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O'Reilly and Ors. v. Commissioner of the State Bank of Victoria and Ors.

Judges: Gibbs CJ

Mason J
Murphy J
Wilson J

Court:
High Court of Australia

Judgment date: Judgment handed down 16 December 1982.

Mason J.

This case stated pursuant to sec. 18 of the Judiciary Act 1903 (Cth.) presents eight specific questions. These questions raise three topics for consideration:

  • (1) the extent of the right of ``access'' of the Commissioner of Taxation under sec. 263 of the Income Tax Assessment Act 1936 (Cth.) (``the Act'');
  • (2) the extent of the power of a delegate of the Commissioner to empower other persons to perform powers and functions under the Act, in particular the power to issue a notice under sec. 264 of the Act and to authorize officers to receive evidence under that section; and
  • (3) the effect of the Act on a solicitor's duty of confidence and on solicitor and client privilege.

Questions 1 and 2 in the case stated relate to the first of the three topics mentioned. Because the two questions raise issues of great practical importance and difficulty not appropriate to be dealt with by the presently constituted bench consisting of the Chief Justice and three Justices, it has been decided that the two questions should be reargued before a Full Court consisting of the Chief Justice and all the Justices. My judgment therefore deals with the other questions presented by the case stated.

Power of the Commissioner's delegate to empower others to perform the Commissioner's powers and functions under the Act

ATC 4676

Prior to April 1981 two officers of the Australian Taxation Office, Messrs. Cornell and Hughes, the third and fourth plaintiffs, were investigating the financial affairs and dealings of Mr. Lawson the fourth defendant, members of Lawson's family, and companies and trusts which were connected with Lawson.

By an instrument in writing dated 13 November 1979 the Commissioner had delegated his powers and functions under, inter alia, sec. 263 and 264 to the Deputy Commissioner.

It seems that on 18 March 1981 Hughes served a notice on Lawson pursuant to sec. 264 of the Act requiring him to appear before Cornell to give evidence and to produce certain documents. At the foot of the notice a facsimile signature of the Deputy Commissioner had been affixed by one Holland, who at that time was the Chief Investigation Officer in the Australian Taxation Office. The Deputy Commissioner had purported on 23 September 1980 to authorize the Chief Investigation Officer to perform certain functions. The authorization was said to be ``In the exercise of the powers and functions delegated to me by the Commissioner of Taxation'' and purported, inter alia, to authorize the Chief Investigation Officer to:

  • (1) Authorize issue of notices other than notices requiring the giving of information or evidence on oath;
  • (2) Imprint facsimile of my signature upon such notices; and
  • (3) Examine addressees and receive evidence, books, documents and papers.

The notice required Lawson to furnish information to, and to attend and give evidence before, Cornell. Cornell, in his capacity as Supervisor, Investigation Section, was also mentioned in the purported authorization of 23 September 1980 as being authorized in the same three respects as Holland, the only difference being that Cornell's authorization to issue notices was said not to extend to notices requiring ``attendance to give evidence or to produce books, documents and other papers''. It appears that the Deputy Commissioner himself had no knowledge of the notice served on Lawson until after 15 April 1981. It had been Holland, Hughes and Cornell in conjunction who decided that the notice should be delivered. Lawson did not comply with the sec. 264 notice.

On 27 March 1981 a similar sec. 264 notice, again issued at the instance of Holland, Hughes and Cornell with a facsimile signature of the Deputy Commissioner affixed, was served by Cornell on Mr. Perry, the fifth defendant, relating to Lawson, his family, and related companies and trusts, all of whom retained Perry as their solicitor. Perry did not comply with the notice.

Questions 3-6 (inclusive) are directed to these facts. They are in these terms:

``3. Was Schedule D [the notice served on Lawson]:

  • (a) a notice which was validly and effectively made or brought into existence for the purposes of sec. 264 of the Act?
  • (b) a notice falling within the provisions of sec. 264 of the Act with which Lawson was obliged to comply?

4. Was Cornell an officer authorized within the meaning of sec. 264(1)(b) of the Act to receive evidence and books, documents and other papers from Lawson?

5. Was Schedule F [the notice served on Perry]:

  • (a) a notice which was validly and effectively made or brought into existence for the purposes of sec. 264 of the Act?
  • (b) a notice falling within the provisions of the said section with which Perry was obliged to comply?

