SA Police v Francesco Carbone No. SCGRG 95/1032 Judgment No. 6088 Number of Pages 26 Criminal Law Search Warrant (1997) 68 Sasr 200

[1997] SASC 6088

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, BOLLEN AND PRIOR JJ

Criminal law - search warrant - validity - legal professional privilege. The Commonwealth of Australia Constitution Act 1901 s109; Summary Offences Act1953 (SA) s67, referred to. Theophanous v Herald & Weekly Times Ltd & Anor (1994) 124 ALR 1; Union Steamship Company of Aust Pty Ltd v King (1988) 166 CLR 1; Cunliffe v Commonwealth (1994) 182 CLR 272; Leask v Commonwealth
(1996) 70 ALJR 995, applied. The Commissioner, Australian Federal Police & Anor v Propend Finance Pty Ltd & Others (1997) 141 ALR 545, considered.

ADELAIDE, 2 December 1996 (hearing), 26 March 1997 (decision)

#DATE 26:3:1997

Appellants SA Police, Kathryn Heather Finnigan, David Alexander Hunt, Allan John Giersch:

Counsel: Mr B Selway QC with Ms P Barnett

Solicitors: DPP (SA) :

Respondent Francesco Bagyio Carbone:

Counsel: Mr M Abbott QC with Mr D Agresta

Solicitors: Wallmans

Intervener Attorney-General for the State of South Australia (Cross-Appeal):

Counsel: Mr B Selway with Ms R F Gray

Solicitors: Crown Solicitor

On appeal from Legoe AJ: Police & Others v Carbone

Appeal allowed and cross-appeal dismissed.

BOLLEN J

1. In 1995 Legoe AJ heard (putting it briefly and roughly) argument supported by affidavits and other written material about the legality (putting it widely, too) of action by the police. That action was the taking of many documents from the offices of the plaintiff, Carbone. He is a private investigator. He conducts business under the name of F.C. Eagle Investigations. Police suspected that information in some of his files would help in investigating crimes or offences.

2. The police acted or purported to act (as this Full Court will decide) under a general search warrant issued by the then Acting Commissioner of Police "under" s67 of the Summary Offences Act 1953 (SA).

3. Various proceedings had been issued. They were summonses and an application for judicial review. Declarations were sought. The constitutional validity of s67 mentioned above was challenged. Section 78B of the Judiciary Act (Comm) required that notices be served on the Attorney-Generals of all States and Territories. That notice was served. It said:- "TAKE NOTICE that in the abovementioned proceedings the following issues have arisen:

1) Whether s67 of the Summary Offences Act 1953 (SA) is ultra vires the Commonwealth Constitution and in particular ss106 and 109 thereof.

2) Whether a general search warrant issued pursuant to s67 of the SummaryOffences Act 1953 (SA) and its use thereof is unconstitutional.

3) Whether the Constitution of Australia and its implied powers render s67 of the Summary Offences Act 1953 (SA) ultra vires the power of the Parliament of South Australia."

4. The history of proceedings is set out in the reasons of Legoe AJ. I will not repeat that history nor descend to recording detail about the affidavits and papers submitted to Legoe AJ. The reasons of Legoe AJ should (no doubt like any other case) be read prior to a reading of these reasons. These reasons are not altogether a self-contained document.

5. However, it is well to set out the terms of the warrant issued under, or purportedly under, s67. Legoe AJ wrote:- 1. "The general search warrant referred to in the summons is a general search warrant issued under the Summary Offences Act 1953. It is addressed to Chief Inspector Katherine Heather Finnigan. The search warrant reads as follows:-

'You are hereby authorised at any time in the day or night, with such assistants as you think necessary, to enter into and search any house, building, premises or place where you have reasonable cause to suspect that -

(a) an offence has been recently committed, or is about to be committed;

(b) there are any goods obtained by an offence;

(c) there is anything which can afford evidence as to the commission of an offence; or

(d) there is anything which may be intended to be used for the purpose of committing an offence;

and to break open the house, building, premises or place and to break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which you have reasonable cause to suspect that -

(e) there are any goods obtained by an office;

(f) there is anything which may afford evidence as to the commission of an offence; or

(g) there is anything which may be intended to be used for the purpose of committing an offence;

and to seize any such goods or things to be dealt with according to law. This warrant remains in force for six months from this date.

Dated this first day of January 1995.'"

6. So the police came and took what they wished. They took many documents. Mostly they were files. They took cassettes and negatives of photographs also.

7. Under the heading "The Facts" Legoe AJ recorded important information in his reasons. He wrote:- "The Facts

The plaintiff discloses in an affidavit filed on his behalf in these proceedings the following basic facts:-

1. He is proprietor of F.C. Eagle Investigations which carried on the business of a private investigator.

2. On 27 April, police headed by Chief Inspector Finnigan, attended at his work premises and home address and at the home of his aunt as well as his brother.

3. Chief Inspector Finnigan informed him that she was in charge and produced a general search warrant. The seizure of all documents commenced immediately. The plaintiff informed the police that a large number of the documents arose during the course of investigation on behalf of solicitors and he claimed legal professional privilege in respect of the documents seized.

4. He immediately telephoned his solicitor. When the solicitor returned the call he informed the plaintiff of his rights. The plaintiff thereupon conveyed to Chief Inspector Finnigan the claim for legal professional privilege in relation to the documentation.

5. Chief Inspector Finnigan indicated that she was not prepared to hold the documents pending determination by a court. The police wanted to inspect the documents unless there was a court order. After further discussions with senior counsel, the Commissioner of Police and the Director of Public Prosecutions it was decided that the documents seized would not be inspected until 4.00pm on Friday 28 April.

6. The plaintiff's solicitor then attended the premises. The police seized all current working files, computer disks, books, records, bank statements, cheque books, hard disks of computer and computer print-out.

7. The plaintiff says that his clients consist of legal firms, banks, insurance companies, finance companies and other private clients. A number of working files contained brief, statements and exhibits relating to civil, criminal and Family Court proceedings. The plaintiff further says in paragraph 11 of the affidavit dated 3 May 1995:-

'As much of my work is of a confidential nature I believe the conduct of my clients' matters may be prejudiced as a result of this raid.'The plaintiff further contacted his clients who informed him that they intended to claim legal professional privilege in relation to the documents contained in the files.

8. Prior to establishing his present business of legal investigations, the plaintiff owned a business Apcal Investigations. That business was purchased in approximately 1980. He worked that business for twelve years. In November 1992 he sold Apcal Investigations to Affra Pty Ltd and Slav and Debra Renko were the directors of that company. The plaintiff claims that he informed Mr and Mrs Renko that the current enclosed files in the sale of the business did not belong to the plaintiff but to each individual client. The information was to be treated as confidential. No-one was to have access to the files or any information contained in the file without the express permission of the individual client.

9. The plaintiff's application for a declaration that the seizure was illegal and that the documents be returned to him was heard before the Honourable Justice Prior on 28 April 1995. At His Honour's suggestion an initial inspection of the documents took place on Tuesday 2 May 1995. The matter was next heard in court on 3 May 1995 before the Honourable Justice Cox. An order was made that an independent solicitor be appointed to examine the contents of the seized files, with the plaintiff's solicitor present, to identify which documents and/or files are of interest to the DPP in their investigations and which are not. There was an undertaking that the nominee not reveal the contents of the documents and/or files to anyone. Those files seen to be of no interest were to be returned to the plaintiff. Mr Peter Wilson, a solicitor employed in the Crown Solicitor's Office, was nominated as the independent solicitor.

