privilege. There has to be something more. The difference between the primary judge and the members of the Full Court, as I read their judgments, is this. Davies J confined what I have referred to as the "something more" to situations in which the legal practitioner brings to bear his or her particular legal expertise in the selection of the copy documents for which privilege is claimed. Beaumont J asked whether, in the particular circumstances in which the copy document came into existence, it should be treated as part of the substantive process of the seeking or the obtaining of legal advice or preparing for litigation. Hill J's reasons led him to the conclusion that copies of documents not otherwise the subject of privilege are themselves the subject of such privilege only where the copies are made for the sole purpose of obtaining advice upon matters contained in or concerning the original and in circumstances where to compel production of the copy would or could reveal the subject-matter upon which advice was sought. Lindgren J put the matter in terms not all that dissimilar to the approach of Davies J, by asking whether the original is privileged. If the original is non-privileged, so is a copy of it even though the copy was made for a privileged purpose. The qualifications accepted by Lindgren J are somewhat wider than those recognised by Davies J. I agree with the approach taken by Lindgren J[124].

70. I also agree with Lindgren J that par 6 of the orders made by Davies J declaring that "copies of documents made for the purpose of obtaining legal advice, the originals of which are not subject to legal professional privilege are not privileged" needs modification to account for these qualifications[125]. Lindgren J would have allowed the appeal to the Full Court in respect of par 6, by substituting a declaration that "copies of documents made solely for the purpose of obtaining legal advice, the originals of which are not subject to legal professional privilege, are not, by that reason alone, privileged". I agree with that course. Because the orders made by the Full Court simply set aside a number of orders made by Davies J including par 6, I would allow the appeal to the extent envisaged by Lindgren J. It follows that I would refuse the cross-appeal in so far as the respondents rely upon the "sole purpose" test for the privilege.

Illegal or improper purpose

71. This aspect of the appeal has a somewhat artificial character. The review sought by the respondents was with respect to the issue of the search warrants. The warrants did not authorise the seizure of documents to which legal professional privilege attached. Davies J did not determine that privilege attached to particular documents. In par 4 of his order, his Honour directed that, subject to declaration 5, issues as to privilege should be determined after the documents had been examined. Paragraph 5 declares that, "by reason of the allegation of offences under section 86(1)(e) and section 86A of the Crimes Act 1914 (Commonwealth) and of the proof given in support thereof, the following documents are not subject to legal professional privilege". The documents are then identified. Paragraph 6 of the order declares that "copies of documents made for the purpose of obtaining legal advice, the originals of which are not subject to legal professional privilege are not privileged". Paragraph 6 then gives examples of such documents. His Honour ordered that documents to which privilege did not attach "be released to the Australian Federal Police"[126].

72. The Full Court held that the privilege is not displaced by making a mere charge of crime or fraud; there must be some prima facie evidence that the charge has some foundation in fact. The allegation that offences had been committed was made in a sworn information containing more than 40 pages and with annexures presented to this Court in three lever arch files. The informant was the second respondent, Detective Sergeant Taciak who, in the information, spoke of his belief as to various matters "on the basis of the facts stated below". The information was exhibited to an affidavit sworn by Assistant Commissioner Baer who did not depose to the truth of any of the contents of the information. Because the affidavit of Assistant Commissioner Baer merely exhibited the information and did not speak to its contents, the Full Court held that the information was hearsay as to anything it contained. In the view of the Full Court, once the material in the information was rejected, as it should have been, all that remained was a bare assertion of improper or illegal purpose. It ordered that "there be a fresh hearing on the [respondents'] claims for privilege".

73. I have great difficulty in understanding why it was said that the information was hearsay as to anything it contained. It is no doubt true that Detective Sergeant Taciak had no personal knowledge of much of what appears in the information. But some of the material was a matter of public record, and if admissibility is the relevant test (as to which see below) some was admissible as to the existence of the material, if not as to the truth of the contents.

74. The respondents also complained that Detective Sergeant Taciak was not available for cross-examination. Before this Court, counsel for the appellants said that, if the respondents had wished to cross-examine the police officer, they had only to ask and "we would have brought him forward". In all the circumstances I would not attach any importance to this aspect.

75. Again it is necessary to bear in mind the nature of the proceedings before Davies J. His Honour was entertaining applications for declaratory relief. His declaration that, "by reason of the allegation of offences" and "of the proof given in support thereof", some of the documents seized were not subject to the privilege was not based on the information document alone. Indeed he said expressly[127]:

"It is clear from Baker v Campbell that the mere fact that a Justice of the Peace has accepted a sworn information and has issued a warrant under s 10 of the Crimes Act will not, of itself, be sufficient to overcome legal professional privilege. The proof must be sufficient to justify the court in holding that the privilege does not apply."

76. And his Honour had earlier said[128]:

"I have read the sworn information of Detective Sergeant Taciak but cannot see in it sufficient material to overcome the privilege."

77. On this footing his Honour rejected a submission that a substantial number of documents were "exempt from privilege by reason of the allegation of offences under the Crimes (Taxation Offences) Act". But his Honour also held that a substantial number of documents "should ... be exempt from the privilege". He reached this conclusion on the footing that there was "sufficient prima facie evidence in the material before the Justice of the Peace to overcome, in the public interest, the claim of legal professional privilege". This conclusion followed a review of the material before him. With respect, I do not think that the judgments of the Full Court had sufficient regard to all the material Davies J took into account in reaching his conclusion that certain documents were exempt from legal professional privilege.

78. There is perhaps an ambiguity in the sentence[129]:

"But it seems to me that there is sufficient prima facie evidence in the material before the Justice of the Peace to overcome, in the public interest, the claim of legal professional privilege."

79. Was Davies J then reviewing a "decision" of the Justice or simply alluding to the material before her? It must have been the latter because the Justice made no decision as to exemption from privilege. She did accept, by issuing the warrant, that there were "reasonable grounds for believing" that the material "will afford evidence of the following offences". She then referred to ss 86(1)(e) and 86A of the Crimes Act 1914 (Cth) and ss 5 and 13 of the Crimes (Taxation Offences) Act 1980 (Cth)[130]. I do not think this matters in the end because it is clear that Davies J reached his own finding of "sufficient prima facie evidence". The view of the Full Court that there was no admissible evidence before Davies J is therefore not warranted.

