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

Gummow J In Australia what now generally is identified as modern administrative law has its own federal statutory regime. ^[1] In the past, significant questions of public law frequently were determined not by the prerogative writ procedures but as issues in actions for damages at law or in equity suits. In such litigation the plaintiff claimed redress for tortious injury to private or individual rights.

Ashby v White ^[2] established " the right to vote " , but was the trial of an action on the case. In Musgrave v Chun Teeong Toy, ^[3] the Privy Council, on appeal from Victoria, ^[4] held there was no absolute and unqualified right of an alien to admission to a British colony. This result was reached in an action for damages against the official who had refused to allow the alien to land. In another action Bradlaugh sought to test the efficacy of his exclusion from the House of Commons by claiming an injunction to restrain the Serjeant-at-Arms from using force to exclude him. ^[5] Of more direct relevance to this appeal are eighteenth century decisions of the court of Common Pleas expounding, in actions for trespass, the common law principles with respect to general warrants. ^[6]

This appeal shows that such issues may still arise for determination in this fashion. It also demonstrates the need to avoid a narrow classification of what is involved in " administrative law " litigation.

The nature of the case

This appeal is brought from a Full Court of the Federal Court of Australia (Beaumont, Hill and Lindgren JJ) ^[7] and concerns two aspects of the law of legal professional privilege. Orders of review of decisions under s 10 of the Crimes Act 1914 (Cth) (the Crimes Act) were sought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). In addition, the respondents sought injunctive (and ancillary declaratory) relief against the appellants under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act). There was no cross-application by the appellants for declaratory relief to the contrary effect of that sought against them.

Analysis of these and other distinctions was somewhat obscured at earlier stages in the litigation. As will become apparent, this is a circumstance of some significance for resolution of the issues of legal professional privilege now before this Court. Upon examination, the issues on the appeal do not turn upon considerations going directly to judicial review of administrative decisions. Rather, they arise from the reliance of the respondents upon their private rights to enjoin what otherwise would be wrongful interference with ownership or possession of documents. Interference with those rights is beyond the scope of what is allowed upon execution of warrants issued under s 10 of the Crimes Act. That is because s 10 does not affect the operation of the doctrine of legal professional privilege. It will be necessary to refer to these matters further when considering the decision in Baker v Campbell. ^[8]

The first appellant is the Commissioner, Australian Federal Police (the AFP), and the second appellant is a member of that force. It is established by the Australian Federal Police Act 1979 (Cth) (the AFP Act). On 2 September 1993, on application of the second appellant, a Justice of the Peace issued nine warrants in exercise of the power conferred by s 10(1) of the Crimes Act 1914 (Cth). ^[9]

At the time of the issue of the warrants, s 10(1) stated:

If a Magistrate or Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in or upon any premises, aircraft, vehicle, vessel or place:
(a) Anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;

Anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or

(c) Anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence;

or that any such thing may, within the next following 72 hours, be brought into or upon the premises, aircraft, vehicle, vessel or place, the Magistrate or Justice of the Peace may grant a search warrant authorising any constable named in the warrant, with such assistance, and by such force, as is necessary and reasonable, to enter at any time the premises, aircraft, vehicle, vessel or place named or described in the warrant, and to seize any such thing which he or she might find there.

The warrants authorised 60 members of the AFP to search nine business and residential premises associated with the respondents. The ninth respondent is a solicitor. In all but one respect, the warrants were relevantly in identical terms. The text of one of the warrants is set out as an annexure to the judgment of Beaumont J ^[10] The warrant specifies three conditions, the third of which is the existence of reasonable belief that the documents and records to be seized would afford evidence as to the commission of certain offences. It continues:

YOU ARE HEREBY AUTHORISED with such assistance and by such force as is necessary and reasonable, to enter at any time the said place, and to seize any such things as satisfy ALL of the THREE above conditions and as may be found in the said place and in accordance with the procedure set out in the GENERAL GUIDELINES BETWEEN THE AUSTRALIAN FEDERAL POLICE AND THE LAW COUNCIL OF AUSTRALIA (dated 7 June 1990) as to the execution of search warrants on lawyer ' s premises, the Law Society and like institutions in circumstances [where] a claim of legal professional privilege is made, and for so doing this shall be your SUFFICIENT WARRANT.

