Wong, A.T.K v McShane, A.m.

[1990] FCA 411

IN THE FEDERAL COURT OF AUSTRALIA)

)

TASMANIA DISTRICT REGISTRY	)	T. NO. G.3 of 1990
)
GENERAL DIVISION	)
BETWEEN :

ALOYSIUS TSZE KAN WONG AND ANOTHER

Applicants

and

ADRIAN MICHAEL MCSHANE AND ANOTHER

Respondents

COURT:
DATE :
PLACE:

When this application came on for hearing a preliminary issue was raised by the respondents which did not appear from the form of the application itself or from the form of the affidavit in support of the application. The application is brought in this Court pursuant to jurisdiction conferred by sub-sectlon 39B(1) of the Judiciary Act 1903 which provldes as follows:-

offlcer or offlcers of the Commonwealth."

"398. (1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an

Sub-section (2) excludes certain officers, the exclusions not being relevant for present purposes

The respondents are members of the Australian Federal Police and there can be no diospute that they are officers of the Commonwealth within the meaning of section 39B of the Judiciary Act.

The applicants are seeking, first, a declaration as to the validity of a search warrant Issued on 31 January 1990 to the respondents pursuant to s.10 of the Crimes Act 1914 ahthorising them to enter the premlses of the first-named applicant, the solicitors Messrs Wong McDermott and White, and secondly, an injunction to restraln the respondents from inspecting, searching for, seizing and retaining any or alternatively some of the documents referred to in the search warrant. It is apparent, therefore, that the application is based upon a search warrant issued under s.10 of the Crimes Act 1914. For present purposes it is sufficient to say that	s.10 provides, in substance, that a Justice of the Peace, if	satisfied by information on oath that there is reasonable
ground for supposing that there is in or upon any premises anything as to which there are reasonable grounds for bellevlng that it will afford evidence as to the commission of any offence, may grant a search warrant to search the
premises and seize the things. -.
In the present case the search warrant was issued by a Justice of the Peace, William George Kendrick, and was issued on 31 January 1990. For the purposes of the preliminary submission which has been made, it has been conceded by the applicants thatwilliam George Kendrick, although belng a Justice of the Peace, is not a magistrate, that he is not legally qualified, and that the Federal Police, the respondents, did not consult with the Director of Public Prosectuions before issuing, or seeking the issuing, of the warrant.
In order to understand the submissions, reference must be made to what are called Guidelines on the Execution of Search Warrants on Lawyers Premises. In the present case the search warrant authorised the respondents to search the premises being the offices of the solicitors and to seize documents pertaining to a Robert Geoffrey Klng, who was a client of the solicitors whose offices were to be searched, and to seek there documents relatlng to the applicant King. It is conceded further that the documents which in fact were
sought to be searched and seized were documents which related
to, or were contained in files kept by the solicitors in
relation to, litigation in whlch Mr King was a party. It was obvious from the very begining that in all probability the documents, the subject of the search warrant, could well have been the subject of legal professional privilege as far as Nr King was concerned.
The guidelines, apparently, have been agreed on between the Commissioner of the Australian Federal Police and
the taw Council of Australia as to the execution of search warrants on lawyers premises in circumstances where a claim of legal professional privilege is made or is likely to be made and were published by the Law Council of Australia as a supplement to the Australian Law News in December 1986. Those guidelines are set out in Watson and Watson, Australian Criminal Law, ~ederal Offences, paragraph 609A, commencing at page 787. Those guidelines include, among other things, a detailed set of procedures which should be followed in cases where a search warrant has been executed in respect of legal offices where the question of legal professional privilege might arise. The procedures in detail, are set out under a number of paragraphs commencing with the letter (a) and endlng with the letter (0) inclusive. In Australian Criminal Law at page 788 there appears the following sentence:-

"It is agreed that where practicable a search shall only be sought from a magistrate or a legally qualified justice, and after consultation with the office of the DPP".

