Lam v The Commissioner, Australian Federal Police
[1995] FCA 738
•14 Jul 1995
CATCHWORDS
ADMINISTRATIVE LAW - legal professional privilege - documents seized under search warrant - whether legal professional privilege attached to documents - no point of principle.
Crimes Act 1914 s 3E
Judiciary Act 1903 s 39B
S.B. McNicol, "Law of Privilege" (1992)
Baker v. Campbell (1983) 153 C.L.R. 52
Attorney-General v. Maurice (1986) 161 C.L.R. 475
Carter v. Managing Partner, Northmore Hale Davey & Leake (1995) 129 A.L.R. 593
Grant v. Downes (1976) 135 C.L.R. 674
FRANK HUNG CHI LAM V. THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE AND ROBERT WARREN CRAVEN AND GREGORY JOHN LYE AND THE FEDERAL COMMISSIONER OF TAXATION
DG 13 of 1995
LEE J.
DARWIN
14 JULY 1995
LIMITED DISTRIBUTION
IN THE FEDERAL COURT )
OF AUSTRALIA )
NORTHERN TERRITORY )
DISTRICT REGISTRY )
GENERAL DIVISION ) NO. DG 13 of 1995
B E T W E E N: FRANK HUNG CHI LAM
Applicant
and
THE COMMISSIONER AUSTRALIAN FEDERAL POLICE
First Respondent
and
ROBERT WARREN CRAVEN
Second Respondent
and
GREGORY JOHN LYE
Third Respondent
and
THE FEDERAL COMMISSIONER OF TAXATION
Fourth Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER: LEE J.
DATE OF ORDER: 14 JULY 1995
WHERE MADE: DARWIN
THE COURT ORDERS AND DECLARES THAT:
Legal professional privilege is attached to those documents so identified by the Court in the documents
described as the "A" and "B" documents. The applicant has liberty to uplift those documents.
The balance of the documents held in Court other than the document described as "HD Compact Disk 3.5" in the "B" documents to be released to the seizing party (first respondent).
As to the document "HD Compact Disk 3.5" in the "B" documents, the applicant is to file any amended application in respect thereof and any supporting affidavit by 21 July 1995 otherwise that document is to be released to the seizing party.
The order of von Doussa J. made 23 May 1995 is varied by discharging the injunction in item 2 thereof save for the document described as "HD Compact Disk 3.5" in the "B" documents.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
GENERAL DIVISION ) NO. DG 13 of 1995
B E T W E E N: FRANK HUNG CHI LAM
Applicant
and
THE COMMISSIONER AUSTRALIAN FEDERAL POLICE
First Respondent
and
ROBERT WARREN CRAVEN
Second Respondent
and
GREGORY JOHN LYE
Third Respondent
and
THE FEDERAL COMMISSIONER OF TAXATION
Fourth Respondent
CORAM: LEE J.
DATE : 14 JULY 1995
PLACE: DARWIN
REASONS FOR JUDGMENT
This is an application under s.39B of the Judiciary Act 1903 seeking an injunction restraining officers of the Commonwealth, to wit, officers of the Australian Federal Police, from making use of certain documents seized on 28 April 1995 under a search warrant issued pursuant to s.3E of
the Crimes Act 1914 permitting a search for, and seizure of, certain documents on premises at Darwin of the applicant (Lam), of accountants Howarth Gamble & Partners, and of the Australian Taxation Office.
The issue before the Court for decision at the moment is the question whether certain of the documents seized at Lam's premises and at the premises of Howarth Gamble & Partners are documents in respect of which claims of legal professional privilege may be maintained. Such claims were made at the time of seizure or shortly thereafter.
Affidavits tendered in support of the application for a declaration that such privilege exists in respect of the documents depose that at some time after June 1994, Lam instructed solicitors, Mildrens, to act on his behalf after officers of the Australian Taxation Office had commenced an audit of his financial affairs.
Mildrens, in a joint conference with Lam and Howarth Gamble & Partners were authorised to instruct, and did instruct, Howarth Gamble & Partners to gather financial information, statements from relevant parties and to provide advice to Mildrens to allow Mildrens to advise Lam as to his position in respect of possible prosecution for offences under federal law arising out of the manner of conduct of his businesses and financial affairs.
I am satisfied by those affidavits, and by perusal of the documents in question, that at all material times Lam and Mildrens had at the forefront of their minds that the manner in which the audit inquiry was being undertaken suggested that Lam was at risk of facing allegations that criminal offences had been committed by him and the particular assistance Mildrens sought from Howarth Gamble & Partners was directed solely to the need to provide advice to Lam on that problem.