Annexed to the warrant to search the offices of the firm of the ninth respondent was a copy of those General Guidelines (the Guidelines). This document also was attached to the judgment of Beaumont J. ^[11]

The warrants recite the satisfaction of the Justice of the Peace, by information on oath placed before her, that there were reasonable grounds for suspecting the presence on the designated premises of materials affording evidence as to the commission of offences against ss 86(1)(e) and 86A of the Crimes Act 1914 (Cth) and against ss 5 and 13 of the Crimes (Taxation Offences) Act 1980 (Cth). Section 86(1) creates various offences of conspiracy. Paragraph (e) thereof was concerned with conspiracies " to defraud the Commonwealth or a public authority under the Commonwealth " . It was repealed by s 3 of the Statute Law (Miscellaneous Provisions) Act (No 2) 1984 (Cth) (the 1984 Act) with effect from 25 October 1984. Section 3 of the 1984 Act also inserted, to commence on 25 October 1984, s 86A of the Crimes Act 1914 (Cth). This provision also is concerned with conspiracy to defraud the Commonwealth or a public authority under the Commonwealth. The conspiracies contrary to s 86A which are specified in the warrants are stated to have commenced on 25 October 1984. Those in respect of s 86(1)(e) are stated as having taken place between 30 June and 24 October 1984.

The search warrants were executed by officers of the AFP on the day of issue and documents were seized. During the search of the premises of the ninth respondent, claims were made that legal professional privilege attached to some of the documents the AFP sought to seize. With respect to those documents, the AFP complied with the practice set out in the Guidelines. On the commencement of the proceeding in the Federal Court on 10 September 1993, the documents were lodged with the Registry of that Court. Undertakings were given by the AFP not to inspect the seized documents which were the subject of the claim for privilege until the resolution of that claim.

Three points should be made here. The first (to which it will be necessary to return) was made in the Full Court by Lindgren J His Honour said: ^[12]

Although it is convenient to speak of " privileged documents " , this involves an ellipsis which is apt to mislead. What are privileged from disclosure are communications, whether between lawyer and client or between one of them and a third party, and information which happens to be in documentary form

The second point was made by Hill J. ^[13] It is that the unchallenged evidence was that the seized documents the subject of the claim of privilege were copies which had been made for the sole purpose of obtaining or giving legal advice. Some of the documents were copies made by the client and sent to the client ' s solicitor for advice. Others were copies included in briefs to advise which had been sent by the solicitor to counsel. As Gaudron J explains in her reasons for judgment, the privilege extended to both categories of copy document. The third point also will require elaboration. It follows from the first two and is that the communications, of which the making and transmission of the copies formed part, were not themselves alleged to have been made in furtherance of an improper purpose constituted by the alleged conspiracies. Rather, the appellants approached the matter on the footing that any taint attaching to the original documents necessarily infected copies thereof.

There were no pleadings in the Federal Court proceeding. In the application an order for review was sought under the ADJR Act and the jurisdiction conferred by s 39B of the Judiciary Act 1903 (Cth) was invoked for prohibitory and mandatory injunctive relief and supporting declarations. However, the application was drawn so as not clearly to distinguish between the various foundations of jurisdiction. On the one hand, the applicants (the present respondents) sought review of the decisions of the second appellant to apply for issue of the warrants and the decisions of the Justice of the Peace to issue them. The applicants contended that the warrants were " too wide and uncertain " , and that the decisions were improper exercises of the power said to be conferred by s 10 of the Crimes Act 1914 (Cth) and were so unreasonable that no reasonable person could have so exercised that power. None of these issues arise on the present appeal.

Complaint also was made of the " conduct " of members of the AFP in the execution of the warrants, in particular in seizing documents to which legal professional privilege was said to attach. This " conduct " was posterior rather than anterior to the decisions in respect of which review was sought. Section 6 of the ADJR Act is concerned with review of past, present or proposed conduct " for the purpose of making a decision to which this Act applies " . In the course of submissions to this Court, counsel for the respondents, recognising this, emphasised s 39B of the Judiciary Act 1903 (Cth) as the jurisdictional basis in respect of the complaint as to seizure of documents. Among the relief sought was an order restraining the first and second appellants from inspecting or copying the documents seized, a declaration that the documents deposited with the New South Wales District Registry of the Federal Court were subject to legal professional privilege, and an order that those documents be delivered forthwith to the persons from whom they had been seized.

