Grofam Proprietary Ltd v Australian & New Zealand Banking Group Ltd

[1993] FCA 547

547        93

JUDGMENT No. ........ ........ .. I .....,

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	) )
GENEW DIVISION	)
B E T W E E N :

GROFAM PROPRIETARY LIMITED
A.C.N. 004 970 487

First Applicant

GROFAM AUSTRALIA PROPRIETARY LIMITED
A.C.N. 004 844 026

Second Applicant

GROLLO AUSTRALIA PROPRIETARY L I M m D
A.C.N. 005 717 199

Third Appl lcant

FT^	- \\/E!) 1	BRUNO GROLLO
13 AUG 1993	Fourth	Applicant

RINO JOHN GROLLO

Applicant

Sixth Applicant

GROLLO FINANCE (HOLDINGS) PROPRIETARY LIMITED
A.C.N. 004 970 478

Seventh Applicant

GROLLO FINANCE PROPRIETARY LIMITED

A.C.N. 004 970 692

Eighth Applicant

GROLLO CONSTRUCTIONS PROPRIETARY LIMITED

A.C.N. 006 264 295

Fourth Respondent

Ninth Applicant

GROLLO NOMINEES PROPRIETARY LIMITED

A.C.N. 004 970 576

Tenth Applicant

and

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

First Respondent

PETER MACAULEY

Second Respondent

KENNETH WAYNE MCDERMOTT

Third Respondent

- ROBERT LESLIE TUPPEN

JUDGE :

-	Heerey J
DATE :	2 August 1993
PLACE :	Melbourne

RULING

The applicants challenge the AFP's claim to resisc production of certain documents on the ground of legal professional privilege. At the outset, counsel for the applicants sought leave to cross-examine deponents who had sworn affidavits as to the facts on which the claim for privilege was based. Two grounds were advanced.

First, the amended further list of documents referred to various categories of documents in terms that they were brought into existence by officers of the AFP "for the

purpose of the officers obtaining legal advice and assistance

from the DPP." (Emphasis added.)

The precise phraseology differs from category to category, but

argue that the purpose of "assistance" may have nothing to do	for present purposes it suffices to say that the applicants
with legal advice, and if that were in fact so the "sole purpose" test of Grant v Downs (1976) 135 CLR 674 would not be satisfied. Counsel says that by cross-examination he seeks to ask what the deponent means by "assistance" and thus, as counsel puts it, "resolve ambiguity".
Secondly, documents 137 to 145 in schedule 1, part 1 of the amended further list of documents are described in each case as:

"Note extracted from typed APP running sheets on meeting of [various dates are given] re investiga- tion into the Grollos/drafting of Information and search warrants."

Counsel for the applicants says that this description tends to show that the claim for privilege is misplaced because of the "inherent unlikelihood" of the running sheets being privileged. To advance this argument, he wishes to cross- examine the deponents as to -the nature and purpose of AFP running sheets. (I note that both counsel agree that for this purpose no distinction is to be drawn between the "note extracted" and the porcion of the running sheet itself.)

In National Crime Authority v S (1991) 100 ALR 151 at 159,
Lockhart J said:

"Affidavits of documents in the discovery process not infrequently claim legal professional privilege by asserting that the purpose for which a document

was brought into being was its sole purpose,	followed by a statement as to which particular
category of legal professional privilege the document belongs; for example, for use in existing or anticipated litigation. Although an affidavit in this form is usually sufficient and uncontrovers~al,
the potential for abuse is obvious. Courts should not be slow to permit cross-examination of the deponent of such an affidavit: see Grant v Downs; Young v Quinn (1984) 59 ALR 225 (a case on public interest immunity); National Employers Mutual General Insurance Association Ltd v Wsind (1979) 141 CLR 648; 24 ALR 86 and Cross on Evidence, 4th Australian ed, 1991, para 25240.
As Stephen, Mason and Murphy JJ said in Grant v Downs (CLR at 689; ALR at 589): 'He may succeed in achieving this objective [successfully claiming legal professional privilege] by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go hehind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.'
When questions of legal professional privilege arise in proceedings before courts there are well established procedures for dealing with them. The claim is asserted on oath and it is open to the court or the person who seeks access to the document or the answer to the question to cross-examine the person who makes the claim. The extent to which the court allows cross-examination or itself asks questions of the deponent is, of course, a matter for the discretion of the judge; but generally it cannot be sufficient for someone merely to assert that the disclosure of the identity of a person or of a document, or of the number of persons who were present at a meeting, or who was present at the meeting, or who on behalf of the client (if the person making the assertion is a solicitor) spoke to him or that he spoke to a particular officer of the client, to enliven a claim of legal professional privilege."

