Grofam Pty Ltd v. Australia & New Zealand Banking Group Ltd

45 FCR 445

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(Judgment by: Northrop J, Ryan J, Beazley J) Court:

Judges:
Northrop J
Ryan J
Beazley J

Judgment date: 15 October 1993

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Judgment by:
Northrop J
Ryan J
Beazley J

On 18 August 1993, the court refused a motion by the applicants for leave to appeal against orders made by a single judge of the court refusing to compel disclosure by the Commonwealth Director of Public Prosecutions (the DPP) of certain documents discovered by the DPP in proceedings numbered VG 110 of 1993 (the proceedings) which have been instituted in this court by Grofam Pty Ltd (Grofam), Bruno Grollo and Rino John Grollo, who apparently control Grofam, and seven associated companies which are also applicants. The proceedings are brought against the Australia and New Zealand Banking Group Ltd, Peter Macauley who is the Commissioner of the Australian Federal Police (the AFP), Kenneth Wayne McDermott, a detective sergeant in the AFP, and Robert Leslie Tuppen who is a stipendiary magistrate. Mr Tuppen had issued search warrants at the instigation of Sergeant McDermott for execution at the homes of members of the Grollo family connected with Grofam and at the offices of their accountants and solicitors. The following convenient description of the proceedings has been given by the learned primary judge in his reasons for judgment: Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 116 ALR 535 at 537-8:

By an amended application filed on 17 May relief is sought against the ANZ Bank, Mr Peter Macauley (the Commissioner of the AFP), Sergeant McDermott and Mr Tuppen. On the same day an amended statement of claim was filed. Part of the amended statement of claim raises complaints about an alleged apprehended disclosure by the ANZ Bank to the AFP of material concerning the applicants in circumstances which it is said would breach the bank's obligation of confidentiality to its clients. The amended statement of claim goes on to plead the issue of the search warrant by Mr Tuppen under s 10 of the Crimes Act 1914 (Cth) with respect to the premises of the bank and the subsequent seizure by the AFP of documents from the bank. There then follow complaints about the warrant. It is alleged that at the time of issue Mr Tuppen "was not or ought not to have been satisfied by the information on oath before him" that the offences alleged in the warrant had been committed or that there were reasonable grounds for suspecting such offences had been committed. It is alleged further that the warrant was too wide in that it went beyond the offences alleged in the information, that Mr Tuppen was not or ought not to have been satisfied that items the subject of the warrant would be on the bank's premises, that the warrant was so general that it was on its face oppressive, that the steps taken by the AFP and Mr Tuppen in relation to the making of the decision to issue the warrant and the execution of it were an exercise of power that was excessive and not bona fide and that the AFP did not make full and frank disclosure to Mr Tuppen of all matters relevant to the making of the decision to issue the warrant. Those matters are said to have amounted to failure to observe the procedures required by s 10 of the Crimes Act within the meaning of s 5(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). It is also alleged that Mr Tuppen did not have jurisdiction under s 10 of the Crimes Act and that his decision was not authorised thereunder Complaint is made that the making of the decision to issue the warrant gave rise to a number of grounds of review under s 5(1)(e) of [the] AD(JR) Act, namely by Mr Tuppen taking into account irrelevant considerations, failing to take into account relevant considerations, exercising the power to grant the warrant for a purpose other than a purpose for which the power was conferred, making his decision in accordance with a rule of policy without regard to the merits of the particular case and making a decision that was so unreasonable that no reasonable person could have made it. Further it is said that the decision involved an error of law within the meaning of s 5(1)(f) of the AD(JR) Act, that there was no evidence or other material to justify the making of the decision within the meaning of s 5(1)(h) and that the decision was otherwise contrary to law within the meaning of s 5(1)(i). It also said that the documents seized did not fall within the terms of the warrant.

The third respondent, Sergeant McDermott, filed an amended list of further documents in the proceedings in which he claimed that certain documents were privileged from production on the grounds of legal professional privilege. Some of the documents in that category were described as having been brought into existence by officers of the AFP or the Australian Tax Office (the ATO) for the sole purpose of obtaining legal advice and assistance from the DPP in relation to the investigation of the affairs of, amongst others, the applicants. Other documents for which privilege was claimed were described as having been brought into existence solely with a view to the DPP's giving legal advice and assistance to officers of either or both the ATO and the AFP. Yet other documents were described as having been brought into existence solely for the purpose of obtaining or giving legal advice and assistance in relation to the drawing of the information to be placed before a magistrate in support of various search warrants and the drawing of those warrants.