10. Inspection of documents was carried out over a period from 5 to 11 May 1995. After examination of each of the files, those which were not considered relevant were returned to the plaintiff. The retained documents were again placed in boxes and resealed."

8. The plaintiff, Carbone, challenged the validity of s67. If that challenge had succeeded nothing else would have mattered. The challenge failed before Legoe AJ. It was vigorously pursued on appeal. In addition questions of "proportionality" and of s109 of the The Commonwealth of Australia Constitution of Australia Act 1901 were debated. Legoe AJ found against the plaintiff on all these issues.

9. The plaintiff claimed, too, that the documents taken were protected by legal professional privilege. They should, he asserted, all be returned to him.

10. I remind the reader that Mr Peter Wilson was, by consent and by agreement, engaged to assist in this matter.

11. I should recite more of the reasons of Legoe AJ to set the scene. His Honour said:- "The plaintiff's claim for privilege is contained in paragraphs 75 to 78 of his affidavit sworn on 18 May 1995. That claim is, inter alia, as follows:-

(a) Legal professional privilege is claimed in respect of those files and documents which were brought into existence for the sole purpose or use in actual or anticipated legal proceedings and/or for the giving of legal advice by legal practitioners to their clients.

(b) Of the current files, 60% are open following instructions from solicitors to investigate and report on actual or anticipated legal proceedings. The remainder relate to insurance companies, bank and private company clients.

(c) Of the documents selected by Mr Peter Wilson, the plaintiff believes they fall into the following categories and come from the following files:-

(i) files commenced on written or verbal instructions from a legal practitioner;

(ii) files commenced on instructions from legal practitioners not related to actual or anticipated legal proceedings which may be privileged, depending on the nature of the task related to the advice the solicitor wishes to give to the client;

(iii) files commenced on instructions from lawyers for investigations unrelated to legal proceedings or legal advice eg missing persons;

(iv) files in relation to insurance companies who, on advice of their solicitors, instruct the plaintiff to do work relating to actual or anticipated legal proceedings; such files contain similar material to those set out in category (i) above;

(v) files in which insurance companies instruct the plaintiff directly;

(vi) files commenced on instructions from banks and finance companies seeking information and investigations, usually with reference to proposed recovery of debts;

(vii) files which relate to members of the public who seek information and/or who require investigation and information for proposed or actual recovery of debts;

(viii) files commenced in instructions from members of the public who contact the plaintiff for direct general inquiries and information eg pre-employment checks;

(ix) files containing miscellaneous items, that is, cheque butts, computer disks, personal and business accounts, shredded material and photographs.

(d) Of the files referred to above, the plaintiff says that they

'invariably contain notes of instructions, work sheets, work done and investigations performed as a consequence of those instructions, a note of the time spent, a report to the client and an account if the file is closed'

(see paragraph 78 of the affidavit of 18 May 1995).

In his affidavit of 30 May, the plaintiff recites the relief which is sought in the inter partes proceedings which I referred to earlier in these reasons. As one of the stated grounds of his application, the plaintiff alleges that s67 of the Summary Offences Act 1953 is ultra vires the power of the Parliament of South Australia and, accordingly, the issue and use of general search warrants pursuant to the said section is unconstitutional.

The plaintiff further elaborates on his type of business and the type of work done by his business in paragraphs 10, 11 and 12 of his affidavit of 30 May where he refers to the services, including arson investigation, personal injury and disability claims, motor vehicle theft, burglary and property loss claims, employee investigations, traffic accident investigations, employment accident investigations, premises or public liability claims, product liability claims, and anti-industrial espionage and embezzlement investigations. Further, the business is concerned with missing debtors or persons who can be located Australia-wide, and a debt collection service is available. Third party recoveries are carried out on behalf of insurance companies, and asset and liability checks on persons or companies. Further, background inquiries, repossession, all types of process serving, as well as enforcement of all types of warrants where the company is appointed as special bailiff to the courts are also carried out. A rent collection service is available, and also a service of notices to vacate. Criminal defence inquiries are conducted, including taking of witness statements, witness protection and transportation and assistance and preparation of the brief for litigation. His company also investigates unfair dismissal claims and conduct loyalty tests. It carries out under cover or covert operations and provides a child custody service, carries out peace of mind reports and drug and cult investigations. Finally, personal and business security consultancy services are available.

On the above facts, a number of substantial issues were argued on the hearing of the plaintiff's summons for judicial review pursuant to R98. Those issues in general terms are:-

General search warrants issued pursuant to s67 of the Summary Offences Act are invalid because:-

(a) S67 offends an implied constitutional right referred to in general terms as a right of privacy which is to be implied in the Commonwealth Constitution which renders a State law transgressing such a right unconstitutional.

(b) S67 as it offends the implied right to privacy in the Constitution and is invalid because it is an inconsistent law within the meaning of s109 of the Commonwealth Constitution.

(c) S67 offends the implied right to privacy in the Constitution of South Australia and is, therefore, beyond power and ultra vires.

(d) S67 is beyond the power of State Parliament because the laws must be for 'peace, order and good government of the State' and s67 does not fall within that category.

Legal professional privilege is claimed in respect of the documents that were seized and this protects the documents from seizure provided that:-

(a) they are not in furtherance of a crime or illegality;

(b) they are for the purpose of communication to a lawyer, whether the documents are actually used in litigation or not;

(c) they related to legal proceedings, actual or contemplated, or to the giving of legal advice to a client.

Very lengthy submissions were put to me in relation to all of these issues and a large number of authorities were referred to. Without disrespect to the extensive research and careful submissions that were put to me, I propose to deal with these issues in the above order and as briefly as possible give my reasons for determination of those issues. If I do not refer at length to the submissions, I indicate that I have carefully considered the extent of those submissions and the authorities to which reference was made."

12. I, too, propose to deal with everything as briefly as possible. Failure to speak of any submission does not mean that I have not considered it. I have considered each submission with varying degrees of interest and approval or disapproval.

13. Legoe AJ first embarked on the "Constitutional Issues". He recited s67. He dealt with cases touching it. He dealt with the suggestion that implied right of free speech, contained as was said in the Constitution, destroyed any suggestion that the warrant here was validly issued. Much was said of the freedom from invasion of private rights. His Honour said:- "I accept that there is a wealth of authority establishing that there is a common law right recognised in this country protecting citizens from invasions of their private rights to property and possessions. Indeed, the whole history of the law is fundamentally based on the law of trespass and the protection of citizens from interference by unlawful seizure or removal of that citizen's property by force or without the consent [of] the citizen. But counsel for the plaintiff submitted that such a right will be implied into the Constitution of the Commonwealth and into the Constitution of this State because in Australia the citizens live in 'representative democracy' and it is one of the cornerstones of a representative democracy that a man's home is his castle and no-one will enter his premises without his consent unless authorised specifically to do so. Freedom from unauthorised and arbitrary entry and search is a necessary and fundamental right of society. In support of this proposition counsel made extensive reference to Theophanous v Herald and Weekly Times Ltd and Anor
(1994) 124 ALR 1. In that case the first defendant had published in its newspaper a letter to the editor written by the second defendant relating to the views, performance and capacity of the plaintiff who is a member of Federal Parliament. The publication referred in particular to the plaintiff's capacity as chairperson of the Joint Parliamentary Standing Committee on Migration Regulations. The letter questioned the plaintiff's fitness to hold office as a member of Parliament. At the time of publication a Federal election was anticipated within one or two months. The plaintiff had commenced defamation proceedings in relation to the publication. The plaintiff moved to strike out the defences pleaded by the first defendant to the effect that the publication was pursuant to a freedom guaranteed by the Commonwealth Constitution to publish certain political material."