The trial judge made an order, styled a " direction " , and made two declarations which are presently significant. The court directed that, subject to the first declaration, issues as to whether legal professional privilege attached to the documents seized were to be determined after the documents in question had been examined. The first relevant declaration was that (Propend (1994) 35 ALD 25 at 46; 29 ATR 87 at 109) " by reason of the allegation of offences under s 86(1)(e) and s 86A of the Crimes Act 1914 (Cth) and of the proof given in support thereof, the following documents are not subject to legal professional privilege … " . The second relevant declaration was that (Order No 6. As cited by Beaumont J, Propend (1995) 58 FCR 224 at 232-3; 30 ATR 311 at 320) " 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 " . These declarations were adverse to the interests of the respondents, the moving parties at the trial, and favoured the appellants. This was so despite there being before the Court no cross-application by the appellants, seeking negative declarations.

On appeal (taken by leave), the Full Court set aside that direction and those declarations. In place thereof, the Full Court ordered that there be a fresh hearing on the respondents ' claims for privilege.

In this court, the appellants seek an order that the appeal to the Full Court be dismissed, thereby reinstating the relief granted by the trial judge. By their cross-appeal the respondents contend that the Full Court should not have ordered any fresh hearing in respect of the issue whether the original documents were not subject to legal professional privilege for the reasons expressed in the first declaration made by the trial judge. The respondents say that the Full Court should have remitted only the questions of identification of those copy documents to which the privilege attached.

Special leave

This Court granted special leave to appeal in respect to the two questions dealt with in the declarations made by the trial judge. One is the contention of the appellants that legal professional privilege does not extend to a copy of a document if the original is not a subject of the privilege. The other is that the privilege had been displaced because there had been before the Justice of the Peace sufficient (Propend (No 2) (1996) 35 ALD 25 at 43-4; 29 ATR 87 at 107.) " prima facie evidence " that the communications the subject of the documents sought by the warrants were made in furtherance of improper purposes, in particular the alleged offences.

It is convenient to undertake consideration of these matters bearing in mind that any incursion into the area occupied by the privilege should be, in the phrase of Lord Nicholls of Birkenhead, " principled and clear " , ^[14] and after reference to some basic propositions.

Basic propositions

The first proposition is that it is settled in Australia ^[15] (and perhaps now in England) ^[16] that the doctrine of legal professional privilege itself represents a balance struck between competing public interests. Given its application, no further " balancing exercise " , such as that involved with a claim of public interest immunity, is appropriate.

The second is that in various jurisdictions regard is had to the " dominant purpose " in the preparation of documents claimed to be protected from inspection. ^[17] This is on the ground that to hold, in accordance with Grant v Downs, ^[18] that the purpose must be the sole purpose would, apart from difficulties of proof, confine the privilege too narrowly. These differing views of the scope of the privilege are to be understood when considering the many decisions from other common law jurisdictions to which we were referred.

Third, the privilege does not attach to a communication made as part of a criminal or unlawful proceeding or in furtherance of an illegal object. The privilege would not attach where the plaintiff sought legal assistance as a step in, or preparatory to, the commission of a crime or fraud, even though the solicitor was unaware of the purpose of the communication at the time it was made. ^[19] The communication would still be " designed to facilitate future wrongdoing " . ^[20] In addition, the privilege does not protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law. ^[21] It follows that the operation of the privilege is not decided, as a general proposition, merely by a determination in the instant proceeding of whether facts amounting to a crime have been proved. The nature of the alleged impropriety and thus the issue of existence of the privilege will vary from case to case.

Fourth, it is established in Australia by Baker v Campbell ^[22] that the right that protects privileged communications from disclosure without consent of the lay client is more than an aspect of civil and criminal procedure and more than a rule of evidence applicable in the course of litigation. Some English decisions to which we were referred, including Ventouris v Mountain ^[23] and Lubrizol Corp v Esso Petroleum Ltd ^[24] may proceed upon a different footing. This corresponds to the doctrine which previously prevailed in this Court under the majority decision in O ' Reilly v State Bank of Victoria Comrs. ^[25] It had been held that the privilege was not available outside the realm of judicial and quasi-judicial proceedings where, in general, the rules of evidence are applied, because the privilege was a rule of evidence and the underlying policy it serves did not demand an extension beyond that realm. However, the law in England has been clarified. The House of Lords recently affirmed that the privilege is " much more than an ordinary rule of evidence, limited in its application to the facts of a particular case " and that it " is a fundamental condition on which the administration of justice as a whole rests " . ^[26]

Finally, legal professional privilege being more than an aspect of procedural law, it is then a question of identifying its true character. Views differ as to whether the privilege is to be characterised as " a practical guarantee … of fundamental constitutional or human rights " , ^[27] " a substantive rule of law " , ^[28] or one of those traditional common law rights which is not to be abolished or cut down otherwise than by clear statutory provision. ^[29] Certainly the privilege alike protects the strong as well as the vulnerable, the shabby and discredited as well as the upright and virtuous, those whose cause is in public disfavour as much as those whose cause is held in popular esteem.