The applicants disputed at first instance the claim for legal professional privilege, contending that at the time when the documents were brought into existence, the DPP and the legally-qualified members of the staff of the office of the DPP were incapable, as a matter of construction of the Director of Public Prosecutions Act 1983 (Cth) (the DPP Act), of giving legal advice to any of the respondents. That contention was rejected by the learned primary judge but was advanced again on the present motion for leave to appeal. Another issue which arose on this motion was whether, if there was no power in the DPP to give the legal advice, the legal advice which was given and the attendant communications were, in any event, protected by legal professional privilege.

Statutory scheme

The DPP Act establishes an Office of the Director of Public Prosecutions, comprising a Director of Public Prosecutions, an Associate Director and members of the staff of the Office: s 5. The person appointed to the position of DPP must be a legal practitioner of not less than five years' standing (s 18(2)); the DPP must not engage in practice as a legal practitioner outside the duties of the office (s 22(a)); although the DPP and members of the DPP's staff who are legal practitioners have rights of audience: s 16. The DPP may request the Commissioner of Police of the AFP for assistance if the DPP is of the opinion that there is a matter connected with or arising out of an offence which requires further investigation, when considering instituting, taking over or carrying on, or when he or she has instituted, taken over or is carrying on, a prosecution: s 13.

The functions and powers of the DPP are prescribed in ss 6 and 9 respectively. The functions are related almost entirely, although not exclusively, to matters arising under a law of the Commonwealth, and unless otherwise stated, a reference to a crime or offence or other matter will be a reference hereafter to such under a law of the Commonwealth. The functions of the DPP include the institution of prosecutions on indictment for indictable offences (s 6(1)(a)); the carrying on of such prosecutions whether or not instituted by the DPP (s 6(1)(b)); the institution of proceedings at the request of the Attorney General (s 6(1)(baa)); the institution of proceedings for the commitment of persons for trial and the carrying on of such proceedings whether or not instituted by the DPP (s 6(1)(c) and (e)); the institution of proceedings for summary conviction and the carrying on of such proceedings, whether or not instituted by the DPP (s 6(1)(d) and (e)); the provision of assistance in coronial inquests (s 6(1)(f); in respect of relevant matters, as defined in s 6(8), the taking of civil remedies and coordinating and supervising the taking of civil remedies on behalf of or by the Commonwealth and authorities of the Commonwealth for or in connection with the payment of tax (s 6(1)(fa)); the institution, carrying on and coordinating of proceedings for the recovery of pecuniary penalties in the circumstances specified (s 6(1)(g)); and, relevantly for present purposes the "function" in s 6(1)(n): "to do anything incidental or conducive to the performance of any of the functions referred to in (a) to (m) and in subsection (2)." Subsection (2) provides that the functions of the DPP include those conferred by or under any other law of the Commonwealth, or such other functions as are prescribed.

The powers conferred by s 9 on the DPP were summarised by the learned trial judge, whose summary at 539 we also respectfully adopt:

Section 9 is headed "Powers of Director". Subsection (1) provides for the director to prosecute by indictment in his official name indictable offences against the laws of the Commonwealth, although "nothing in this sub- section prevents the Director from prosecuting an offence against a law of the Commonwealth in any other manner". Subsection (2) deals with the signing of indictments. Subsection (3) provides for the Director to take over a prosecution on indictment for an offence against the law of the Commonwealth being a prosecution by another person other than the Attorney-General or a Special Prosecutor. Subsection (3A) provides for taking over prosecutions by a Special Prosecutor under the Special Prosecutors Act 1982 (Cth) when a Special Prosecutor dies or ceases to hold office. Subsection (4) provides in effect for the issue of a nolle prosequi by the DPP. Subsection (5) provides for the taking over by the Director of a proceeding being carried on by another person for the commitment of a person for trial in respect of an indictable offence against the law of the Commonwealth or for summary conviction for such an offence. Subsection (6) provides that the Director may give undertakings that certain statements made in proceedings will not be used in evidence against the person making them. Subsection (7) provides that where the Director has instituted or taken over the prosecution of an offence against a law of the Commonwealth, the Director may exercise in addition to such rights of appeal (if any) as are exercisable by him otherwise than under the subsection, such rights of appeal (if any) as are exercisable by the Attorney-General in respect of that prosecution. Subsection (8) provides that subs (7) is not to prevent the exercise by the Attorney-General of a right of appeal which he would otherwise have. Subsection (8A) contains a definition of "right of appeal". Subsection (9) provides for the Director instituting proceedings for pecuniary penalties. Subsection (10) makes similar provision for proceedings for civil remedies in connection with the recovery of tax.

