Commissioner of the Australian Federal Police v Carson
[2005] FCA 897
•21 JUNE 2005
FEDERAL COURT OF AUSTRALIA
Commissioner of the Australian Federal Police v Carson [2005] FCA 897
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE & THE COMMONWEALTH OF AUSTRALIA v JOHN LANCE CARSON
SAD 4 of 2005
MANSFIELD J
21 JUNE 2005
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 4 OF 2005
BETWEEN:
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE & THE COMMONWEALTH OF AUSTRALIA
APPLICANTSAND:
JOHN LANCE CARSON
RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
21 JUNE 2005
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The named applicant be substituted with the name ‘Commissioner of the Australian Federal Police’.
2.‘The Commonwealth of Australia’ be added as an applicant.
3.The respondent be directed as soon as practicable to authorise in writing the Registrar of the Adelaide Magistrates Court to release to the Australian Government Solicitor as solicitors for the applicant the documents hereto held by the Registrar by agreement of the parties, and being the documents seized by Federal Agent Elston on execution of a search warrant on 18 March 2004 other than the documents in the schedule which I have marked A (excluding p 1 of the document numbered 2 in that schedule).
4.Liberty to apply.
5.The respondent pay to the applicants costs of the application itself dated 5 January 2005 and of the attendances on 20 April 2005 and 16 June 2005.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 4 OF 2005
BETWEEN:
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE & THE COMMONWEALTH OF AUSTRALIA
APPLICANTSAND:
JOHN LANCE CARSON
RESPONDENT
JUDGE:
MANSFIELD J
DATE:
21 JUNE 2005
PLACE:
ADELAIDE
REASONS FOR DECISION
On 5 January 2005 an application was made for access to documents seized by an officer of the Australian Federal Police under a search warrant on 18 March 2004. Those documents, apparently by agreement between the parties, are held by the Registrar of the Adelaide Magistrates Court pending resolution of issues concerning claims of the respondent for client legal privilege in respect of the seized documents, or some of them.
As a result of directions given from time to time, the documents in respect of which client legal privilege is claimed are now confined to a list of 11 documents described in a schedule of documents which I now mark ‘A’ and initial and date today. That schedule is a detailed list of the documents which comprise the documents in Exhibit DA1 to the affidavit of Dominic Agresta sworn on 16 June 2005.
The issue before the Court today is whether privilege in fact is attracted to that list of 11 documents.
Counsel for the applicant and counsel for the respondent are agreed upon the principles upon which privilege should be determined. The issue is simply whether the documents in respect of which privilege is claimed are accurately described in the schedule and, if so, whether they meet the categories in respect of which privilege exists. In all but one case, counsel for the applicant has acknowledged that, if the documents are accurately described, they would fall within the categories of privileged documents.
The one disputed document is described as Tax Invoice from Thomson Playford to R.J.C. Evans & Co Pty Ltd dated 19 November 2003 regarding a matter described as ‘New Zealand Capital Gain’. It is of two pages. It is common ground that the first page of that document is not privileged, being simply a fee note under that heading. The second page of that document sets out in some detail the work which was performed under the heading ‘Activity’ and discloses to some extent something in a little more detail of the topics upon which the advice was sought and the way in which that advice was provided.
Counsel for the applicant has also adopted, in my view, a sensible approach to the extent to which proof of the description of the documents contained in the schedule is necessary. There is really only one document which does not speak for itself, namely document 1. Senior counsel for the respondent indicated that the accuracy of the description of that document namely (handwritten notes of the respondent outlining instructions and posing questions to be submitted to legal advisers) can be proved if necessary. I have read the document. Its contents tie quite closely to subsequent documents clearly the subject of legal advice. I am prepared to infer that it is what it purports to be, having received from counsel for the applicant an acknowledgment that in the circumstances it is not necessary formally to prove that the document does comprise handwritten notes of the respondent. Counsel for the applicant was prepared to accept the assurance of senior counsel for the respondent that that fact could be proved.
