Re S v National Crime Authority [1991] FCA 30; 33 Evidence 100 ALR 140 52 A Crim R 362 (15 February 1991)

FEDERAL COURT OF AUSTRALIA

Re: S
And: NATIONAL CRIME AUTHORITY
No. V G5 of 1991
FED No. 33
Evidence
100 ALR 140
52 A Crim R 362

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)

CATCHWORDS

Evidence - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - National Crime Authority Act 1984, s.30(3) - "privileged communication"- Construction.

National Crime Authority Act 1984

HEARING

MELBOURNE
15:2:1991

Counsel for the applicant: Mr A.C. Archibald QC and

Ms H.M. Symon

Solicitors for the applicant: Corrs Australian Solicitors

Counsel for the respondent: Mr R.A. Finkelstein QC and
Mr B.E. Walters

Solicitors for the respondent: Australian Government Solicitor

ORDER

Each decision in respect of which application is made for an order of review be set aside.

Each document placed in the custody of the Registrar pursuant to s.32(3) of the National Crime Authority Act 1984 in relation to the said applications be delivered to the applicant.

The applicant's costs of the said applications be paid by the respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Applications for orders of review in respect of decisions of the National Crime Authority.

2. The Authority is empowered to hold hearings for the purposes of an investigation that the Authority is conducting in the performance any function which is of a description contained in sub-section 11(2) of the National Crime Authority Act 1984. A member of the Authority may summon a person to attend such a hearing to give evidence and to produce such documents or other things as are referred to in the summons. Section 30 of the Act provides, in relation to a person so summoned, as follows:

"(1) A person served, as prescribed, with a summons to
appear as a witness at a hearing before the Authority
shall not, without reasonable excuse:
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day unless excused, or
released from further attendance, by a member.
(2) A person appearing as a witness at a hearing before
the Authority shall not, without reasonable excuse:
(a) when required pursuant to section 28 either to take
an oath or make an affirmation - refuse or fail to
comply with the requirement;
(b) refuse or fail to answer a question that he is
required to answer by the member presiding at the
hearing; or
(c) refuse or fail to produce a document or
thing that he was required to produce by a summons
under this Act served on him as prescribed.
(3) Where:
(a) a legal practitioner is required to answer a
question or produce a document at a hearing before
the Authority; and
(b) the answer to the question would disclose, or the
document contains, a privileged communication made
by or to the legal practitioner in his capacity as
a legal practitioner;
the legal practitioner is entitled to refuse to comply
with the requirement unless the person to whom or by whom
the communication was made agrees to the legal
practitioner complying with the requirement but, where
the legal practitioner refuses to comply with the
requirement, he shall, if so required by the member
presiding at the hearing, furnish to the Authority the
name and address of the person to whom or by whom the
communication was made.
(4) Subject to subsections (5), (7) and (9), it is a
reasonable excuse for the purposes of subsection (2) for
a natural person:
(a) to refuse or fail to answer a question put to him
at a hearing before the Authority; or
(b) to refuse or fail to produce a document or thing
that he was required to produce at a hearing before
the Authority;
that the answer to the question, or the production of the
document or thing, as the case may be, might tend to
incriminate him.
(5) It is not a reasonable excuse for the purposes of
subsection (2) for a person:
(a) to refuse or fail to answer a question put to him
at a hearing before the Authority; or
(b) to refuse or fail to produce a document or thing
that he was required to produce at a hearing before
the Authority;
that the answer to the question or the production of the
document or thing might tend to prove his guilt of an
offence against a law of the Commonwealth or of a
Territory if the Director of Public Prosecutions has
given to the person an undertaking in writing that any
answer given or document or thing produced, as the case
may be, or any information, document or thing obtained as
a direct or indirect consequence of the answer or the
production of the first-mentioned document or thing, will
not be used in evidence in any proceedings against him
for an offence against a law of the Commonwealth or of a
Territory other than proceedings in respect of the
falsity of evidence given by the person and the Director
of Public Prosecutions states in the undertaking:
(c) that, in his opinion, there are special grounds
that in the public interest require that answers be
given or documents or things be produced by that
person; and
(d) the general nature of those grounds.
(6) The Authority may recommend to the Director of
Public Prosecutions that a person who has been or is to
be served with a summons to appear as a witness at a
hearing before the Authority or to produce a document or
thing at a hearing before the Authority be given an
undertaking in accordance with subsection (5).
(7) It is not a reasonable excuse for the purposes of
subsection (2) for a person:
(a) to refuse or fail to answer a question put to him
at a hearing before the Authority; or
(b) to refuse or fail to produce a document or thing
that he was required to produce at a hearing before
the Authority;
that the answer to the question or the production of the
document or thing might tend to prove his guilt of an
offence against a law of a State if the Attorney-General
of that State, or a person authorised by him, being the
person holding the office of Director of Public
Prosecutions, or a similar office, of that State, has
given to the person an undertaking in writing that any
answer given or document or thing produced, as the case
may be, or any information, document or thing obtained as
a direct or indirect consequence of the answer or the
production of the first-mentioned document or thing, will
not be used in evidence in any proceedings against him
for an offence against a law of that State other than
proceedings in respect of the falsity of evidence given
by the person and the Attorney-General of that State, or
the person so authorised, states in the undertaking:
(c) that, in his opinion, there are special grounds
that in the public interest require that answers be
given or documents or things be produced by that
person; and
(d) the general nature of those grounds.
(8) The Authority may recommend to the Attorney-General
of a State that a person who has been or is to be served
with a summons to appear as a witness at a hearing before
the Authority or to produce a document or thing at a
hearing before the Authority be given an undertaking in
accordance with subsection (7).
(9) For the purposes of subsection (2):
(a) it is not a reasonable excuse for a corporation to
refuse or fail to produce a document or thing that
the production of the document or thing might tend
to incriminate the corporation; and
(b) it is not a reasonable excuse for a natural person
to refuse or fail to produce a document that is, or
forms part of, a record of an existing or past
business (not being, in the case of a person who is
or has been an employee, a document that sets out
details of earnings received by the person in
respect of his employment and does not set out any
other information) that the production of the
document might tend to incriminate the person.
(10) Subsections (5), (7) and (9) do not apply where the
offence in respect of which the answer to a question or
the production of a document or thing, as the case
requires, might tend to incriminate a person is an
offence with which the person has been charged and the
charge has not been finally dealt with by a court or
otherwise disposed of.
(11) A person who contravenes subsection (1), (2) or (3)
is guilty of an offence punishable, upon conviction, by a
fine not exceeding $1,000 or imprisonment for a period
not exceeding 6 months."

