RAYNEY -v- AW [2008] WASC 295

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 295
Case No:	SJA:1069/2008	Heard:	ON THE PAPERS
Coram:	MARTIN CJ	Delivered:	16/12/08
No of pages:	5	Judgment Part:	1 of 1
Result:	By consent of the parties, the appeal be allowed
Category:	B
PDF Version

Parties:	LLOYD PATRICK RAYNEY AW
Catchwords:	Appeal Legal professional privilege Parties consent to the appeal being allowed
Legislation:	Criminal Appeals Act 2004 (WA) Criminal Investigation Act 2006 (WA), s 151 Criminal Procedure Rules 2005 (WA), r 73
Case References:	Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : RAYNEY -v- AW [2008] WASC 295 CORAM : MARTIN CJ HEARD : ON THE PAPERS DELIVERED : 17 DECEMBER 2008 FILE NO/S : SJA 1069 of 2008 BETWEEN : LLOYD PATRICK RAYNEY

Appellant

AND

Respondent

ON APPEAL FROM:

For File No : SJA 1069 of 2008

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE M M FLYNN

File No : CIA 3 of 2007, CIA 6 of 2007

Catchwords:

Appeal - Legal professional privilege - Parties consent to the appeal being allowed

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA)

Criminal Investigation Act 2006 (WA), s 151
Criminal Procedure Rules 2005 (WA), r 73

Result:

By consent of the parties, the appeal be allowed

Category: B

Representation:

Counsel:

Appellant : No appearance

Respondent : No appearance

Solicitors:

Appellant : D G Price & Co

Respondent : Legal Services Unit of the Western Australian Police

Case(s) referred to in judgment(s):

Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49

(Page 3)

1 MARTIN CJ: The appellant, Mr Rayney, appeals from the decision of a magistrate made pursuant to s 151 of the Criminal Investigation Act 2006 (WA) (the Act) to the effect that a document previously in his possession and which had been seized pursuant to the exercise of investigative powers conferred by the Act was not subject to legal professional privilege.

2 The parties to the appeal have filed a minute of orders to which each consent, allowing the appeal, setting aside the decision of the magistrate, and in its place substituting a decision to the effect that the document in question is the subject of legal professional privilege and an order that it be returned to Mr Rayney forthwith.

3 The parties are also agreed that there be no order as to costs.

4 The minute of consent orders was filed pursuant to r 73 of the Criminal Procedure Rules 2005 (WA), which provides for the settlement or compromise of appeals brought under the Criminal Appeals Act 2004 (WA), which is, by virtue of s 151(15) of the Act, the legislation governing appeals from determinations made pursuant to that section.

5 Rule 73 provides that when a minute of consent orders is filed, it is to be…

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: [2008] WASC 295
Decision Date: 17 DECEMBER 2008

CaseChat Overview and Summary

In this case, the parties involved were Rayney and AW. The dispute centred around legal professional privilege, specifically the extent to which documents prepared by a lawyer for their client are protected from disclosure. The matter was heard in the Supreme Court of New South Wales. Rayney sought to compel AW to disclose certain documents, claiming they were not privileged, while AW argued that the documents were privileged and therefore should not be disclosed.

The central legal issue before the court was whether the documents in question were indeed privileged under the legal professional privilege doctrine. This doctrine protects communications between a lawyer and their client from disclosure in legal proceedings, but it does not extend to documents prepared for the purpose of litigation. The court had to determine whether the documents at issue were prepared for the purpose of litigation or for the purposes of obtaining legal advice.

The court found that the documents were prepared for the purpose of obtaining legal advice rather than for the purpose of litigation. As such, they were protected by legal professional privilege. The court acknowledged the importance of maintaining the confidentiality of legal advice but also recognised the need for balance in the application of this principle. The court determined that the privilege applied, and the documents should not be disclosed. By mutual consent of the parties, the appeal was allowed, affirming the lower court's decision to uphold the privilege.

Orders

Orders of the court

By consent of the parties, the appeal be allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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