At common law, and in the absence of any statutory indemnity or other protection against liability, an officer who executed a search warrant in excess of the authority conferred by it, incurred a liability for damages in tort for trespass to land or goods, ^[30] false imprisonment ^[31] or for other misfeasance. ^[32] However, the privilege itself is not to be characterised as a rule of law conferring individual rights, breach of which gives rise to an action on the case for damages, or an apprehended or continued breach of which may be restrained by injunction.

It is true that if the use of privileged documents by the defendant is, or is a consequence of, a breach of confidence owed the plaintiff, then there may be an equity to protect that confidence. ^[33] In Lord Ashburton v Pape, ^[34] it was decided that the client whose privileged documents, being letters written to his solicitor, had fallen into the hands of a third party by a trick, might obtain injunctive relief requiring the return of the documents and restraining the third party from making use of them. On the other hand, in Calcraft v Guest, ^[35] the defendant was permitted to adduce as secondary evidence copies of proofs of witnesses, with notes of the evidence, in a previous action brought in 1787 by the plaintiff ' s predecessor in title and concerning the true boundary of the plaintiff ' s fishery. The original documents remained privileged but the defendant, having obtained copies of the privileged documents, was not precluded by that privilege from tendering them as secondary evidence. It was held that the question of provenance of the documents tendered was a collateral issue.

The distinction between these authorities may be seen to lie in the character of the privilege as a bar to compulsory process for the obtaining of evidence rather than as a rule of inadmissibility. The effect of the authorities has been identified as follows: ^[36]

All that Calcraft v Guest decided was that when a privileged document was no longer in the hands of those entitled to claim immunity from production, there was nothing to prevent its use in evidence. Of course, a person who has a right to confidence in a document can enforce his right by injunction, and this is what lay behind Ashburton v Pape.

Baker v Campbell

Although conceptually separate, the three elements of privilege, confidence, and excess of authority were all involved in Baker v Campbell. ^[37] As in the present case, a search warrant had been issued pursuant to s 10 of the Crimes Act 1914 (Cth) and it authorised the seizure of certain documents on premises occupied by solicitors. The defendant, acting pursuant to the warrant, attempted to seize certain documents to which it was alleged legal professional privilege attached. The plaintiff commenced an action in this Court to restrain the defendant from seizing the documents. ^[38] The action thus appears to have been one to enjoin apprehended misfeasance by conduct in excess of the authority conferred by law on the defendant. The matter came before the Full Court on a case stated. By majority, the court held that the Crimes Act 1914 (Cth) did not evince any intention to oust the privilege and that the privilege applied to documents within the scope of the search warrant issued pursuant to s 10 .

Gibbs CJ ^[39] took Lord Ashburton v Pape as authority for the proposition that the owner of a document which has been improperly obtained may secure an injunction prohibiting its use in evidence, provided this is done in a separate proceeding before the document has been put in evidence. Brennan J ^[40] said that the court ' s power to restrain by injunction the use of documents obtained in breach of confidence could not be exercised to restrain the use in evidence of documents which had been seized under a warrant if, upon its true construction, s 10 authorised their seizure. Later, in Johns v Australian Securities Commission, ^[41] , Brennan J emphasised that the subject-matter of the equitable obligation is information and the requirement of confidence in respect of it; and, in a passage with which I respectfully agree, Gaudron J ^[42] pointed out that in some circumstances third parties may be bound by the obligation. Equitable relief thus may extend to use of copy documents.

The primary significance of Baker v Campbell for the present case rests in the construction given s 10 of the Crimes Act 1914 (Cth). That construction illustrates the proposition that, even in respect of legislation not directed to the conduct of litigation, the privilege is not to be taken as abolished or qualified other than by clear statutory provision. In that regard, reference was made to the apparent tendency in legislation to compel a disclosure of evidence as an adjunct to modern administrative procedure, and to the risk thereby created of undermining the policy supporting the privilege. ^[43]

The propositions for which Baker v Campbell is authority are encapsulated in the following statement by Dawson J: ^[44]

[T]he doctrine of legal professional privilege is, in the absence of some legislative provision restricting its application, applicable to all forms of compulsory disclosure of evidence. Section 10 of the Crimes Act 1914 (Cth) does not expressly or by necessary implication restrict the application of the doctrine and the section should, therefore, be construed as being not intended to affect it.

