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
(1) Where:
(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,
(b) …..
(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.

(3) …….
(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:

(a) affirming the decision, or
(b) setting aside the decision.
…….. ”

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 some reference to the content of the affidavit on a peripheral issue concerning the joinder of a party, I will make an appropriate recording.

3 To protect the integrity of the investigation it will be necessary to make orders concerning publication of these proceedings including this judgment. Pursuant to interlocutory orders which have been continued, the hearing of the summons was held in camera.

4 The plaintiff is now a practising barrister. Of relevance are events which occurred when he practised as a solicitor. At social functions hosted by a friend of the plaintiff, the plaintiff made acquaintance of a person whom I will refer to as “X”. In about October 1998 X made an appointment to see the plaintiff, saying that he or she had found out that the plaintiff was a lawyer through the host of the social function. The gender of X is undisclosed and to avoid repetition of the alternative I will hereafter use the masculine form of pronoun to include either gender.

5 X said that he had observed things at the home of M and wished information to be passed to police without disclosing X’s own identity. He sought advice as to how this could be done and what consequences might follow. On X’s instructions the plaintiff telephoned various law enforcement agencies eventually speaking to a police officer to whom he indicated that a person who was not prepared to be identified wanted to supply information which may be of interest. The officer responded that he would receive the information. X was present with the plaintiff who conveyed to the officer that at M’s house X had recently seen him “showing off” a quantity of drugs, that M had a gun and that he had two children of approximately primary school age.

6 A few months after October 1998 X again approached the plaintiff saying that M was “at it again”. A similar telephone call by the plaintiff to the police officer was made, again in X’s presence.

7 On 28 November 2002, M entered his motorcar which was parked outside his house. He discovered that one of the tyres had been cut and damaged. He proceeded to change the wheel, and whilst he was so engaged a car drove past and an occupant fired three shots at him from a .22 calibre weapon. Two projectiles entered M’s body, respectively in the head and shoulder, and the third projectile struck his vehicle. M survived this attack.

8 On 12 March 2003 detectives spoke to the plaintiff and, after confirming that the plaintiff had made the calls above described, they asked whether he could put them in touch with X. On 30 April the plaintiff advised that he could not assist, stating that he felt bound “not to reveal a protected confidence or protected identity information.”

9 On 19 September 2003 the Commission issued a summons upon the plaintiff requiring him to attend and on 24 September he duly attended and gave evidence.

10 In the course of this he was asked to identify the source of the information which he had conveyed to police in the telephone calls. The plaintiff declined so to do relying upon s18B of the Act. This provides:

“18B Privilege concerning answers and documents
(1) A witness summoned to attend or appearing before the Commission at a hearing is not (except as provided by section 18A) excused from answering any question or producing any document or thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.
……..
(4) If:
(a) a legal practitioner or other person is required to answer a question or produce a document or thing at a hearing before the Commission, and
(b) the answer to the question would disclose, or the document or thing contains, a privileged communication passing between a legal practitioner (in his or her capacity as a legal practitioner) and a person,
the legal practitioner or other person is entitled to refuse to comply with the requirement, unless the privilege is waived by a person having authority to do so. However, the legal practitioner must, if so required by the member presiding at the hearing, furnish to the Commission the name and address of the person to whom or by whom the communication was made.
…….. ”

11 The Commissioner presiding at the hearing overruled what was, in effect, the plaintiff’s objection and directed that the relevant question be answered, and this summons seeks review of the Commissioner’s determination in that regard.

12 So far as the evidence reveals, the consultations between X and the plaintiff involved the passage of the information which was then specifically communicated to police. No privilege attaches to that material, the intention being that it would be, as it was, disclosed. It can be observed that what at common law is usually termed “legal professional privilege” and what the Evidence Act 1995 terms “client legal privilege” may have some relatively minor differences in aspects, however I agree with and adopt the approach of counsel that they are sufficiently similar for present purposes and it suffices simply to refer to privilege.

13 The second ingredient of the communication between X and the plaintiff was X’s identity and it is to this that the Commissioner’s ruling was directed and to which this summons is confined. It is conceivable that other matters may have passed between the plaintiff and his client (although this was not canvassed) but, if privilege attached to any such passage, it has not been the subject of interrogation nor is it germane to the issue before this Court.

14 On the facts of the case therefore, the issue reduces to a discrete question of whether in the circumstances communication by X to the plaintiff of X’s identity was a privileged communication. I am conscious that in submissions counsel for the plaintiff has expressed the view that multiple issues arise and he has detailed these in terms of various elements and he has also referred to the exercise of discretion by the Commissioner (and of the Court) but determination of the issue on the summons essentially requires only an answer to the question just posed.

15 I would answer the question in the negative. That conclusion is derived upon two separate considerations which lead to that same result.

