Fairfax Publications Pty Ltd v Abernethy

[1999] NSWSC 826

CITATION:	FAIRFAX PUBLICATIONS PTY LTD v ABERNETHY [1999] NSWSC 826
CURRENT JURISDICTION:	Administrative Law List
FILE NUMBER(S):	30015/99
HEARING DATE(S):	20/04/99, 21/04/99. 21/05/99, 27/05/99
JUDGMENT DATE:	27 May 1999
PARTIES :	John Fairfax Publications Pty Limited (Plaintiff) John Abernethy (Defendant)
JUDGMENT OF:	Adams J at 1

LOWER COURT JURISDICTION:	Coroners Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:

COUNSEL :	Mr T D Blackburn (Plaintiff) Mr M J Leeming (Defendant)
SOLICITORS:	Freehill Hollingdale & Page (Plaintiff) I V Knight (Defendant)
CATCHWORDS:	Subpoena to Coroner; advice from Crown Solicitor; whether privileged; whether obtained for improper purpose; meaning of impripriety; s 125 Evidence Act 1995
ACTS CITED:	Coroners Act 1980 Evidence Act 1995 Aboriginal Land Rights (Northern Territory) Act 1976
CASES CITED:	Attorney General for the Northern Territory of Australia v Kearney [1985] 158 CLR 500 Bullivant v Attorney General (Victoria) [1901] AC 196
DECISION:	Subpoena quashed

Transcript revised THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

ADAMS J

THURSDAY 27 MAY 1999

30015/99

JOHN FAIRFAX PUBLICATIONS PTY LIMITED v JOHN ABERNETHY

JUDGMENT - Quashing plaintiff’s subpoena, see p 71 of transcript

1 HIS HONOUR: The plaintiff seeks a declaration that the defendant, acting as a Deputy State Coroner in "reopening" an inquest into the death of Caroline Theresa Byrne, acted in excess of his jurisdiction. 2 For present purposes it is necessary only to state that it is prima facie established that the defendant did so for the purpose of enabling him to exercise the powers under section 44 of the Coroners Act to prevent publication of material which had been supplied by the police at a time following his making of an open finding in relation to Miss Byrne's death. 3 The plaintiff issued a subpoena directed to the Crown Solicitor to produce written communications or notes of such communications between the Deputy State Coroner and the Crown Solicitor. Mr Abernethy intimated during the course of the "reopened" proceeding that he had sought and obtained such advice in connection with the proceeding and by implication the order under section 44 which he proposed to make. 4 In the ordinary course such communications would be privileged. It has, however, been submitted to me that either by virtue of the common law or by virtue of section 125 of the Evidence Act 1995 (the Act) the privilege is expunged or does not arise. For present purposes, if there is a difference between the common law and section 125, it is immaterial. 5 Communications of the kind specified in the subpoena did occur and have been produced to the Court. In accordance with the procedure enunciated by the High Court of Australia in Alister v R (1984) 154 CLR 404, and with the consent of both parties, I have examined those documents. However, I have been able to come to my conclusion without regard to their content. Nevertheless, because of the importance of this matter, I should observe that nothing in the documents would assist the plaintiff to establish any abuse of power. 6    The crucial discussion as to the circumstances in which an abuse of power may remove any prima facie legal professional privilege is to be found in the judgments of the High Court of Australia in Attorney-General for the Northern Territory of Australia v Kearney [1985] 158 CLR 500. The documents being considered in that case and for which privilege was claimed were communications between the officers of the Northern Territory Government and the Government's legal officers for the purpose of obtaining and giving legal advice. It was submitted that these communications came into being as part of a scheme to defeat land claims made under the AboriginalLand Rights (Northern Territory) Act

1976. By procuring the administrator to make certain regulations under legislation relating to town planning, it was submitted that the preparation and drafting of the relevant regulations amounted to an abuse of process.

7 In dealing with the submission that the protection of privilege does not extend to a case of this kind, the Chief Justice considered that the exception to the privilege in cases of crime and fraud "extended to include anything that might be described as a fraud on justice" (158 CLR at 514). His Honour held that legal professional privilege will be denied to a communication "made to further an illegal purpose", adding:

"It would be contrary to the public interest which the privilege is designed to secure - the better administration of justice - to allow it to be used to protect communications made to further a of statutory power and by that abuse to prevent others from deliberate abuse exercising their rights under the law. It would shake public confidence in the law if there was reasonable ground for believing that a regulation had been enacted for an unauthorised purpose and with the intent of frustrating legitimate claims, and yet the law protected from disclosure the communications made to seek and give advice in carrying out that purpose." (158 CLR at 515. Emphasis added.)

8    This statement of principle appropriately applies in this case. It must be read in the light of the distinction made in Bullivant v Attorney-General (Victoria) [1901] AC 196 at 207 by Lord Lindley, between an intention by a client to escape the consequences of the law, although it applied to him, on the one hand, and an attempt to remain outside the application of the law on the other. Section 125 (1) (b) of the Act states:

"125 (1) This Division does not prevent the adducing of evidence of:
(a)...
(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power."

It is obvious that the words "deliberate abuse" derive from the judgment of Gibbs CJ to which I have just referred.

9    In this case, insofar as any prima facie case is established, I am satisfied that it demonstrates that the Magistrate wished to ascertain what his powers were, not so that he might avoid or evade them but, on the contrary, that he might appropriately apply them. It may well be that he suspected that the question was a controversial one but this is the reason that any client might and indeed should obtain legal advice to ensure, not that the law can be evaded but rather that it can be obeyed. 10    Even if, in the result, and it is not necessary for me to decide this point at this stage, the defendant erred in law in thinking, after receiving legal advice, that he had the power to reopen the inquest despite his previous open finding, and further to make the order complained of, this could not by itself amount to a deliberate abuse of power. Such a motive requires consideration, as seems to me obvious, of intent or purpose. It follows that it will never or almost never be capable of determination by the mere objective circumstance of illegality. Of course, the nature and circumstances of the illegality may enable the improper purpose or intention to be deduced and perhaps to the level of prima facie proof, but in this case there is no evidence which would permit such a conclusion. 11    Accordingly the subpoena is quashed. 12    The defendant must have the costs of the notice of motion of 6 April 1999. I will reserve on the substantive question.

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Last Modified: 08/13/1999