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.

1. 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.

2. 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 claim for privilege is disputed on two grounds: (1) that the relationship of solicitor and client between the deceased and Mr Bromwich and the Director of Public Prosecutions is not established; and (2) that the claim for privilege cannot be maintained after the death of Detective Sergeant Purvis.

3. As to the first ground, it is clear that the warrant was issued in respect of proceedings instituted by the Commonwealth Director of Public Prosecutions. It and other warrants were executed by Detective Sergeant Purvis and other police officers as members of the Australian Federal Police. The applicants' proceedings are however brought against the individual officers and not against the Australian Federal Police as a legal entity.

4. An appearance to the applicants' application was filed on behalf of the police officers by the Commonwealth Director of Public Prosecutions. In the notice of appearance the Director of Public Prosecutions is described as being their solicitor. In his affidavit Mr Bromwich describes himself as being "the officer of the Commonwealth Director of Public Prosecutions, solicitors for the third and fourth respondents having carriage of this matter". He further states "My duties at the DPP include the giving of legal advice to the Australian Federal Police".

5. He also says that the annotated draft was provided to him by Detective Sergeant Purvis "in the course of his duties as a member of the Australian Federal Police and at my request". It is submitted on behalf of the applicants that the provision of this material to Mr Bromwich on the basis that he was acting for the Australian Federal Police was not sufficient to confer privilege upon it in relation to an action brought against the policeman as an individual. Reliance was placed on Enever v The Queen (1906) 3 CLR 967 (see also Skuse v Commonwealth of Australia (1984) 73 FLR 441 at 455).

6. It was submitted that legal professional privilege could apply only in relation to an action brought specifically against the Australian Federal Police as a legal entity and not against the individual officers as the relevant relationship of solicitor and client only existed between Mr Bromwich and the Australian Federal Police as such. It must be noted, of course, that the Director of Public Prosecutions had entered appearances for Detective Sergeant Purvis and the other police officers as solicitor for those persons. Consequently the submission really amounts to a challenge to the retainer of the Director of Public Prosecutions.

7. As I apprehended it, the applicants argued that the Director of Public Prosecutions had no power under the relevant statutes to act as solicitor for the individual police officers. The relevant statutory provisions are to be found in the Director of Public Prosecutions Act 1983 (Cth) and the Australian Federal Police Act 1979 (Cth). Section 6(1) of the latter Act provides so far as relevant as follows:
   

"6(1) There is hereby established the Australian Federal Police which shall be constituted by the members

mentioned in subsection (2)...

(2) The members of the Australian Federal Police are: ...

(e) non-commissioned police officers.

1. Section 9(11) of the Director of Public Prosecutions Act provides as follows:
   

"Where an authority of the Commonwealth is a party to aq proceeding in respect of a matter -

(a) that has arisen out of or is connected with the

performance of any of the functions of the Director; or

(b) that may result in the performance by the Director of such a function;

the Director ... may act as counsel or solicitor for that authority."

1. Section 3 of this Act, relevantly defines "authority of the Commonwealth" as follows:
   

"3.(1) In the Act, unless the contrary intention appears - ...

(c) a person who holds -

(i) an office or position established by or under a law of the Commonwealth;

(ii) an appointment made under a law of the Commonwealth;..."

1. I am satisfied that a member of the Australian Police Force would be an authority of the Commonwealth within this definition. Accordingly, the Director of Public Prosecution and Mr Bromwich, as an officer of the Director, could act as solicitor for Detective Sergeant Purvis as a member of the Australian Federal Police.

2. This objection to the claim of privilege is accordingly rejected.

3. The other objection to the claim was based upon the fact that since the bringing into existence of the privileged communication, Detective Sergeant Purvis had died. I have been referred to a passage in Wigmore on Evidence, McNaughton Revision, Vol 8, paragraph 2323. This passage reads as follows:
   

"The subjective freedom of the client, which is the purpose of the privilege to secure, could not be obtained if the client understood that, when the relation ended or even after the client's death, the attorney could be compelled to disclose the confidences, for there is no limit of time beyond which the disclosures might not be used to the

detriment of the client or his estate."

1. A somewhat tenuous argument has been put to me that insofar as this statement of principle might appear to be based on the possibility that "the disclosures might be used to the detriment of the client or his estate", the privilege could not be held to exist after the death of the communicator unless some relevant detriment were demonstrated at the time the privilege was claimed. I am not satisfied that this is so. In any event, an order made in these proceedings could most likely, in certain circumstances, be enforceable against the estate of the deceased.

2. I therefore reject this objection to the claim for privilege.

3. I uphold the claim for privilege made in respect of this document. I also consider that the applicants should pay the costs of the respondents in respect of this claim.