6. Was Cornell an officer authorized within the meaning of sec. 264(1)(b) of the Act to receive from Perry evidence and books, documents and other papers?''

The defendants say that, as there are express provisions in the Act and in sec. 8 of the Taxation Administration Act 1953 (Cth.) which deal with authorization and delegation, the Deputy Commissioner has no power to sub-delegate his powers under sec. 264 or to authorize another to exercise them on his behalf. They say that, for that reason,

ATC 4677

the Deputy Commissioner's attempt, on 23 September 1980, to authorize the Chief Investigation Officer, Holland, to authorize the issue of notices, or to sub-delegate that power to Holland, was invalid. They do not attach any significance in itself to the fact that Holland affixed a facsimile of the Deputy Commissioner's signature to the sec. 264 notices.

Section 8(1) of the Taxation Administration Act provides:

``The Commissioner of Taxation may, in relation to a matter or class of matters, or in relation to a State or part of the Commonwealth, by writing under his hand, delegate to a Deputy Commissioner of Taxation or other person all or any of his powers or functions under this Act or an Act which is an Act with respect to taxation (except this power of delegation).''

The concluding words of sec. 8(1) prohibit any sub-delegation of powers and functions delegated by the Commissioner under the subsection. The question then is whether the power or function of issuing a notice under sec. 264 is one which, apart from any exercise of the power of delegation under sec. 8(1), is exercisable by the Commissioner alone or whether it is exercisable by his officers, according to the true construction of sec. 264.

Delegation is not a parting with powers by the person who grants the delegation, but the conferring of authority to do things which otherwise that person would have to do for himself (
Huth v. Clarke (1890) 25 Q.B.D. 391 at p. 395 per Wills J.). The point is that if the particular power or function is exercisable by officers of the Taxation Department without a delegation then the inability of the delegate to sub-delegate is of no importance.

The power to issue notices is given to the Commissioner by sec. 264. Unlike sec. 263 the power is not given to the Commissioner ``or any officer authorized by him''. The significance which this difference would otherwise have is perhaps partly diminished by the circumstance that many sections of the Act dealing with the powers and duties of the Commissioner speak of ``the Commissioner'' without making any mention of his officers, even when the power or function is one which could not reasonably be exercised by the Commissioner personally in every case, e.g. the power to make an assessment (sec. 169) or the service of a notice of assessment (sec. 174). Nevertheless, the absence of any reference to authorization in sec. 264 has some significance in view of the close relationship between the two provisions.

The particular provisions of the Act conferring powers or imposing duties on the Commissioner have to be read in the light of the general provisions contained in sec. 8, 10 and 13. Section 8 gives to the Commissioner the general administration of the Act. Subject to certain qualifications not presently material, a Second Commissioner may exercise all the powers and functions of the Commissioner (sec. 10). By sec. 13 any reference in the Act to the Commissioner shall be deemed to include (a) a reference to a Second Commissioner in respect of matters as to which he has exercised any power or function conferred upon him by the Act; and (b) a reference to a Deputy Commissioner in respect of a matter as to which he ``has exercised any power or function conferred upon him by delegation''. In speaking of delegation sec. 13(b) effectively takes us back to sec. 8(1) of the Taxation Administration Act . As we have seen, that section enables the Commissioner to delegate to a Deputy Commissioner or other person, without power of sub-delegation. Section 13, though including a reference to a Deputy Commissioner, does not include a reference to any other person to whom a delegation has been under sec. 8(1). Not that this is of any significance, because a valid delegation by the Commissioner of a power or function which he has under the Act is effective to enable the delegate to exercise that power or function.

What is important is that the Act contemplates that the powers and functions of the Commissioner may be exercised by a Second Commissioner and by delegates who are Deputy Commissioner or, if sec. 8(1) is taken into account, other persons, presumably officers. On this view of the relevant provisions there is neither a need nor a basis for implying an authority in officers of the Department to exercise powers and functions of the Commissioner, at least when

ATC 4678

the exercise of the relevant power or function involves the exercise of a discretion or the formation of an opinion. In the face of such a wide power of delegation it would seem correct in principle that, if the Commissioner desires others to exercise large areas of his powers and functions, he should expressly delegate to them those powers and functions pursuant to sec. 8(1). Only those powers and functions involving little or no exercise of discretion should be capable of being exercised otherwise. This must be particularly so when the statutory scheme permits delegation of all of the authority's powers to any person or persons, in contrast to the position where a prospective delegate can only be chosen from a restricted class of persons or where one specific officer is designated. See
Cook v. Ward (1877) 2 C.P.D. 255 .

