Stewart v Australian Crime Commission

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FEDERAL COURT OF AUSTRALIA

Stewart v Australian Crime Commission [2012] FCAFC 151

Citation: Stewart v Australian Crime Commission [2012] FCAFC 151
Appeal from: Australian Crime Commission v Stewart [2012] FCA 29
Parties: ANTHONY STEWART, JOHN CORNELL, PAUL HOGAN and RIMFIRE FILMS PTY LIMITED v AUSTRALIAN CRIME COMMISSION
File number: NSD 216 of 2012
Judges: BESANKO, JAGOT AND BROMBERG JJ
Date of judgment: 29 October 2012 
Catchwords:

APPEAL – application for leave to appeal.

Held: Leave to appeal be granted in relation to grounds 1-5 inclusive of the draft notice of appeal.

EVIDENCE – legal professional privilege – privilege claimed by appellants over documents seized by respondent pursuant to s 3E of Crimes Act 1914 (Cth) and ss 28 and 29 of Australian Crime Commission Act 2002 (Cth) – whether documents privileged – where respondent’s statutory right to inspect qualified by common law privileges and immunities – whether reference to common law means common law of Australia – where appellants claimed status of certain disputed documents with respect to legal professional privilege governed by law of California – whether choice of law issue arises – relevant choice of law principles with respect to legal professional privilege.

EVIDENCE – legal professional privilege – appeal from primary judge’s rulings concerning privileged status of certain groups of disputed documents – application of Australian common law principles to disputed documents – whether inconsistent rulings.

Held: The appeal must be dismissed.     
Legislation: Crimes Act 1914 (Cth) s 3E
Australian Crime Commission Act 2002 (Cth) s 28, s 29
Judiciary Act 1903 (Cth) s 39B
Transport Accident Act 1986 (Vic)
Motor Accidents Act 1988 (NSW)
Federal Court of Australia Act 1976 (Cth) ss 21, 22, 23, 32
Cases cited:

Arrow Pharmaceuticals Ltd v Merck and Co Inc (2004) 210 ALR 593, cited
Baker v Campbell (1983) 153 CLR 52, cited
Balabel v Air India [1988] Ch 317, cited
Bourns Inc v Raychem Corporation and Anor [1999] 3 All ER 154, cited
Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261, cited
Daniels v Australian Competition and Consumer Commission (2002) 213 CLR 543, cited
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, cited
DSE Holdings Pty Ltd v InterTan Inc (2003) 135 FCR 151, cited
Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, cited
Garsec v His Majesty the Sultan of Brunei (2008) 250 ALR 682, cited
Grant v Downs (1976) 135 CLR 674, cited
Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529, cited
Grofam Pty Ltd v Australian and New Zealand Banking Group Limited (1993) 45 FCR 445, cited
In re Duncan, Dec.d [1968] P 306, cited
Kennedy v Wallace (2004) 142 FCR 185, cited
Kennedy v Wallace (2004) 208 ALR 332, cited
Lawrence v Campbell (1859) 4 Drew 485; 62 ER 186, cited
McKain v R W Miller…

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Details
Case
[2012] FCAFC 151
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia heard an appeal in the matter of Stewart v Australian Crime Commission. The appellants challenged the primary judge's rulings concerning the privileged status of certain groups of disputed documents seized by the Australian Crime Commission. The appellants argued that the primary judge misapplied the law in determining the status of certain documents as privileged and non-privileged. The court was required to determine whether the primary judge's rulings on the privileged status of the disputed documents were correct and whether the primary judge erred in concluding that no choice of law issue arose in the case.

The court found that the primary judge correctly applied the Australian common law principles to the disputed documents. The court held that the primary judge's rulings on the privileged status of the documents were consistent and did not err. The court also held that no choice of law issue arose in this case. The statutory provisions imposed an obligation to produce documents, but that obligation is not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or necessary implication. The court held that the common law of Australia recognises the Australian law of privilege which affords privilege to communications with lawyers for the purposes of obtaining legal advice. The court further held that the issue is a matter of statutory construction of the particular statute and the only qualification on the otherwise absolute obligations imposed by the statute in this case is the principle that protects those rights, privileges and immunities which the common law of Australia recognises as important.

The appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the application for leave to appeal and the appeal. The court granted leave to appeal in relation to grounds 1-5 of the draft Notice of Appeal but refused leave to appeal in relation to ground 6. The court held that the primary judge did not err in concluding that no choice of law issue arose in the case. The court held that the common law of Australia identifies not only the kind of right which is fundamental in the Potter v Minahan sense but also the scope of that fundamental right. The court held that the primary judge correctly applied the Australian common law principles to the disputed documents and that the rulings on the privileged status of the documents were consistent and did not err.

Orders

Orders of the court

1. Leave to appeal be granted in relation to grounds 1-5 inclusive of the appellants’ draft notice of appeal dated 10 February 2012.

2. Leave to appeal be refused in relation to ground 6 of the said notice.

3. The appeal be dismissed.

4. The appellants pay the respondent’s costs of the application for leave to appeal and the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

JAGOT J
The documents identified by the appellants were examples of their complaints. It was not suggested that there were any better examples. In those circumstances, it is appropriate to conclude that the challenges to the primary judge’s rulings as to the documents identified in Annexures A and B to the draft Notice of Appeal must fail.CONCLUSIONS I would grant leave to appeal in relation to grounds 1-5 of the draft Notice of Appeal. I would refuse leave to appeal in relation to ground 6. I would dismiss the appeal. The appellants must pay the respondent’s costs of the application for leave to appeal and the appeal. We agree with the orders which Besanko J proposes. Subject to one issue, we agree also with his Honour’s reasons for the making of those orders. We do not agree that the primary judge erred in her conclusion that no choice of law issue arose in this case. Section 29 of the Australian Crime Commission Act 2002 (Cth) imposed the obligation to produce documents. Although that obligation is absolute on its face, the principle of statutory construction that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or necessary implication is engaged (Potter v Minahan (1908) 7 CLR 277 at 304 per O’Connor J; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [11] per Gleeson CJ, Gaudron, Gummow and Hayne JJ). As the respondent submitted, in the context of s 29 of the Australian Crime Commission Act, the question which arises is what legal professional privilege, as a matter of interpretation of the statute, is to be taken as not qualified and not abrogated by the general words in the statute. The answer is the Australian law of privilege which, as the respondent also said, affords privilege to communications with lawyers for the purposes of obtaining legal advice whether those lawyers be local or foreign, whether the law as to which they are advising be local or foreign, and whether the communication occurs here or somewhere else. Once this is recognised it is apparent that no choice of law rule can arise for the reasons the primary judge gave. The reason is that, as the respondent also submitted, the issue is first and last a matter of statutory construction of the particular statute; and the only qualification on the otherwise absolute obligations imposed by the statute in this case is the Potter v Minahan principle which protects those rights, privileges and immunities which the common law of Australia recognises as important. The principle does not protect against qualification or abrogation of other rights, privileges and immunities which may be part of the same general field of discourse but which the common law of Australia does not recognise as within the Potter v Minahan principle. To put it another way, it is the common law of Australia that identifies not only the kind of right which is fundamental in the Potter v Minahan sense but also the scope of that fundamental right.

Ratio Decidendi

Legal Principle Established

Established by: JAGOT J

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