The present applicant, having been sworn at such a hearing, refused to answer several questions that he was required to answer by the member of the Authority presiding at the hearing, and refused to produce any of the documents that he was required or produce by a summons under the Act which had been served on him. He is and was at all material times a legal practitioner within the meaning of that expression in the Act. He claimed at the hearing, and he claims before this court, to be entitled to refuse to answer the questions and to produce the documents on the grounds provided by sub-section 30(3). The member constituting the Authority at the hearing having notified the applicant of the Authority's decision in respect of each refusal that in its opinion the claim was not justified, the applicant has exercised the right conferred on him by sub-section 32(2) of the Act to apply to this court for an order of review in respect of each decision.

3. Sub-section 30(3) is not easy to interpret. The expression "the person to whom or by whom the communication was made" must surely designate, where the expression is first used in the sub-section, the client in the legal professional relationship of legal practitioner and client which is the occasion of the "privileged communication" postulated in paragraph (b). It is not to be thought that the legislature would have selected the agreement of any other person to disclosure of a privileged communication as disentitling the legal practitioner to refuse to make that disclosure. But at common law "a privileged communication" may be by a person unconnected with the legal practitioner or the client, of facts known by that person and solicited for submission to the legal practitioner so that the legal practitioner may be enabled to give legal advice to the client. Such a communication may be in no literal sense "by" or "to" the client. At common law the writings of the legal practitioner for his own use as aide-memoire in performance of work done to form his legal opinions for the purpose of advising his client are privileged, but such a writing will not often be communicated to the client. If communications or deliberations of those kinds were outside the scope of the entitlement conferred by sub-section 30(3), disclosure of the content of those communications which the sub-section expressly protects from direct disclosure would not infrequently be elicited indirectly from the oral testimony of, or documents produced by, the legal practitioner. Counsel for neither party suggested that a literal interpretation of the sub-section, which would limit its application to communications passing between legal practitioner, or his servants or agents, and client, or his servants or agents, ought to be adopted. Nor, so far as appears, did this question of construction intrude into the disagreements which were resolved by the Authority's decisions under review.

4. The summons in response to which the applicant attended the hearing required him to produce documents specified in the summons in these terms (but making a substitution of names and dates):

"All original and copy diary notes, file notes, letters,
drafts of letters, correspondence and any other document
whatsoever concerning the drafting, settling and
transmission of a letter dated 30 February 1981 to Ms. A,
National Companies and Securities Commission from Buzz
Ltd., Mr. B."

The summons also set out, pursuant to s.28(3) of the National Crime Authority Act 1984, "the general nature of the matters in relation to which the Authority intends to question" the applicant, in these terms (but making similar substitutions):

"The Authority intends to question you regarding matters
concerning the drafting and settling of a letter to Ms.
A, National Companies and Securities Commission signed by
Mr. B, Buzz Ltd. dated 30 February 1981."

