Re Cooksley & Associates - [1998] QSC 72

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane O.S. No.6773 of 1996

Before the Hon. Mr Justice Williams

[Re Cooksley & Associates]

IN THE MATTER of the Criminal Code (Qld)

- and -

IN THE MATTER of
COOKSLEY & ASSOCIATES

CATCHWORDS: Legal professional privilege - solicitor maintaining one file for lender and borrower - solicitor seeking to recover money from overseas for borrower - no litigation contemplated - no legal advice given as requested - allegation lender defrauded by conspiracy between solicitor and borrower - held borrower not entitled to claim privilege with respect to documents on solicitor’s file - authorities considered.

Counsel:Hampson Q.C. and Musgrave for applicant.
Plunkett for respondent.

Solicitors:Proctor Kehoe for applicant
B.T. Dunphy, Crown Solicitor, for respondent.

Hearing Date: 16 April 1998

JUDGMENT -WILLIAMS J.
Judgment delivered 24 April 1998

Pursuant to a search warrant issued by a Magistrate, police officers took possession of a solicitor’s file, but acknowledged at the time of taking possession that a claim for professional privilege was to be made. The documents comprising the file have been at all material times since the seizure in a sealed box and have not been inspected by police officers. Pursuant to the arrangement made at the time possession was taken by the police, Cooksley & Associates (“the applicant”) has brought this application on the basis that it was the relevant client of the solicitor in question and the entity entitled to make the claim of legal professional privilege. The principal respondent is The Commissioner of the Queensland Police Service.
By its terms the summons seeks the following orders:
“1.That the legal file of Cooksley & Associates held by the Registrar of this Honourable Court be delivered up to Cooksley & Associates and/or their solicitors;

2.That all material contained in the legal file of Cooksley & Associates held by the Registrar of this Honourable Court is the subject of legal professional privilege.”

Affidavits relied on by the applicant assert that in or about September 1994 it engaged C., a solicitor, to act for it with respect to the collection of certain moneys claimed to be outstanding to the applicant from the Nigerian Government. C. continued to act as solicitor for the applicant with respect to that matter until a receiver was appointed to his practice in about June 1996.
The Search Warrant pursuant to which the respondent took possession of the subject file recited that there were reasonable grounds for believing that material in the file would afford evidence as to the commission of the offence that between September 1994 and July 1996 C. conspired with a member of the applicant firm to obtain money from one J M Williams by fraudulent means. Exhibited to an affidavit by the police officer who executed the search warrant is a sworn statement by J M Williams. It swears to the fact that in about mid-1994, Aluma-Lite Products Pty Ltd, of which he is the managing director, indicated to C. that it was interested in giving him some…

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 Re Cooksley & Associates

Details

AGLC: Re Cooksley and Associates [1998] QSC 72
Case: [1998] QSC 72
Decision Date: 24 April 1998

CaseChat Overview and Summary

The case of Cooksley & Associates involved a legal professional privilege claim by a firm engaged to recover funds from the Nigerian government. The firm, Cooksley & Associates, alleged that the documents on the solicitor's file, seized under a search warrant, were privileged and should be returned to them. The respondent, The Commissioner of the Queensland Police Service, argued that the documents should be examined as they potentially evidenced a conspiracy to obtain money fraudulently.

The legal issues centered around whether the documents were protected by legal professional privilege and, if not, whether it was in the public interest to examine them. The court had to determine whether the documents came into existence for the sole purpose of obtaining legal advice or for use in litigation, as required by legal precedent.

The court found that the documents were primarily related to a commercial transaction and did not meet the criteria for legal professional privilege as they were not intended for the purpose of obtaining legal advice or for litigation. Additionally, the court held that there was a prima facie case of illegal conduct, which justified examining the documents in the public interest. The court concluded that Cooksley & Associates was not entitled to claim privilege over the documents and ordered that they be returned to the police. The court also ruled that Cooksley & Associates should pay the respondent's costs of the application.

Orders