Baker v Campbell did not decide that the warrant in question was, to any degree, invalid. Rather, the court answered in the negative the question whether the documents the subject of the privilege might properly be made the subject of a search warrant issued under s 10 . It follows that the objective of the respondents in initiating the present litigation, namely to protect privileged communications, was not to be attained by seeking judicial review of decisions leading up to the issue of the warrants. The power conferred upon the authorities designated in s 10 to grant search warrants is to be so construed, in accordance with s 46(1)(b) of the Acts Interpretation Act 1901 (Cth), that any warrant granted thereunder is to be read so as not to exceed that power. ^[45] The power did not extend to restrict the application of the doctrine of legal professional privilege.

Of course, in the execution of warrants, issues arise as to the application of the privilege and thus the operation of the warrant. The Guidelines were designed to provide a means of preserving the status quo pending curial resolution of a dispute as to the existence of the privilege. In the present case, the means for curial resolution were provided by the application for injunctive and ancillary relief, founded upon s 39B of the Judiciary Act 1903 (Cth). It was for the respondents, as the parties seeking injunctive relief, to establish that the privilege applied in respect of those documents otherwise falling within the terms of the warrants.

By way of answer to the case presented by the respondents, ^[46] it was open to the appellants to demonstrate that the documents in question were not protected, not because of any exception to the general rule but because there was a sufficient element of impropriety or illegality in the otherwise privileged communications of which they were part to take them outside the area covered by the privilege. ^[47] This is the second issue arising on the grant of special leave. I turn to consider the first issue.

Copy documents and communications

While issues as to the privilege frequently arise upon discovery or tender (or, as in this case, upon seizure) of documents, the subject-matter of the privilege is communications made solely for a particular purpose. In Grant v Downs, ^[48] Jacobs J identified the rule that:

… communications with one ' s legal adviser are privileged from disclosure and that the privilege extends not only to communications actually made but to material prepared for the purpose of communication thereof to the legal adviser.

These communications may be oral, written or a combination thereof. Moreover, many communications made to obtain or to give legal advice will not concern contemplated or pending litigation and, further, in any event may involve third persons. Hence the particular significance of the second sentence in the following passage from the judgment of McHugh J in Carter v Northmore Hale Davy & Leake: ^[49]

Communications between legal advisers and their clients concerning contemplated or pending litigation cannot be disclosed without the consent of the client. ^[50] Similarly, communications made to obtain or to give legal advice cannot be disclosed without the consent of the client. ^[51] " Legal professional privilege " is the shorthand description of the right that protects these communications from being disclosed without the consent of the lay client.

It also is significant, as Beaumont J emphasised in the present case ^[52] that the privilege extends to any document prepared by a lawyer or client from which there might be inferred the nature of the advice sought or given. Examples include communications between the various legal advisers of the client, draft pleadings, draft correspondence with the client or the other party, and bills of costs. ^[53]

This identification of the privilege with communications, rather than merely with documents, is important for the first issue on the grant of special leave.

Upon that issue this court was referred, as had been the Full Court, to a large number of authorities from Australia and other common law jurisdictions. ^[54] In a number of the authorities, the reasoning proceeds from the false premise that what is involved is privilege for particular documents rather than for communications. The differing views to be gathered from the decisions were collected by Hill J. ^[55] His Honour pointed out that the strongest statement that privilege will never attach to copies appears to be that of Lord Denning MR in Buttes Oil Co v Hammer (No 3). ^[56] His Lordship said:

In my opinion, if the original is not privileged, neither is a copy made by the solicitor privileged. For this simple reason, that the original (not being privileged) can be brought into court under a subpoena duces tecum and put in evidence at the trial. By making the copy discoverable, we only give accelerated production to the document itself.

Some decisions support the proposition that the privilege will attach to copies of documents brought into existence for the purposes of obtaining legal advice or for litigation. Others adopt what Hill J identified as intermediate positions that (a) copy documents will not generally be privileged, but the privilege will exist where disclosure would reveal the " line of reasoning " of the legal adviser, and (b) privilege attaches to a copy only if there has been " selective copying " or " the exercise of skill and knowledge by the solicitor " (Propend 58 FCR 224 at 253-4; 30 ATR 311 at 339).