14. His Honour went on to speak of the pleadings and the history of the hearing in Theophanous' case. He summarised some principles extracted from the reasons of Mason CJ, Toohey and Gaudron JJ. His Honour said:- "The Court held, inter alia,:-

1. There is an implied freedom of communication with respect to the discussion of government and political matters: see Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; 108 ALR 681; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; 108 ALR 577 - applied.

2. The implied freedom of communication is not limited to communication between the electors and the elected but rather extends to members of society generally, applying Australian Capital Television Pty Ltd v Commonwealth (supra).

3. Political discussion includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, following Nationwide News Pty Ltd v Wills (supra).

4. If the Constitution, expressly or by implication, is at variance with the adoption of the common law, the latter must yield to the former.

5. When the purpose of the implication is to protect the efficacious working of the system of representative government mandated by the Constitution, the freedom which is implied should be understood as being capable of extending to freedom from restraints imposed by law, whether statute or common law.

6. The belief of the founders at the end of the last century as to the sufficiency of protection conferred by statute cannot limit the content of an implication to be drawn from the Constitution, particularly if it transpires that the effect of the common law and the statute as it now stands is to interfere unduly with the freedom of communication.

7. An implication of freedom of communication, the purpose of which is to ensure the efficacy of representative democracy, must extent to protect political discussion from exposure to onerous criminal and civil liability if the implication is to be effective in achieving that purpose, following City of Chicago v Tribune Co (1923) 139 NE 86 and Derbyshire CC v Times Newspapers
(1993) AC 534."

15. His Honour went on, in the effective part of his reasons, to discuss Theophanous' case. He wrote:- "But that case was principally concerned with the fundamental constitutional right of freedom of speech and the defences available in defamation proceedings, whether they are defences at common law in the States of Victoria and South Australia or statutory defences in some of the other States. The conflicts of the law in that case were between the basic principles of the common law in so far as they had received statutory enactment in some of the States and the fundamental principles of constitutional law relating to freedom of speech and communication and criticism, particularly in relation to political matters and members of Parliament and Parliamentary procedures as concerned with the system of representative democracy in Australia. I point out that the defence which was relied upon by the defendants in Theophanous's case was a complete defence to the action for defamatory publication instituted by the plaintiff, a member of Parliament.

In the case at bar, the conflict is between the basic common law rights of freedom from interference with one's property or possessions as expressed in the principles of the law of trespass and the criminal law, whether statutory or in common law, and the extent of the interference with those basic rights by parliamentary enactment of a provision, namely s67 of the Police Offences Act, with its inbuilt restrictions and qualifications. It is suggested that the basic common law right of freedom from interference with one's property and possessions is an implied constitutional right.

If such a right did exist, I am not convinced that s67 of the Police Offences Act interferes with that right to any greater extent than the special search warrants supervised by judicial control.

As I understood him, Mr Abbott QC attempted to distinguish between specific warrants, which are not issued unless a judicial officer authorises the search by warrant, and authorises it with specified conditions in the court's order, and general warrants. However, it seems to me that s67 has its own inbuilt restrictions and specifications which were outlined by Mr Abbott QC in his address. Further, in my opinion, there is not a true analogy between the constitutional right of freedom of speech and communication, so extensively discussed in the Theophanous case, on the one hand and the implied constitutional right which is relied upon in this case, namely, freedom from interference with one's property and possessions.

Any implication found in the Constitution must be 'securely based': see Australian Capital Television Pty Ltd v Commonwealth (supra) at 134 per Mason J. Further, it is acknowledged that the framers of the Constitution did not incorporate into the Constitution comprehensive guarantees of individual rights, and it is difficult, if not impossible, to establish the foundation for the implication of general guarantees of fundamental rights and freedoms, ibid at page 135-136. Implications may be derived from the actual terms of the Constitution or the structure of the Constitution. In this case the plaintiff has not been able to itemise any provision or series of provisions of the Commonwealth Constitution upon which any alleged individual right to protection from interference to property and possessions can be implied. The implication sought to be drawn cannot be textual. The basis for the alleged implication is the system of representative government for which the Constitution makes provision: see Australian Capital Television Pty Ltd v Commonwealth (supra) at 135 per Mason CJ where His Honour said:-

'However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure.' (my emphasis)

In the case at bar, there is no indication that a freedom from interference with property or possessions is logically or practically necessary for preservation of the integrity of the structure of the Constitution.

For these reasons I would reject the submissions of counsel for the plaintiff that there is any implied right in the Constitution which has been interfered with in the way explained in the recent decisions in the High Court of Australia so as to render the provisions of s67 unconstitutional and invalid."

16. I respectfully agree with everything which Legoe AJ has said on this issue. I cannot think that I can improve on his language. I adopt his reasoning.

17. Legoe AJ then dealt with the suggestion of inconsistency in the application of s109 of the Constitution. I will not lengthen these reasons by reciting His Honour's reasoning. He held that there was no inconsistency. He said that there was no suggested rights which clashed with s67. I respectfully adopt his reasoning. So too with the related issues of proportionality and international law as part of municipal law. I agree, too, with His Honour's reasoning about the power of the South Australian Parliament to legislate for the peace, order and good government of South Australia. In my opinion there can be no doubt that s67 is such a law. Section 67 has its own inbuilt protections. A law permitting the issue of search warrants in the terms used by s67 is plainly intended for the peace, order and good government of South Australia.

18. I add a word about the idea of "proportionality". This is allied to the question of the exercise of the power to legislate for the peace, order and good government of South Australia. The power to legislate for the peace, order and good government of the State is plenary (Union Steamship Company of Australia Proprietary Limited v King (1988) 166 CLR 1). As the Solicitor-General said in his outline "As the power is plenary and not limited by any "purposive" considerations, the 'concept of proportionality' has no relevant application (Cunliffe v Commonwealth (1994) 182 CLR 272 and Leask v Commonwealth (1996) 70 ALJR 995."

19. I come to the second of the two issues which was most substantially debated before us. The first was the constitutional validity of s67. The second is the question of legal professional privilege. As has been pointed out Mr Peter Wilson acted to assist in this matter. I think that he gave great assistance. But there may be some doubt in some quarters about his role. In his submissions the Solicitor-General said that there may be some confusion about the role of Mr Wilson. I think the Solicitor-General has accurately stated that role. He does so in paragraph 6 of his written submissions. It is:- "Mr Wilson of the Crown Solicitor's Office was engaged to assist. There seems to have been some confusion as to his role, but it would appear that, in accordance with the directions of the Court, he was engaged by the Appellants as an officer of the Crown to:

(i) review the documents; (ii) determine which of the files did not contain any relevant documents and return those files to the Respondent; and (iii) mark the particular documents in the remaining files which were likely to be of most interest to the Crown.

