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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3
Case
[1997] HCA 3
Decision Date
CaseChat Overview and Summary
The Commissioner of Australian Federal Police (AFP) appealed to the High Court of Australia against a decision of the Full Federal Court concerning the seizure of documents under a warrant. The dispute involved Propend Finance Pty Ltd and other respondents who sought to have certain documents returned, arguing they were protected by legal professional privilege. The High Court considered the appeal and a cross-appeal by the respondents.
The central legal issues before the High Court were whether legal professional privilege attached to certain copy documents seized by the AFP, and if so, under what conditions. Specifically, the court had to determine the scope of the privilege in relation to documents created for the purpose of obtaining or giving legal advice or for use in legal proceedings, and how possession and seizure affected the assertion of that privilege.
The High Court, in its joint judgment, clarified that legal professional privilege protects confidential communications made for the dominant purpose of giving or receiving legal advice or for use in litigation. The court reasoned that the privilege is not lost simply because a document is a copy, provided it was originally created for a privileged purpose and remained confidential. The court found that the Full Federal Court had erred in its original orders and allowed the cross-appeal to refine the declaration regarding which documents were privileged.
Consequently, the High Court dismissed the AFP's appeal but allowed the respondents' cross-appeal. The court varied the orders of the Full Federal Court to declare that legal professional privilege attaches to copy documents that 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 seized under the warrant. The matter was remitted to a single judge of the Federal Court for determination in accordance with this declaration, and the appellants were ordered to pay the respondents' costs.
Orders
Orders of the court
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.