16 My first reason is that the communication by X to the plaintiff of his name and address was not a privileged communication at all. It was not suggested, nor could it be, that anything communicated by X to the plaintiff was directly or obliquely concerned with extant or anticipated litigation. The basis of claim was that X was seeking legal advice from the plaintiff and that this was the dominant purpose of the communication: Esso Resources Australia Limited v Commissioner of Taxation (1999) 201 CLR 49.

17 As is plain however, what was involved was not communication by X for the purpose of advice, but communication by X to the plaintiff for the purpose of the plaintiff passing the content of the communication to the police. As I have said, that communication does not attract privilege but, even if it did, it was obviously waived by X in requesting that it be passed to the police and this is affirmed by his presence during the plaintiff’s relevant conversations: Mann v Carnell (1999) 201 CLR page 1 @ 13.

18 If there was any ingredient of legal advice involved, it related to the possible consequences of the anonymous (qua X) tender of information asserting unlawful activity on the part of M. The Commissioner has not sought to inquire what such advice, if given, was and the objection and ruling which is subject of review relates simply to the disclosure of particulars identifying X.

19 It is a matter of general rule that the name and address of a lawyer’s client is not the subject of privilege. I would respectfully adopt the conclusions of the Full Court of the Federal Court of Australia in Commissioner of Taxation v Coombes [1999] 92 FCR 240 where the Bench conducted an extensive examination of relevant authority, the detail of which I will not pause to recite. Their conclusions were expressed thus @ 252:

“The following propositions, amongst others, can be distilled from the cases we have examined:

· Privilege attaches to communications, and not to facts which a lawyer observes while acting in the course of a retainer.

· Privilege does not attach to everything a client says to the lawyer, but only to communications made by the client for the purpose of obtaining the lawyer’s professional assistance. It will not attach to ‘mere collateral facts’. The address and identity of a client will usually be ‘collateral facts’.

· Privilege attaches to communications only if they are confidential. In almost all cases the client’s name and address will not have been communicated confidentially.

· Instructions to a lawyer to do a particular thing, for example to prepare a legal document such as a will, are generally not privileged, because instructions to do something do not necessarily amount to a request for advice.

· As a general rule, the identity of a client will not be privileged, as the privilege belongs to the client, and the retainer between the lawyer and the client must be demonstrated in order to establish the privilege. This requires disclosure of the client’s identity.

· Disclosure of the client’s identity is necessary before the privilege can arise even if the client’s name was given in confidence, and it was a condition of the lawyer’s retainer that the client’s identity be kept confidential. The client cannot by contract extend the area of privilege.

· Some of the cases support an exception to this general rule when so much of the actual communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication. This will be the case when the client’s identity is so intertwined with the confidential communication that to disclose the identity would be to disclose the communication.”

20 Applying the foregoing to the present case, the request or condition of anonymity sought by X cannot extend the area of privilege available to him. The balance of communication which was passed was unprivileged, or if an assumption of privilege was made it was indisputably waived, so there is no confidential communication to be intertwined with X’s identity. Indeed, the exceptional case is, as stated, when identity is so intertwined with a confidential communication that to disclose identity would disclose the communication. That is not this case.

21 In this instance the very purpose of communication was publication of what X communicated to the plaintiff to law enforcement authority. The plaintiff was therefore not entitled by s18B(4) or otherwise to refuse to comply with the request to supply the identity of X.

22 The second reason for my conclusion is that, upon a hypothesis that the name and address was, contrary to my view, the subject of privilege, the proviso to s18B(4) of the Act must override the claim. I repeat the terms of the proviso:

“However, the legal practitioner must, if so required by the member presiding at the hearing, furnish to the Commission the name and address of the person to whom or by whom the communication was made.”

23 I am, of course, bound to pay heed to the authority of the High Court. Counsel for the plaintiff referred to a judgment in the Daniels Corporation v Australian Consumer and Competition Commission [2002] 77 ALJR 40 where in a joint judgment (Gleeson CJ, Gaudron, Gummow and Haynes JJ) their Honours said @ 43:

“Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.”

24 Section 18B(4) of the Act is expressly focussed upon legal professional/client legal privilege. The words of what I have termed “the proviso” manifest a clear legislative intention that the legal practitioner must provide the name and address of the person to whom or by whom communication was made. It can be observed that this proviso could have “no work to do” unless there is, at least a claim of, privilege to be overridden.

25 Thus the effect of the legislation is that, even if a communication is privileged, in this case the name and address of X, the name and address of the person with whom the legal practitioner has been in communication must, if required as he was, supply that information. In my view the statutory mandate is not only express but unambiguous: cf The Daniels Corporation per Callinan J @ 66; Baker v Campbell (1983) 153 CLR 52 per Murphy J @ 90, per Wilson J @ 96-97 and per Deane J @ 117.

