Z v NSW Crimes Commission - [2004] NSWSC 1335

CITATION: Z v NSW Crimes Commission [2004] NSWSC 1335

HEARING DATE(S): 19 December 2003

JUDGMENT DATE:
5 February 2004

JURISDICTION:
Common Law

JUDGMENT OF: Michael Grove J

DECISION: Summons dismissed

CATCHWORDS: PRIVILEGE - Identity of client - Whether protected at common law from disclosure - If so protected whether overridden by specific provision in Crime Commission legislation

LEGISLATION CITED: NSW Crimes Commission Act 1985

CASES CITED: Baker v Campbell (1983) 153 CLR 52
Commissioner of Taxation v Coombes [1999] 92 FCR 240
Daniels Corporation v Australian Consumer and Competition Commission [2002] 77 ALJR 40
Esso Resources Australia Limited v Commissioner of Taxation (1999) 201 CLR 49
Mann v Carnell (1999) 201 CLR 1

PARTIES :
Z (Plaintiff)
New South Wales Crime Commission (Defendant)

FILE NUMBER(S): SC 12568/03

COUNSEL: A Howen (Plaintiff)
P Singleton (Defendant)

SOLICITORS: Bolzan & Dimitri (Plaintiff)
J M Giorgiutti (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Thursday 5 February 2004

12568/03 - Z v NEW SOUTH WALES CRIME COMMISSION
JUDGMENT

1 HIS HONOUR: This is an application for an order of review in respect of a decision made by a commissioner conducting a hearing pursuant to the New South Wales Crime Commission Act 1985 (the Act). Relevant provisions of the Act are:

“19 Applications to Supreme Court

(a) a person claims to be entitled to refuse to furnish information or produce a document that the person is required to furnish or produce pursuant to a notice under section 10,

(c) a person claims to be entitled to refuse to answer a question put to the person, or to produce a document that the person was required to produce, at a hearing before the Commission,

the Commission shall decide as soon as practicable whether in its opinion the claim is justified and notify the person of its decision.

(2) If the person is dissatisfied with the decision, the person may apply to the Supreme Court for an order of review in respect of the decision.

(4) On an application for an order of review in respect of a decision of the Commission under subsection (1), the Supreme Court may, in its discretion, make an order:

2 The application emerges out of a current reference to the New South Wales Crime Commission (the Commission) to investigate the apparent attempted murder of M. A “confidential” affidavit provides some information concerning the focus of investigation and some suspicions held by investigators which may in due course be confirmed or discounted. The content of the affidavit has, without objection on their part, not been disclosed to the plaintiff or his representatives and, save providing detail and background establishing the existence of bona fides and reasonableness for the investigation by the Commission it is unnecessary for me to use it for the determination of the issue on the current summons. To the extent that I have made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Z v NSW Crimes Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWSC 1335
Decision Date: 5 February 2004

CaseChat Overview and Summary

The case of Z v NSW Crimes Commission involved a dispute between the appellant, referred to as Z, and the NSW Crimes Commission. The appellant sought to prevent the disclosure of their identity to law enforcement and investigative authorities. The issue at hand was whether the identity of a client is protected at common law from disclosure and, if so, whether this protection is overridden by a specific provision in the Crimes Commission legislation. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were multifaceted. Firstly, the court had to determine whether the identity of a client is protected by common law privilege, which traditionally shields communications between a client and their legal representative from disclosure. Secondly, if such a privilege exists, the court needed to assess whether this protection is overridden by a specific provision in the Crimes Commission legislation. The appellant argued that their identity was protected by common law privilege and that the legislation did not sufficiently justify overriding this protection. Conversely, the Crimes Commission contended that the legislative provision explicitly allowed for the disclosure of the appellant's identity, thereby overriding any common law privilege.

In delivering the judgment, the court examined the interplay between common law privilege and statutory provisions. The court recognised that the identity of a client is generally protected by common law privilege, but it also acknowledged the importance of effective law enforcement and the prevention of crime. The court held that while common law privilege does protect the identity of a client, the specific provision in the Crimes Commission legislation does indeed override this protection. The court concluded that the statutory provision was necessary and sufficient to justify the overriding of common law privilege in the interests of public justice.

The final orders of the court were that the appellant's identity could be disclosed to law enforcement and investigative authorities under the specific provision in the Crimes Commission legislation. The court's decision underscored the need to balance the protection of client confidentiality with the demands of criminal investigation and prosecution.

Orders