It seems to me that delegation pursuant to sec. 8(1) presents no practical difficulty. An example of the relative case of delegation by the Commissioner to his officers is provided by a schedule to the case stated which is a copy of the purported authorization by the Deputy Commissioner on 23 September 1980 of various officers to perform various functions. The authorization merely mentions the positions in the Taxation Office the holders of which are authorized to perform stated functions. It would be very simple for the Commissioner, should he so desire, to adopt this same method and to delegate to the holders of even a great number of positions the power to issue sec. 264 notices.

Apart from any exercise of his power of delegation the Commissioner may appoint agents to act on his behalf and in his name. But, having regard to the statutory provisions here, I do not think that the Commissioner can appoint an agent to act on his behalf in exercising a statutory discretion or a statutory power which involves the formation of an opinion, except perhaps on the footing that the Commissioner retains to himself the substantial exercise of the discretion or the substantial formation of the opinion, or the exercise of substantial control over the exercise of the discretion or the formation of the opinion, leaving to the agent the ministerial act of communicating the decision or issuing a notice.

The decision taken in conjunction by Holland, Hughes and Cornell to issue the two sec. 264 notices involved a substantial exercise of discretion. It was not the type of ministerial act which, given the presence of sec. 8(1), could be validly carried out in the absence of a delegation by the Commissioner. The lack of control exercised by the Deputy Commissioner over Holland, Hughes and Cornell is of crucial importance. Willis, ``Delegatus Non Potest Delegare'' (1943) 21 Canadian Bar Review 257, at p. 258 correctly makes the point that it is immaterial that the authority (the Deputy Commissioner here) ``retains a general control over the activities of the person to whom it has entrusted the exercise of its statutory discretion''. What is needed to avoid invalidity resulting from the application of the maxim is the exercise of ``a substantial degree of control'' by the authority over the actual exercise of the discretion so that the authority can actually be said to have directed its own mind to the question.

The power to issue a sec. 264 notice may have a great impact on the affairs of individual persons. It is not like a power which, being purely administrative in nature or having no consequences of any significance, may perhaps be entrusted to another to exercise despite a statutory proscription against delegation or sub-delegation. It is a power the exercise of which involves a substantial area of discretion. Its exercise may not, therefore, be entrusted to a subordinate in the absence of a great degree of control by the authority.

In the present case it is not evident that the Deputy Commissioner retained any control at all over the decision of Holland, in conjunction with Hughes and Cornell, that the sec. 264 notices should issue against Lawson and Perry. Indeed, it is common ground that the Deputy Commissioner had no knowledge of the notices until some weeks after they had been served on Lawson and Perry.

The Commissioner placed much reliance on the English cases dealing with decisions taken on behalf of ministers. The principle according to which they were decided was expressed by Lord Greene M.R. in
Carltona Ltd. v. Commrs. of Works (1943) 2 All E.R. 560 . Speaking of the functions given to ministers he said (at p. 563) that they:

ATC 4679

``... are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority...''

See also
Metropolitan Borough and Town Clerk of Lewisham v. Roberts (1949) 2 K.B. 608 at pp. 619, 621 ,
R. v. Skinner (1968) 2 Q.B. 700 at p. 707 ; In
re Golden Chemical Products Ltd. (1976) Ch. 300 at p. 306 .

As the Master of the Rolls indicated, the doctrine of ministerial responsibility is a dominant factor underlying the exercise by others of a minister's discretionary powers. This doctrine has no application to the Deputy Commissioner. Another factor underlying these cases is the notion of administrative necessity - see
Commrs. of Customs and Excise v. Cure & Deeley Ltd. (1962) 1 Q.B. 340 at p. 371 . This is hardly a relevant factor in the present case when the Commissioner has a comprehensive power of delegation.

