White v The New South Wales Commissioner of Police

[2012] NSWSC 1556

Supreme Court

New South Wales

Medium Neutral Citation:	White v The New South Wales Commissioner of Police [2012] NSWSC 1556
Hearing dates:	4 December 2012, 6 December 2012
Decision date:	14 December 2012
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Each party to bear its own costs.
Catchwords:	PROCEDURE - costs EVIDENCE - documents seized by search warrant - legal professional privilege - parties agree no privilege in time sheets and ledger - privilege in file notes established
Legislation Cited:	Civil Procedure Act 2005 Crimes Act 1900 Evidence Act 1995 Uniform Civil Procedure Rules 2005
Cases Cited:	Cook v Pasminco Pty Ltd (No 2) [2000] FCA 1819; (2000) 107 FCR 44 Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 Lawcover Pty Ltd v The Commissioner of Police for New South Wales (New South Wales Supreme Court, Hodgson CJ in EQ, 28 November 1997, unreported) R v Cox and Railton (1884) 14 QBD 153
Category:	Costs
Parties:	Leigh David White (Plaintiff) The New South Wales Commissioner of Police (First Defendant) Detective Senior Constable Scott Baker (Second Defendant)
Representation:	Counsel: Mr M Pesman (Plaintiff) Mr DT Kell (First and Second Defendants) Solicitors: Tully & Chiper Lawyers (Plaintiff) IV Knight, Crown Solicitor (Defendants)
File Number(s):	2012/331665
Publication restriction:	None

Judgment

1. The plaintiff, Mr White, sought orders requiring documents seized from his former solicitor under a search warrant to be returned to him and a declaration that certain documents are the subject of client legal professional privilege.

1. Mr White has been charged with a number of offences under the Crimes Act 1900, including offences under s 319, of acting with intent to pervert the course of justice. They are listed for trial in the Dubbo District Court in February.

1. An earlier trial due to commence in February 2011 was vacated, when Mr White was notified that he was to be charged with the s 319 offences. In May 2011, a search warrant was executed at his former solicitor's office. Files relating to Mr White were then seized.

1. One of the s 319 offences arose out of other charges, which were dismissed in the Condobolin Local Court in December 2010, when the victim, Emily Launer did not answer a subpoena to give evidence. Mr White was on bail at the time. It is alleged against him that while on bail he contacted the victim and offered her money not to attend Court.

1. The other s 319 offence arose out of the hearing of other charges, which were listed before the Parkes District Court to commence on 14 February 2011. The victim was also subpoenaed to give evidence at this trial. It is alleged that Mr White offered the victim more money, if she would not give evidence against him at this trial. She did not attend Court in Parkes as required and could not be located. A warrant was issued for her arrest. The victim was located later in Parkes and was arrested when with the accused and his legal representatives. The trial was adjourned after it was announced that the second s 319 charge was to be laid and that Mr White's counsel and solicitor might become material witnesses. Mr White was refused bail.

1. In issue at the hearing were Mr White's solicitor's time sheets and trust ledger, as well as certain file notes. It was common ground that there was an onus on Mr White to establish that they were privileged. After I heard the parties, a possible resolution of the claim in relation to the time sheets and trust ledger was announced. Instructions were sought from Mr White and an agreement later reached.

1. It had been agreed that I should examine the file notes which remained in issue. It was common ground that there was no legal professional privilege in respect of any communication made in respect of the commission of a crime or a fraud (see R v Cox and Railton (1884) 14 QBD 153).

1. It was not in dispute that only a prima facie case, or reasonable grounds for the belief that a communication was made for some illegal or improper purpose had to be established, for the file notes to fall within the Cox and Railton exception.

1. The illegal or improper conduct in question was the payment of money by Mr White's solicitor shortly before a trial was listed for hearing, at which the victim did not appear. The Commission's case was that no privilege existed in any documents that recorded, evidenced or referred to:

"(i) any payment made by the solicitor to the victim during the period 17 August 2010 to 14 February 2011; and

(ii) any payment made by Mr White to the victim in that period."

1. Having examined the typed versions of the solicitor's file notes provided by the plaintiff, I was satisfied that they did not record, evidence or refer to such matters and accordingly were privileged.