Finally, subs (11), upon which senior counsel for the applicants principally relied, is in the following terms:

Where an authority of the Commonwealth is a party to a proceeding in respect of a matter:

(a)

that has arisen out of or is connected with the performance of any of the functions of the Director; or

(b)

that may result in the performance by the Director of such a function;

the Director, or a person who is entitled to represent the Director in proceedings referred to in subsection 15(1), may act as counsel or solicitor for that authority.

An "authority of the Commonwealth" is defined in s 3 to mean:

(a)

an authority, institution or other body ... established for a public purpose by or under a law of the Commonwealth;

(b)

a society, association or incorporated company in which the Commonwealth, or an authority, institution or other body of the kind referred to in paragraph (a), has a controlling interest; or

(c)

a person who holds:

(i)

an office or position established by or under a law of the Commonwealth;

(ii)

an appointment made under a law of the Commonwealth; or

(iii)

an appointment made, otherwise than under a law of the Commonwealth, by the Governor-General, by a Minister, or by any other person on behalf of the Executive Government of the Commonwealth or the Administration of a Territory; . . .

Power to give legal advice

The appellant submitted that the giving of legal advice, whether in relation to criminal matters, quasi-criminal matters, civil matters or quasi-civil matters, is wholly outside any power, express or implied, of the DPP, except to the extent expressly authorised in s 9(11), that is where there is already on foot a proceeding to which an authority of the Commonwealth is a party and the pre-conditions of para (a) or (b) of subs (11) have been satisfied. Senior counsel for the applicants acknowledged that in certain circumstances an incidental power may be implied (Kathleen Investments (Aust) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117 at 130; 16 ALR 535; National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217 ; 91 ALR 321) but submitted that, in this case, an implied power which enabled the DPP to give legal advice outside the parameters of subs (11) would conflict with the express provisions of that subsection and so offend the principle that a general power cannot override a special power. Senior counsel for the respondents submitted, however, that there was no question of the implication of an incidental power, as s 6(1)(n) was an express incidental power, which empowered the DPP to give legal advice in the circumstances here. It was submitted that although para (n) was anomalously to be found in the functions provisions of s 6, it made no sense to speak of an incidental "function", and the provision could only be construed as a power.

The fact that a provision may, upon its proper construction, be categorised as a power notwithstanding that it is not labelled as such, was recognised in Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 62-3; 96 ALR 673 at 677 where Northrop and Lockhart JJ described the distinction between functions and powers in these terms:

The distinction between the functions and powers of an administrative body is between functions or purposes or activities of an administrative body on the one hand and the powers conferred upon it to perform or execute those functions, purposes or activities on the other. This is the primary sense in which the words are understood. The types of statutory contexts in which the expressions "functions" and "powers" of such bodies appear differ considerably. Sometimes the two expressions are treated interchangeably or with blurred dividing lines; whilst some statutory definitions of "functions" provide that "functions includes powers and duties".

There is force in the respondents' submission as to the categorisation of s 6(1)(n). In our opinion the "incidental" provision in s 6(1)(n) is not a "function" in the primary sense in which that word is used, despite the apparent separation between "functions" and "powers" in ss 6 and 9 of the Act. If a statutory provision specifies the administrative function or purpose or activity to be undertaken or performed, it is likely, if not essential, for that function to have an independent operation, even though it may be related to other functions. Section 6(1)(n) could not have any independent operation of that kind. It is purely incidental. Further, its language is the language of permission or of enabling things to be done or activities to be performed. In other words, it is the language of a power and not of a function.

However, senior counsel for the applicants submitted that even if para (n) specifies a power, and not a function, it is a general power and thus cannot override the special power in s 9(11). It was submitted that subs (11) gives to the DPP a specific power to give legal advice when an authority of the Commonwealth is a party to a proceeding in respect of a matter that has arisen out of or is connected with the performance of any of the functions of the DPP or which may result in the performance by the DPP of such a function. The express terms of subs (11), it was argued, are inconsistent with the existence of any general incidental power to give legal advice. This submission did not involve a conclusion that an incidental provision in the terms of s 6(1)(n) was ultra vires (Attorney-General & Ephraim Hutchings v Directors of Great Eastern Railway Co (1880) 5 App Cas 473), but rather that, upon its proper construction, s 6(1)(n) was a general provision and did not empower the DPP to give legal advice because of the specific provision in respect of that subject matter in s 9(11).

In Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 ; 24 ALR 513 Mason J, in dealing with the operation of general and special powers, stated at CLR 678; ALR 518:

It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power. In Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 Gavan Duffy CJ and Dixon J said: " . . . When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."

This principle is, however, a principle of statutory construction which must at all times be applied so as to give effect to the intention of the legislature. In Refrigerated Express Lines (A'asia) Pty Ltd v Australian Meat and Live-Stock Corp (1980) 29 ALR 333 , Deane J said at 347:

As a matter of general construction, where there is repugnancy between the genera) provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. "The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative . . . ": per Romilly MR, Pretty v Solly (1859) 26 Beav 606 at 610; 53 ER 1032 at 1034. Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter. A more fundamental example of such repugnancy is where the particular provisions prescribe or encourage conduct which the general provisions would render prima facie, though not irremediably, unlawful or where the particular provisions assume to be lawful conduct which the general provisions would render prima facie unlawful. I have already indicated my view that the latter, more fundamental, example of repugnancy is present in the instant matter. I consider that the former example of repugnancy is likewise present.

See also Saraswati v R (1991) 172 CLR 1 at 22; 100 ALR 193.

In this case, as the learned trial judge pointed out, it is not clear why s 9(11) was enacted, and in order to determine whether it is the exclusive source of power to give legal advice, or whether s 6(1)(n) may also operate to permit legal advice to be given, it is necessary to consider each provision in its context. We should add that the same considerations that apply to s 6(1)(n) would apply to an implied provision although, for convenience of expression, we confine ourselves to a consideration of the two express provisions. Each is an empowering provision given in aid of the DPP's functions. Section 9(11) may operate in aid of a number of those functions, including those specified in s 6(1)(b), (baa), and (e), assuming in the case of paras (b) and (e) that the proceedings were not initially commenced by the DPP. The functions in those provisions are:

(b)

to carry on prosecutions of the kind referred to in paragraph (a) (not being prosecutions instituted by the Attorney-General or a Special Prosecutor), whether or not instituted by the Director;

(baa)

if the Attorney-General requests the Director in writing to carry on a prosecution of the kind referred to in paragraph (a) that was instituted by the Attorney-General to carry on that prosecution;

...

(e)

to carry on proceedings of a kind referred to in paragraph (c) or (d) (whether or not instituted by the Director); . . .

However, there are a number of functions which the DPP may perform without an authority of the Commonwealth being a "party to a proceeding". Section 6(1)(a), (f) and (j) are examples. Those paragraphs provide:

(a)

to institute prosecutions on indictment for indictable offences against the laws of the Commonwealth;

. . .

(f)

to assist a coroner in inquests and inquiries conducted under the laws of the Commonwealth;

. . .

(j)

to consent to prosecutions for offences against the laws of the Commonwealth, being offences of a kind in relation to which an instrument under subsection (4) is in force; . . .

(Subsection (4) provides that a person appointed under the laws of the Commonwealth who has power to consent to prosecutions for offences of a particular kind against the laws of the Commonwealth may authorise the DPP to consent to prosecutions for offences of that kind.)

Having regard to the functions of the DPP, it would be usual and expected for legal advice to be given in aid of those functions to an authority of the Commonwealth, notwithstanding that the authority was not a party to proceedings in the circumstances specified in s 9(11). Sections 6(1)(n) and 9(11) are on their face repugnant and the rule that the special power prevails may well apply. This is not a matter, however, upon which we are required to express a final view, because of the decision which we have reached on this motion for leave. However, if the learned trial judge was correct in his view that s 9(11) was inserted for more abundant caution and is not to be construed so as to prevent the general provisions of s 6(1)(n) being called in aid to empower the giving of legal advice in respect of the DPP's other functions then, assuming para (n) is an empowering provision, it may be that this matter is not properly resolved solely as a matter of statutory construction. The undisputed facts, as recorded by the learned trial judge at 537, were:

Within the ATO there is a section known as the Audit Prosecutions Unit (APU). When tax investigation raises a suspicion that a taxpayer might have committed a tax related Criminal offence, the matter is referred to the APU for legal advice and, if considered appropriate, prosecution. If the APU decides that a serious offence might have been committed the matter is referred to the DPP for legal advice and possible prosecution. The APU prosecutes less serious offences itself.