The passage then continues:-

"These guidelines proceed on the assumption that any particular warrant to which they relate has been duly issued and is good on its face. It is recognised that a lawyer upon whose premises the search warrant is to be executed may want to take legal advice as to those matters.

The effect of these guidelines, in summary, is that where the lawyer is prepared to co-operate with the police search team no member of that team will inspect any document identified as potentially within the warrant, until the lawyer has been given the opportunity to claim legal professional privilege in respect of any of the documents so identified. Where a claim is made in such circumstances no member of the police search team

will inspect any document the subject of the claim untll elther (i) the claim is abandoned or waived, or (ii) the clalm is dismissed by a court."

The procedures (a) to (0) are then set out.

Questions may well arise as to what effect the paragraph, which I read earller, has, namely:-

"It is agreed that where practicable a search warrant shall only be sought from a magistrate or a legally qualified justlce, and after consultation wlth the office of the DPP."

Apart from the concessions already referred to, there is no evldence before me as to whether it was practical In this case for a magistrate to be sought or a legally qualified Justice of the Peace to be found. There are many cases in the reports where the valldlty of a search warrant has been challenged on grounds that it is too wide or on grounds that the material upon which it was issued is not sufficient to justify the issue of the warrant, but none of those points have been raised here. What has been raised is	that here the search warrant was issued by a Justice of the
Peace who is not a legally quallfled practitioner and who, in
circumstances where those seeklng the warrant had not consulted with the office of the DPP.
The effect of that agreement expressed in the paragraph, and I must express doubts as to whether that agreement is part of the guidelines or not because the guidelines appear to be directed only to how the search warrant is to be executed, is uncertain. But in any event the court is faced with the proposition that s.10 of the Crimes Act is expllcit in its terms; there is no attack on the search warrant itself as to the width of its terms, or as to the material upon which it was issued. The only attack is based on the fact that having regard to the guidelines the Court, in its discretion, should find that there has been a non-compliance wlth the guidelines, and, therefore, the search warrant should be treated as if it were of no effect and should be quashed, in which case the orders sought should be issued.
In my opinion the law in this case is clear. The search warrant is in existence. It is not being attacked by reason of the width of its terms or the material upon which it has been based. In these circumstances the guidelines, or any agreement between groups of persons, cannot effect the legal validity of an action taken under a statute. Accordingly the Court refuses to accede to the initial
application to quash the search warrant and to make consequential orders based upon the effect of that quashing.
IN THE FEDERAL COURT OF AUSTRALIA )

1

TASMANIA DISTRICT REGISTRY	1	T. NO. G.3 of 1990
1
GENERAL DIVISION	)
BETWEEN:

ALOYSIUS TSZE KAN WONG AND ANOTHER

Applicants

and

ADRIAN MICHAEL MCSHANE AND ANOTHER

Respondents

- - .

COURT:  NORTHROP J.