Having examined the documents for myself I am satisfied that each is accurately described in the schedule (including document 1 on the basis outlined above) and, by reference to its description and the contents of the document, that each is a document to which client legal privilege attaches, other than the first page of document 2 (that is, the tax invoice from the solicitors). In my view, the ‘Activity’ description of the work which was carried out, which is the second page of that document, does include information which may disclose in a little detail something about the nature of the issues which were sought to be addressed, and the way in which the advice was given.
For those reasons, in my view, all of the documents in the schedule other than the first page of document 2 (that is, the tax invoice from Thomson Playford to R.J.C. Evans & Co Pty Ltd dated 19 November 2003) are the subject of client legal privilege.
As counsel for the applicant has pointed out, it is appropriate to amend the name of the applicant. I make the following orders:
1.Substituting for the named applicant the name ‘Commissioner of the Australian Federal Police’.
2.Adding as a named applicant The Commonwealth of Australia.
I make the following orders on the application:
3.Direct the respondent as soon as practicable to authorise in writing the Registrar of the Adelaide Magistrates Court to release to the Australian Government Solicitor as solicitors for the applicant the documents hereto held by the Registrar by agreement of the parties, and being the documents seized by Federal Agent Elston on execution of a search warrant on 18 March 2004 other than the documents in the schedule which I have marked A (excluding p 1 of the document numbered 2 in that schedule).
4.Liberty to apply.
There remains the question of costs. I have no evidence as to what, if any, communications passed between the parties concerning the disputed documents up to the date of the application, other than what is disclosed in the reasons for judgment of Selway J given on 11 January 2005 on an urgent interlocutory application. His Honour dealt with the costs of and incidental to that urgent interlocutory application.
The costs in the proceedings otherwise are the costs of the principal application, the attendances of 20 April and 16 June 2005 for directions and of today, and the costs involved in the isolation of the documents in respect of which privilege is claimed and the preparation of material in support of those claims. In my view the appropriate order in respect of those items is that the respondent should pay to the applicants the costs of the application itself dated 5 January 2005 and of the attendances before the Court on 20 April 2005 and 16 June 2005. The costs of the urgent interlocutory application have been separately dealt with.
Although the respondent has been successful in maintaining a claim for privilege in respect of some documents, and although the applicants otherwise have been successful in getting access to all of the other documents, the intent of that order is that there should be no order of the costs of today. I have sought to reflect the fact that the applicants are not shown to have brought the proceedings unnecessarily and has acted appropriately in trying to bring to a head the issue of privilege. I have also sought to reflect the fact that the respondent has incurred significant costs in identifying the documents in respect of which privilege is claimed, and to justify that claim, and has been successful in respect of the small number of documents on the schedule. I have had regard to the lateness of the filing of the material in support of the claim for privilege in the light of the directions given on 20 April 2005 and, more particularly, the provision of a detailed schedule of documents in respect of which the privilege was claimed. However, I have also taken into account that the applicants have not accepted the accuracy of the description of those documents and has therefore put the respondent to proof on those matters rather than, as is sometimes done, accepting the claim for privilege in respect of particular documents in the light of material such as is now before the Court. I am not critical of that course but, had the applicants attended today and indicated a preparedness to acknowledge privilege in respect of those documents other than perhaps one or two, my ruling as to the costs of today may have been different.
The order that I make as to costs therefore is:
5.The respondent pay to the applicants costs of the application itself dated 5 January 2005 and of the attendances on 20 April 2005 and 16 June 2005.
There will be no other costs of the proceedings other than the costs already ordered either in favour of the applicant or in favour of the respondent.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 1 July 2005
Counsel for the Applicant:
S Maharaj with D d'Assumpcao Solicitor for the Applicant:
Australian Government Solicitor Counsel for the Respondent:
ML Abbott QC with M Selley Solicitor for the Respondent:
Iles Selley Date of Hearing:
21 June 2005 Date of Judgment:
21 June 2005
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