The Authority was constituted at the hearing by one member of the Authority. The applicant was represented by counsel and counsel assisting the Authority appeared to conduct the examination of the applicant. The applicant is and at material times was a member of a firm of solicitors. He answered affirmatively the question whether in the premises of his firm there were documents which answered the description of documents required by the summons to be produced and he gave evidence that those documents were in what he described as "a subfile of a file". He refused, in reliance on s.30(3), to state "the name of the file" of which the subfile formed a part, on the ground that the name "would indicate the matters dealt with in the main file". He swore that those matters were the subject of "privileged communications" (in the sense in which that expression is used in s.30(3). He disclosed that the name of the client in relation to those matters was the name of a company associated with Buzz Ltd. and that the name was on what was at the hearing called "the main file".

5. The decision of the Authority that in its opinion the claim to be entitled to refuse to answer that question was not justified should be set aside. The uncontradicted evidence of the applicant was that a statement of "the name of the file" would indicate the subject matter of the privileged communications between the firm and the associated company. In my opinion the subject matter of such a communication may be an element of the confidential content comprehended by the privilege and the applicant's evidence could only be understood as including an implied assertion that in this case it was. There is nothing to suggest that the Authority regarded the applicant as less than wholly honest in his testimony. In those circumstances a decision rejecting the claim cannot be supported. If the Authority were doubtful of the applicant's honesty or of the soundness of the applicant's understanding of the legal principles underlying the assertions the applicant had made, the Authority should have given voice to its doubts and questioned the applicant further.

6. It is a question whether, in forming an opinion of the kind for which s.32(1)(c) of the National Crime Authority Act 1984 makes provision, the Authority is empowered to require the question in respect of which a claim under s.30(3) is made to be answered for the purpose of deciding in pursuance of s.32(1) "whether in its opinion the claim is justified", and whether the Authority is empowered to require production for examination by it of a document in respect of which such a claim is made for the same purpose. It is not a question which I am called upon presently to answer. Section 32(1) provides:

"Where:
(a) a person claims to be entitled to refuse to
furnish information or produce a document that
he is required to furnish or produce pursuant to
a notice under section 20;
(b) a person claims to be entitled to refuse to
produce a document that he is required to
produce pursuant to a notice under section 29;
or
(c) a person claims to be entitled to refuse to
answer a question put to him, or to produce a
document that he was required to produce, at a
hearing before the Authority;
the Authority shall decide as soon as practicable whether
in its opinion the claim is justified and notify the
person of its decision."

Other sub-sections of s.32 contemplate that a person dissatisfied with a decision under sub-section 32(1) may have "produced the document to the Authority" before making an application to this court. The functions of the Authority are investigative. It may be thought productive of doubts and difficulties for members of such an Authority if they are required or permitted to acquire information which is relevant to an investigation, in order to decide whether a claim to an entitlement to refuse to communicate the information to the Authority is justified, and thereafter to repress in themselves, as well as to forbid in exercise of power conferred by s.25(9) indulgence by others in, any tendency to utilise the information if the decision is that the claim is justified. Sub-section 25(9) empowers the Authority to direct that any evidence given before it or the contents of any document produced to it shall not be published. On the other hand exercise of the power of decision conferred by s.32(1)(c) could hardly be thought, in many a case of a claim under s.30(3), satisfactory when knowledge of the answer or of the content of the document is denied the decision maker. Nor can conferment by s.30(2) of the right to have the decision reviewed by this court be thought to afford an adequate remedy, for the review is by reference to what was before the Authority. In Baker v. Campbell [1983] HCA 39; (1983) 153 CLR 52 at 75-76 Mason J. observed:

"When we move beyond the arena of curial proceedings to
the realm of administrative and investigatory procedures
the desirability of preserving the confidentiality of
lawyer-client communications is not opposed by the public
interest in facilitating the production of relevant
materials in litigation, except in those cases (a) in
which the investigatory procedures are designed as a
preliminary to litigation, and (b) in which the
disclosure of the communications in the administrative or
investigatory procedures would impair the exercise of the
privilege in pending or future litigation. However,
other countervailing considerations then arise. The
nature and force of these considerations depend on the
object and purpose of the procedures for which the
relevant statute makes provision. But it may be deduced
from the very existence of the statutory obligation to
answer questions, provide information or produce
documents that there is a strong public interest in
obtaining the materials the provision of which is the
object of the statute.
Quite apart from the force of these considerations there
is the problem which I mentioned in O'Reilly ante, p 26
and Brennan J. referred to in Pyneboard Pty. Ltd. v.
Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328, at
pp 355-356, that of imposing upon unqualified persons the
task of deciding difficult questions of legal
professional privilege. Their decision of such a
question would not be conclusive. A decision of a court
(a) on a prosecution for contravention of the statutory
obligation, or (b) in proceedings for a declaration as to
the existence of the privilege, would be required in
order to provide a conclusive answer.
In this respect it is scarcely to be supposed that
Parliament, when it imposes the obligation to furnish
information, intends that the course of an administrative
inquiry or investigation should be delayed or interrupted
by the necessity to obtain a final decision of a court on
the question whether a claim for legal professional
privilege can be sustained in relation to a particular
answer or particular documents. This, of course, would
be relevant to the existence of a statutory intention to
abrogate the privilege, assuming it to be otherwise
inherently available. Nonetheless, it is a material
factor to be considered in deciding whether the privilege
is capable of being claimed in administrative or
investigatory procedures. The determination of a claim
for privilege in curial proceedings stands in sharp
contrast because it entails no similar delay or
interruption."