1. In the result the only documents to which the Commissioner obtained access were the time sheets and trust ledger. I ordered that such access be granted and made other orders, declarations and notations in terms that the parties agreed.

1. The parties were not agreed about the appropriate costs order in the circumstances. For Mr White it was submitted that there should be a costs order in his favour, and for the Commissioner of Police, that each party should bear their own costs.

1. Under the Rules the usual order as to costs is that they follow the event, but the Court has a discretion to depart from that order (see s 98 of the Civil Procedure Act 2005 and Rule 42 of the Uniform Civil Procedure Rules 2005).

1. There is no question that these proceedings were necessary to be brought, in the circumstances which had arisen. The parties had acted in accordance with a document entitled Guidelines as to the execution of search warrants, which was adopted by the Council of the Law Society in 1994 and was the subject of an agreement reached with the Commissioner in May 1995. These Guidelines contemplate the commencement of proceedings such as this in the event of a disagreement about privilege in respect of documents sought from a solicitor.

1. The Commissioner sought access to the entire file seized. Mr White claimed privilege in relation to various documents which were identified, including the time sheets, ledger and file notes, which were dealt with at the hearing. Prior to the hearing there was a suggestion that Mr White's claim would not be maintained in relation to the time sheets and ledger, but finally the privilege was pressed in relation to those documents, as well as the file notes.

1. The resolution arrived at after the hearing in relation to the time sheets and ledger, was plainly one which should have been reached beforehand. It reflected Mr White's acceptance of the reality that the documents were not privileged. As was accepted at the hearing, the preponderance of authority was to the effect that they were not privileged documents. Those authorities were primarily concerned with the first limb of the privilege, which is concerned with documents produced or brought into existence 'with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice'. The argument advanced by Mr White at the hearing sought to draw a distinction in relation to the second limb of the privilege, which is concerned with documents brought into existence 'to conduct or aid in the conduct of litigation" (see Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at [2] per Barwick CJ).

1. As the agreement which the parties later reached, recognised the distinction was one which could not have been accepted. A solicitor's time sheets and ledger will only be privileged if they disclosed a privileged communication. Otherwise, they are not documents created either to obtain legal advice or 'to conduct or aid in the conduct of litigation'. Time sheets are brought into existence so that, in due course, the solicitor can charge for the work performed. Ledgers are created and maintained by the solicitor in accordance with the applicable statutory regime, to record moneys expended in relation to the matter. They are documents like retainer agreements which Lindgren J considered were not created either for the purpose of giving or receiving legal advice or of being used in existing or anticipated legal proceedings (see Cook v Pasminco Pty Ltd (No 2) [2000] FCA 1819; (2000) 107 FCR 44 at [47]).

1. The parties had obligations under s 56 of the Civil Procedure Act, to assist the Court in facilitating the just, quick and cheap resolution of the real issues in the dispute or proceedings and to take reasonable steps to narrow the issues in dispute. Plainly the agreement reached in relation to the time sheets and ledger after the hearing, adhered to that obligation. In the circumstances it was an agreement which should have been achieved earlier, had the obligation been properly adhered to by Mr White.

1. The dispute in relation to the file notes could not be resolved in the same way. The Commissioner did not know what the file notes contained and so was not in a position to make any concessions. Whether or not the file notes were privileged was a question which only the Court could determine.

1. In the circumstances, the pursuit of the file notes was plainly reasonable. Not only was the victim arrested while in the company of Mr White and his legal advisers, with the brief served on Mr White were two deposit slips signed by his solicitor, depositing cash into the victim's account.

1. It is in those circumstances that the Commissioner argued that there should be a departure from the usual order as to costs, relying on the conclusions reached by Hodgson J in Lawcover Pty Ltd v The Commissioner of Police for New South Wales (New South Wales Supreme Court, Hodgson CJ in EQ, 28 November 1997, unreported). In those proceedings documents had been seized from Lawcover, which brought the proceedings, seeking declarations that the documents seized were the subject of legal professional privilege and that some documents did not fall within the terms of the search warrant.

