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Kennedy v Baker (No 2)

Kennedy v Baker (No 2)

Case [2004] FCA 809 28 June 2004

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FEDERAL COURT OF AUSTRALIA
Kennedy v Baker (No 2) [2004] FCA 809
LEGAL PROFESSIONAL PRIVILEGE – s 3ZX Crimes Act 1914 – copying of computer hard drive under subs 3L(1A) – whether copying hard drive, where hard drive contains privileged material, necessarily unlawful
Crimes Act 1914 (Cth) ss 3F(2), 3L(1A), 3ZX
Allitt v Sullivan [1988] VR 621 distinguished
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 considered
Commissioner of Taxation v Citibank (1989) 20 FCR 403 referred to
Kennedy v Baker [2004] FCA 562 referred to
TREVOR JOHN KENNEDY v PETER BAKER and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
N 2366 of 2003
BRANSON J
28 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 2366 of 2003

BETWEEN:

TREVOR JOHN KENNEDY
APPLICANT

AND:

PETER BAKER
FIRST RESPONDENT

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE:

28 JUNE 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 6 May 2004 I published reasons for judgment in this proceeding (see Kennedy v Baker [2004] FCA 562). These reasons for judgment use certain terms as defined in those earlier reasons.
I pronounced no orders on 6 May 2004. I refrained from doing so for two reasons. First, I wished to check the accuracy of an assumption made by me that Mr Kennedy only pressed the fourth ground upon which he contended that he was entitled to relief (‘the fourth ground’) should I find that Mr Kennedy did not have a reasonable opportunity to claim legal professional privilege in the imaged hard drive. The fourth ground involved the contention that the creation and removal from the Premises of the imaged hard drive was unlawful because its contents included communications to which legal professional privilege attached. Secondly, I wished to hear from the parties as to the form of the final orders that were appropriate to be made having regard to my reasons for judgment.
My assumption concerning the fourth ground was not accurate. The parties have now filed written submissions on that ground and addressed the Court on it. At the close of the parties’ oral submissions on the fourth ground I indicated that, for reasons which I would publish at a later date, I rejected the fourth ground. These are my reasons for rejecting the fourth ground. They should be read together with my earlier reasons for judgment.
It is accepted by the parties that a search of the imaged hard drive conducted by persons acting on Mr Kennedy’s behalf has revealed that at least one document that contains privileged communications can be brought into existence by accessing the data held in the imaged hard drive. Mr Kennedy contends that the effect of s 3ZX of the Crimes Act:
‘is to qualify the powers of seizure in section 3F(2) and the powers of imaging, copying and removal in section 3L(1A) so that those powers do not extend to documents to which legal professional privilege attaches (see Allitt v Sullivan

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 Kennedy v Baker (No 2)

Details

AGLC: Kennedy v Baker (No 2) [2004] FCA 809
Case: [2004] FCA 809
Decision Date: 28 JUNE 2004

CaseChat Overview and Summary

In the case of Kennedy v Baker (No 2), the applicant, Trevor John Kennedy, sought relief on the basis that the creation and removal of an imaged hard drive from his premises was unlawful due to the presence of privileged material. The respondents were Peter Baker, the first respondent, and the Australian Securities and Investments Commission, the second respondent. The matter was heard in the Federal Court of Australia, New South Wales District Registry, before Branson J.

The legal issue before the court was whether the creation and removal of the imaged hard drive, which contained privileged material, was unlawful under the Crimes Act 1914 (Cth). Specifically, the court had to determine if section 3ZX of the Act qualified the powers of seizure and imaging in sections 3F(2) and 3L(1A), such that those powers did not extend to documents to which legal professional privilege attached. Kennedy argued that the presence of privileged material in the imaged hard drive rendered the copying and removal unlawful.

The court rejected Kennedy's contention, holding that section 3ZX of the Crimes Act does not limit the powers granted by section 3L(1A) to documents containing privileged material. Rather, section 3ZX ensures that Part 1AA of the Act does not affect the law relating to legal professional privilege. The court found that the removal of the imaged hard drive did not result in the disclosure of privileged communications, as the respondents did not access the data without giving Kennedy an opportunity to claim privilege. Consequently, the court concluded that the creation and removal of the imaged hard drive was not unlawful due to the presence of privileged material.

Orders