HIGH COURT OF AUSTRALIA - GENERAL DIVISION
COMMISSIONER, AUSTRALIAN FEDERAL POLICE and ANOTHER v PROPEND FINANCE PTY LTD
Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ
7 February 1997 - Canberra
Brennan CJ Gaudron J has stated the facts out of which this appeal arises and the course of the litigation in the courts below. Her Honour has also cited the authorities which establish that the doctrine of this court is that legal professional privilege " is not merely a rule of evidence applicable in judicial and quasi-judicial proceedings, but is a basic doctrine of the common law " . [1] Although this was not my preferred view, [2] I am bound now to accept it. As I pointed out in Baker v Campbell, [3] the view that legal professional privilege qualified the power of search and seizure conferred by a warrant issued pursuant to s 10(1) of the Crimes Act 1914 (Cth) as it stood at the time, and as it stood with some immaterial variations when the warrants in the present case were issued [4] , necessitated the devising of some procedure for determining a claim of privilege if it should be raised during the execution of a warrant. Such a procedure was not devised by the courts, but the Law Council of Australia and the Australian Federal Police agreed upon General Guidelines. The guidelines set out the procedure to be followed if, in the execution of search warrants on lawyers ' premises or the premises of law societies and like institutions, a claim of legal professional privilege should be made. The authority given by the warrants in the present case was to search and seize " in accordance with the procedure set out " in the General Guidelines.
The respondents made an application before Davies J in the Federal Court (Propend Finance Pty Ltd v Comr of Australian Federal Police [No 2] (1994) 35 ALD 25 ; 29 ATR 87 ) for judicial review of the applications for search warrants, of the decisions to issue the search warrants and of the conduct of the Federal Police in executing them. However, the principal relief claimed (though it was said to be " in the alternative " ) was for a declaration that certain documents for which legal professional privilege had been claimed and which, in accordance with the General Guidelines, had been seized but not inspected were " subject to legal professional privilege " . One of the grounds on which the present appellants resisted this claim was that some of the documents for which legal professional privilege had been claimed were created for or in furtherance of the commission of the suspected offences set out in the search warrants.
Among the orders made by Davies J were declarations that (at ALD 46 ; ATR 109 ):
… by reason of the allegation of offences … and of the proof given in support thereof, certain documents listed in the order are not subject to legal professional privilege. [5]
and (Order No 6 as cited by Beaumont J, at ALD 232 -3; ATR 320 ):
… that copies of documents made for the purpose of obtaining legal advice, the originals of which are not subject to legal professional privilege are not privileged. [6]
In the Full Court, differing views were expressed on these questions. In the result, the declarations were set aside. The present appeal is brought to restore the order of Davies J.
Privilege attaching to copies of non-privileged documents
The respondents claim that the documents in question were produced solely for the purpose of obtaining professional legal advice in relation to litigation that was reasonably apprehended. In Baker v Campbell, though I would have construed s 10 of the Crimes Act 1914 (Cth) as authorising, in general, the issue of a warrant to search for and seize documents to which legal professional privilege attaches, I would not have construed s 10 as authorising the seizure of documents [7] :
- (a) which are merely expressions of legal opinion; or
- (b) to which legal professional privilege attaches by reason of their having been brought into existence solely for use in litigation that is pending, intended or reasonably apprehended.
The problem that now arises relates to copies of unprivileged documents when the copies were brought into existence solely for use in obtaining legal advice or for use in apprehended litigation. When photocopying and multiple production by word processing have become commonplace, it may be difficult to distinguish between an original and a copy and it may seem artificial to do so. In J N Taylor Holdings Ltd v Bond [8] Debelle J said that, in general, " it would be absurd for the copy to be privileged while the original was not " . And, in Lubrizol Corporation v Esso Petroleum Ltd, [9] Aldous J said that he found it " incredible, in these days of the photocopier, the computer and the fax, that any distinction concerning privilege can be drawn between a copy and the original " . Yet the purpose of bringing an original document into existence may not be the purpose of bringing the copy into existence and, since Grant v Downs, [10] the protection of legal professional privilege has been confined to documents that have been brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings. [11] In that case, Jacobs J said: [12]
I think that the question which the court should pose to itself is this - does the purpose of supplying the material to the legal adviser account for the existence of the material? I use the word purpose here in the sense of intention, the intended use. The question is one of fact. In some cases a mere general description of documents in an affidavit of discovery may indicate an affirmative answer without any need further to examine the documents or the circumstances in which they came into existence: Westminster Airways Ltd v Kuwait Oil Co Ltd [13] In other cases both an examination of the documents and of the surrounding circumstances may be necessary.
