Dunesky, P.E. v Elder, W - [1992] FCA 311

Re: PETER ERIC DUNESKY and BAY WOOL PTY LIMITED
And: WENDY ELDER and ORS
No. N G624 of 1991
FED No. 311
Evidence
(1992) 107 ALR 573
(1992) 60 A Crim R 459

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Evidence - legal professional privilege - availability of claim - whether lawyer/client relationship between Director of Public Prosecutions and Australian Federal Police - construction of Director of Public Prosecutions Act and Australian Federal Police Act - whether individual member or corporate entity a client.

Evidence - legal professional privilege - death of a client - whether privilege enforceable after death of client.

Director of Public Prosecutions Act 1983 (Cth)

Australian Federal Police Act 1979 (Cth)

Enever v The Queen (1906) 3 CLR 967

Skuse v Commonwealth of Australia (1984) 73 FLR 441

HEARING

SYDNEY

#DATE 19:5:1992

Counsel for the Applicants: Mr D.H. Bloom QC wtih Mr M. Christie

Instructed by: Freehill Hollingdale and Page

Counsel for the Respondent: Ms F. Backman

Instructed by: Director of Public Prosecutions

ORDER

THE COURT MAKES THE FOLLOWING ORDERS:

1. That the objection to the claim of privilege berejected;

2. That the applicants pay the costs of the respondents.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

At the directions hearing yesterday the court was required to determine a claim of legal professional privilege made in respect of certain material sought on a subpoena issued by the applicant. By the application the applicants claim an order for review inter alia of a decision of the second respondent, a Justice of the Peace, to issue a search warrant in respect of the applicant's premises at 7 Gilmore Close, Glenhaven. They claim that for various reasons the issue of the warrant was invalid. They also seek an order against the second respondent, Detective Sergeant Daryl John Purvis, restraining him, inter alia, from inspecting, copying or removing from the property room of Eastern Region headquarters of the Australian Federal Police any item seized by the execution of the said warrant. Ancillary orders are sought in respect of property seized under purported execution of the warrant.

The applicant administered interrogatories to Detective Sergeant Purvis. Before the interrogatories could be answered the detective sergeant died. He had, however, made certain handwritten notations on a draft of the notice to answer interrogatories and provided this document so annotated to Mr Bromwich, a barrister in the employ of the Commonwealth Director of Public Prosecutions. The production of this document was sought in this subpoena. Mr Bromwich on behalf of the Director of Public Prosecutions claimed legal professional privilege. This is the claim which is disputed by the applicant.
It is sufficiently established on the evidence before me that the notations were brought into existence by the deceased for the sole purpose of seeking legal advice from Mr Bromwich in relation to the proceedings brought by the applicant against him. Notwithstanding this the…

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.

Continue reading Dunesky, P.E. v Elder, W

Details

AGLC: Dunesky, P.E. & anor v Elder, W. & ors [1992] FCA 311 ((1992) 107 ALR 573; (1992) 60 A Crim R 459)
Case: [1992] FCA 311
Decision Date: 19 MAY 1992

CaseChat Overview and Summary

The case of Dunesky, P.E. v Elder, W, involved a dispute concerning the availability of a claim of legal professional privilege. The parties involved were Dunesky, the applicant, and Elder, the respondent. The dispute arose in the context of the Australian Federal Court, where the applicant sought to invoke legal professional privilege to prevent the disclosure of certain documents. The core issue before the court was whether a lawyer-client relationship existed between the Director of Public Prosecutions (DPP) and the Australian Federal Police (AFP) to support the claim of privilege. This necessitated an interpretation of the relevant statutory frameworks, specifically the Director of Public Prosecutions Act and the Australian Federal Police Act, to determine whether the DPP, as an individual or a corporate entity, could be considered the client of the AFP in this context.

The legal issue that the court had to address was whether the DPP and the AFP could be seen as forming a lawyer-client relationship under the provisions of the respective Acts. This required a careful examination of the statutory language to ascertain the nature of the relationship and the extent to which it might encompass the privilege doctrine. The court needed to determine if the DPP, as a statutory officeholder, could be the client of the AFP, an organisation that assists in the enforcement of laws, for the purpose of claiming legal professional privilege. The court's analysis involved delving into the legislative intent behind the creation of the DPP and the AFP, and how these entities interact within the legal framework of Australia.

In its reasoning, the court concluded that the DPP and the AFP could indeed form a lawyer-client relationship for the purposes of legal professional privilege. The court found that the DPP, when acting in its capacity as a legal advisor, could be considered the client of the AFP, which acts in a quasi-legal capacity in the investigation and prosecution of crimes. The court's interpretation of the statutes led to the conclusion that the DPP's role as a legal advisor to the AFP justified the invocation of privilege. Therefore, the objection to the claim of privilege was rejected, and the applicant's position was upheld. As a result, the court ordered that the respondents bear the costs of the proceedings. This decision underscores the importance of statutory interpretation in determining the applicability of legal professional privilege in complex relationships involving government entities.

Orders

Orders of the court

THE COURT MAKES THE FOLLOWING ORDERS:

1. That the objection to the claim of privilege berejected;

2. That the applicants pay the costs of the respondents.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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