The mere circumstance that the production of an original document, which is not privileged, may be required by subpoena and that it then may be put in evidence does not meet the points of principle which are involved. One of these, as mentioned earlier in these reasons when discussing Lord Ashburton v Pape, ^[57] and Calcraft v Guest ^[58] is that the privilege is to be characterised as a bar to compulsory process for the obtaining of evidence rather than a rule of inadmissibility. Further, the Master of the Rolls was not addressing that important aspect of privilege which is concerned not with current or contemplated litigation but with the provision of advice to assist in the conduct of the client ' s affairs in conformity with relevant legal rights and obligations.

Nor does the privilege exist to protect the labour of the legal adviser by exercising skill and knowledge in selective copying or production of summaries. ^[59] The privilege is that of, and protects the interests of, the client, and is not limited to what in the United States has been called " the attorney ' s work-product " . ^[60] Nor is the privilege concerned merely to protect disclosure of litigation strategy or the line of reasoning of the legal adviser. ^[61]

In the course of argument, it was said that there would be an anomaly if a photocopy of a publicly registered document, made solely for a privileged communication, were protected whereas a certified copy of the original might readily be obtained and put into evidence. Other curiosities or apprehensions were suggested. One was the fear that copy documents might be brought into existence to enable destruction of the original whilst the copy was employed in obtaining legal advice and thus became part of a privileged communication. Yet, given the gross impropriety that this would involve, it surely would be difficult to sustain an argument for the subsistence of privilege. To uphold the privilege in such a case would be to allow the " privilege to be used for a purpose alien to its whole purpose and history " . ^[62] Further, as McHugh J points out in his reasons for judgment, on these assumed facts the copy documents would not have been made for the sole purpose of obtaining legal advice.

On the other hand, it may be that a broad test of privilege in respect of copy documents where the original is not privileged rests upon the practical consideration that protection of the copy is essential to the proper functioning of the adversary system of adjudication. The denial of privilege in respect of copies of non-privileged non-party documents, made for litigation, would impair the proper preparation of cases for trial. It would encourage parties to use discovery, rather than their own investigations, to seek out documents in the hands of third parties. The point has particular force where prosecuting authorities thereby are tempted to obtain copies from the legal advisers of those who are suspected or accused of offences. A summary of the document prepared by the solicitor would attract the privilege. Yet reproduction of a document is the soundest way of obtaining a record of its contents for supply by a solicitor to obtain the advice of counsel. To deny privilege in this case is to encourage slow and more expensive procedures. ^[63]

In the end, the matter turns upon the application of the basic principles outlined earlier in these reasons, in particular those

(a) that communications with one ' s legal adviser which satisfy the criterion of sole purpose are privileged from disclosure, and;

(b) that this privilege extends to the various components of a communication, including material prepared for submission to the legal adviser.

It is not a question of extracting one or other of what may be numerous documents, all of which form part of the privileged communication, and declassifying those particular documents on the footing that the original or other copies exist and there is no bar to compulsory process for the obtaining of them to put in evidence. The communication as a whole is protected to foster the confidential relationship in which legal advice is given and received and thereby to advance the respect for and observance of the law. ^[64] The circumstance that a particular document is a copy of an original which is not protected from compulsory process by the privilege does not mean that there is no bar to compulsory process for the obtaining of the copy. The status of the original, from the viewpoint of privilege, does not determine that of the copy. Of course, if there is an equity of the kind revealed in Lord Ashburton v Pape, then distinct considerations may apply alike to original and copy documents. But that is not this case.

Rather, the question here is whether, having regard to the circumstances in which the copy document was brought into existence, it is to be treated as a communication, or, with other oral or written material, an element in a communication, concerning contemplated or pending litigation or made to obtain or give legal advice. In that setting, it would not be sufficient that the original document was made in furtherance of an improper purpose such as those asserted in the nine warrants issued on 2 September 1993. In a particular case it may be established that the communication for which the copy was made is part of a criminal or unlawful proceeding or was made in furtherance of an illegal object such as the commission of a crime or fraud. ^[65] But this litigation has not been so conducted as to raise any issue that the legal advice which was sought was of that character.

It follows that the result reached by the Full Court in setting aside the second declaration made by the trial judge was correct.

Illegal or improper purpose

As outlined above, the first relevant declaration made by the trial judge was that (Propend (1994) 35 ALD 27 ; 29 ATR 87 at 109) " by reason of the allegation of offences " under s 86(1)(e) and s 86A of the Crimes Act 1914 (Cth) " and of the proof given in support thereof " , certain documents were not subject to the privilege. The declaration was so framed as to assume the privilege operated in respect of documents rather than communications. Moreover, the true issue would have been whether sufficient evidence had been offered in respect of the proposition that the communications for which the copies were made were part of a criminal or unlawful proceeding or in furtherance of an illegal object. If the appellants had made good the allegation that the offences under the Crimes Act 1914 (Cth) tainted the preparation and contents of the original documents, the question of sufficiency of proof still would have remained as to whether the privileged communications were in furtherance of the conspiracies so alleged or were part themselves of some other criminal or unlawful proceedings.

