Norman v O'Mahony - [2006] FCA 1169

FEDERAL COURT OF AUSTRALIA

Norman v O’Mahony [2006] FCA 1169

PRACTICE & PROCEDURE – legal professional privilege – waiver of privilege – implied waiver – documents seized pursuant to search warrant – same documents seized in other searches and no claim for privilege made – whether omission to make a claim for privilege amounts to waiver of privilege

Held: The behaviour of the applicant in failing to claim privilege within a reasonable period after the search was inconsistent with the maintenance of legal professional privilege.

Baker v Campbell (1983) 153 CLR 52 referred to
Benecke v National Australia Bank Ltd (1993) 35 NSWLR 110 referred to
Commissioner of the Police Service v Nirta [2002] 1 Qd R 364 discussed
Goldberg and Anor v Ng and Ors (1995) 132 ALR 57 cited
Mann v Carnell (1999) 201 CLR 1 followed
Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 discussed
Spedley Security Ltd (in liq) v Bank of New Zealand (1991) 26 NSWLR 711 applied

Wigmore on Evidence (McNaughton Rev 1961 Vol VIII, para 2290)

LUCIANA NORMAN v SIMONE O'MAHONY and THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

NSD 394 OF 2006

COWDROY J
8 SEPTEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 394 OF 2006

BETWEEN:

LUCIANA NORMAN
Applicant

AND:

SIMONE O'MAHONY
First Respondent

THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Second Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

8 SEPTEMBER 2006

WHERE MADE:

SYDNEY

THE COURT:

Declares that legal professional privilege attaches to documents 1(c) and 1(l) itemised in the summons.
Declares that legal professional privilege has been waived in respect of documents 1(a), 1(b), 1(d), 1(e), 1(f), 1(g), 1(h), 1(i), 1(j), 1(k), 1(m), 1(n) and 1(o) identified in the summons.
Orders that the applicant pay the respondents’ costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 394 OF 2006

BETWEEN:

LUCIANA NORMAN
Applicant

AND:

SIMONE O'MAHONY
First Respondent

THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Second Respondent

JUDGE:

COWDROY J

DATE:

8 SEPTEMBER 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 18 November 2005, the applicant filed a summons in the Supreme Court of New South Wales seeking a declaration that certain documents (‘the Dimocks documents’) seized by the Australian Federal Police (‘AFP’) pursuant to a search warrant addressed to Dimocks Family Lawyers (‘Dimocks’) executed on 11 November 2005 are documents to which legal professional privilege attaches. The applicant also seeks the return of the documents.
The search warrant was issued pursuant to s 225 of the Proceeds of Crime Act 2002 (Cth) (‘POCA’) in respect of an alleged breach of Commonwealth law. Accordingly, on 6 February 2006 the Supreme Court of New South Wales transferred the proceedings to this Court.
The documents seized from Dimocks are documents to which legal professional privilege would ordinarily attach. They are documents relating to legal advice provided by Dimocks to the applicant. However,…

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 Norman v O'Mahony

Details

AGLC: Norman v O'Mahony [2006] FCA 1169
Case: [2006] FCA 1169
Decision Date: 8 SEPTEMBER 2006

CaseChat Overview and Summary

Luciana Norman applied for a declaration that certain documents seized by the Australian Federal Police were subject to legal professional privilege. Simone O'Mahony and the Commissioner of the Australian Federal Police opposed the application. The central issue was whether Ms Norman had waived privilege over the documents by failing to claim privilege in respect of other documents seized by the police. The Court found that Ms Norman had waived privilege over all but two of the documents. The Court held that Ms Norman had waived privilege over documents seized from her residence because she had not claimed privilege over those documents within a reasonable time. The Court held that Ms Norman had also waived privilege over documents seized from her husband's business premises because her legal representative had not claimed privilege over those documents within a reasonable time. The Court ordered that Ms Norman pay the respondents' costs.

Orders