I acknowledge that in
Lee v. F.C. of T. (1962) 107 C.L.R. 329 the Court (at p. 335) regarded assessments made by assessors in the Taxation Office as acts of the Commissioner, but the question whether there was a need for a delegation was not argued or raised as an issue in the case stated.

The Commissioner had power to delegate all his powers and functions under sec. 264 to Holland, to a committee comprising Holland, to a committee comprising Holland, Hughes and Cornell, or, for that matter, to anybody. This he did not do.

The contrast presented by sec. 263 and 264 lends some support to this conclusion. I have already referred to the reference in sec. 263 to ``any officer authorized by him in that behalf'' and to the absence of a corresponding provision in sec. 264. It was not disputed that sec. 263 empowered the Deputy Commissioner, as the Commissioner's delegate, to authorize others to carry out the powers so conferred. The maxim expressio unius est exclusio alterius suggests that the Commissioner has no power to authorize others to issue sec. 264 notices and that he is left to his wide power of delegation under sec. 8(1) of the Taxation Administration Act .

The only power of authorization expressly conferred by sec. 264(1) is the narrower authorization which may be made pursuant to sec. 264(1)(b). It is the content of this narrower power of authorization which gives rise to a further question in this case. Does the power of the Commissioner (or his delegate) to require persons ``to attend and give evidence before him or before any officer authorized by him in that, behalf'' contemplate the general authorization given by the Deputy Commissioner to Cornell to ``Examine addressees and receive evidence, books, documents and papers''? The defendants say that an authorization which relates to addressees of notices in a general context does not satisfy the requirements of sec. 264(1)(b).

I am not inclined to agree with this argument. However, since I have concluded that the issue of the sec. 264 notices was invalid, it is not necessary to give a concluded answer. Suffice to say that there is certainly a valid authorization under sec. 264(1)(b) if the relevant officer who is to receive the evidence and the information is specified in the sec. 264 notice itself. In this case, had the sec. 264 notices been valid, there could have been no challenge to Cornell's authority to receive the evidence and information, as the notices specified him as the officer who was authorized in that behalf.

The effect of sec. 264 on privilege and duty of confidence

It is common ground that the evidence and documents referred to in the sec. 264 notice served on Perry were received or created by Perry whilst acting for the Lawsons solely for the purpose of tendering professional legal advice and assistance to them, though not in

ATC 4680

relation to any existing or contemplated litigation in which the Commissioner was a party (see para. 33 and 34 of the case stated).

The relevant questions in the case stated are:

``7. Whether in the circumstances and notwithstanding the provisions of sec. 264 of the Act Perry in his capacity as solicitor for the Lawsons is excused in law and if so to what extent from complying with the requirements of Sch. F on the grounds that do so would result in breach of:

  • (a) the contractual duty of confidence he owed to the Lawsons;
  • (b) the duty which arose by reason of the circumstances referred to and set forth in para. 33;
  • (c) the duty which arose by reason of the circumstances referred to and set forth in para. 34.

8. If yes to any of the questions in para. 7 hereof, is Perry entitled to decide in the first instance whether compliance with the requirements of Sch. F would result in a breach by him of:

  • (a) the contractual duty of confidence he owed to the Lawsons;
  • (b) the duty which arose by reason of the circumstances referred to and set forth in para. 33;
  • (c) the duty which arose by reason of the circumstances referred to and set forth in para. 34.''

Although I have concluded that the sec. 264 notices were invalid, it would seem desirable, since the notices may easily be validly reissued, that I express my view on the effect of sec. 264 in relation to legal professional privilege and the solicitor's contractual duty of confidence.

In so far as the questions relate to the contractual duty of confidence, they may be disposed of shortly. Counsel for Perry did not dispute that the duty of confidence which is implied into the contract between solicitor and client is subject to, and overridden by, the duty of any party to the contract to comply with the law of the land, including the requirements of sec. 264. This was firmly established in
Parry-Jones v. Law Society (1969) 1 Ch. 1 at pp. 7, 9 ;
Smorgon & Ors. v. F.C. of T. & Ors. 76 ATC 4364 at pp. 4370-4371; (1976) 134 C.L.R. 475 at p. 487 ;
F.C. of T. v. ANZ Banking Group Ltd. & Ors. 79 ATC 4039 at pp. 4045, 4055; (1979) 143 C.L.R. 499 at pp. 521, 540 . The effect of sec. 264 on legal professional privilege is a much larger question.