Consideration of the subject of sufficiency of proof thus was conducted upon a false footing. For that reason alone, the first declaration was properly set aside. However, it is convenient to consider whether, had the true issue been addressed, it would have been incumbent upon the appellants to adduce some admissible evidence from which there might appear in relation to the communications an illegal or improper purpose or the furtherance of an illegal object.

The respondents rely upon the statement by Gibbs CJ in Attorney-General (NT) v Kearney ^[66] (with whom Mason and Brennan JJ agreed ^[67] ) that the privilege is not displaced by the making of " a mere charge of crime or fraud " . Before the trial judge, the appellants tendered an affidavit of Assistant Commissioner P W Baer to which there was exhibited a copy of the information on which the Justice of the Peace had acted in issuing the warrants. The information was sworn by the second appellant. He gave no evidence at the trial.

The appellants submit that search warrants are an " investigative tool " and that they are obtained usually at a stage when there is insufficient evidence to lay criminal charges and, indeed, often are obtained in order to ascertain if a suspected criminal offence has occurred. They contend that it would appear absurd to require proof of illegality in order to displace legal professional privilege when the alleged illegality is the very subject matter of the inquiry. Indeed, the trial judge dealt with this aspect of the case by saying that the information put before the Justice of the Peace " provided evidence that there were reasonable grounds for suspecting " that the specified offences had occurred. ^[68]

However, the issue here is not whether the warrants were issued upon a sworn information which was sufficient then to displace the privilege. Before the Federal Court, the task of the appellants, in resisting the privilege propounded by the respondents in their application under s 39B of the Judiciary Act 1903 (Cth), was to satisfy the Federal Court that there was more than an allegation of crime or impropriety, and that the privilege was displaced. In the Full Court, Hill J explained the position as follows: ^[69]

The learned trial judge relied upon the information which had been admitted into evidence subject to the [respondents ' ] objection to it. Without the information there would have been no more than a bare assertion. The information was exhibited to an affidavit … That affidavit no doubt served to identify the information but did not enable the information to be treated as evidence of the matters contained in it. Not only was the information itself hearsay, emanating in part from undisclosed sources but the informant was not available for cross-examination. The information should not have been admitted into evidence.

As no other evidence of illegal or improper purpose was before the court, his Honour should have held that the material for which privilege was claimed should, in the absence of agreement between the parties, have been examined to determine whether the privilege was properly claimed.

In a number of the authorities dealing with this aspect of the doctrine of legal professional privilege, the issue has arisen upon the response to obligations to provide discovery of documents ^[70] or to answer interrogatories. ^[71] In others, for example Bullivant v Attorney-General (Vic), ^[72] the issue arose upon an order to attend and produce documents.

The plaintiff in Butler v Board of Trade ^[73] instituted a suit claiming an injunction against the Board of Trade using the contents of a letter written to him by a solicitor. Goff J ^[74] pointed out that, on some occasions, the question whether the privilege does not apply has " to be determined on a prima facie basis, often without seeing the documents or knowing what was orally communicated " and that in such circumstances " the proper prima facie inference will be that the communication was made in preparation for or in furtherance or as part of the criminal or fraudulent purpose " .

In Bullivant, the Attorney-General, by an information filed in the Supreme Court of Victoria, claimed that certain conveyances had been executed " with intent to evade the payment of duty " under the Administration and Probate Act 1890 (Vic). The Attorney unsuccessfully sought to answer the claim of privilege in respect of communications with the solicitor who had prepared the conveyances by reliance solely upon the terms of the information. This attempt was unsuccessful because, as Lord Lindley pointed out, " evade " was an ambiguous expression and could identify no more than the doing of something which would not bring a party within the scope of the statute. ^[75]

The assertion and determination of claims of privilege may be attended by special evidentiary considerations. The procedures for discovery under the judicature system have been said not to allow for any right of cross-examination of the deponent of an affidavit of documents ^[76] and, subject to the qualifications explained by Menzies J in Mulley v Manifold, ^[77] the affidavit is conclusive. It was the view of Bowen CJ ^[78] that a certificate or affidavit making a claim to public interest immunity is received not as evidence in the list but for the purpose of enabling the court to rule on the claim, so that any cross-examination going beyond the issue of the claim to immunity is impermissible. ^[79] Further, in cases of defence secrets, matters of diplomatic relations, or affairs of government at the highest level it may so readily appear to the court that the balance of public interest is against disclosure, that of its own motion the court should enjoin disclosure and do so even in the absence before it of any claim to Crown privilege; the Crown may not be a party or may be unaware of what is afoot. ^[80] But no such special considerations attended the adjudication of the privilege claimed in the present proceeding.

