Lee v NSW Commissioner of Police

[2019] NSWSC 405

Supreme Court

New South Wales

Medium Neutral Citation:	Lee v NSW Commissioner of Police [2019] NSWSC 405
Hearing dates:	27 March 2019
Date of orders:	27 March 2019
Decision date:	27 March 2019
Jurisdiction:	Common Law
Before:	Garling J
Decision:	The Court will not allow claim for sleeve 42 to be deferred to another time.
Catchwords:	EVIDENCE — Privileges — Client legal privilege – whether Post-it notes attached to documents claiming privilege can also be privileged – whether privilege claim can be deferred or ought to be determined - where Post-it note was not originally made subject to a privilege claim – where document that Post-it note was attached to has not been identified.
Legislation Cited:	Evidence Act 1995 Uniform Civil Procedure Rules
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	Denise Lee (P) NSW Commissioner of Police (D1) Megan Peebles (D2) Stephen Lister (D3) NSW Police Force (D4)
Representation:	Counsel: T A Game SC / B K Lim (P) K Richardson SC / D Hume (D1, D2, D4)   Solicitors: Lenz Legal (P) Makinson & d’Apice (D1, D2, D4) Crown Solicitors Office (D3)
File Number(s):	2017/367939
Publication restriction:	Not Applicable

EX TEMPORE Judgment (T.48)

1. In the course of the hearing of the Second Further Amended Summons in these proceedings, which challenges the application for, the issuing of and the execution of, a search warrant at the plaintiff's premises on 5 December 2017, an issue has arisen as to whether, in respect of an identified document, there is a reasonably open and genuine claim available to the plaintiff for client legal privilege with respect to the contents of the document.

2. The issue is phrased in that way because the parties have reached an agreement with respect to 100 documents (some of which comprise a number of pages) that a claim for client legal privilege, except in respect of a smaller number (about 30) in respect of which such claim is no longer maintained, will be determined at a later time.

3. The determination of whether client legal privilege exists with respect to the balance of those documents (about 70) is to be determined at a later and subsequent time pursuant to an order which it is intended the Court would make in accordance with r 28.2 of the Uniform Civil Procedure Rules 2005 (“UCPR”). Thus, the issue for the Court is whether the document in sleeve 42, and any final consideration of it, should be deferred until the bulk of the documents are dealt with in due course, or whether that claim can and ought to be determined now.

4. On 5 December 2017, this Court made an order that with respect to documents seized from the plaintiff's premises, any claim for client legal privilege would need to be identified by 21 December 2017, and notified to the solicitors for the defendants.

5. On 21 December 2017, Mr Lenz, the solicitor for the plaintiff, , sent a letter by email to the solicitors for the defendants which attached a schedule of hard copy documents in which claims for privilege were notified. As well, Mr Lenz also notified claims that access should not be had by the defendants to a number of documents on the basis that they were not within the scope of the warrant.

6. Document number 42, which has also been referred to in submissions today as sleeve number 42, is described in that schedule as an undated document comprising six yellow Post‑it notes.  The only basis for any objection to access is described in that schedule as "outside scope of the warrant".  Mr Lenz has given evidence that at the time the schedule was sent on 21 December 2017, he was not instructed to make a claim for client legal privilege with respect to that document and that he did not do so.  However, he has recently received instructions to make a claim for client legal privilege.

7. It emerges from the evidence that the six Post‑it notes have some writing on them.  In evidence, Mr Lenz does not identify the writing on the document as being that of his client and his instructions do not permit him to identify whose writing it is.  Mr Lenz says that his instructions are that the Post‑it notes were originally attached to another document and that the document to which they were attached may be privileged. However, at least as I understand his evidence, his instructions do not permit him to identify the actual document to which the Post‑it notes was attached.  I should add there may well be more than one document in that category.

8. The documents that were seized from the plaintiff’s premises included documents over which a claim for privilege has been made. The evidence discloses that, at or around the time the search warrant was executed, the plaintiff was involved in a number of different legal proceedings, although it seems that at least one of those sets of legal proceedings was likely to have concluded.

9. The Court is invited to infer, by reason of the fact that the documents in the plaintiff's premises were generally claimed to be privileged and that the Post‑it notes were at one stage attached to one or more documents, that although there were other non‑privileged documents in existence in the plaintiff's premises, these Post‑it notes were attached, or may have been attached, to documents in respect of which privilege may be able to be claimed.

10. It seems to me that there has to be some material available which enables the Court, at least at a high level of abstraction, to conclude that the Post‑it notes were created for one of the two dominant purposes set out in ss 118 and 119 of the Evidence Act 1995, namely the dominant purpose of the provision of legal advice to the plaintiff or the dominant purpose of the plaintiff being provided with professional legal services in existing or anticipated proceedings in which the plaintiff was or might have been a party.

11. In circumstances where there is simply no factual basis available as to who wrote these documents and the circumstances in which they were created, nor any specificity or particularity as to which documents they were once attached to, it seems to me that any claim for client professional privilege could not be sustained on any basis.  It follows that there is simply no issue which is reasonably available with respect to this document for a later determination of the existence of client legal privilege.

12. To the extent that there is any material which supports that conclusion, it can be found in the Schedule which is Exh 4. In that Schedule, Mr Lenz, having carefully considered the issue of what document ought be the subject of a claim for privilege and having taken instructions on that question, did not make a claim for privilege in December 2017 when it was available to him to be made. 

13. In my view, it has not been shown that there is any basis at all for a claim for privilege over the document in sleeve 42 and I would not defer it to be determined in due course with the other folder of documents.

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Decision last updated: 11 June 2019