80. The respondents take their stand on the judgment of Gibbs CJ in Attorney-General (NT) v Kearney (a judgment with which Mason and Brennan JJ agreed), in which his Honour said[131]:

"[Legal professional] privilege is of course not displaced by making a mere charge of crime or fraud".

81. Gibbs CJ then adopted the language of Viscount Finlay in O'Rourke v Darbishire[132] that

"there must be something to give colour to the charge ... there must further be some prima facie evidence that it has some foundation in fact".

82. Goff J put the test somewhat higher when, in Butler v Board of Trade, he said[133]:

"If one rejects the bare relevance test, as I have done, then what has to be shown prima facie is not merely that there is a bona fide and reasonably tenable charge of crime or fraud but a prima facie case that the communications in question were made in preparation for or in furtherance or as part of it."

83. I am not persuaded that the material before Davies J could not establish to the reasonable satisfaction of his Honour prima facie evidence of illegal or improper purpose[134]. There is no reason why hearsay material should be excluded. Indeed, the very nature of the exercise involved will often necessitate some hearsay evidence. If there is nothing more than hearsay the Court is unlikely to be persuaded to the required standard. But that is not to say that hearsay material must be disregarded.

84. The relevant English authorities are canvassed by Vinelott J in Derby & Co Ltd v Weldon (No 7)[135]. It is unnecessary to refer to those authorities but his Lordship's conclusion may be noted that

"it is, I think, too restrictive to say that the plaintiff's case must always be founded on an admission or supported by affidavit evidence or that the court must carry out the preliminary exercise of deciding on the material before it whether the plaintiff's case will probably succeed, a task which may well present insurmountable difficulties in a case where fraud is alleged and the court has no more than affidavit evidence"[136].

85. A decision directly in point is that of Dohm J in Re Milner[137] where a claim of solicitor-client privilege was met by an allegation of fraud. Dohm J asked whether there was a prima facie case of fraud on the material before the Court and held that there was, by reason of an affidavit sworn by a taxation officer setting out particulars which indicated fraudulent preferences. His Lordship concluded[138]:

"These sworn facts and the inferences go beyond mere conjecture and give credence to the sworn allegation of fraudulent misconduct."

Orders proposed

86. Because of the view I have taken of the question of legal professional privilege and copy documents I would allow the appeal to the extent that the order made by the Full Court directs that "there be a fresh hearing on the appellants' claims for privilege". I would confine the claims of privilege for copy documents in the manner suggested by Lindgren J. I would dismiss the respondents' cross-appeal.

GAUDRON J.

87. The questions which fall for decision in this appeal arise out of the execution of search warrants issued pursuant to s 10 of the Crimes Act 1914 (Cth)[139]. The warrants were issued by Ms Wendy Elder JP, on an information sworn by the second appellant, Detective Sergeant Alan Taciak, a member of the Australian Federal Police. The warrants authorised named police officers to search various residential and office premises occupied by the respondents. One warrant authorised the search of office premises occupied by Mr Michael Dunkel, the ninth respondent. Mr Dunkel is a solicitor. He was retained by the other eight respondents with respect to certain taxation matters relating to their membership of or association with a partnership which carried on business under the name Best & Less ("the Best & Less Partnership").

88. The information sworn by Detective Sergeant Taciak revealed that it was suspected that some or all of the respondents, including Mr Dunkel, were implicated in offences against ss 86(1)(e) and 86A of the Crimes Act[140] and, also, in offences against the Crimes (Taxation Offences) Act 1980 (Cth). So far as concerns offences against the Crimes Act, it was revealed in the information that it was suspected that companies in the Best & Less Partnership had claimed deductions for garment testing carried out overseas but that the testing was carried out for much less than the remitted amount, the difference finding its way to various intermediary companies and, ultimately, being lent back to the companies in the Best & Less Partnership. It was also revealed that it was suspected that Mr Dunkel was associated with the intermediary companies and that some of the money came back pursuant to a loan agreement executed by him.

89. So far as concerns offences against the Crimes (Taxation Offences) Act, the information revealed that various persons had entered into an arrangement to sell the business of the Best & Less Partnership in circumstances resulting in the payment of all secured and unsecured creditors except the Commissioner of Taxation. It was suspected that this had been done contrary to ss 5(1) and 13 of that Act[141].

90. Members of the Australian Federal Police seized documents from various premises occupied by the respondents, including office premises occupied by Mr Dunkel. The warrant authorising the search of his premises required the persons to whom the warrant was issued to proceed in accordance with guidelines agreed between the Commissioner of the Australian Federal Police and the Law Council of Australia following the decision of this Court in Baker v Campbell[142]that s 10 of the Crimes Act does not authorise the seizure of documents to which legal professional privilege attaches ("the guidelines"). The guidelines set down procedures for the execution of search warrants on the premises of lawyers and are designed to preserve legal professional privilege and to provide for the return of seized documents if and when the privilege is established[143]. Mr Dunkel claimed legal professional privilege on behalf of his clients and, in accordance with the guidelines, the documents seized from him were placed in a sealed envelope pending a decision on the claim.

91. Shortly after the execution of the warrants, the respondents commenced proceedings in the Federal Court of Australia against the Commissioner of the Australian Federal Police, the second appellant, Detective Sergeant Taciak, and the issuing justice, Ms Wendy Elder JP, seeking orders for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and, also, under s 39B of the Judiciary Act 1903 (Cth)[144]. The application sought review of various decisions and of the conduct of the police officers involved in the execution of the warrants. So far as concerns the conduct of those police officers, review was sought on the ground, amongst others, that "[d]ocuments were seized to which legal professional privilege attaches"[145]. The only issue in this appeal is whether that ground has been established.

