Re Richard James Brewer v Shane Francis Castles; Brett Jackson; Patrick Quinn; Carlo Graser and John Charles Levett [1984] FCA 59; 52 ALR 581 Administrative Law (28 March 1984)

FEDERAL COURT OF AUSTRALIA

Re: RICHARD JAMES BREWER
And: SHANE FRANCIS CASTLES; BRETT JACKSON; PATRICK QUINN; CARLO GRASER
AND JOHN CHARLES LEVETT
No. G58 of [1984] FCA 59; 1984
52 ALR 581
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Administrative law - Validity of search warrant - Whether warrant should be quashed in whole or in part because purports, on its face, to authorise seizure of documents which are the subject of a claim for legal professional privilege.

Baker v. Campbell (1983) 57 ALJR 749.

HEARING

SYDNEY
28:3:1984

ORDER

1. Order that the subject warrant be set aside to the extent that it purports to authorise the first respondent to seize "opinions of counsel" there specified.

2. Otherwise declare that the said warrant is valid.

3. Reserve costs.

4. Adjourn further hearing until 30 March, 1984 at 9.30 a.m. for further directions.

DECISION

In previous reasons for judgment dated 13 March, 1984, I rejected an argument put on behalf of the applicant that the subject warrant was too wide and therefore bad. The applicant now makes an alternative submission that the warrant should be quashed in whole or in part by reason of the fact that, on its face, the warrant purports to authorise the seizure of documents which are the subject of a claim for legal professional privilege. The applicant argues that a warrant in such terms is beyond the powers conferred by s.10 of the Crimes Act, 1914.

The applicant seeks to support his argument by reference to the decision of the majority (Murphy, Wilson, Deane and Dawson, JJ.) in Baker v. Campbell (1983) 57 A.L.J.R. 749. In proceedings commenced in the original jurisdiction of the High Court, a case was stated to the Full Court asking the question:

"In the event that legal professional privilege attaches to and is maintained in respect of the documents held by the firm can those documents be properly made the subject of a Search Warrant issued under Section 10 of the Crimes Act?"

The majority answered the question in the negative, for essentially the same reasons.

The applicant points to the fact that the warrant purports to authorise the seizure of documents held on the premises of a firm of solicitors as an acknowledgment that the documents the subject of the warrant are, or are likely to be, themselves the subject of a claim for legal professional privilege. The applicant then submits that the references, in the warrant, to "correspondence" (that is, he says, solicitors' correspondence) and the "opinions of counsel" indicate unequivocably that seizure is sought of documents the production of which could be resisted on grounds of legal professional privilege. He also says that the umbrella of legal professional privilege extends to the "microfilm copies of documents" and the "other documents and instruments" mentioned in the warrant.

The applicant argues that, by reason of the impermissible attempt, in the warrant, to reach out for these documents, notwithstanding their privileged character, the warrant goes beyond what s.10 authorises; and the warrant should therefore be quashed or otherwise set aside under the Judicial Review Act. Alternatively, he argues that the warrant should be quashed or set aside pro tanto, that is, in respect of the specific documents or classes of documents mentioned above. In this respect, if the question should arise, the parties accept and I respectfully agree with, the reasoning of Northrop, J. in Coward v. Allen (Northrop, J. - unreported - 19 March, 1984 at pp.29 et seq.) on the question of the severability of a warrant in a case such as this.

The first question which arises is the construction of the language of the warrant. It is unnecessary to repeat the general discussion of the interpretation of the warrant set out in the reasons for judgment dated 13 March, 1984. It was there held that the warrant should not be construed so as to confer an unlimited power of seizure, even if confined to the solicitors' premises. In my opinion, as I have already held, the warrant should be read as referable to the particular classes of documents there described.

When so read, no reason or justification exists, in my view, for importing into every such document or class of documents the likelihood that it be a document of a character which would make it properly the subject of a claim of legal professional privilege. In one case, that of the "opinions of counsel", a foundation for such a claim may well be demonstrated; I shall return to that particular class of documents later. But in no other case, is there reason to think that the documents in question are necessarily, or are even inherently likely to be, of the character which would be required to ground a claim of privilege.

It is true that the documents in question are located on the premises of a firm of solicitors. It is also true that correspondence held on such premises could well be privileged. But it is one thing to point to the possibility, or even the probability, that correspondence held by a firm of solicitors is privileged. It is a very different thing to attribute to such correspondence the inherent character of privileged material necessary to carry with it the conclusion that, ex facie, the warrant authorises the seizure of privileged documents in this connection. On the contrary, on any view, the warrant, on its face, authorises the seizure of correspondence which is equivocal in character: some of the letters may be privileged; some may not be.

Since the warrant does not, ex facie, deal with privileged material as such so far as concerns the correspondence, the warrant is not, in my opinion, bad on that account; the position is a fortiori so far as concerns the microfilm copies of documents and "the other documents and instruments".

The attempt to authorise the seizure of documents described as "opinions of counsel" is different. Prima facie, material of that character is the subject of a proper claim of legal professional privilege. It may be accepted, as the respondents urge, that it is possible, on the facts of a particular case, that the privilege has been waived or is otherwise not available for some special reason, for example, if the relevant purpose were not the sole purpose required as a result of the decision in Grant v. Downs [1976] HCA 63; (1976) 135 C.L.R. 674. More extreme cases, involving crime or fraud, could be imagined, where the privilege would be denied (see Cross on Evidence, 2nd Aust. Ed. (1979) by Gobbo, Byrne and Heydon at p.278).

Nonetheless, prima facie at least, a reference to documents described as "opinions of counsel" is a reference to material which is privileged and there is no suggestion in the evidence of the present case that any reason exists for thinking that the opinions in question have somehow lost that status. In my opinion, on the material before the Court and, so far as I am aware, on the material available to the respondents, no case has been established for displacing the prima facie position that the "opinions of counsel" were and are privileged.

But, given that conclusion, it does not follow that the warrant is wholly bad. The result is that only one of the several classes of documents specified in the warrant is beyond power. Yet the applicant argues that the impermissible attempt in the warrant to nominate certain privileged material in some fashion infects the remaining parts of the warrant. In my view, no such process of infection occurs, even accepting the general context, namely, a warrant addressed to the seizure of documents on the premises of a firm of solicitors. On the contrary, in my opinion, having regard to the structure of the warrant, it is quite possible to sever from the warrant the offending class of documents and thus to leave the balance of the warrant undisturbed in point of validity.

In the result, I propose to set aside so much of the warrant as authorises the seizure of "opinions of counsel" but otherwise to declare its validity. This is done, of course, without prejudice to the right, if any, of the applicant to seek declaratory or other relief to the effect that legal professional privilege attaches to and is maintained in respect of all or some of the remaining classes of documents specified in the warrant. Such a claim would be established, if at all, only after appropriate evidence had been adduced to indicate the character of each document concerned. Any such claim does not, of course, concern the validity of the warrant: this claim, which is made here by the applicants as an alternative case, will be heard at a later date, and even if privilege can be established, the warrant is still within power.

I make the following orders:

1. Order that the subject warrant be set aside to the extent that it purports to authorise the first respondent to seize "opinions of counsel" there specified.

2. Otherwise declare that the said warrant is valid.

3. Reserve costs.

4. Adjourn further hearing until 30 March, 1984 at 9.30 a.m. for further directions.