The task performed by Mr Wilson was primarily related to the question of relevance, although that issue was not directly before the Court. Properly considered his role was to assist the efforts of the parties to organise the documentary material so that the Court would be able to deal with it. In particular, he was not acting as an agent of the Court and was not performing any judicial function.

As to Mr Wilson's role, see AB Vol 1 p46.14, 48.28, 52.21, 54.35-56.20, 58.19, 62.37-65.22, 67.2, 70.1, 71.19, 79.29-84.37, 102.29, 104.35, 105.22, Vol 3 p528.14

As a result of Mr Wilson's efforts, exhibit P5 was produced (AB Vol 4 pp 678-679). That exhibit (and its counterpart, D13 which was not copied) comprise the only detailed information available to the Appellants or their legal advisers (save Mr Wilson) in respect of the relevant documents or files."

20. I think that the parties chose the path of debate. It was to proceed, so far as the question of privilege was concerned, on the selection of files made by Mr Wilson. He established the relevant files which needed to be considered when considering privilege. The parties were content for that to happen. Legoe AJ proceeded on that basis. He was in no way at fault in so doing. He cannot be criticised for not discussing each piece of paper taken by the police pursuant to the warrant. All parties have appealed. No-one is now content with the finding of His Honour. But the case has been fought and debated as the parties chose or agreed. As to method of procedure by the learned trial judge nothing can be said against that method. Of course, individual decisions about the existence or no of privilege can be considered here. I will do that. But first I must recite the reasoning of His Honour on privilege. His Honour said:- "Legal Professional Privilege

Counsel for the plaintiff submitted that the documents which are still in issue in these proceedings are protected by legal professional privilege. He submitted that where a lawyer directly instructs a private investigator to do work then all the documents generated by such instructions are covered by legal professional privilege, when the three following provisos are satisfied:-

1. They are not in furtherance of a crime or illegality;

2. They are for the purpose of communication to a lawyer, whether actually used or not;

3. They related to legal proceedings, actual or contemplated, or to giving of legal advice to a client.

Where a client directly instructs a private investigator to do the work, then it is submitted that all the documents generated by such instructions are covered by legal professional privilege with the same provisos. Further, it is submitted that legal professional privilege covers not merely a report but the working papers and documents upon which such report was founded: see Attorney-General of the Northern Territory v Maurice (1986) 65 ALR 230 and on appeal to the High Court (1986) 161 CLR 475. Legal professional privilege is said to cover investigations, research and inquiries carried out for the purposes of litigation, actual or contemplated or the giving of legal advice. Documents which are brought into existence for the sole purpose of being eventually submitted by the client to the client's legal advisers are protected by legal professional privilege: see Grant v Downs (1976) 135 CLR
675.

In Grant v Downs (supra) on appeal to the High Court from a decision of Rath J in the New South Wales Supreme Court the majority of the High Court, Stephen, Mason, Jacobs and Murphy JJ, held that legal professional privilege is confined to documents which are brought into existence for the sole purpose of their being submitted to legal advisers for advice or for use in legal proceedings. A document which would in any event have been brought into existence for another purpose is not privileged from production after discovery on that ground. At page 694 Jacobs J, who agreed with the majority, put the matter succinctly when he said:-

'Though there is much in various of the authorities to support the approach of Rath J, the authorities are themselves varied in their approaches, as I have earlier indicated. In my opinion, where the purpose, in the sense of intended use of documents, is that of submission to legal advisers, but only in the contingency of actual or of proposed or threatened litigation, that purpose or intention must account for the bringing of the documents into existence.'

The majority put the matter in a more extended form on pages 688-689.

Counsel for the plaintiff further submitted that documents created for the purpose of assisting a lawyer to give legal advice to a client are protected by legal professional privilege: see Baker v Campbell (1983) 153 CLR 52.

As a result of the interlocutory orders and directions given in this matter up until the final argument, the documents which were the subject of the police inquiries connected with the search and seizure were carefully scrutinised by the independent solicitor appointed, Mr Peter Wilson. The documents which have been retained and gone through by the independent solicitor emanate from three sources: one, from lawyers; two, from claims managers of insurance companies or process servers, and three, miscellaneous parties instructing the plaintiff direct. The files were given numbers which were analysed and checked by the independent solicitor and that analysis was condensed into a schedule of the documents retained by the Sheriff's Office with the independent solicitor's comments on it in relation to particular documents. That was exhibit D13. Following on that schedule, the plaintiff's solicitors have prepared a schedule in which those same file numbers are listed in the left hand column, the next column has the nature of the matter, the third column has the instructing organisation, the fourth column refers to the affidavit in relation to that matter, the fifth column is the state of the proceedings, whether various proceedings are contemplated or are in progress, et cetera, the sixth column relates to the documents which have been isolated by the independent solicitor, and the last column is a list of those documents in respect of which the plaintiff claims privilege.

For determining the question of whether privilege exists in relation to these documents in the two schedules just referred to, I have applied the principles in the numerous cases, particularly Grant v Downs (supra), Baker v Campbell (supra), R v Cox and Railton (1884) 14 QBD 153, Varawa v Howard Smith
(1910) 10 CLR 382 at 385, Attorney-General for the Northern Territory v Kearney (1985) 61 ALR 55 at 61, Carbone v NCA (1995) 126 ALR 79 at 91 and National Employees Mutual General Insurance Association v Waind (1979) 24 ALR
86 where at page 91 Mason J (as he then was) draws the distinction between documents which have been prepared or which have come into existence for the sole purpose of the principles in Grant v Downs (supra) and other cases in contrast to documents which are brought into existence -

'... with a view to providing a basis for discontinuing payments of compensation in cases in which an initial liability has been conceded or established. In this instance again, documents are brought into existence to enable the appellant to decide what it will do. In this situation, if the appellant decides to discontinue payments, litigation is likely to ensue. Although there is a greater likelihood that documents of this class will be submitted to solicitors for use in litigation, the primary function for which they are called into existence is, as the trial judge said, to enable the appellant to make a decision in the ordinary course of its business. Only when the appellant has made a decision to discontinue payments will the documents be submitted to solicitors for use in the subsequent litigation.'

I have also taken into account the general principles relating to the interests of justice and those of the administration of justice as discussed in such cases as R v Cox and Railton (supra) and R v Bell ex parte Lees (1980) 145 CLR 146 at 151-152.

In relation to alleged copies of police documents, Mr Abbott QC drew my attention to a statement of Hill J in Propend v Commissioner of Australian Federal Police (1995) 128 ALR 657 at 690 where His Honour said:-

'This leads me to the conclusion that copies of documents otherwise not the subject of legal professional privilege are themselves the subject of such privilege only where the copies are made for the sole purpose of obtaining advice upon matters contained in or concerning the original and in circumstances where to compel production of the copy would or could operate to reveal the subject matter upon which advice was sought. I leave to one side the question of copies made for the purpose of actual or impending litigation.'

I have carefully considered Mr Abbott QC's submissions in this regard but find, upon a perusal of the documents which have emanated, for example, from the Police Department, albeit that they are copies of one description or another, do not fall within the remarks of Hill J in the last-mentioned case because they were not brought into existence for the sole purpose of obtaining advice. In any event, those documents are, on the affidavit material before me, prima facie tainted with the criminal activities which are the subject of the police prosecution which was connected with the reasonable suspicion entertained by Chief Inspector Finnigan who conducted the search and seizure operation on the plaintiff's premises and those of other premises connected with the plaintiff on 27 April 1995.