Legal professional privilege is a privilege which protects from disclosure by the solicitor, in the absence of the consent of the client, confidential communications between the two:
Minter v. Priest (1930) A.C. 558 at p. 579 . The basis of the doctrine was established in a gradual way by the Courts of Chancery ``by successive steps'';
Minet v. Morgan (1873) 8 Ch. App. 361 at p. 366 . Thus it is no longer open to argument that the privilege attaches to communications made ``for the purpose of advice or for the purpose of use in existing or anticipated litigation'' (
Grant v. Downs (1976) 135 C.L.R. 674 at p. 682 ), though prior to Minet (see pp. 366-367) the communications were required to be in respect of particular litigation. Nevertheless, there is a real question whether the documents the subject of the sec. 264 notice served on Perry are communications of this nature.

It is no bar in itself to the operation of the privilege that the communications sought to be protected are written and not oral (
Nias v. Northern and Eastern Railway Co. (1838) 3 My. & Cr. 356 at p. 357; 40 E.R. 963 at p. 964 ). But if communications in written form are to be privileged they must still be confidential communications between solicitor and client made for the purpose of advice or for the purpose of use in existing or anticipated litigation. The documents must come into existence for, and be prepared for, that purpose. So in Grant a majority of this Court held that legal professional privilege is confined to documents which are brought into existence for that sole purpose.

The point is made in Wigmore on Evidence (McNaughton rev. 1961) vol. viii, para. 2307, at p. 594. There it is said:

``Since a document which is itself a communication is within the privilege, the test is whether the document first came into existence as a part of a communication to the attorney.''

ATC 4681

The sec. 264 notice addressed to Perry required him to produce ``Contracts, agreements, correspondence, solicitors disbursement accounts relating to property transactions'' and extracts of all transactions relating to Lawson and his associates processed through Perry's trust account. I put aside the ``correspondence'' for now. Although the facts in the case stated indicate that the specified documents ``were received or created by Perry in confidence whilst... acting for the Lawsons solely for the purpose of tendering professional legal advice and assistance to them'' there is real doubt whether all the documents involve confidential communications between solicitor and client or whether instead they are documents which merely evidence various transactions. In relation to documents received by Perry the test is not whether they were received by him for the purpose of tendering professional legal advice, but whether they were brought into existence for that purpose.

It is true that the contracts, agreements and extracts of other transactions are documents held by Perry and quite probably were drafted by him at Lawson's request. But it is not possible to give protection to every document in that category otherwise ``the client's obligation to produce could always be evaded in very simple fashion by placing the deed with the attorney'' ( Wigmore vol. viii, para.2307, at p.591. In Grant, Stephen and Murphy JJ. and I in a joint judgment said (at p. 688):

``It is not right that the privilege can attach to documents which, quite apart from the purpose of submission to a solicitor, would have been brought into existence for other purposes in any event, and then without attracting any attendant privilege.''

It is only possible to argue that documents of the kind sought to be protected in the present case should be privileged from disclosure if one ignores the public interest which is universally acknowledged as the fundamental basis of the privilege. In Grant (at p. 685) Stephen and Murphy JJ. and I said:

``The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision.''

See also
Greenough v. Gaskell (1833) 1 My. & K. 98 at p. 103; 39 L.R. 618 at p. 621 ;
Bullivant v. A.-G. (Vic.) (1901) A.C. 196 at pp. 200-201, 206 .

The privilege cannot attach to contracts, agreements and extracts of other transactions. I am unable to perceive how they could have been brought into existence for the purpose which is the central element of the privilege claimed.

The ``correspondence'' required by the sec. 264 notice may or may not fall into the same category. The case stated indicates that the correspondence was received or created by Perry solely for the purpose of tendering professional legal advice. Again a problem is created by speaking of Perry's receipt of correspondence for the relevant purpose.

It is now necessary to look to another important question: Is the privilege merely a rule of evidence confined to curial proceedings or does it have a wider ambit? Lord Diplock in Parry-Jones, at p. 9, was firmly of the view that legal professional privilege is only a rule of evidence confined to proceedings before a Court or tribunal exercising judicial functions:

``... privilege, of course, is irrelevant when one is not concerned with judicial or quasi-judicial proceedings because, strictly speaking, privilege refers to a right to withhold from a Court, or a tribunal

ATC 4682

exercising judicial functions, material which would otherwise be admissible in evidence.''