92. As already indicated, s 10 of the Crimes Act does not authorise the seizure of documents to which legal professional privilege attaches[146]. However, the guidelines proceed on the basis that, as with the warrant authorising search of Mr Dunkel's premises, warrants will issue in terms which encompass privileged documents. That that was so in the case of the warrant with respect to Mr Dunkel's premises clearly appears from its requirement that it be executed in accordance with the guidelines. Accordingly, it may be that it would have been more appropriate for the respondents to seek review of the decision to issue that warrant on the ground that it purported to authorise the seizure of privileged documents[147]. However, no point has been taken as to the nature of the review sought. And no point has been taken that, contrary to their objective, the guidelines do not preserve legal professional privilege[148]. Rather, the proceedings have been conducted on the footing that, if legal professional privilege attached to the documents which were in Mr Dunkel's possession until seized pursuant to the search warrant, the respondents are entitled to succeed in their application and to have the documents returned.

93. The respondents' application for review was heard by Davies J. It emerged at the hearing that the documents seized from Mr Dunkel included copies of documents, the originals of which, it is conceded, are not privileged. There was evidence that certain of the documents in question were copied and given to Mr Dunkel by one or more of the other respondents, either solely for the purpose of obtaining legal advice in connection with their liability to pay tax or solely for use in anticipated litigation relating to that matter. Others were copy documents included in one or more briefs to counsel to advise, the copies apparently having been made by Mr Dunkel or members of his firm solely for the purpose of obtaining counsel's advice. There was nothing to suggest that any of the copy documents bear markings or writing which distinguish them in any way from the originals.

94. In the hearing before Davies J, the respondents claimed that legal professional privilege attaches to copy documents in the possession of a solicitor if the copies are made solely for the purpose of obtaining legal advice or solely for use in legal proceedings. On the other hand, the appellants claimed that the privilege does not attach to copy documents the originals of which are not, themselves, privileged. The appellants also claimed that the information sworn in support of the warrants contained material which pointed to certain original documents having been brought into existence for or used in the furtherance of the illegal activities alleged in that information. They argued that copies of those documents were or were to be treated as infected with that illegality and, thus, that, quite apart from their status as copies, no privilege attaches to them.