I have approached the actual inspection of the documents which I have carried out along the lines of the various classes of documents referred by Lockhart J in Trade Practice Commission v Stirling (1978) 36 FLR 244 at 245-246(a), (b), (d) and (f). When going through the documents I have borne in mind these questions:-

1. How did the protection arise?

2. Is the material sought capable of attracting the protection claimed?

3. Was that information communicated in circumstances that give rise to protection?

4. Is the person making the claim for protection the right person to make the claim?

See Simpson Bailey and Evans on Discovery and Interrogatories (1984) page 135, chapter 7.

I have prepared three schedules. The first lists the documents which I consider to retain the privilege claimed which is established on the affidavits. The second lists those documents which, in my opinion, are not privileged either because they are tainted with illegality, or because no privilege attached to them being copies not brought into existence for the sole purpose of being submitted to legal advisers or being documents which were not brought into existence for the sole purpose of being submitted to legal advisers. The third list is documents in respect of which no privilege is claimed or over which privilege is waived.

For these reasons I reject the claims by the plaintiff that the section is unconstitutional and invalid. There was no submission that the general search warrant was improperly obtained or that there was any defect in the execution of the warrant. Nor was there any suggestion that the procedures adopted by Chief Inspector Finnigan were in any way inappropriate or improper. On the question of legal professional privilege I rule that the documents referred to in the non-privileged schedule and in the schedule where no privilege is claimed do not have any status as privileged documents or communications and those documents can be retained by the defendant. In making that ruling I want to make it clear that I am not ruling that the files as such are to be retained because I have not been asked, nor could I be asked, to rule on the files as a whole. I have simply given my ruling on the documents which have been isolated by Mr Peter Wilson in his Schedule D13 and compared those documents with the documents in the plaintiff's list, exhibit P5."

21. These were His Honour's reasons for the orders which he made. I see no fault nor error in his remarks nor in his reasoning. There was talk of His Honour's not following through his reasons with appropriate orders. In the sealed order following his decision appear paragraphs 2 and 3 as follows:- "2. That the documents contained in Schedule 1 to the Judgment of the Honourable Acting Justice Legoe and marked privileged are the subject of legal professional privilege, and should be handed to the plaintiff.

3. That the documents contained in Schedule 2 to the Judgment of the Honourable Acting Justice Legoe and marked non-privileged are not the subject of legal professional privilege and should be handed to the first defendant, along with the documents referred to in Schedule 3 to the Judgment."

22. Some documents must be released to the Commissioner of Police. Some must be returned to the plaintiff. But it is said "What of 'things' (eg cassettes or negatives) not on the schedules?". The answer is that they fell outside the debate as agreed to by the parties. They have been taken under a valid warrant. No privilege has been shown to affect them. They must be handed to the first defendant (that is to the police). This is the general position.

23. I think that in this case a consideration of the many documents in relation to privilege will turn on onus of proof. I agree with paragraph 15 in the written outline of the argument of the Solicitor-General. Paragraph 15 is:- "(15) Where a party asserts legal professional privilege, that party bears the onus of showing that the 'sole purpose' of bringing the document into existence was to submit the document to legal advisers for advice, or for their use in legal proceedings. Grant v Downs (1976) 135 CLR 674, 678, 688, 692. National Employees Mutual v Waind (1979) 141 CLR 648, 654-656, 657 Allens v DCT (1988) 81 ALR 617, 626-628; (on appeal) (1989) 86 ALR 597, 601

If the party fails to discharge that onus then the claim for legal professional privilege fails. NCA v S (1991) 100 ALR 151, 159-160"

24. Legoe AJ drew up three lists. They are:- "SCHEDULE 1 REFERRED TO IN THE REASONS FOR JUDGMENT OF THE HONOURABLE ACTING JUSTICE LEGOE AT PAGE
30 OF PRIVILEGED DOCUMENTS IN D13

25, 16, 1A, 33, 58(B) 67,72 (in part), 50, 273, 327, 361, 438,453, 467, 468, 475, 476, 488,553, 555, 561, 563, 585, 617,810(a), 810(b), 820, 822, 821, 846,950, 954, 955, 956, 958, 962,963, 971, 972, 973, 976, 981,982, 983, 984, 985, 986, 994,995, 996, 1031, 1071, 1083, 1086,1087, 1088, 1093, 1094, 241, 12

2 REFERRED TO IN THE REASONS FOR JUDGMENT OF THE HONOURABLE ACTING JUSTING LEGOE AT PAGE 30 OF NON-PRIVILEGED DOCUMENTS IN D13

29, 27, 22, 72 (draft letter to solicitors of 18.5.94 on page 4 of that document and page 7 reference to typed report 94/W74104),52(B), 76, 106, 156, 157, 160, 170,174, 186, 191, 214, 218, 242, 9,23, 30, 60, 79, 98, 102, 291,357, 360, 363, 440, 466, 469, 470,471, 473, 474, 482, 483, 486, 491,492, 676, 713, 721, 801, 803, 806,807, 857, 871, 876, 929, 957, 974,1039, 1053, 1062, 1066, 97

3 REFERRED TO IN THE REASONS FOR JUDGMENTOF THE HONOURABLE ACTING JUSTICE LEGOE AT PAGE 30 OF DOCUMENTS OVER WHICH NO PRIVILEGEIS CLAIMED OR OVER WHICH PRIVILEGE IS WAIVED

31, 124, 164, 171, 364, 591"

25. I have examined the files in the boxes. They came to me as they left the court of first instance. That is to say, things and papers seized came to me in sealed boxes. The seals bear the signature of Legoe AJ. In December 1996 and January 1997 I opened them. I read all things in the boxes so far as was possible. I did not play cassettes etc. I did not examine "negatives". That is what Mr Wilson did. That is what Legoe AJ did.

26. I have come to different conclusions to those of Legoe AJ about the existence or no of privilege for some files. I have considered the comments made about the files by Mr Wilson. In some cases I cannot see that the file is as he describes.

27. I do not think that every instruction, in writing, given by a solicitor to an inquiry agent is automatically privileged. The underlying idea of legal professional privilege is the value or need of information on which legal advice can be given. Instructions given to serve process is sometimes allied to requests to speak to the served person. Mere instructions to serve process will usually not attract privilege. Instructions to execute warrants may, depending on the circumstances, be privileged. Sometimes it will depend on the view one takes of enforcement proceedings. Are they in the appropriate sense "legal proceedings"? I have borne these matters in mind. I have borne in mind the authorities and the principles mentioned by Legoe AJ. When I am bold enough to differ from him it is a difference in perception of the papers not a difference of thought about principle or the effect of any authority. But I have applied the privileges which he espoused.

28. I now set out in note form the files examined with my comments. Also in note form is the application of the principles mentioned or my noted comment or a combination of both which led me to the decision about "privilege or no".