The test is anchored to the purpose for which the document was brought into existence; the use to which a document is put after it is brought into existence is immaterial. So, on a strictly logical application of the test, if a copy is made solely for the purpose of providing it to a legal adviser in order to obtain legal advice or for use in connection with apprehended litigation, the copy would be privileged. A test which focuses on the purpose for which a document is brought into existence, rather than on the information given by or contained in the document, creates practical problems in ascertaining the intention of the maker of the document. If there be two copies on a file, has one (and if so, which), or both, or neither been brought into existence for a privileged purpose? Though the test raises problems of that kind, it must be applied unless there is some countervailing principle. Is there any countervailing principle? That calls for a consideration of the reason for according legal professional privilege to protect a copy of an unprivileged original from seizure or inspection.
The reason why privilege is accorded to a document produced for use in litigation or for the obtaining or giving of legal advice is because " it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers " : Grant v Downs. [14] Privilege protects the confidentiality of documents produced for the purpose of communication between a potential litigant and the legal adviser and confidentiality facilitates the administration of justice. In Grant v Downs, Stephen, Mason and Murphy JJ said: [15]
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 … to the solicitor.
Communications may be documentary, as Mason J pointed out in O ' Reilly v State Bank of Victoria Comrs: [16]
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 v Downs (1976) 135 CLR 674 a majority of this court held that legal professional privilege is confined to documents which are brought into existence for that sole purpose.
If privilege were denied to a copy of an unprivileged document when the copy is produced solely for the purpose of seeking advice from a solicitor or counsel or for the purpose of use in pending, intended or reasonably apprehended litigation, there would be a risk that the confidentiality of solicitor-client communications would be breached. The way would be open for the execution of search warrants by the emptying out of, and sifting through, solicitors ' files and counsels ' briefs. That would undermine the adversary system [17] under which most litigation is conducted. [18]
Authority and principle thus combine to establish that, prima facie, copies of non-privileged documents are privileged if the copies are brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending, intended or reasonably apprehended. But the prima facie rule is subject to a qualification next to be mentioned.
In judicial and quasi-judicial proceedings, the contents of a private document are proved by producing the original document if it is in existence and can be produced. The original is the best evidence of its contents. Secondary evidence by way of production of a copy is not generally admissible at common law unless the original is not available to the party seeking to tender the document. [19] And, if a party in litigation discloses in an affidavit of documents a material document that is no longer in the party ' s possession or power, the procedures of discovery enable the other party to trace the location of the document, [20] to require the first party to state the contents of the document [21] if the contents be known [22] or, perhaps, to be provided with a copy if the first party can obtain access to the original. [23] In Palermo, [24] discovery of copies of unprivileged documents was refused by Butt J (the refusal being upheld by the Court of Appeal) on the ground that the copies were obtained " to form part of the brief " . But in Land Corporation of Canada v Puleston [25] his Lordship said that he was " not inclined to extend [Palermo] at all " . In that case, when an original document which had been in the possession of the party ' s agent was not discovered, his Lordship ordered production of the original, " or affidavit sufficiently accounting for its destruction or loss. In latter case, order for production of extracts, properly verified by affidavit. " [26] Thus, in proceedings in which discovery is available, the contents of an unprivileged original document can be proved as against a party who has had the original in his possession or power, even if a copy of the original is protected from inspection by legal professional privilege. When an unprivileged original can be produced or secondary evidence of its contents can be tendered in evidence, the according of legal professional privilege to a copy does not impair, although it does not hasten, [27] the administration of justice.