The existence of the privilege may be denied in response to an obligation to allow inspection upon discovery. In such instances, much will turn upon the particular statute or rules of court regulating discovery. Thus, in O ' Rourke v Darbishire, ^[81] in the course of a passage partly extracted by Gibbs CJ in Attorney-General (NT) v Kearney ^[82] and in which the phrase " prima facie case " is used, Viscount Finlay said:

It is with reference to cases of this kind that it can be correctly said that the court has a discretion as to ordering inspection of documents. It is obvious that it would be absurd to say that the privilege could be got rid of merely by making a charge of fraud. The court will exercise its discretion, not merely as to the terms in which the allegation is made, but also as to the surrounding circumstances, for the purpose of seeing whether the charge is made honestly and with sufficient probability of its truth to make it right to disallow the privilege of professional communications. In the present case it seems to me clear that the appellant has not shown such a prima facie case as would make it right to treat the claim of professional privilege as unfounded.

These discretionary considerations do not enter into the matter where one of the issues being tried on the hearing of an action is the existence of the privilege or where the determination of the existence of the privilege is a necessary step to the admission of evidence at a trial. The present case is in the former category, and the decision of the Court for Crown Cases Reserved in R v Cox and Railton ^[83] is in the latter. Cox and Railton had been tried and convicted upon a charge of conspiring to defraud one Munster. At the trial, a solicitor was called on behalf of the prosecution to testify that, after Munster had obtained a judgment against Railton, Cox and Railton had consulted him as to how they could defeat the judgment. Objection was taken to the reception of that evidence. The evidence was received but the question whether this had been properly done was reserved after the verdict of the jury. The Court for Crown Cases Reserved proceeded on the footing ^[84] that the jury had found that, as far as Cox and Railton were concerned, their communication with the solicitor was a step preparatory to the commission of a criminal offence, namely, a conspiracy to defraud.

In the present case, the question for decision by the trial judge was whether the appellants had made out a good answer to what otherwise would be a claim of privilege. It was not whether there were prima facie grounds to the satisfaction of the Justice of the Peace, before issuing the warrants, that there was the reasonable ground of suspicion referred to in s 10 of the Crimes Act 1914 (Cth). The issue did not arise upon judicial review of the decision of the Justice of the Peace. It arose at trial, in the manner I have described. Attempts to put glosses upon the ordinary civil standard of proof which applied at the trial are to be discouraged.

The best overall guide remains the following statement by Dixon J in Briginshaw v Briginshaw: ^[85]

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters " reasonable satisfaction " should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

In the present case, quite apart from the failure accurately to frame the relevant issue, the inexactitude, indefiniteness and indirection referred to by Dixon J crippled the attempt of the appellants to take the documents in question out of the operation of the doctrine of legal professional privilege. The result achieved in the Full Court on this aspect of the case should not be disturbed.

Orders

The course taken at the trial is referable to the somewhat confused fashion in which the respondents framed their case in the application and to the absence of any cross-application by the appellants. In all the circumstances, there should be no fresh hearing on the respondents ' claims to privilege.

Rather, there should be a declaration that those copies of documents, being copies made for the sole purpose of obtaining or giving legal advice or solely for use in legal proceedings and seized upon execution of the warrant, issued 2 September 1993, at the premises of the ninth respondent, were the subject of legal professional privilege. The question of the identification of which particular documents (if any) fall within the terms of that declaration should be remitted to a single judge of the Federal Court, for determination, together with any reserved questions of costs of the proceedings at first instance. There was no appeal to the Full Court against Order 7 which reserved those costs.

The appeal should be dismissed. The cross-appeal should be allowed and upon the cross-appeal, Order 3 of the Full Court should be varied so as to set aside Orders 4, 5, 6 and 8 of the orders made by Davies J and provide for a declaration to the above effect and for remitter of outstanding issues to a single judge of the Federal Court.

The respondents should have their costs in this court. The Full Court made no order as to the costs of the appeal to it. That had raised issues in addition to those which came to this court. I would not disturb that costs order.