BOX 1

The first file that was the uppermost file when I got the box is a looseleaf folder of papers with various documents about various matters in it. It is File 72. There were papers about a stolen car. There were inquiries about these on behalf of insurers but on instructions from solicitors. There was much investigation and gathering of paper in relation to this matter. That was the first section of this looseleaf folder. That section contains papers which themselves contain statements directed to information about what happened to that vehicle stolen. Connection with Carbone comes later in the file where various other reports are there. They were done at the instigation of solicitors. The papers are voluminous. There are various reports, that is, to solicitors in the second section of the folder. There are various search documents touching this matter and other matters. There have been instructions through solicitors to make inquiries for an insurance company. I think that File 72 is so closely connected with the instructions given by solicitors for the obtaining of information to help them advise the insurers that although there are some instructions coming direct from insurers the whole file should be privileged. Legoe AJ had part of it in the non-privileged section and part in the privileged section but I think the whole should be privileged. I disagree with Legoe AJ.

In that Box 1 there was another file marked File 1(a). That consisted of notes. There is nothing to show that any protection by way of legal professional privilege should be afforded this file. I differ from Legoe AJ who has it in the privileged section.

File 16 - deals with enforcement of judgment. Treating the proposed enforcement proceedings as "legal proceedings". There are instructions from solicitors. The file is privileged. The file is privileged because the plaintiff obtained information about assets of the debtor which information was available to solicitors in advising whether to sue or not. Legoe AJ found privilege.

Then there is File 22. It was about a search for a third party. There was no solicitor involved and no legal proceedings. Therefore, no privilege as Legoe AJ found.

File 25 - contains papers about inquiries being made before settlement of an action. Proceedings had been issued and the file, in my opinion, is privileged as Legoe AJ found.

1. File 29 - deals with inquiries about suggested burglary. This was done without solicitors and with no proceedings shown to be contemplated or issued. No privilege. I agree with Legoe AJ.

File 33 - deals with a complaint about Carbone's taking of a vehicle in purported pursuance of a warrant. Correspondence with "Consumer Affairs" is all that is in the file. But Mr Wilson points out that, from loose papers, he saw that solicitors were in the matter and had given advice. Therefore File 33 is privileged as Legoe AJ found.

File 58(b) - this was papers about help sought from Carbone in inquiries into a criminal matter where solicitors were acting. File 58(b) is privileged as Legoe AJ found.

File 67 - records action which was required after solicitors had given instructions. The file is privileged as Legoe AJ found.

File 97 - deals with inquiry matters in which there were no solicitors and nothing shown about the issuing of legal proceedings. No privilege. I agree with Legoe AJ. BOX 2

29. In Box 2 there were: 1. A sealed envelope with four cassettes in it. The cassettes are in envelopes. The whole is in a large envelope.

2. Sealed envelope containing eight computer discs (Laser-MS windows).

There is not sufficient information to establish privilege for 1 and 2.

3. A file numbered on the outside File 50. Eagle is seeking information for a court case. Solicitors are in it. The file is privileged as Legoe AJ found.

4. File 52(b) has some notes with vehicle numbers on it. No reason to say that it is privileged. Legoe AJ found no privilege.

5. File 12 - this is a file the whole of which should be held privileged as Legoe AJ found. Some papers have green stickers but all are infected by legal privilege. In it were instructions from Adams Kandelaars given to Eagle for court proceedings to the extent of $10,000. The file contains information gathered by the plaintiff for solicitors which became available to the solicitors in advising whether to sue or not.

6. File 31 - this was just a search for a person. Privilege not now claimed.

7. File 76 - papers touching work done about an incident at Norwood on the 26th of March 1994 where information was being gathered for solicitors in the expectation of proceedings. The whole file privileged contrary to what Legoe AJ decided. Box 3

30. This box contained: 1. File 106 - miscellaneous accounts for all sorts of work. No privilege as Legoe AJ found.

2. File 124 - search for third party in a motor accident. Privilege not now claimed.

3. File 170 - service and execution of warrant. No privilege as Legoe AJ found.

4. File 171 - stolen motor vehicle - inquiries only. Privilege not now claimed.

5. File 186 - inquiries about ownership of a vehicle. No privilege as Legoe AJ found.

6. File 191 - search for third party. No privilege as Legoe AJ found.

7. File 218 - inquiries not through the instigation of any solicitor. There is no information about legal proceedings. No privilege as Legoe AJ found.

8. File 214 - search for third party. No privilege as Legoe AJ found.

9. File 241 - searches here and reports about searching for witnesses in contemplation of litigation. All papers generated by the instructions which concerned possible litigation. The reports tell solicitors about inquiries for witnesses in much detail. But the papers in the file never speak of any information gained from any witness. The plaintiff's people seem to have got no statements. As there is nothing in the file which would help in giving legal advice I hold the file not to be privileged. This one I disagree with Legoe AJ..10. File 242 - inquiries to locate people. Nothing else in the file. No privilege shown as Legoe AJ found..11. File 273 - solicitors' instructions. Probably given with a view to litigation. Sufficient in it to establish privilege as Legoe AJ found.

12. File 164 - now no claim for privilege.

13. File 156 - instructions to mount surveillance over a claimant. Many papers referring to that matter. It appears instructions must have been given with a view to Eagle's gathering information for solicitors to advise on. The whole file is privileged. I disagree with Legoe AJ who found that there was no privilege.

14. File 157 - this appears to me to have been merely instructions to serve process. There are reports about it. It looks as if there has been a motor vehicle search also. There are papers with motor vehicle numbers on them. I can see no gathering of information to help in advice about existing or contemplated litigation. I find no privilege. I agree with Legoe AJ.

15. File 160 - In this matter solicitors instructed the plaintiff to investigate the financial position of a party to litigation. I think that this file is privileged. It contains information useful for the giving of advice by solicitors about the wisdom of seeking security for costs. I disagree with Legoe AJ. BOX 4

31. Box 4 contained: 1. File 476 - these are instructions from solicitors to recover, perhaps by instalments, a judgment debt. Certainly, there is a judgment debt but this is enforcement of the debt or recovery and Mr Wilson has suggested that the legal proceedings were contemplated. That is not clear to me. I would hold that this is not privileged, contrary to the finding of Legoe AJ.

2. File 482 - there are instructions from the plaintiff itself, without a solicitor, to collect a debt. No privilege. Legoe AJ found no privilege.

3. File 475 - debt matter. Proceedings contemplated but no gathering of information. I find no privilege despite Legoe AJ's contrary finding.

4. File 473 - Debt. No privilege. Legoe AJ found no privilege.

5. File 471 - Debt. No privilege. Legoe AJ found no privilege.

6. File 470 - Debt collection. No privilege. Legoe AJ found no privilege.

7. File 469 - instructions to issue warrant of execution with nothing further. No privilege. Legoe AJ found no privilege.

8. File 468 - I find that there is no privilege in this debt collection matter. It is not clear to me that proceedings were contemplated despite Legoe AJ's so finding and finding privilege. I find no privilege.

9. File 467 - this was a debt matter. Eagle was to serve and search for the defendant and make some reports to the solicitors. The reports were about attempts to serve, service and reports on an interview with the defendant when defendant offered a settlement. Information, too, about his financial position. That was information available for consideration about advice concerning enforcement. As Legoe AJ found, that file is privileged.

10. File 474. Instructions to search for debtors. No instructions from solicitors. I find no privilege as did Legoe AJ.

11. File 453 - this was a debt matter in which legal proceedings were contemplated and threatened. The plaintiff's office got information about a debtor's assets and likely receipt of a compensation claim. As Legoe AJ found, the file is privileged.