In the latter half of 1990 a case officer auditing the affairs of the applicants informed the APU of his suspicion that criminal offences may have been committed by some or all of the applicants. The matter was then referred to the APU. By a letter dated 20 December 1990 the Deputy Commissioner of the ATO sought advice from the DPP as to suspected tax fraud by the applicants. The DPP formally responded to this request by a minute of advice dated 9 July 1992.

In August and September 1992 a number of meetings took place attended by Mr Peter Wood, who is Deputy Director of Public Prosecutions and in charge of the DPP's Melbourne office, together with AFP and ATO officers and, on a number of occasions, senior and junior counsel retained by the DPP. A decision was made to apply for search warrants.

From these facts, it appears that the ATO, apparently in accordance with an established practice, having engaged the assistance of the AFP, sought advice from the DPP in relation to suspected tax fraud by the applicants. We do not know whether, at the time that the legal advice was being sought, any decision had been made by the ATO or the AFP or the DPP to commence any proceedings of any nature, although we suspect that no such decision had been made. Assuming this to be so, it remained open to the ATO at that stage to decide not to institute proceedings. Alternatively, the ATO might decide to commence and carry on proceedings itself without further reference to the DPP and, correspondingly, the DPP might decide to play no part in the proceedings. As we cannot identify any function of the DPP to which the giving of legal advice in such circumstances would be incidental, we doubt whether the DPP has any power, even assuming that s 6(1)(n) is an express incidental provision, to give legal advice to the ATO in any of the circumstances just described. Because of this difficulty we preferred to refuse leave on the basis of our determination of the second issue raised on this application, namely, whether, assuming that there is no power in the DPP to give legal advice in the circumstances here, legal professional privilege attaches to the legal advice and communications in question.

Legal professional privilege

Legal professional privilege is a matter of judicial policy: see Waterford v Commonwealth (1987) 163 CLR 54 at 70; 71 ALR 673. In Grant v Downs (1976) 135 CLR 674 at 685; 11 ALR 577 at 586 Stephen, Mason and Murphy JJ explained the basis of the Judicial policy in these words:

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.

The privilege "exists for practical reasons": Baker v Campbell (1983) 153 CLR 52 at 67; 49 ALR 385 at 394 per Gibbs CJ. In Attorney-General (NT) v Kearney (1985) 158 CLR 500 ; 61 ALR 55, Wilson J at CLR 522; ALR 69 referred to "the importance of flexibility in the operation of a rule which is grounded in public policy". The privilege has been stated to apply where legal advice is obtained from professional or qualified persons. In Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485 Templeman LJ referred at 489 to the old authority of Wheeler v Le Marchant (1881) 17 Ch D 675 where Brett LJ said at 683 that the privilege was "confined entirely to communications which take place for the purpose of obtaining legal advice from professional persons". Similarly in Waterford's case, the privilege was said to attach where legal advice was given by a competent and independent lawyer. Brennan J at CLR 70; ALR 683 described both the purposes of the privilege and its operation In these terms:

The purpose of legal professional privilege is to facilitate the seeking and giving of legal advice and thereby to ensure that the law be applied and litigation be properly conducted: Greenough v Gaskell (1833) 1 My & K 98 at 103; Grant v Downs (1976) 135 CLR 674 at 685; 11 ALR 577; Baker v Campbell (1983) 49 ALR 385 ; 153 CLR 52 at 66, 74, 108, 114-15, 128. If the purpose of the privilege is to be fulfilled, the legal adviser must be competent and independent. Competent, in order that the legal advice be sound and the conduct of litigation be efficient; independent in order that the personal loyalties, duties or interests of the adviser should not influence the legal advice which he gives or the fairness of his conduct of litigation on behalf of his client. If a legal adviser is incompetent to advise or to conduct litigation or if he is unable to be professionally detached in giving advice or in conducting litigation, there is an unacceptable risk that the purpose for which privilege is granted will be subverted. As to competence, there is much to be said for the view that admission to practise as a barrister or solicitor is the sufficient and necessary condition for attracting the privilege, but the question was not argued and need not be decided.

