Commonwealth of Australia v Dutton

FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Dutton [2000] FCA 1466

FREEDOM OF INFORMATION – extradition proceedings – legal professional privilege.

Freedom of Information Act 1982 (Cth) s 42
Extradition Act 1988 (Cth) ss 12, 15, 18, 19, 22, 23, 50

Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 considered
Pasini v Vanstone [1999] FCA 1271 considered
Trade Practices Commission v Sterling (1979) 36 FLR 244 applied

COMMONWEALTH OF AUSTRALIA v EDWARD I DUTTON

N 576 OF 2000

WILCOX, SPENDER AND MOORE JJ
20 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 576 of 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR B J MCMAHON, DEPUTY PRESIDENT

BETWEEN:	COMMONWEALTH OF AUSTRALIA Appellant
AND:	EDWARD I DUTTON Respondent
JUDGES:	WILCOX, SPENDER AND MOORE JJ
DATE OF ORDER:	20 OCTOBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The decision of the Administrative Appeals Tribunal be set aside.

2.   The matter be remitted to the Administrative Appeals Tribunal with a direction that the documents to which the proceedings relate are not privileged except the following documents which are privileged:

(i)the documents set out in the schedule to this judgment;

(ii)the documents numbered 11, 44, 51 and 52 in schedule B of the affidavit of Ms Jackson of 7 April 2000 which are privileged; and

(iii)any other document that the Tribunal earlier decided was privileged.

3.  The cross-appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N576 of 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR B J MCMAHON, DEPUTY PRESIDENT

BETWEEN:	COMMONWEALTH OF AUSTRALIA Appellant
AND:	EDWARD I DUTTON Respondent

JUDGE:	WILCOX, SPENDER and MOORE JJ
DATE:	20 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. WILCOX J:  I have read in draft form the reasons for judgment of Moore J.  I respectfully agree with them and the orders his Honour proposes.

2. Although other issues were raised at earlier points of time, the only question at the hearing of the appeal was the extent (if any) to which the subject documents were rendered exempt from production to the respondent by s42 of the Freedom of Information Act 1982, read with s50 of the Extradition Act 1988. As Moore J points out, both parties accepted that the concept of legal professional privilege embodied in s42(1) of the Freedom of Information Act is that developed by the common law, not that (called “client legal privilege”) covered by Division 1 of Part 3.10 (ss117 to 126) of the Evidence Act 1995. It seems to me this is correct. That Division 1 is concerned only with the adduction of evidence in legal proceedings is inherent in the approach taken by the High Court of Australia in Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; 168 ALR 123.

3. The common…