RECEIVED

DATE:  16 MAY 1990 07 ]UN 1990

FEDERAL COURT OF

PLACE:  HOBART AUSTRALIA PRINCIPAL REGISTRY

EX-TEMPORE REASONS FOR JUDGMENT --

Earlier today I gave reasons leading to the

conclusion that the search warrant issued in this case was

valid, and as a result the matter has proceeded on an issue of what documents for which legal professional privilege was	claimed were entitled to that privilege. These documents had
been separated from the other documents selzed; had been placed in an envelope and left with the Registrar pending determination of the questlon of the issue of privilege belng decided. During the course of submissions counsel for the respondents conceded that a number of those documents were entitled to that privilege, and I need not make reference to those documents any further, but wlll merely order that they be returned to the solicitors for the applicants.
There remain in contention three separate groups of documents. The first set of documents consist of copy taxatlon records whlch were forwarded to the solicitors for Mr King at a time when the solicitors were acting for Mr Klng in common law proceedings against the employer of Mr King for damages for injuries resulting in the course of the employment. Compensation payments had been made as a result of the injuries suffered by Mr King, but following events, which I will mention shortly, Mr King instructed hls solicitors to commence common law proceedings and as part of the preparation for those proceedings the solicitors required information as to the earnings of Mr King over a period of years as the basis for making a claim for loss of earning capaclty resulting from the injuries suffered. By letter dated 21 April 1988, the solicitors wrote to the Commissioner of Taxation in Hobart stating that they acted for Mr King and requesting, under the Freedom of Information Act, copies of
Mr King's group certificates and tax assessments for the financial years ending 30 June 1980 to 30 June 1987, and a
requisite authority from Mr King was enclosed. Pursuant to that request the Australian Taxation Office, by letter dated 18 July 1988, returned to the solicitors a serles of photocopies of group certificates and other documents in the control or custody of the Commissioner of Taxation in Hobart relating to Mr King. The question arises as to whether that letter and the enclosed copy documents are entltled to the
privilege claimed. It is to be remembered that the privilege is that of the cllent and it is his prlvllege whlch must be
Following the High Court decision in Grant v Downs (1976) 135 C.L.R. 674 the position in Australia is relatively settled. Legal professional privilege is confined to documents which are brought into existence for the sole purpose of them being submitted to legal advisors for advice or for use in legal proceedings. This appears from Grant v Downs, in the joint judgment of Stephen, Mason and Murphy JJ.

"All that we have said so far lndlcates that unless the law confines legal professional privilege to those documents which are brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings the privilege will travel beyond the underlying rationale to which it is intended to give expression and will confer an advantage and Immunity on a corporation which is not enjoyed by the ordinary individual. It is not right that the privilege can attach to documents which, quite apart from the purpose of submission to a solicltor, would have been brought Into existence

attracting any attendant privllege. It is true

for other purposes in any event, and then wlthout

that the requirement that documents be brought into existence in anticipation of litigation diminishes to some extent the risk that documents brought Into existence for non-privileged purposes will attract the privilege but it certainly does not eliminate that risk. For this and the reasons which we have expressed earlier we consider that the sole purpose test should now be adopted as the criterion of legal professional privilege."

The matter was discussed further in the Federal Court of Australia by Lockhart J. in Trade Practices Commission v Sterling (1979) 36 F.L.R. 244.

There is no doubt that the documents being the letter from the Australian Taxation Office and the employee's copy documents were brought into existence and given to the solicitors for Mr King for the purposes of litigation, but the issue which has been argued before me is whether that privilege attaches to copy documents when the original documents themselves are not subject to that privilege. For present purposes, I will assume, if need be, that the original documents which were copied by the Australian Taxation Office, are not privileged and if necessary can be obtained and presented in evidence, if need be, in

proceedings against Mr King. The issue before the Court is

whether, in the circumstances I have outlined, the privilege attaches to the documents which were obtalned on Mr King's behalf for the purposes of the litigation and as obtained by the solicitors for that purpose and are in the custody or possession of the solicitors.

There appears to be a conflict between English authority and Australian authority on this point. The matter

is discussed in Cross on Evidence, third Australian editlon, in paragraph 13.53. In particular the position is raised in England by Denning L.J. in the case of Buttes Gas and Oil Company v Hammer (No. 3) (1980) 3 All E.R. 475 at 484. In that case his Lordship expressed the view that authority in England to the contrary which said that the copy documents if produced for the purposes of getting legal advice in litigation were privileged, were of doubtful authority and in

cases where the original of those documents could be led in evidence, there were good practical reasons why the privilege should not attach to the copies.

That view has been preferred by a number of text writers including the author of Cross on Evidence which was referred to a short time ago and, in another context, namely Discovery and Interrogatories by Simpson, Baker and Evans at pp.144-145. Contrary to those expressions of opinion, there

are in Australia two authorities which go the other way. In

Tasmania in wade v Jackson Transport (1979) Tas. S.R. 215, Sir Guy Green, the Chief Justice of Tasmania, held that a copy of a document brought into existence for the purpose of getting legal advice was privileged. That view was followed and applied by Hunt J. of the Supreme Court of New South Wales in McCaskill v Mlrror Newspapers (1984) 1 N.S.W.R.