In Kearney, Dawson J, in referring to the situation of legal advisers who are salaried employees of a government department, also stressed the "professional" circumstances in which the privilege attaches. His Honour said, however, at CLR 530-1; ALR 75-6, that the fact that these employees are salaried was:

. . . no reason for denying privilege to communications passing between them and their client provided that they are consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: see Crompton Ltd v Customs and Excise Commissioners (No 2) [1972] 2 QB 102 at 129, 136, 138;` on appeal [1974] AC 405 ; Geraghty v Minister for Local Government [1975] IR 300 at 312; cf AM & S Europe Ltd v Commission (ECJ) [1983] QB 878 at 950.

The precise question here does not appear to have been the subject of any reported decision. The matter was touched upon in Smith v Daniell (1874) LR 18 Eq 649. In that case the issue before the court was whether a "friendly opinion" given by Lord Westbury at a time when his Lordship was an ex-Chancellor was privileged on the grounds of legal professional privilege. Sir James Bacon VC held the communication was not privileged as it was not expressed "in discharge of any professional duty". However, the Vice-Chancellor also said at 654:

The old rule was that, unless the communication was made strictly in a professional capacity, the privilege could not attach; and I recollect instances ... where that rule has been carried to a very rigorous extent. One instance I remember was where a man had been taken up on a charge of a capital offence and was tried, and upon the trial a man was proposed to be put in the box to give evidence. The objection was taken that the communication made to the witness, which he was about to prove, was a confidential communication. He was one of those men who hang about police-offices and represent themselves to be attorneys; but it was clear he was not an attorney. The objection as to his disclosing the confession - for it amounted to that - which the person charged had made to him, was set aside, and he was compelled to give evidence. I do not say that such a rule prevails at this time, and certainly not in this court; ...

An imperfect analogy can be found in the cases where legal advice has been given within a jurisdiction by a foreign legal adviser not qualified to act within that jurisdiction. In Great Atlantic Insurance Co v Home Insurance Co, supra, Templeman LJ held that legal professional privilege applied to communications between a client and his foreign lawyers or attorneys. We share his Lordship's view. It would be an anomalous and capricious result that legal advice, given by solicitors duly qualified and authorised to practise within a jurisdiction, especially in respect of a matter which involved a foreign element, although we do not consider that qualification to be decisive, was protected by the privilege, but legal advice given by properly retained foreign lawyers in respect of the same subject matter was not privileged.

We have not found this matter without difficulty and as we have said, it appears to be without precedent. If the statement of Brennan J in Waterford, that the privilege attaches where legal advice is given by a "competent and independent" practitioner was to be adopted without more, the policy issue would be determined against the protection of the advice. However, his Honour's comments were made in quite different circumstances and without the present problem in mind. In our opinion, a more useful illustration of the application of the rule, having regard to its rationale, is afforded by supposing that an otherwise duly qualified legal practitioner has overlooked the renewal of an annual practising certificate. Would advice given to a client not be protected, even if all concerned believed that the practitioner, to use the language of Brennan J in Waterford, was "competent"? His Honour's requirements of competence and independence were directed at avoiding what was described as "an unacceptable risk that the purpose for which privilege is granted will be subverted". We do not find any "unacceptable risk" in the privilege attaching in the situation just postulated. Indeed, to deny the privilege in those circumstances would be to subvert its rationale.

In the present case the competing policy considerations were the desirability on the one hand of protecting a communication where it is assumed that the communication is privileged and whether, on the other hand, the court should protect advice given by a legal practitioner impliedly precluded by statute from giving the advice. Before the question of whether the privilege will attach, having regard to these considerations, is determined, it is necessary again to refer to the facts. The evidence revealed that the ATO and the AFP approached the DPP, apparently in the course of an established practice of so doing. There was no evidence whether any relevant person had a belief as to the right of the DPP to give advice in the circumstances in which he did, or indeed whether anyone had given consideration to that question. However, in our opinion, it cannot reasonably be suggested that the ATO, the AFP and the DPP would engage in such conduct in deliberate contravention of the DPP Act. In those circumstances, it is reasonable to infer that the relevant agencies had the belief that the DPP was entitled to do what it did.

When it is borne in mind that legal professional privilege is essentially concerned with the protection of the client, we consider that as a matter of judicial policy, communications between the client and a lawyer, which would normally be privileged, ought to be protected where the client involved genuinely believed that there was an entitlement to give the legal advice in question.

For the reasons which we have expressed, we declined to grant leave.