Lubeck v NSW Police Force - [2019] NSWSC 504

Supreme Court

New South Wales

Medium Neutral Citation: Lubeck v NSW Police Force [2019] NSWSC 504
Hearing dates: 21 November 2018
Decision date: 03 May 2019
Jurisdiction: Common Law
Before: Button J
Decision:
(1) A declaration that the defendant, the NSW Police Force, must not access the material identified in this judgment as the “6 page document, the “16 page document” and the “third documents”, seized as a result of the search warrant executed at the premises of Pope & Spinks on 13 July 2018, because of client legal privilege; and
(2) The defendant, the NSW Police Force, must pay the costs of the plaintiff, Mr Jason Lubeck (a pseudonym), of the proceedings before me.

Catchwords: EVIDENCE – client legal privilege – criminal charges pending against plaintiff – execution of search warrant at office of solicitor – whether documents the subject of claim for privilege should be inspected by judge – whether claim for privilege has been affirmatively established – claim upheld – declaration made
Legislation Cited: Evidence Act 1995 (NSW), ss 69(3)(b), 118, 119, 122, 125, 131A, 133 and 183
Cases Cited: Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796
Barnes v Federal Commission of Taxation [2015] FCA 282
Hancock v Rinehart [2016] NSWSC 12
Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337
Rinehart v Rinehart [2016] NSWCA 58
Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002
Waugh Asset Management v Merrill Lynch [2010] NSWSC 197
Category: Principal judgment
Parties: Jason Lubeck (a pseudonym) (Plaintiff)
NSW Police Force (Defendant)
Representation:
Counsel:
Ms J Williams (Defendant)
Solicitors:
Pope & Spinks Solicitors
Makinson d’Apice Lawyers

File Number(s): 2018/238629
Publication restriction: Pseudonyms adopted for civilians until pendency of criminal trial concluded

Judgment

Introduction

This seemingly straightforward application for a declaration in order to uphold a disputed claim of client legal privilege, made with regard to documents seized by police pursuant to a search warrant executed upon the office of a solicitor, is, in truth, not without its complexities.

Background

The following matters were established by way of affidavit evidence before me, constituted by three affidavits with annexures read on behalf of the plaintiff, and one affidavit with annexures of a detective attached to the Organised Crime Squad read on behalf of the defendant. Neither party applied to cross-examine the deponent of the affidavits relied upon by its opponent.
Part of what follows is also based upon a document sworn in support of the application for the search warrant that was annexed to the affidavit of the detective (in recounting some of its contents, I appreciate that they were not directly sworn to before me, but they were never called into question).
In or around March 2014, Mr James Pope (the solicitor) was engaged by Mr Jason Lubek (the plaintiff in the proceedings before me) to act on his behalf in civil proceedings against the NSW Police Force (the defendant in the proceedings before me) with regard to various allegations…

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.

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Details

Case: [2019] NSWSC 504
Decision Date: 03 May 2019

CaseChat Overview and Summary

In the matter of Lubeck v NSW Police Force, the plaintiff sought to establish that documents seized from his solicitor's office during the execution of a search warrant were protected by client legal privilege. The dispute centred on the admissibility of these documents in criminal proceedings against the plaintiff. The case was heard in the Supreme Court of New South Wales, where the plaintiff argued that the documents were privileged and should not be disclosed to the defendant.

The legal issues before the court involved determining whether the plaintiff had established the existence of client legal privilege over the documents in question. This required the court to consider the nature of the documents, the context in which they were created, and whether they were prepared for the purpose of obtaining legal advice. Additionally, the court had to decide whether the privilege had been affirmatively established by the plaintiff, and whether the documents should be inspected by the judge to make this determination.

The court found that the plaintiff had indeed established the existence of client legal privilege over the documents in question. The documents were deemed to be prepared for the purpose of obtaining legal advice, and the court concluded that they were protected by privilege. As a result, the court made a declaration that the documents were privileged and should not be disclosed. This decision upheld the plaintiff's claim and protected the confidentiality of the legal advice provided.

The final orders of the court included a declaration that the documents seized from the solicitor's office were subject to client legal privilege and should not be disclosed to the NSW Police Force. This decision reinforced the importance of protecting the confidentiality of legal communications and upheld the rights of the plaintiff in the criminal proceedings against him.

Orders