[113] (1884) 27 Ch D 1.
[114] (1884) 27 Ch D 1 at 31.
[115] [1992] 2 VR 577 at 597, endorsed by Lindgren J in Propend Finance v Commissioner, Federal Police (1995) 58 FCR 224 at 267; 128 ALR 657 at 698.
[116] Waind (1979) 141 CLR 648 at 654.
[117] Williams, "Four Questions of Privilege: the Litigation aspect of Legal Professional Privilege", (1990) 9 Civil Justice Quarterly 139 at 154-155.
[118] Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 599.
[119] Grofam Pty Ltd v ANZ Banking Group Ltd (1993) 43 FCR 408; 116 ALR 535.
[120] The guidelines are set out in the judgment of Beaumont J: (1995) 58 FCR 224 at 245-248; 128 ALR 657 at 677-680.
[121] R v King [1983] 1 WLR 411 at 414; [1983] 1 All ER 929 at 931; Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 598.
[122] [1992] 2 VR 577 at 598-599.
[123] See generally McNicol, Law of Privilege, (1992) at 94-97.
[124] Lindgren J's approach was adopted by Moore J in Alphapharm Pty Ltd v Eli Lilly, unreported, Federal Court of Australia, 14 August 1996.
[125] See (1995) 58 FCR 224 at 269-270; 128 ALR 657 at 700.
[126] The orders which in the end were made by Davies J differ from those proposed, as to which see (1994) 35 ALD 25 at 46.
[127] (1994) 35 ALD 25 at 46.
[128] (1994) 35 ALD 25 at 45.
[129] (1994) 35 ALD 25 at 44.
[130] See George v Rockett (1990) 170 CLR 104.
[131] (1985) 158 CLR 500 at 516.
[132] [1920] AC 581 at 604.
[133] [1971] 1 Ch 680 at 689.
[134] See Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.
[135] [1990] 1 WLR 1156; [1990] 3 All ER 161.
[136] [1990] 1 WLR 1156 at 1173; [1990] 3 All ER 161 at 177.
[137] (1968) 70 DLR (2d) 429.
[138] (1968) 70 DLR (2d) 429 at 432.
[139] At the time the warrants were issued s 10(1) relevantly provided that: " If a Magistrate or Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in or upon any premises ...:
...
(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of [an] ... offence [against any law of the Commonwealth or of a Territory];
...
... the Magistrate or Justice of the Peace may grant a search warrant authorising any constable named in the warrant, with such assistance, and by such force, as is necessary and reasonable, to enter at any time the premises ... named or described in the warrant, and to seize any such thing which he or she might find there."
[140] Both provisions related to conspiracies to defraud the Commonwealth or a public authority under the Commonwealth.
[141] Section 5(1) provides that: " Where a person enters into an arrangement or transaction for the purpose, or for purposes which include the purpose, of securing, either generally or for a limited period, that a company or trustee (whether or not a party to the arrangement or transaction) will be unable, or will be likely to be unable, having regard to other debts of the company or trustee, to pay sales tax payable by the company or trustee, the person is guilty of an offence." In effect, s 13 allows various provisions of the Crimes (Taxation Offences) Act,including s 5(1), to have application as if references, in those provisions, to sales tax and terms related to sales tax were references to income tax and related terms.
[142] (1983) 153 CLR 52.
[143] In summary, the guidelines ensure that, where the lawyer agrees to assist the police in their search, no documents identified as potentially within the warrant will be inspected before an opportunity is given to the lawyer to make a claim of legal professional privilege. If a claim of privilege is maintained, the documents subject to the claim may not be inspected by the police until such time as the claim is abandoned, waived or dismissed by a court. For the text of the guidelines, see (1986) 21(11) Australian Law News 21-24. See also, Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 245-248.
[144] Sub-section (1) of that section provides that: " The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth."
[145] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 27.
[146] Baker v Campbell (1983) 153 CLR 52.
[147] More accurately, on the ground that, to that extent, it was not authorised by law: s 5(1)(d) of the Administrative Decisions Judicial Review Act 1975 (Cth).
[148] As to the loss of privilege when documents pass into the possession of another, see Baker v Campbell (1983) 153 CLR 52 at 67-68 per Gibbs CJ, 80 per Mason J, 109-110 per Brennan J, 112 per Deane J, 129 per Dawson J and the cases there cited. And see, as to the circumstances in which equity will require third parties to observe confidentiality, Johns v Australian Securities Commission (1993) 178 CLR 408 at 459-463 per Gaudron J.
[149] (1985) 3 NSWLR 44.
[150] Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 61-62, referring to Lyell v Kennedy (1884) 27 Ch D 1.
[151] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 44.
[152] Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 238.
[153] Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 259.
[154] Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 266.
[155] (1983) 153 CLR 52.
[156] (1983) 153 CLR 52 at 88-89 per Murphy J, 94 per Wilson J, 116-117 per Deane J, 127-128 per Dawson J.
[157] See (1983) 153 CLR 52 at 123 per Dawson J and the cases there referred to.
[158] Goldberg v Ng (1995) 185 CLR 83 at 93 per Deane, Dawson and Gaudron JJ and 121 per Gummow J respectively. For similar descriptions, see also: Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 480 per Gibbs CJ (a "fundamental or essential" rule), 491 per Deane J ("a fundamental principle of our judicial system"); Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 132 per Deane J ("a substantive and fundamental common law principle"), 145 per Toohey J (as being of "fundamental importance to the protection and preservation of the rights, dignity and equality of the ordinary citizen under the law"), 161 per McHugh J ("a substantive rule of law ... [best explained as] 'a practical guarantee of fundamental, constitutional or human rights' ").
[159] (1995) 185 CLR 83 at 121.
[160] [1981] QB 223.
[161] [1981] QB 223 at 244, referring to the Report of the Committee on Personal Injuries Litigation, (1968) [3691] at par 304.
[162] (1886) 16 QBD 561 at 562. Note, however, that, as Mathew J pointed out at 562, the documents did not come "into existence for the purposes of the action".
[163] [1912] VLR 336 at 341.
[164] (1884) 27 Ch D 1.
[165] [1912] VLR 336 at 341.
[166] See, for example, Dubai Bank Ltd v Galadari [1990] Ch 98; Ventouris v Mountain [1991] 1 WLR 607; [1991] 3 All ER 472; Lubrizol Corporation v Esso Petroleum Co Ltd [1992] 1 WLR 957.
[167] See, for example, Vardas v South British Insurance Co Ltd [1984] 2 NSWLR 652; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44; Roux v Australian Broadcasting Commission [1992] 2 VR 577; Bayliss v Cassidy (1995) 2 Qd R 464.
[168] See, for example, McCaskill v Mirror Newspapers Ltd [1984] 1 NSWLR 66; R v Board of Inland Revenue; Ex parte Goldberg [1989] QB 267; Davis v Lambert-Bain Pty Ltd [1989] Tas R 274.
[169] See, for example, McNicol, Law of Privilege (1992) at 94-97; Ligertwood, Australian Evidence, 2nd ed (1993) at 218; Cross on Evidence, 5th Aust ed (1996) at 710.
[170] (1991) 57 SASR 21 at 34. (Upheld on appeal: Bond v JN Taylor Holdings Ltd (1992) 57 SASR 38.) See also Vardas v South British Insurance [1984] 2 NSWLR 652 at 660; Water Authority (WA) v AIL Holdings Pty Ltd (1991) 7 WAR 135 at 138; Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 598-599.
[171] (1884) 27 Ch D 1 at 26 per Cotton LJ, 31 per Bowen LJ.
[172] (1985) 3 NSWLR 44 at 61-62. See also Vardas v South British Insurance [1984] 2 NSWLR 652 at 660; Water Authority (WA) v AIL Holdings Pty Ltd (1991) 7 WAR 135 at 139.
[173] R v Derby Magistrates' Court; Ex parte B [1996] 1 AC 487 at 507.
[174] (1983) 153 CLR 52 at 66, quoting Greenough v Gaskell (1833) 1 My&K 98 at 103; 39 ER 618 at 621. See also Grant v Downs (1976) 135 CLR 674 at 685; R v Bell; Ex parte Lees (1980) 146 CLR 141 at 152, 161; Baker v Campbell (1983) 153 CLR 52 at 74, 89, 93, 105-106, 114, 128; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 480, 487, 490; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 126-128, 132, 144-147.
[175] See Grant v Downs (1976) 135 CLR 674 at 690 per Jacobs J.
[176] (1995) 183 CLR 121 at 139; see also at 131, 133-138, 140-141.
[177] (1976) 135 CLR 674 at 688, 690.
[178] See Hughes v Biddulph (1827) 4 Russ 190 [38 ER 777].
[179] See also Hobbs v Hobbs and Cousens [1960] P 112.
[180] See, generally, Attorney-General (NT) v Kearney (1985) 158 CLR 500.
[181] (1985) 158 CLR 500 at 515. See also R v Bell; Ex parte Lees (1980) 146 CLR 141.
[182] As to the different formulations of the nature of the wrongdoing which "displaces" legal professional privilege, see Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 528-529 per Dawson J and the cases there cited.
[183] (1995) 183 CLR 121 at 163.
[184] As to the onus of proving matters which except a situation from the general rule, see, generally, Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249.
[185] O'Rourke v Darbishire [1920] AC 581 at 604 per Viscount Finlay, cited with approval in Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 516 per Gibbs CJ.
[186] O'Rourke v Darbishire [1920] AC 581 at 604.
[187] [1920] AC 581 at 633.
[188] [1981] QB 223 at 246.
[189] At the time s 10(1) of the Crimes Act relevantly provided: "If a Magistrate or Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in or upon any premises, aircraft, vehicle, vessel or place:

(a) anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;