See also Minter at p. 579; Halsbury's Laws of England (4th ed. 1975) vol. 13, para. 71.

In Wigmore vol. viii, para. 2325, at p. 632, the contrary view is taken:

``Clearly the privilege could not permit an evasion by receiving the voluntary extrajudicial disclosures of the attorney... [T]hey would be equally a violation of the privilege with his voluntary disclosures on the stand.''

As is said in Wigmore vol. viii, para. 2291, at p. 554, because the privilege is ``an obstacle to the investigation of the truth'' it ``ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle '' (emphasis added). The one thing that is entirely certain about the privilege is that its basis is grounded in the public interest in the freedom of consultation of legal advisers. To confine the operation of the privilege to proceedings of the kind mentioned might result in the disclosure of the communications outside those proceedings. The value of the privilege would be impaired when the witness was required to give evidence or produce documents before a non-judicial tribunal, commissioner or investigator having a power to compel answers or compel the production of documents. Once disclosure is made, the protection given by allowing the privilege to operate in later judicial proceedings is undermined. Disclosure will enable other evidence, not obtainable but for that disclosure, to be presented in subsequent judicial or quasi-judicial proceedings.

This suggests that the privilege should not be confined to judicial or quasi-judicial proceedings. This was the view taken by the New Zealand Court of Appeal in C . of
I.R. v. West-Walker (1954) N.Z.L.R. 191 . Fair J. (at pp. 205-206) concluded that none of the authorities was inconsistent with the view that privilege extends ``logically to protect... communications from all compulsory disclosure''. North J. (at p. 219) also rejected the view that the privilege was only a rule of evidence. He said that, since the privilege rests on the wide ground of public policy, it must apply to inquiries in general, including those ``made by executive officers pursuant to statutory authority''.

The argument for confining the privilege, that expressed by Lord Diplock, is that it is no more than a rule of evidence applicable to judicial and quasi-judicial proceedings. But should it be so confined? It has been suggested that, if not so confined, the privilege would extend to other confidential relationships (
Crowley v. Murphy (1981) 34 A.L.R. 496 at pp. 520-521 ). However, the policy behind the privilege - enhancing the administration of justice by encouraging freedom of communication and candour between client and solicitor - would not support this extension of the privilege.

A more persuasive reason for confining it is that it is impossible to assess how significantly the privilege advances the policy which it is supposed to serve. The strength of this public interest is open to question. It may be doubted whether it does very much to promote candour on the part of the client to his legal adviser. Condour on the part of public servants has ceased to be an important buttress to Crown privilege. And, even if the existence of the privilege does encourage the client to make full disclosure to his legal adviser, is that public interest so much stronger than the public interest in having litigation determined in the light of the entirety of the relevant materials?

The existence of the privilege is too well entrenched to be abolished by flourish of the judicial pen. But the nature of the public interest which it serves and the comments which I have made indicate that it should be closely confined. Indeed, its application beyond judicial and quasi-judicial proceedings would create other problems. It is difficult to evaluate the benefits that would flow from a wider application of the privilege, except to say that it would preserve the advantages of allowing the privilege in subsequent judicial or quasi-judicial proceedings. But it would secure these advantages by denying access to information which might be highly relevant and important for other purposes and at the cost of imposing for other purposes and at the cost of imposing on unqualified persons - in this case an authorized officer of the Commissioner - the burden of deciding difficult question of legal professional privilege. To me these factors indicate that

ATC 4683

the privilege should be limited to judicial and quasi-judicial proceedings. The fact that Grant has narrowed the ambit of legal professional privilege in judicial proceedings is not a persuasive reason for giving the privilege an application outside the field of judicial and quasi-judicial proceedings.

I therefore do not need to answer the question whether the provisions of sec. 264 have the effect of overriding the privilege.

I would answer the relevant questions in the case stated as follows:

  • 3.
    • (a) No.
    • (b) No.
  • 4. No.
  • 5.
    • (a) No.
    • (b) No.
  • 6. No.
  • 7.
    • (a) No.
    • (b) No.
    • (c) No.
  • 8. Does not arise.


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