1. The circumstances giving rise to the issue of the search warrant were attempts to settle certain civil proceedings before the Court. Complaints were made to the police that certain accounts relating to the settlement negotiations involved criminal offences. The complaint was investigated and a search warrant obtained on the basis that it had been alleged that certain conduct amounted to fraudulent misappropriation and an attempt to pervert the course of justice.

1. Before Hodgson J certain matters were agreed, with the result that his Honour also had to inspect only some of the documents seized. He concluded that of the documents inspected only four could conceivably be considered as being in furtherance of any improper purpose. Questions of legal professional privilege and admissibility under various provisions of the Evidence Act 1995 arose to be considered in relation to the documents.

1. His Honour concluded in relation to the question of privilege, that the Commissioner could not have access to most of the documents, which were privileged because they were legal advice or related to legal proceedings. Documents to which access was given were memoranda concerning payment of fees.

1. On the question of costs, the view was urged for Lawcover, that the Commissioner should pay some or all of Lawcover's costs. In those circumstances it sought a costs order in its favour.

1. His Honour recognised that Lawcover's submissions had some force, but considered that it had be recognised that:

"... All of the documents had been seized under a search w arrant, and it was necessary for the plaintiff to commence proceedings in order to protect any of the documents from inspection. The plaintiff was an entirely innocent party in the matter, and it claimed privilege in effect on behalf of other parties. As a result of the proceedings which it had to commence, it obtained orders that denied access to a substantial part of the documents that had been seized. The waiver in respect of Category 1 documents did no more than narrow the issues. The plaintiff was successful on the contested issue concerning legal professional privilege and common interest privilege, and successfully resisted a suggestion that the plaintiff itself could have been affected by some improper purpose.

There is some force in those submissions, but I think it has to be recognised that the defendant is carrying out a public office. Having regard to the protocol which has been arrived at to resolve questions of legal professional privilege in relation to documents seized under the search warrant, I think it is fair to say that the defendant was compelled to be involved in court proceedings if the defendant was to get access to any documents whatsoever; and the result of the proceedings is that the defendant."

1. In the result Hodgson J ordered that each party should bear its own costs.

1. In this case the Commissioner urged that there should be a similar result. The parties had each succeeded on an issue pursued at the hearing, in the Commissioner's case, ultimately as the result of an agreement. As to the issue on which the Commissioner failed, that necessarily depended on the Court's inspection of the files in question, the Commissioner could make no concessions about them, not knowing their contents. It was also submitted to be relevant that the Commissioner had to carry out an important public office pursued in a accordance with the protocol agreed with the Law Society, for such circumstances. In the result the just order would be that each side bear its own costs.

1. Mr White resisted that order, submitting that there should be no departure from the usual order, because the Commissioner had insisted from the outset on being given access to the entire file. Had what emerged at the hearing been earlier identified, the issues between the parties could have been earlier narrowed. He had succeeded on the only matter finally in dispute and in the circumstances there should be no departure from the usual order. The view reached by Hodgson J was at a time prior to the operation of the Civil Procedure Act and the Rules and was an approach which would not now be followed.

1. It seems to me that the answer to the controversy is this. There is an agreed protocol for dealing with situations such as the one which here arose. It was followed. The Crown solicitor enquired of Mr White as to the documents for which the privilege was claimed. Mr White identified that they included the time sheets and ledger, as well as the file notes.

1. Mr White could not have succeeded on the time sheets and ledger. The agreement reached reflected the order which would inevitably have been made in that respect. Much of the written submissions and the time at the hearing was concerned with those documents. There was no issue about the law in relation to the file notes. The question of whether they fell within the exception could only have been determined by the Court.

1. That the Commissioner of Police was pursuing an important public office is undoubted. That is not a reason, of itself for departing from the usual order in a case where the agreed protocol is followed. Had the only matter over which the parties joined issue been the file notes, then in my view, Mr White should have had an order made in his favour. In the circumstances, however, Mr White's unsuccessful pursuit of a claim in relation to the time sheets and ledger, is a proper basis for departing from the usual order.

Order

1. In the result the just order reflecting the parties' respective success and failure in the proceedings, is an order that each party bear their own costs. I order accordingly.

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Decision last updated: 16 April 2013