(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or

(c) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence;

or that any such thing may, within the next following 72 hours, be brought into or upon the premises, aircraft, vehicle, vessel or place, the Magistrate or Justice of the Peace may grant a search warrant authorising any constable named in the warrant, with such assistance, and by such force, as is necessary and reasonable, to enter at any time the premises, aircraft, vehicle, vessel or place named or described in the warrant, and to seize any such thing which he or she might find there."
[190] The Guidelines are set out in the judgment of Beaumont J in Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 245-248.
[191] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25.
[192] Grant v Downs (1976) 135 CLR 674; Attorney-General (NT) v Kearney (1985) 158 CLR 500; Attorney-General (NT) v Maurice (1986) 161 CLR 475; Waterford v The Commonwealth (1987) 163 CLR 54; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121.
[193] Grant (1976) 135 CLR 674; O'Reilly v State Bank of VictoriaCommissioners (1983) 153 CLR 1; Carter (1995) 183 CLR 121 at 160-161.
[194] R v Cox and Railton (1884) 14 QBD 153 at 165; Bullivant v Attorney-General for Victoria [1901] AC 196 at 201; Varawa v Howard Smith & Co Ltd (1910) 10 CLR 382 at 385, 386, 390; Carter (1995) 183 CLR 121 at 151, 160.
[195] Attorney-General (NT) v Kearney (1985) 158 CLR 500.
[196] R v Bell; Ex parte Lees (1980) 146 CLR 141.
[197] Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 62; Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 598; J N Taylor Holdings Ltd v Bond (1991) 57 SASR 21 at 34; Lubrizol Corporation v Esso Petroleum Ltd [1992] 1 WLR 957 at 961.
[198] Chadwick v Bowman [1886] 16 QBD 561 per Denman and Mathew JJ. In recent years the preponderance of English authority is against the existence of the privilege in these circumstances. See, for example, R v King [1983] 1 WLR 411; [1983] 1 All ER 929; Lambert v Home [1914] 3 KB 86; Buttes Gas and Oil Co v Hammer (No 3) [1981] 1 QB 223 at 244; Dubai Bank Ltd v Galadari [1990] Ch 98; Ventouris v Mountain [1991] 1 WLR 607 at 616; [1991] 3 All ER 472 at 480; Lubrizol Corporation [1992] 1 WLR 957.
[199] The Palermo (1883) 9 P 6; Watson v Cammell Laird [1959] 1 WLR 702; [1959] 2 All ER 757; R v Board of Inland Revenue, Ex parte Goldberg [1989] QB 267; R v Derby Magistrates' Court, ex parte B [1995] 3 WLR 681; [1995] 4 All ER 526.
[200] For cases rejecting the proposition that such copies can be privileged see, Shaw v David Syme & Co [1912] VLR 336; Vardas v South British Insurance Co Ltd [1984] 2 NSWLR 652; Nickmar (1985) 3 NSWLR 44; Bond v J N Taylor Holdings Ltd (1992) 57 SASR 38; Roux [1992] 2 VR 577; Langworth Pty Ltd v Metway Bank Ltd (1994) 53 FCR 556; Water Authority (WA) v AIL Holdings Pty Ltd (1991) 7 WAR 135; DPP (Cth) v Blake [1992] ACL Rep 250 NSW 5; Bayliss v Cassidy [1995] 2 Qd R 464. Cases in which it has been accepted that legal professional privilege may attach to copy documents include: Wade v Jackson's Transport Services Pty Ltd [1979] Tas R 215; Kaye v Hulthen [1981] Qd R 289; McCaskill v Mirror Newspapers Ltd [1984] 1 NSWLR 66; Davis v Lambert-Bain Pty Ltd [1989] Tas R 274.
[201] For the historical development of the privilege see, Wigmore on Evidence,(1961) par 2290; Cross on Evidence, 5th Aust ed (1996) par 25215; McNicol, The Law of Privilege, (1992) at 46-51; ALRC Report No 26, Evidence, (1985), vol 1 at 494-495; Law Reform Commission of Western Australia, Project No 90 (1993), Report on Professional Privilege for Confidential Communications at 29-30; Lai, "History and Judicial Theories of Legal Professional Privilege", Singapore Journal of Legal Studies, (1995) at 558; Williams, "Discovery of Civil Litigation Trial Preparation in Canada", (1980) 58 Canadian Bar Review 1 at 45-46; R v Derby Magistrates' Court, ex parte B [1995] 3 WLR 681 at 692-696; [1995] 4 All ER 526 at 538-540 per Lord Taylor CJ.
[202] Grant (1976) 135 CLR 674 at 685. More recently see, Baker v Campbell (1983) 153 CLR 52 at 79, 93-94; Maurice (1986) 161 CLR 475 at 487 per Mason and Brennan JJ; Carter (1995) 183 CLR 121 at 126-128, 132-133, 144-147, 160-161.
[203] See dicta to this effect in Waterford (1987) 163 CLR 54 at 64-65.
[204] Goldberg v NG (1995) 185 CLR 83 at 93-94. See also, Carter (1995) 183 CLR 121 at 161; R v Derby Magistrates' Court, ex parte B [1995] 3 WLR 681 at 695; [1995] 4 All ER 526 at 540-541 per Lord Taylor CJ.
[205] Carter (1995) 183 CLR 121 at 161.