12. File 466. Instructions from solicitors to serve enforcement proceedings. No privilege as Legoe AJ found.

13. File 440 - legal proceedings were issued. This was recovery of a debt after legal proceedings. Like Legoe AJ, I think there is no privilege.

14. File 438 - in this matter, despite the note Mr Wilson has made in D13, I can find no indication of more than solicitors asking Eagle to find someone and a letter of reply. I hold, contrary to Legoe AJ, that there is no privilege.

15. File 363 - this was instructions to search and recover judgment. All this was done in the course of legal proceedings and I think the recovery and attempts to recover in this case involved the reporting of facts for the consideration of solicitors. All part of legal proceedings. Contrary to Legoe AJ's opinion, I find it privileged

16. File 364 - privilege not now claimed.

17. File 361 - legal proceedings for debt were here issued and some information was provided for advice by the solicitors. Privileged as Legoe AJ found.

18. File 360 - asset and liability search in relation to a debtor. No threat of legal proceedings. No privilege. Legoe AJ found no privilege.

19. File 357 - there was work done here in the course of litigation in the taking of statements and the serving of subpoenas. The providing of those statements helped the solicitors advise the litigant. Legoe AJ found no privilege but I do not agree. I think that the file is privileged.

20. File 327 - this was work done in furtherance of litigation. File privileged. Legoe AJ found privilege.

21. File 291 - there were instructions here to mount a surveillance and watch over a claimant. That was done and reports submitted. I think it clear that there had been some litigation or at least it was contemplated. Contrary to the view of Legoe AJ, I think this is privileged.

22. File 102 - this was inquiries in taking of statements for defence of a criminal charge which, I think, contrary to the opinion of Legoe AJ, is privileged.

23. File 98 - in this matter there was no sufficient indication that any legal proceedings were contemplated. I think there is no privilege. Legoe AJ found no privilege.

24. File 30 - search for someone. I agree with Legoe AJ that there is no privilege.

25. File 60 - this file contains copies of statements of witnesses to police. There is nothing to suggest that privilege should be granted. Legoe AJ so found and I agree.

26. File 23 - in this matter bankruptcy proceedings were contemplated after a debt had been recovered by litigation. Instructions were given by solicitors. But the work to be done was the finding of a litigant and information about assets. No question of the getting of advice for solicitors to consider in giving advice. I think, as did Legoe AJ, that the file is not privileged.

27. File 9 - this is merely instructions to search for someone. I think there is no privilege. Legoe AJ found no privilege.

28. File 79 - a very extensive file. Sufficient to say that I agree with Legoe AJ that there is nothing in it to attract privilege.

32. Box 4 is very important. My views do not always agree on various files with that of Legoe AJ. He finds no privilege where I think there was privilege in some documents. In some cases there is obviously a different perception of what are legal proceedings. Legal proceedings and advice go together so that the mere instructions to take steps to enforce a judgment with a report about what has happened do not necessarily, without more, attract privilege.

BOX 5

33. Box 5 contained the following files: 1. File 483 - This was a debt collection matter with no solicitors' instructions. I find that there is no privilege as Legoe AJ found.

2. File 486 - Same comments as for 483.

3. File 488 - legal proceedings were instituted here and there was instructions during the course of those proceedings for search and service. There are reports about attempts to serve. But also a recommendation from the plaintiff to close the file. That, based on the information obtained, was available for solicitors to consider when advising for or against litigation. I hold this file privileged as did Legoe AJ.

4. File 491 - there were instructions here to inquire about a stolen car. No solicitors were in it. No privilege as Legoe AJ found.

5. File 492 - inquiries about a stolen car. No instructions from solicitors. No privilege as Legoe AJ found.

6. File 553 - this was a debt collection matter in which there were legal proceedings. Reports about assets of proposed defendant with comments on enforcement. All information on which solicitors could advise. Like Legoe AJ, I hold it to be privileged.

7. File 555 - this was legal proceedings for the collection of debt. The plaintiff was instructed merely to locate the defendant. He did and reported. I find no privilege. I disagree with Legoe AJ.

8. File 561 - this was a debt collection in which there was much coming and going about getting the defendant before a Magistrate. The plaintiff did not, however, gather any information on which solicitors could advise. I disagree with Legoe AJ. I find no privilege.

9. File 563 - same as 585 below.

10. File 585 - this was instructions to serve complaints for parking offences given by the solicitors of The Queen Elizabeth Hospital to Eagle. Legoe AJ held the file to be privileged. But I cannot agree. Service of a complaint is not a subject protected by privilege.

11. File 591 - Privilege not now claimed.

12. This was a voluminous file headed "Cheques 1987". It is File No. 617. Legoe AJ found privilege but I do not think there is enough information to discharge the onus of proving privilege. Here let me say again that I think (see authorities in Crown Solicitor's outline) that the onus is on he who asserts privilege to prove it. I think there is not enough here. Mr Wilson comments that legal proceedings were instituted but I cannot see that in the papers in the file. No privilege.

13. File 676 - this looks like a searching file. No privilege as Legoe AJ found.

14. File 713 - search for a person. No proceedings. No solicitors. No privilege. I agree with Legoe AJ.

15. File 721 - "searching file". No solicitors. No proceedings. No privilege as Legoe AJ found.

16. Files 801, 803 and 806 - no privilege. Same comments as for 721. I agree with Legoe AJ.

17. File 807 - accident inquiries. Instructions from insurers. No solicitors. No proceedings. No privilege. I agree with Legoe AJ.

18. Files 810(a) and 810(b) - public liability claim. Personal injuries inquiries. Proceedings instituted or contemplated. All these papers in these two files should, as Legoe AJ found, be privileged.

19. File 820 - parking offences at The Queen Elizabeth Hospital again. Instructions for service. No privilege. Legoe AJ found privilege.

20. Files 821 and 822 - same comments as for 820 (parking offences and service). No privilege. Legoe AJ found privilege. I disagree.

21. File 846 - these were instructions to serve an application to the Residential Tenancies Tribunal claiming rent and damages. Instructions were given from solicitors. But only to serve. No privilege. I disagree with Legoe AJ. BOX 6

34. Box 6 contained: 1. File 857 - searching for a person. No solicitors. No proceedings. As Legoe AJ found. No privilege.

2. File 1071 - instructions to serve and recover judgment debt. Instructions from solicitors. Plaintiff gathered information useful to solicitors in advising on enforcement. Privileged as Legoe AJ found.

3. File 950 - this was a debt and search instructions from solicitors. The solicitors say that they want to discuss payment of the debt with the person to be searched for when he is found and say nothing, as far as I can see, to suggest that they necessarily contemplated litigation. Privilege is not proved. I disagree with Legoe AJ.

4. File 929 - No solicitors. No proceedings. No privilege. Legoe AJ found no privilege.

5. Files 876 and 871 - same comments as for 929.

6. File 954 - instructions from solicitors. Instructions were to ascertain what assets the defendant had. Plaintiff reported. That was information on which advice could be given. I think that this is privileged. Legoe AJ found privilege.

7. Files 955 and 956 - same comments as for 954.

8. File 957 - instructions only to serve proceedings given by solicitors. Not enough to attract privilege. I agree with Legoe AJ.