At the same time Howarth Gamble & Partners were instructed by Lam to act as accountants for Lam and for entities associated with Lam, which required Howarth Gamble & Partners to produce substantial work and documents which may have been associated with but was not part of carrying out the instructions issued to them by Mildrens.
Perusal of the documents has also shown that Howarth Gamble & Partners, as agents for Lam as his accountant, instructed Mildrens to provide advice to Howarth Gamble & Partners on Lam's behalf and it is to be taken that the claim for privilege extends to such communications between Howarth Gamble & Partners and Mildrens.
The law of legal professional privilege, so called, has been given rigorous evaluation in recent years with the result that its ambit has been more clearly defined. (See:
S.B. McNicol, "Law of Privilege " (1992) pp.44-52).
Shortly stated a person may claim such privilege in relation to documents where the documents have been prepared as part of a process of communication with a legal practitioner for the sole purpose of obtaining legal advice including, inter alia, communications between the legal adviser and an agent of the client, or a third party, for the purpose of gathering information necessary for advising and representing the client in apprehended judicial proceedings. (See: Baker v. Campbell (1983) 153 C.L.R. 52; Attorney-General v. Maurice (1986) 161 C.L.R. 475; Carter v. Managing Partner, Northmore Hale Davey & Leake (1995) 129 A.L.R. 593; Grant v. Downes (1976) 135 C.L.R. 674.)
With that exposition of the law in mind I have been asked to view the remainder of documents in respect of which the privilege is claimed and to decided whether the claim is soundly based.
Those documents are part of the documents described in the application as the "A" documents, the "B" documents and the "C" documents.
The "A" and "B" documents are part of documents seized at the premises of Howarth Gamble & Partners; the "C" documents are part of the documents seized at Lam's home.
THE "A" DOCUMENTS:
These documents consist of notes, correspondence (original and copies), statements of witnesses and memoranda.
I am satisfied that the claim to legal professional privilege has been properly made in respect of only those documents that I have identified by a green adhesive marker. The documents so marked are either communications between Mildrens and Howarth Gamble & Partners seeking or supplying advice or providing information germane to advice in respect of anticipated legal proceedings and copies of communications between Mildrens and counsel. Documents in respect of which the claim of privilege has been disallowed are memoranda recording general discussions predominantly relevant to Howarth Gamble & Partners' duty to provide accounting services to Lam. In one document counsel for Lam has conceded that the claim to privilege does not extend to several documents attached to a copy of a letter from Howarth Gamble & Partners to Mildrens dated 12 September 1994.
THE "B" DOCUMENTS:
Of the remainder of the documents in this group it is said that part of the folder marked "Tai Hung Tol" and a computer disk and printouts are privileged.
I have perused the documents in the file and can find no basis for the claim. The documents on their face appear to be related solely to the work to be carried out by Howarth Gamble & Partners as accountants for Lam in presenting financial records and statements as instructed by Lam. I was not asked to view the contents of the disk on a computer screen. It was said that the claim of privilege in respect of the disk was conterminous with the claim in respect of the documents in the folder.
THE "C" DOCUMENTS:
These documents consist of copies of notes of conferences, advice, memoranda to counsel provided to Lam by solicitors, in particular, item 8 and part of item 10 of the record of documents seized.
Item 8
Item 8 is a copy letter Howarth Gamble & Partners to Mildrens providing information pursuant to the instructions received from Mildrens to allow Mildrens to advise Lam on apprehended legal proceedings.
Perusal of document shows that the claim of privilege has been properly made.
Balance of Item 10
Each document has been marked by counsel for Lam with a yellow adhesive marker which identifies where privilege has been claimed and where it is abandoned. I have perused the documents and I am satisfied each claim of privilege is soundly based in that the documents consist of communications between solicitors and their client relevant to matters on which Lam had given instructions to solicitors for the provision of legal advice.
Declarations will be made that privilege exists as stated in these reasons and orders made that those documents be released accordingly. Orders will be made that the remaining documents be delivered to the first respondent as the seizing party.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.
Associate:
Date:
APPEARANCES
Counsel for the Applicant: C.R. McDonald
Solicitors for the Applicant: Mildrens
Counsel for the Respondent: T.J. Riley Q.C.
Solicitors for the Respondent: Australian Government Solicitor
Date of Hearing : 14 July 1995
Date of Judgment : 14 July 1995
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