[206] (1995) 183 CLR 121 at 161. See also Maurice (1986) 161 CLR 475 at 490 per Deane J, where his Honour described the privilege as "a bulwark against tyranny and oppression". A similar sentiment was expressed by McEachern CJBC in the leading Canadian authority on point, Hodgkinson v Simms (1988) 55 DLR (4th) 577 at 581.
[207] (1979) 141 CLR 648 at 654.
[208] (1883) 9 P 6 at 8.
[209] McCaskill [1984] 1 NSWLR 66 at 68.
[210] (1976) 135 CLR 674.
[211] McCaskill [1984] 1 NSWLR 66 at 68.
[212] Nickmar (1985) 3 NSWLR 44 at 61-62; Roux [1992] 2 VR 577 at 597-599.
[213] (1884) 27 Ch D 1 at 31. Cotton LJ, however, upheld the claim on the basis that to disclose the copies "might shew what [the solicitor's] view was as to the case of his client as regards the claim made against him", at 26. Fry LJ agreed with both judgments, at 31. In so far as the headnote to the case suggests that the use of professional knowledge, research or skill is the test for determining whether a copy is privileged, it is misleading.
[214] [1992] 2 VR 577 at 599.
[215] Williams, "Four Questions of Privilege: the Litigation aspect of Legal Professional Privilege", (1990) 9 Civil Justice Quarterly 139 at 160.
[216] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 46.
[217] R v Cox and Railton (1884) 14 QBD 153; Varawa (1910) 10 CLR 382; Kearney (1985) 158 CLR 500; Sut v Nominal Defendant [1968] 2 NSWR 78; L T & K T Conlon v Lensworth Interstate (Vic) Pty Ltd [1970] VR 293.
[218] Carter (1995) 183 CLR 121 at 163.
[219] [1920] AC 581 at 604 cited with approval in Kearney (1985) 158 CLR 500 at 516 per Gibbs CJ.
[220] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 42.
[221] (1987) 77 ALR 565. This case concerned a search pursuant to a warrant issued under s 10 of the Crimes Act of a solicitor's office for documents relating to an allegedly fraudulent tax scheme.
[222] (1987) 77 ALR 565 at 574.
[223] (1987) 77 ALR 565.
[224] Administrative Appeals Tribunal Act 1975 (Cth), Ombudsman Act 1976 (Cth), Administrative Decisions (Judicial Review) Act 1977 (Cth).
[225] (1703) 2 Ld Raym 938 [92 ER 126].
[226] [1891] AC 272. See also Robtelmes v Brenan (1906) 4 CLR 395 at 417.
[227] (1888) 14 VLR 349.
[228] Bradlaugh v Gossett (1884) 12 QBD 271.
[229] Wilkes v Wood (1763) Lofft 1 [98 ER 489]; Entick v Carrington (1765) 2 Wils KB 275 [95 ER 807]. See also George v Rockett (1990) 170 CLR 104 at 110.
[230] Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224; 128 ALR 657 on appeal from Propend v Commissioner, AFP (No 2) (1994) 35 ALD 25 (Davies J).
[231] (1983) 153 CLR 52.
[232] Section 10 was later repealed by s 5 of the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth) and s 4 thereof inserted in the Crimes Act a new Pt 1AA (ss 3C-3ZY), headed "SEARCH WARRANTS AND POWERS OF ARREST". Nothing for this appeal turns upon the repeal of s 10.
[233] (1995) 58 FCR 224 at 239-244; 128 ALR 657 at 673-677.
[234] (1995) 58 FCR 224 at 245-248; 128 ALR 657 at 677-680.
[235] (1995) 58 FCR 224 at 264; 128 ALR 657 at 695.
[236] (1995) 58 FCR 224 at 250; 128 ALR 657 at 682.
[237] R v Derby Magistrates' Court; Ex parte B [1996] 1 AC 487 at 512.
[238] Waterford v The Commonwealth (1987) 163 CLR 54 at 64-65, 74, 98.
[239] R v Derby Magistrates' Court; Ex parte B [1996] 1 AC 487 at 508, 509, 511; but cf In re L (A Minor) [1997] AC 16 at 27, 30, 33.
[240] Waugh v British Railways Board [1980] AC 521; Guardian Royal Assurance v Stuart [1985] 1 NZLR 596. The Canadian decisions are divided: Sopinka, Lederman and Bryant, The Law of Evidence in Canada, (1992) at 656-657. Section 119 of the Evidence Act 1995 (Cth) states the privilege in terms of "the dominant purpose" of the preparation of a "confidential document", a term defined in s 117(1). The scope of s 119 is unsettled: Sparnon v Apand (1996) 138 ALR 735 at 738. The new law applies to litigation in the Federal Court but (s 4) not to proceedings the hearing of which (as with this case) began before 18 April 1995.
[241] (1976) 135 CLR 674.
[242] R v Bell; Ex parte Lees (1980) 146 CLR 141 at 145.
[243] Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 163.
[244] Attorney-General (NT) v Kearney (1985) 158 CLR 500.
[245] (1983) 153 CLR 52.
[246] [1991] 1 WLR 607 at 611-612; [1991] 3 All ER 472 at 475-476.
[247] [1992] 1 WLR 957 at 960.
[248] (1983) 153 CLR 1.
[249] R v Derby Magistrates' Court; Ex parte B [1996] 1 AC 487 at 507; but cf In re L (A Minor) [1997] AC 16.
[250] Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 490; cf Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 129.
[251] Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 161.