9. File 958 - instructions only to search and inquire in relation to a debt. Not privileged. I disagree with Legoe AJ.

10. File 971 - instructions from solicitors to inquire about assets and the correct name of the party. The plaintiff found the party. The plaintiff's men arranged for him to fill in a financial questionnaire. Information in that was useful to the solicitor in advising. Legal proceedings contemplated. Privileged as Legoe AJ found.

11. File 972 - all we know from the file here is that solicitors instructed Eagle to conduct a motor vehicle search. Done and reported on. Not enough to prove privilege. Legoe AJ found privilege. I disagree.

12. File 973 - instructions from solicitors to serve. Reports on service were submitted. No privilege. I disagree with Legoe AJ.

13. File 962 - instructions to inquire. Useful information obtained. Legal proceedings instituted. Privileged as Legoe AJ found.

14. File 963 - Instructions merely to serve. Reports on service. I find no privilege. I disagree with Legoe AJ.

15. File 974 - merely instructions to serve process. I do not think there is any privilege. Legoe AJ found no privilege.

16. File 976 - an accident case. Instructions to search for a motor vehicle. No privilege. Legoe AJ found privilege. I disagree.

17. File 981 - instructions to serve from solicitors. Report on service. I find no privilege. I disagree with Legoe AJ.

18. File 982 - I agree with Legoe AJ. Here there were instructions to serve and inquire. The file is privileged.

19. File 983 - this is a debt collection. Instructions to find a debtor. Reference to some action by a bailiff of the court makes it probable that proceedings were contemplated. No privilege because there was no gathering of material for advice. Disagree with Legoe AJ.

20. File 984 - merely instructions for service and a report thereon. No privilege. I disagree with Legoe AJ.

21. Files 985 and 986 - in these matters there were instructions for service and reports but also there was a gathering of information for consideration of the solicitors. I hold these files privileged as did Legoe AJ.

22. File 994 - instructions to serve. The file is not privileged. I disagree with Legoe AJ.

23. File 995 - instructions to search for a debtor. Proceedings contemplated. Information gathered. The file is privileged as Legoe AJ found.

24. File 996 - proceedings instituted and instructions to serve from solicitors. No gathering of information. No privilege. I disagree with Legoe AJ.

25. File 1031 - instructions were given here to find the sole beneficiary under a will. Mr Wilson says that instructions were given for the purpose of advising clients. But there was no need to consider any advising. Once the beneficiary was found, the estate could be administered so far as the papers show. Disagree with Legoe AJ. No privilege.

26. File 1039 - no solicitors nor I think were any proceedings contemplated. I agree with Legoe AJ that there is no privilege.

27. File 1053 - no solicitors. No privilege. I agree with Legoe AJ.

28. File 1062 - confused file. Not clear what Carbone was ever instructed to do. Variety of matters. Onus of proof comes into play. No privilege. I agree with Legoe AJ.

29. File 1066 - instructions to serve and approach a creditor to convince him to pay. I think this is privileged. Legoe AJ found no privilege.

30. File 1083 - instructions to search for assets etc after judgment. Information to solicitors advising. Privileged as Legoe AJ found.

31. File 1086 - instructions here were to find and get two witnesses to court. Those instructions were from a solicitor. No question of getting information useful for advising here. I do not think the file is privileged. I disagree with Legoe AJ.

32. File 1087 - instructions here were given to inquire whether it would be worth suing someone. Legal proceedings obviously contemplated. Solicitors gave the instructions. Privileged as Legoe AJ found.

33. File 1088 - personal injury. Solicitors gave instructions to find third party. The plaintiff found him. The plaintiff got much information about an accident on the road and the identity of the driver of a truck. The plaintiff got a statement from a person who may have been the driver of a vehicle in the accident. All this was relevant and useful to solicitors for advising. Privileged as Legoe AJ found.

34. File 1093 - proceedings had been instituted and instructions to inquire in effect whether it was worth suing or proceeding with the action. Privileged as Legoe AJ found.

35. File 1094 - the same comments apply as in relation to 1093. Privileged. BOX 7

35. Box 7 contains: 1. A brown paper bag marked E29 Box E(13). The bag contains much shredding.

2. Six books of cheque butts marked on the outside with dates in 1990 and 1991.

3. A box, not sealed, marked "Petty Cash Receipts 91-92". These papers are not in Exhibit D13.

36. I do not know that Legoe AJ looked at these papers and things. But on my looking at them there is nothing to suggest that there should be any privilege granted.

EIGHTH BOX NOT SO NUMBERED. MARKED "NEGATIVES"

37. Consists of envelopes of negatives marked 95/15532. There is nothing to show that privilege should be granted.

NINTH BOX BUT NOT SO NUMBERED. BOX MARKED "SEARCH PHOTOS TAKEN BY POLICE"

38. Contains photos which look like police photos. Nothing to show that privilege should be afforded.

39. That concludes my discussion about papers and things in the boxes as they came to me. I must mention that despite search by my associate and by me. I could not find two files to which Legoe AJ referred. He found them not privileged. I can make no comment. I note that Mr Wilson refers to only one (File 27). The other file is No. 174. As a result of these investigations I set out the papers which I think are privileged. They should be returned to Carbone. They are referred to by file number.

40. If some papers in a file attract privilege the whole file will be privileged. That is the position here. It is not a general statement of the law. Here the files are such that any privileges demonstrated by one or some papers affects the status of the whole file on the question of privilege.

41. These are the "Privileged Files":- Box 17225163358(b)67 Box 2125076 Box 3273156160Box 4 Box 5 Box 6467453363361357327102291 488553810(a)810(b) 954, 955, 956,971, 962, 982,985, 986, 995,1066, 1071, 1083,1087, 1088, 1093,1094

42. All the other papers and things seized by the police under the warrant must be returned, in my opinion, by the Court, to Chief Inspector Finnegan.

43. I would direct that the Registrar cause the files specified above to be returned to the plaintiff and to cause the others to be delivered to Chief Inspector Finnegan.

44. I should mention that during preparation of the reasons the Crown Solicitor referred me to the decision of the High Court in The Commissioner, Australian Federal Police & Anor v Propend Finance Pty Limited & Ors - Unreported 7th February 1997. I have attended to the reasoning of the High Court. I do not find anything inimical to the reasoning of Legoe AJ or mine.

DOYLE CJ

45. In my opinion the appeal should be allowed to the extent proposed by Bollen J. I agree that the order to be made should be as proposed in his judgment. I agree with what he has said in relation to the cross-appeal. There is nothing that I wish to add to the reasons that he has given. The parties should prepare Minutes of Order to reflect the order proposed in the reasons of Bollen J.

PRIOR J

46. I agree that this appeal must be allowed and the cross-appeal dismissed.

47. In my view, the trial judge was in error in making the limited orders that he did make. Documents and all other things not privileged should be returned to the police. I have reviewed the material produced to the court. I agree with what Bollen J proposes with respect to particular documents and concur in the orders he proposes.

48. With respect to the cross-appeal, I reject the arguments advanced with respect to proportionality. I agree with the appellant's submission that there is no implication of privacy within the Commonwealth Constitution. I also agree with the appellant's submission that there is no inconsistency between s67 of the Summary Offences Act 1953 and any Commonwealth law. I am in substantial agreement with the reasons given by the trial judge for rejecting the arguments advanced by the respondent. I agree with the further observations of Bollen J. I have nothing to add.