(Weekly Notes) at p.66.

In all the circumstances I prefer to adopt the

views expressed in the two Australian authorities. We are

existence expressly for the purpose of legal advice in	concerned in this case with documents which were brought lnto	litigation in which Nr King was a party and to enable the
solicitors for Mr King to prepare their case in that
litigation process. On the assumption that the original
documents have not got that privilege, nevertheless, this is
a case where, applying the general principle of legal

--

professional privilege, in my opinion, the privilege does apply and I adopt the views expressed by Sir Guy Green and

Hunt J .

Accordingly, the group of documents which I have described as the documents provided by the Commissioner of Taxation pursuant to the request by the Sollcltor of Mr King are subject to legal professional privilege.

The other two groups of documents come into a different category. First, there are two letters from the FA1 Insurance Group which that insurance company had written to Mr King in relation to matters arlsing in the payment of workers compensation to hlm as a result of the injury suffered by him. It was as a result of receiving these two letters that Mr King sought legal advice, following upon whlch his advisers advised him to sue at common law. That advlce was taken and litigation ensured, being the litigation referred to earlier in these reasons.

These two letters specifically arise and relate to

matters arising from the payments of workers compensation and

medical examination and reports, and possible treatment. In	many respects they are in the nature of a letter of demand.
They are written by a third party to Mr Klng, in substance, saying, "Unless you do something or other, certain consequences could well follow". In themselves there is no basis for saying they have privilege as far as Mr King is concerned. They were not brought into existence for the purposes of litigation. Mr King gave them to his solicitors for advice, and the advice was given and acted upon. But the mere fact that they are the initiating documents, does not, In my opinion, make those documents such as to be brought into existence for the purposes of litigation, or contemplated litigation. They are not the type of document to which the privilege attaches. Accordingly, the claim for
privilege in relation to these two letters, dated 7 and 26
May 1987 respectively, is disallowed.
The remaining class of documents is a letter from Wallace Wilkinson and Webster, dated 17 October 1989, and written to the solicitors for Mr Klng. It appears that the common law claim was settled or determined in some other way and, as a result, a sum of money was under the control of Mr King's solicitors. Messrs Wallace Wilkinson and Webster had previously acted as solicitors for Mr King and had not been paid thelr professional fees. By this letter, they wrote to the solicitors for Mr King requesting that payment be made to them of the outstanding fees so as to avoid the unnecessary cost of obtaining garnishee orders against the defendant in the proceedings which had been determined. Attached to the
letter were documents to support the claim. In reality this letter is the same as a letter of demand. It is not a
document brought into existence for the purpose of litigation, or contemplated litigation, and what I have said in relation to the letters from FA1 have equal application to the letter from Wallace Wilkinson and Webster. Accordingly, in my opinlon, the claim for privilege to that letter and the attached documents must be refused.
In the result, wlth respect to two of the three groups of documents for whlch privilege was claimed, the claim for privilege has failed. The claim, with respect to the other documents, has succeeded.
This is a case where documents had been seized pursuant to a search warrant and the applicants took proceedings to raise the issue of legal professional privilege. In doing that it is realised that there was a non-compliance by the applicants as far as giving of an affidavit was concerned, but, nevertheless there would still have needed to be a hearing today. Therefore, most of the costs would have been incurred in any event.
The applicant has succeeded substantially, although in the course of the submissions, submissions were made on an issue which turned out to be unsuccessful but, agaln, the
additional costs are very difficult to determine in a case
where the whole matter has taken less than one day's hearing. It is argued that if an affldavlt had been filed there would not have been no argument about the great majority of the documents which had been seized. Nevertheless there still
would have been argument about the three groups whlch are the subject of my reasons for judgment. In the circumstances this is a case where I think justice demands that the applicants recelve three-quarters of their costs of the application.

Orders accordingly.