But the procedures of discovery are not available in aid of the execution of a search warrant and, if legal professional privilege were accorded without qualification to a copy of an unprivileged document where the copy is brought into existence for a privileged purpose, the privilege might well frustrate the power to search and seize and thereby undermine the administration of justice. [28] An offender whose premises were to be searched for incriminating documents could secure immunity from seizure of a key document in his possession by destroying or disposing of the original, after having a copy made for the sole purpose of the apprehended litigation. The offender would then be free to produce the copy at trial if, but only if, it advanced his case. [29] This was the argument advanced by counsel in Chadwick v Bowman [30] but it was not necessary to deal with it in that case because the copies which were obtained by the solicitor in that case were found not to be privileged. However, Mathew J commented:
I think that danger would follow if the privilege against inspection were made to cover such a case as this.
The problems that arise when legal professional privilege is given an operation outside judicial and quasi-judicial proceedings may require some modification either of the privilege generally or of its operation in particular situations in order to ensure that the administration of justice, criminal as well as civil, is not impaired. [31] No modification would be permitted if the privilege were claimed in response to an application for discovery or inspection in judicial or quasi-judicial proceedings. In such proceedings, the privilege, once it attaches, is not lost [32] unless it be waived by the holder of the privilege. [33] No balancing of interests is called for, as the balancing has been done in according recognition to the privilege. [34] But when the privilege is invoked in response to the exercise of a statutory authority to search and seize, some modification is required to avoid the frustration of the statute.
A problem of the same kind evoked the doctrine of imputed waiver of privilege. In Attorney-General (NT) v Maurice [35] , Mason and Brennan JJ said [36] that an " implied waiver occurs when, by reason of some conduct on the privilege holder ' s part, it becomes unfair to maintain the privilege " . Deane J said [37] that waiver of privilege:
… occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege.
Unfairness in the context of the execution of a search warrant might be found in maintaining the confidentiality of a privileged copy of an unprivileged original when neither the original nor its whereabouts is disclosed or any secondary evidence of its contents is made available. In such a situation, privilege becomes a cloak thrown over evidence which the execution of the search warrant is intended to reveal.
The purpose of s 10(1) of the Crimes Act 1914 (Cth) would not be frustrated or impaired by according legal professional privilege to copy documents if original unprivileged documents that are connected with the commission of an offence in any of the ways specified in that section are in existence and are susceptible of seizure under a warrant or if unprivileged copies of the original are available and can be tendered to prove the contents of the originals. But where privileged copies of original documents are seized under a search warrant, some qualification of the privilege is required to ensure that the person executing the warrant should have access to the contents of an unprivileged original to the same extent at least as a party to litigation can obtain access to the contents of an unprivileged original against a party who has or has had the unprivileged original in his or her possession or power. I would state the qualification in this way: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the person seeking to execute the warrant and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the privileged copy loses the privilege. The loss of privilege can be avoided by the production of a copy of the original (which might be produced by copying the privileged copy) the accuracy of which is verified by a person having knowledge of the contents of the original. So long as a copy of the unprivileged original (with verification if necessary) or other secondary evidence of its contents is available to be tendered to prove the contents of the original, the privilege attaching to any copy of the original can and should be maintained. Otherwise, I would hold the privilege of the privileged copy to be lost.
No objection to the production of an unprivileged copy or other evidence of the contents of the original can be entertained on the ground that it might expose the party to a penalty or forfeiture. That ground affords an excuse for refusing discovery or inspection in civil litigation but, once legal professional privilege is treated as a rule of general application affecting, inter alia, extra-judicial processes for the enforcement of the criminal law, [38] that ground cannot operate to frustrate those processes. For that reason, I have used the words " at least " in stating the extent of the access to the contents of an unprivileged original which a person executing a search warrant should be able to obtain.
To qualify legal professional privilege in the way I have proposed is to deprive a person who has only a privileged copy in his or her possession or power of any tactical advantage that the privilege and the absence of an unprivileged original would otherwise have conferred. But the privilege is not afforded in order to confer tactical advantages; it is afforded in order to facilitate the administration of justice.
