Review of magistrate's order - Application for decision on claim of legal professional privilege - Redaction of affidavits and submissions - Compulsory disclosure of redacted information to respondent's lawyers - Scope of power in s 36 of the Magistrates Court Act
McLURE JA: This is an appeal from an order made by Murray J on 14 September 2009 requiring the appellant, subject to the provision of confidentiality undertakings, to serve on the solicitor and/or counsel of record for the respondent in unredacted form all affidavits and submissions filed on behalf of the appellant containing information which was the subject of a claim by the appellant for legal professional privilege (the disclosure order). At the conclusion of the hearing, the court allowed the appeal and dismissed the notice of contention. The order made by the primary judge should be set aside. These are my reasons for joining in the making of those orders.
The background is as follows. On 22 August 2007 and 20 September…
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 Rayney v AW
Sign in free to access the full text
Details
AGLC
Rayney v AW [2009] WASCA 203
Case
[2009] WASCA 203
Decision Date
CaseChat Overview and Summary
Rayney filed an application for review of a magistrate's order regarding a claim of legal professional privilege. The dispute centred around the redaction of affidavits and submissions in a case and the compulsory disclosure of redacted information to the respondent's lawyers. The court was required to determine the scope of the power in section 36 of the Magistrates Court Act.
The primary legal issue was whether the magistrate's order was appropriate in compelling the disclosure of information that was subject to a claim of legal professional privilege. The court found that legal professional privilege is a rule of substantive law and an important common law immunity that may be availed of to resist the giving of information or the production of documents. The court also found that the statutory provisions did not abrogate important common law rights, privileges, and immunities unless there were clear words or a necessary implication to that effect.
The court concluded that the magistrate should have considered and determined the claim for legal professional privilege before making any disclosure order. While the court did not find any issues with the procedure adopted by the magistrate, it made general observations about the requirements for a claim of legal professional privilege. The court found that the person claiming privilege must list each communication, state the form in which it is contained, identify the persons between whom the communication was made, and provide evidence as to the basis of the claim for legal professional privilege.
The court did not make any specific orders in this case but provided guidance for future cases involving claims of legal professional privilege. The court's decision highlights the importance of considering and determining claims of legal professional privilege before compelling the disclosure of information.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings: The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 [9]; Attorney‑General (NT) v Maurice (1986) 161 CLR 475, 490. The majority in Daniels said:Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect [11]. Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection and the giving of evidence in judicial proceedings but may be availed of to resist the giving of information or the production of documents under investigatory procedures such as a search warrant: Daniels [10]. It was not contended by either party that s 151 of the Criminal Investigation Act so altered the appellant's common law right in relation to legal professional privilege as to empower the court to compel the disclosure of that information to the lawyers for the respondent. A claim for legal professional privilege is to be contrasted with a claim of public interest immunity in which the court is required to undertake a balancing of competing public interests: The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83 [32]. Where there is a claim for legal professional privilege, the only appropriate and proper course is for the court to consider and determine the claim before making any disclosure order. As a result of the restricted scope of the notice of contention, no issues arise in this court as to the propriety of the procedure adopted by the magistrate for determining the claim to legal professional privilege or the merits of the rulings he made on the permissible redactions. However, it is appropriate to make a number of general observations. Ordinarily, the person claiming and carrying the onus of establishing legal professional privilege is required to (a) list each communication the subject of the claim for privilege; (b) state the form in which each communication is contained, stored or recorded, whether it is an original or a copy and the date when each was made; (c) identify the persons between whom the communication or communications were made; and (d) provide evidence as to the basis of the claim for legal professional privilege: National Crime Authority v S (1991) 29 FCR 203, 212; Kennedy v Wallace (2004) 142 FCR 185 [13].