26 The privilege under discussion is that of the client and not of the lawyer although the latter is obliged to protect the privilege when it exists, subject to overriding statute. To the present it has been the plaintiff who has advanced the claim of privilege. Neither the Commission nor this Court has been made aware of X’s identity. An issue is raised by the plaintiff as to the lawfulness or the propriety of proceeding to hear and determine this summons for order of review in the absence of any knowledge on the part of X that the plaintiff has been directed to disclose his identity to the Commission or, for that matter, that this proceedings have been brought. It might be noted that the term of the statute vests a jurisdiction in the Court to review the particular decision and it may be argued that there is a difference between that jurisdiction and jurisdiction which is vested, for example, by way of granting a right of appeal. If there is such a distinction, nothing on the present summons turns upon it and I do not need to consider whether, if this was some species of general appeal, X has in that circumstance to be given some notice. I am not suggesting that that is so, merely commenting upon a possible matter of debate.

27 The plaintiff has, on 2 October 2003, provided the Commission with an undertaking in these terms:

“ I, (the plaintiff) hereby undertake that I shall not disclose or discuss the tapes or transcript or contents thereof of evidence given by me to the Commission at a hearing on 24 September 2003 except for purposes of obtaining legal advice in relation to these proceedings or in the proceedings themselves.”

28 Counsel for the plaintiff has, in these regards, posed the following issues:

“(i) Whether pursuant to Part 8 rule 14 Supreme Court Rules the Supreme Court should appoint a legal representative for the plaintiff’s former client to represent him in the Supreme Court on the question of whether the name and address of the plaintiff’s former client is subject of legal professional privilege.
(ii) Whether the appointment of a legal representative pursuant to Part 8 rule 14 SCR can be and should be without the knowledge of the plaintiff’s former client.
(iii) Whether the Supreme Court should appoint a legal representative for the plaintiff’s former client by the exercise of its inherent power.
(iv) Whether the plaintiff’s former client should be joined as a party to the proceedings pursuant to Part 8 rule 8 SCR without him or her being informed either of the application or an order joining him or her.”

29 Having had reference to the content of the “confidential affidavit” I am satisfied that bona fide and reasonable avenues of investigation which may be pursued by the Commission in seeking to bring to justice any person or persons involved in the apparent attempted murder of M, could be compromised if X were to be aware of the Commission’s interest in his identity.

30 The submissions on behalf of the plaintiff boil down to the proposition that the Court should receive “independent” submissions on behalf of X. The only perceptible interest that X could have would be to maintain some veil of secrecy founded in privilege over his identity. For the reasons above expressed a claim for privilege must fail and there is no reason to contemplate that arguments advanced by counsel on behalf of the plaintiff having failed, arguments advanced by someone else on behalf of X might succeed.

31 I am unpersuaded that expedience or the dictates of actual or procedural fairness requires some representation of X on this summons. There is no reasonable prospect of X being able to demonstrate that the plaintiff’s challenge to the Commission’s ruling should succeed. Putting aside for the moment the statutory obligation applicable to the plaintiff by reason of the proviso of s18B(4), the extent of any claim to privilege by X is limited to his name and address. For reasons already given, X does not fall within an exception to the general rule that communication of identity was privileged by reason of the particulars of identity being intertwined with communication of pertinent legal advice.

32 Given my conclusion, it is unnecessary to deal with the Commission’s argument that an order for joinder is prevented by reference to public interest immunity. Nor do I consider it necessary to refer to somewhat hyperbolic submissions on behalf of the plaintiff concerning “new and dangerous concepts” and “denial of natural justice”.

33 Finally, on the issues raised, there is no material before the Court to demonstrate that there was any miscarriage by the Commissioner in the exercise of his discretion. Nor so far as the present summons is concerned is any cause shown for the exercise of any discretion in this Court against the Commission.

34 The summons should be dismissed as should those prayers remaining on the notice of motion filed on 1 October 2003 other than those relating to non disclosure of these proceedings. I order accordingly.

35 Until further order I direct that the file and contents including transcript of the hearing and this judgment remain confidential and unpublished other than to the plaintiff, the Commission and their legal representatives. I make further exception in respect of any legal representatives consulted in respect of any contemplated appeal against this judgment and any necessary functionary to facilitate the institution and conduct of any such appeal. Obviously, should an appeal be lodged, my jurisdiction will expire and application will need to be made elsewhere in respect of restriction.

36 Absent any appeal, and in order to enable the postulated continuance of investigation, it is my intention to revoke this direction six months hence. In order to accommodate the possibility that investigations are incomplete, I grant general liberty to apply to either party on 48 hours notice to the other, including specifically application to extend or vary the embargo period just indicated or application to make disclosure of the judgment to specified persons. I have in mind that the plaintiff may wish to consult the President of the Bar Council or relevant members thereof, of a relevant committee or senior members of the Bar.

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Last Modified: 05/09/2008