Judicial review and declaratory relief
The application of these principles to the instant case presents some difficulty. The difficulty arises because the claim for declaratory relief seems to have been regarded as an incident of, or a step towards, the granting of relief by way of judicial review of the application for search warrants, the issuing of the search warrant and the conduct of the police in executing the search warrants. In truth, the determination of the claim for declaratory relief was not, and could not have been, determinative of the claims for judicial review. The fact that there were privileged documents (or documents that were prima facie privileged) in the premises in respect of which search warrants were sought says nothing as to the validity of the applications for warrants to search those premises, assuming that such applications were " decisions " or " conduct " amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or were reviewable pursuant to s 39B of the Judiciary Act 1903 (Cth). There was nothing to show that the applications were made in bad faith to obtain warrants authorising a search for and seizure of privileged documents. Nor was the decision to issue the warrants invalid. The issuing justice restricted the execution of the warrants so as to ensure observance of the guidelines for dealing with documents in the event that a claim of privilege was made. The conduct of the police in executing the warrants complied with the guidelines. In accordance with those guidelines, the documents for which privilege was claimed were not seized under the warrant but were sealed up and delivered to a third party. The guidelines provide, in effect, that when the documents are sealed up and delivered to a third party, the execution of the warrant be suspended pending the decision in proceedings to establish the privilege. If no such proceedings are taken or such proceedings fail, the documents are released into the possession of a police officer to be dealt with under the warrant. In this way, an accommodation is reached between the legislative intention expressed by s 10(1) and the decision in Baker v Campbell.
When a claim of privilege attaching to a document seized under a warrant comes to be determined judicially, the court must ascertain for itself whether the document was brought into existence solely for a privileged purpose and, if it be found or assumed that the document is a copy of an unprivileged original but was brought into existence solely for a privileged purpose, whether the privilege has been lost. In determining the claim of privilege, the court is not reviewing judicially an executive action but is determining a distinct controversy between the person who seeks to inspect the seized document and the person who seeks to maintain its immunity from inspection on the ground of legal professional privilege. To determine that controversy, the court must act upon admissible evidence, not upon hearsay. In the present case, Davies J had regard to the sworn information laid before the issuing justice. That material was admissible to establish the basis on which the search warrant was issued and thus to support the validity of the issue of the warrant, but it was not admissible to show that the copy documents found in the custody of solicitors were not privileged.
Ulterior purpose in communications with legal adviser
In determining whether a claim of legal professional privilege can be upheld, it is open to the party resisting the claim to show reasonable grounds for believing that the communication effected by the document for which legal professional privilege is claimed was made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest. [39] I state the criterion as " reasonable grounds for believing " because (a) the test is objective and (b) it is not necessary to prove the ulterior purpose but there has to be something " to give colour to the charge " , [40] a " prima facie case " that the communication is made for an ulterior purpose. [41] The purposes that deny the protection of privilege for a communication [42] (whether documentary or oral) between a client and the client ' s solicitor or counsel include [43] the furthering of the commission of an offence. [44]
When a party in curial proceedings is seeking to rebut a claim of privilege by asserting that the communication with the legal adviser was made for an ulterior purpose, the evidence of ulterior purpose must be admissible in those proceedings. It is not sufficient to rely on the information laid before the justice who issued the warrant. The informant is not necessarily a witness and, if he or she is a witness, the admissible evidence is what is then deposed to, not a statement made to or before the issuing justice. In the present case no admissible evidence was tendered, although Davies J at first instance recorded that counsel for the parties were content that he " should have regard to " the sworn information laid before the issuing justice.
Two issues that were relevant to the claim of privilege in respect of the copy documents seized under the warrant appear to await determination. The first is whether the privilege attached at all. That question may need to be re-litigated now that it has been held that a concurrence of counsel in the judge ' s " having regard to " the sworn information was an inappropriate means of proving the facts relevant to that issue. The second is (in my opinion) whether, if privilege attached, it was lost by reason of the unavailability of the original unprivileged documents or of any secondary evidence of their contents.
Although these reasons differ from those of their Honours in the Full Court, the orders made by that court suffice to allow effect to be given to these reasons. I would therefore dismiss the appeal and cross-appeal.
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