Honour made those comments. The case arose in the course of	However, it is important to note the context in which his
examination by the National Crime Authority of a person designated, for reasons of confidentiality, as S. The relevant statute permitted reliance on legal professional privilege, but what happened is described in his Honour's judgment as follows (at 159):

"What S did in this case was simply to rnake a bald assertion that to answer certain questions or to identify particular documents would be to disclose matters which would reveal privileged communica- tions. But if an assertion of this kind is made under oath how can it be tested, short of requiring the questions to be answered or the documents disclosed? S was in trnth performing the function of the Authority because he drew the conclusion which it was for the Authority to reach if material had been put before it from which it could have drawn a conclusion as to whether legal professional privilege was correctly raised. But the material to establish the validity of the claim was never placed before the Authority. It is not sufficient for the person asserting the claim to merely assert it; or, as Brett LJ said in Gardner v I r v i n ( 1 8 7 8 ) 4 Ex D 49 at 52, to have a "skeleton".

If S wished to make good his claim to refuse to answer questions or produce documents, it was for him to lead the requisite material so that the Authority could consider its attitude and examine him with respect to it."

In the present case, the respondents have gone well beyond the incantation of a verbal formula or ritual. The affidavit material describes the circumstances of the AT0 investigation and AFP involvement in the applicants' af fairs, leading up to the application for issue of the warrant, and places the documents for which privilege is claimed in the context of that process.	As to the first ground of the present application, I read the	expression, "legal advice and assistance" as no more than a
conventional description of the purpose for which legal professional privilege may be claimed, provided, of course, there is a factual basis and that purpose is the sole purpose. If the word "advice" only were used, there might be the risk that it would be construed narrowly as confined to an opinion expressed on the legal consequence of facts, and not extend to
matters like, for example, the drafting of documents. The expression "advice and assistance" is frequently used in this context; see for example Trade Practices Commission v Sterling (1978) 36 FLR 244 at 245, Waterford v The Commonwealth (1987) 163 CLR 54 at 87, Halsbury (4th ED) Vol 13, par 71 and Wigmore par 2291. The expression is virtually a hendiadys. I do not think cross-examination to explore its meaning in the present context would be useful. I do not think there is any relevant ambiguity.
As to the second ground, discussion with counsel for the respondents in the course of argument and inspection of the documents, confirmed my initial impression there is little doubt as to the nature of AFP running sheets. They are official police documents which are used by police to record contemporaneous events. They are a kind of official diary. It is fairly obvious that running sheets, as such, would include, and are intended to include, matters not covered by legal professional privilege.
consideration of apparently conflicting Federal Court and The real dispute in this case, which I am told may require
Supreme Court authority, is whether a particular entry in a running sheet, can be the subject of legal professional privilege. I do not think the resolution of that issue would be assisted by cross-examination, and accordingly I shall not accede to the application to cross-examine the deponents.

I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Dated: 2 August 1993

Amarances

Counsel for the applicants:	Mr R A Finkelstein QC with Mr P G Cawthorn
Solicitor for the applicants:	Mallesons Stephen Jacques
Counsel for the second and third	Mr M S Weinberg QC with Mr
respondents:	I3 Aizen
Solicitor for the second and	Commonwealth Director of
third respondents:	Public Prosecutions
Date of hearing:	2 August 1993

JUDGES CHAMBERS,

FEDERAL COURT OF AUSTRALIA,

450 LIlTLE BOURKE STREET,

12 August 1993

Elizabeth Harrison
Federal Court of Australia
Principal Registry
Law Courts Building
Queens Square

SYDNEY NSW 2000

Dear Elizabeth,

Grofam Ptv Ltd & Ors v Peter Macaulev & Ors

No. VG 110 of 1993

I enclose a copy of the ruling delivered by his Honour Mr

Justice Heerey in the above matter on 2 August 1993.

This judgment is not for general distribution.

Yours sincerely,

David Brennan

Associate to Heerey J

enc.