[252] Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 491; Bropho v Western Australia (1990) 171 CLR 1 at 17-18; Coco v The Queen (1994) 179 CLR 427 at 437-438, 446.
[253] Parton v Williams (1820) 3 B & Ald 330 [106 ER 684]; Crozier v Cundey (1827) 6 B & C 232 [108 ER 439]; Dillon v O'Brien (1887) 16 Cox CC 245. See also Field v Sullivan [1923] VLR 70.
[254] Hoye v Bush (1840) 1 Man & G 775 [133 ER 545]. See also Little v The Commonwealth (1947) 75 CLR 94.
[255] Section 64B of the AFP Act renders the Commonwealth liable as a joint tortfeasor in respect of a tort committed by a member of the AFP "in the performance or purported performance of his duties as such a member".
[256] Ritz Hotel v Charles of the Ritz (No 22) (1988) 14 NSWLR 132 at 134; Goddard v Nationwide [1987] QB 670; Webster v James Chapman & Co [1989] 3 All ER 939; Hartogen Energy Ltd v AGL Co (1992) 36 FCR 557 at 566-568;Andrews, "The Influence of Equity upon the Doctrine of Legal Professional Privilege", (1989) 105 Law Quarterly Review 608; Newbold, "Inadvertent Disclosure in Civil Proceedings", (1991) 107 Law Quarterly Review 99.
[257] [1913] 2 Ch 469.
[258] [1898] 1 QB 759.
[259] Zuckerman, "Legal Professional Privilege and the Ascertainment of Truth", (1990) 53 Modern Law Review 381 at 383. The distinction to be drawn between privilege and confidence was further emphasised by Scott J in Webster v James Chapman & Co [1989] 3 All ER 939 at 943-944.
[260] (1983) 153 CLR 52.
[261] cf Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475 at 478-479.
[262] (1983) 153 CLR 52 at 68.
[263] (1983) 153 CLR 52 at 110.
[264] (1993) 178 CLR 408 at 426-428.
[265] (1993) 178 CLR 408 at 459-460.
[266] Baker v Campbell (1983) 153 CLR 52 at 132.
[267] (1983) 153 CLR 52 at 132.
[268] cf Harrington v Lowe (1996) 70 ALJR 495 at 503; 136 ALR 42 at 52.
[269] See Bullivant v Attorney-General for Victoria [1901] AC 196 at 206.
[270] Follett v Jefferyes (1850) 1 Sim (NS) 3 at 17 [61 ER 1 at 6]; R v Bell; Ex parte Lees (1980) 146 CLR 141 at 152.
[271] (1976) 135 CLR 674 at 690.
[272] (1995) 183 CLR 121 at 159.
[273] Grant v Downs (1976) 135 CLR 674; Attorney-General (NT) v Kearney (1985) 158 CLR 500; Attorney-General (NT) v Maurice (1986) 161 CLR 475; Waterford v The Commonwealth (1987) 163 CLR 54.
[274] Minet v Morgan (1873) 8 Ch App 361; Bullivant v Attorney-General (Vict) [1901] AC 196.
[275] (1995) 58 FCR 224 at 237; 128 ALR 657 at 670.
[276] See Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246; Waterford v The Commonwealth (1987) 163 CLR 54 at 87.
[277] Many of them are collected and summarised in the appendices to the judgment of Lindgren J (1995) 58 FCR 224 at 270-273; 128 ALR 657 at 701-703.
[278] (1995) 58 FCR 224 at 254-255; 128 ALR 657 at 685-686.
[279] [1981] QB 223 at 244.
[280] [1913] 2 Ch 469.
[281] [1898] 1 QB 759.
[282] cf Lyell v Kennedy (1884) 27 Ch D 1 at 26, 31; Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 597-598; R v Inland Revenue; Ex parte Goldberg [1989] QB 267 at 276; Langworth Pty Ltd v Metway Bank Ltd (1994) 53 FCR 556 at 566-567; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 61-62.
[283] Meaning the work which is reflected "in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways": Hickman v Taylor (1947) 329 US 495 at 511; see also National Labor Relations Board v Sears, Roebuck & Co (1975) 421 US 132 at 154-155. The substantial nature of this "work-product" may be significant where protection in equity is sought in respect thereof to prevent breach of confidence: see Johns v Australian Securities Commission (1993) 178 CLR 408 at 461.
[284] cf J N Taylor Holdings Ltd v Bond (1991) 57 SASR 21 at 37.
[285] R v Bell; Ex parte Lees (1980) 146 CLR 141 at 154.
[286] See Williams, "Four Questions of Privilege: the Litigation aspect of Legal Professional Privilege", (1990) 9 Civil Justice Quarterly 139 at 160.
[287] Baker v Campbell (1983) 153 CLR 52 at 95, 120, 130.
[288] R v Bell; Ex parte Lees (1980) 146 CLR 141 at 145.
[289] (1985) 158 CLR 500 at 516.
[290] (1985) 158 CLR 500 at 516-517.
[291] (1994) 35 ALD 25 at 42.
[292] (1995) 58 FCR 224 at 260; 128 ALR 657 at 691.
[293] O'Rourke v Darbishire [1920] AC 581; Buttes Oil Co v Hammer (No 3) [1981] QB 223; Attorney-General (NT) v Kearney (1985) 158 CLR 500.
[294] Follett v Jefferyes (1850) 1 Sim (NS) 3 [61 ER 1].
[295] [1901] AC 196.
[296] [1971] Ch 680.
[297] [1971] Ch 680 at 687.
[298] [1901] AC 196 at 207.
[299] Lyell v Kennedy (1884) 27 Ch D 1; Brambles Holdings Ltd v Trade Practices Commission (No 3) (1981) 58 FLR 452 at 454; Fruehauf Finance v Zurich Australian Insurance (1990) 20 NSWLR 359 at 366; Bray on Discovery (1885) at 211. Other authority decides that there is a discretion in the court to permit cross-examination: National Crime Authority v S (1991) 29 FCR 203 at 211; Hartogen Energy Ltd v AGL Co (1992) 36 FCR 557 at 560-561.
[300] (1959) 103 CLR 341 at 343.
[301] Young v Quin (1985) 4 FCR 483 at 485-486.
[302] See also Zarro v Australian Securities Commission (1992) 36 FCR 40 at 60-61.
[303] Sankey v Whitlam (1978) 142 CLR 1 at 44, 58-59.
[304] [1920] AC 581 at 604.
[305] (1985) 158 CLR 500 at 516.
[306] (1884) 14 QBD 153.
[307] (1884) 14 QBD 153 at 165.
[308] (1938) 60 CLR 336 at 361-362.
[309] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224.
[310] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 per Davies J.
[311] (1994) 35 ALD 25 at 27-37.
[312] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 1) 94 ATC 4399.
[313] R v Coxand Railton (1884) 14 QBD 153 at 165; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 130.
[314] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 37-46 per Davies J.
[315] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 42 per Davies J.
[316] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 44.
[317] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 238.
[318] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 259.
[319] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 263.
[320] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 268.
[321] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 238-239 per Beaumont J, 260 per Hill J, 270 per Lindgren J.
[322] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 270-273.
[323] (1976) 135 CLR 674.
[324] Grant v Downs (1976) 135 CLR 674 at 688; National Employers' Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648 at 656; O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 22-23; cf Grant v Downs (1976) 135 CLR 674 at 677.
[325] Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 252.
[326] See for example Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128; Waugh v British Railways Board [1979] 3 WLR 150; [1979] 2 All ER 1169.
[327] Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 600 per Byrne J.
[328] Ligertwood, Australian Evidence, 2nd ed, (1993) at 226-227, 228-229; Cross and Tapper on Evidence, 8th ed (1995) at 472; cf United States of America v Mammoth Oil Co [1925] 2 DLR 966.
[329] Zuckerman, "Legal Professional Privilege and the Ascertainment of Truth" (1990) 53 Modern Law Review 381.
[330] See for example O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 in respect of the Income Tax Assessment Act 1936 (Cth), s 264(1) (now in part overruled by Baker v Campbell (1983) 153 CLR 52. See also Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 in respect of the Companies (New South Wales) Code, s 295(1); cf Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341; Mortimer v Brown (1970) 122 CLR 493 at 499; Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385.
[331] Baker v Campbell (1983) 153 CLR 52 per Murphy, Wilson, Deane and Dawson JJ; Gibbs CJ, Mason and Brennan JJ dissenting.
[332] Discussed in Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed (1992) at 635. Remnants of this view persist in the United States of America, as Gummow J points out.
[333] The English position appears to be in the process of change. See R v Derby Magistrates' Court; ex parte B [1996] 1 AC 487 at 507; but cf Re L (A Minor) [1997] AC 16 at 24-25.
[334] Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed (1992) at 672.
[335] Solosky v The Queen (1980) 105 DLR (3d) 745 at 760 per Dickson J.
[336] R v Uljee [1982] 1 NZLR 561 at 569 per Cooke J. See also the position in the European Court of Justice in A M & S Europe v Commission [1983] QB 878 at 913 noted in Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 145; cf Saunders v United Kingdom, unreported, European Court of Human Rights, 17 December 1996.
[337] (1986) 161 CLR 475.
[338] (1986) 161 CLR 475 at 490; cited in Goldberg v Ng (1994) 33 NSWLR 639 at 654-655.
[339] (1995) 183 CLR 121.
[340] Waterford v The Commonwealth (1987) 163 CLR 54.
[341] Waterford v The Commonwealth (1987) 163 CLR 54 at 64; Carterv Northmore Hale Davy & Leake 183 CLR 121 at 134-5.
[342] Waterford v The Commonwealth (1987) 163 CLR 54 at 65.
[343] Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128.
[344] Hobbs v Hobbs and Cousens [1960] P 112 at 116; Regional Municipality of Ottawa-Carleton v Consumers' Gas Co Ltd (1990) 74 DLR (4th) 742 at 748-749.
[345] Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 133 per Deane J. The Australian Law Reform Commission is examining aspects of the suggested defects of the adversarial system: see Australian Law Reform Commission, Background Paper No 3 - Adversarial - Judicial and Case Management (1996).
[346] Miller, "The Challenges to the Attorney-Client Privilege" (1963) 49 Virginia Law Review 262; noted in Yuill v Corporate Affairs Commission of New South Wales (1990) 20 NSWLR 386 at 405. See also Baker v Campbell (1983) 153 CLR 52 at 86, 112; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 490.
[347] Grant v Downs (1976) 135 CLR 674 at 688.
[348] See now Evidence Act 1995 (Cth), s 118; Gillies, Law of Evidence in Australia, 2nd ed (1991) at 448.
[349] See for example National Employers' Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648 at 648; O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 22-23.
[350] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 238 per Beaumont J, 253, 258 per Hill J and 264 per Lindgren J.
[351] See Hobbs v Hobbs and Cousens [1960] P 112 at 117; Re Goodman and Carr and Minister of National Revenue (1968) 70 DLR (2d) 670.
[352] Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed (1992) at 659.
[353] See for example R v Ataou [1988] QB 798 at 807 per French J; citing R v Craig [1975] 1 NZLR 597 at 598 per Cooke J.
[354] Vardas v South British Insurance Co Ltd [1984] 2 NSWLR 652 at 660 per Clarke J.
[355] Buttes Gas and Oil Co v Hammer(No 3) [1981] QB 223 at 244.
[356] Ligertwood, Australian Evidence, 2nd ed, (1993) at 218; Zuckerman, "Legal Professional Privilege and the Ascertainment of Truth" (1990) 53 Modern Law Review 381 at 383.
[357] Zuckerman, "Legal Professional Privilege and the Ascertainment of Truth" (1990) 53 Modern Law Review 381.
[358] See for example Hodgkinson v Simms (1988) 55 DLR (4th) 577 at 594 per Craig JA.
[359] Ligertwood, Australian Evidence, 2nd ed, (1988) at 218; Heydon, Cross on Evidence, 5th Australian ed, (1996) at par 25275.
[360] McCaskill v Mirror Newspapers Ltd [1984] 1 NSWLR 66 per Hunt J; Water Authority of Western Australia v AIL Holdings Pty Ltd (1991) 7 WAR 135 at 139.
[361] Dubai Bank Ltd v Galadari [1990] Ch 98; J N Taylor Holdings Ltd (in liq) v Bond (1992) 57 SASR 21; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 61-62 per Wood J.
[362] TNT Management Pty Ltd v Trade Practices Commission (1983) 47 ALR 693 at 699.
[363] See for example Watson v Cammell Laird & Co (Shipbuilders and Engineers) Ltd [1959] 1 WLR 702; [1959] 2 All ER 757; R v Board of Inland Revenue,ex parte Goldberg [1989] QB 267; Shaw v David Syme & Co [1912] VLR 336; Davis v Lambert-Bain Pty Ltd [1989] Tas R 274.
[364] See now R v Derby Magistrates' Court; ex parte B [1996] 1 AC 487 at 507; cf discussion of the Police Bill 1996 (UK) in House of Lords, Parliamentary Debates (Hansard), 26 November 1996 at 203-242.
[365] (1976) 135 CLR 674.
[366] Regional Municipality of Ottawa-Carleton v Consumers' Gas Co Ltd (1990) 74 DLR (4th) 742 at 748-749 per O'Leary J.
[367] (1983) 153 CLR 52.
[368] Grant v Downs (1976) 135 CLR 674 at 689.
[369] Propend Finance Pty Ltd v Commissioner, Australian Federal Police [No 2] (1994) 35 ALD 25 at 42.
[370] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 238-239.
[371] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 260.
[372] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 270.
[373] cf R v Cox and Railton (1884) 14 QBD 153 at 175-176.
[374] Bullivant v Attorney-General for Victoria [1901] AC 196 at 201; applied Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 516.
[375] O'Rourke v Darbishire [1920] AC 581 at 604. See also K-West Estates Ltd v Linemayr, McCandless and Zacharias; Westcoast Savings Credit Union v Linemayr [1984] 4 WWR 375 at 379.
[376] O'Rourke v Darbishire [1920] AC 581 at 604.
[377] Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 516 per Gibbs CJ.
[378] Buttes Gas and Oil Co v Hammer(No 3) [1981] QB 223 at 246; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 165-166.
[379] O'Rourke v Darbishire [1920] AC 581 at 623.
[380] O'Rourke v Darbishire [1920] AC 581 at 614.
[381] cf Baker v Evans (1987) 77 ALR 565.
[382] O'Rourke v Darbishire [1920] AC 581 at 633.
[383] Clark v United States (1933) 289 US 1 at 15.
[384] O'Rourke v Darbishire [1920] AC 581 at 633.
[385] Clark v United States (1933) 289 US 1 at 15.