How much more unprofitable the delay and interruption if a statutory scheme denies the investigative agency power adequately to appraise the claim to privilege and refers the investigative agency's decision on the claim to a mode of curial review which leaves the court similarly disadvantaged. The practical application of the doctrine of legal professional privilege in extra-judicial circumstances was described by Bowen C.J. and Fisher J. in F.C.T. v. Citibank Ltd. (1989) 85 ALR 588 at 600 as "extraordinarily difficult". But the hearing room of the National Crime Authority is a more convenient forum than a solicitor's office during the execution of a search warrant. The Chairman, but not the other members, of the Authority must be legally qualified.

7. Answers given by the applicant to questions at the hearing before the Authority were to the effect that advice was sought by Buzz Ltd. and was given by the applicant to that company in relation to some matter, and that documents answering a description of the documents required by the summons to be produced to the Authority had relation to that advice sought by Buzz Ltd. The applicant refused to answer questions as to the identity of the person who asked for that advice on behalf of Buzz Ltd., on the ground that the answer "would disclose a privileged communication made by or to me in my capacity as a legal practitioner". On the same ground, so expressed, the applicant refused to answer each of a series of questions as to whether he had spoken to an officer of Buzz Ltd. named in the question concerning the matter upon which his firm's advice had been sought but had not, at the time of speaking, been given.

8. It is possible to imagine circumstances in which disclosure of the identity of a person to whom a legal practitioner had spoken about a subject matter upon which his advice was sought before the advice was given would involve disclosure of what the subject matter was. In such circumstances confidentiality exists concerning that identity, in my opinion. (That confidentiality probably cannot be maintained in respect of the identity of the client, even if disclosure of the client's identity will involve disclosure of the subject of the advice, for the reasons stated by Young C.J. in Southern Cross Commodities Pty. Ltd. (In Liquidation) v. Crinis (1984) VR 697.) A consideration of the whole of the transcript of the hearing before the Authority strongly suggests that it was not because answers to these questions about the named officers of Buzz Ltd. would disclose the subject matter on which advice was being sought that the applicant refused to answer them. It appears very probable that the Authority knew the subject matter of the advice and that the applicant knew that the Authority knew that. Further, the terms in which the ground of refusal to answer was expressed suggest what other observations, by counsel for the applicant at the hearing, tend to indicate, that the applicant thought he was entitled to refuse to answer a question "if the answer would disclose the fact of a privileged communication having occurred", as counsel put it at page 699 of the transcript of the hearing. In my opinion that is an erroneous contention: the privilege is from disclosure of the content of certain communications, not from disclosure of the occurrence of such communications. However, the Authority's decisions, that the claims to be entitled to refuse to answer these questions concerning the identities of the persons to whom the applicant spoke about the matter on which his firm's advice had been sought were not justified, should in my opinion be set aside because it had not appeared by what was said by the applicant that any of the claims was not justified. The applicant should have been questioned further to expose the misconception, if misconception there was, underlying each of these claims.

9. The same considerations in my opinion govern resolution of the applications for orders of review in respect of decisions that the applicant was not entitled to refuse to answer questions as to the identities of persons with whom the applicant had met. The context in which these questions were asked indicated, although the content of the questions did not make it clear, that each of the meetings was being identified by the questioner, and was being treated by the applicant, as one held in the course and for the purpose of the applicant's performance of the retainer to provide the advice. The theoretical possibility exists that identification of a person or persons with whom the applicant so met would disclose the subject matter of the advice.

10. The applicant gave evidence that his advice was given in September 1990, but refused to "be precise as to the dates on the ground that to do so would disclose a privileged communication made by or to me in my capacity as a legal practitioner". On a ground similarly expressed the applicant refused to state the date on which one of the meetings to which I have referred took place, and to state what number of persons was present, and to state whether his advice was in writing. It is difficult to suppose that any of these answers could disclose the subject matter or the content of the advice the applicant gave. There is no other possible ground of refusal to answer any of these questions which occurs to me. However, I will set aside the decisions that these claims were not justified on the ground that the strangely comprehensive statement by the applicant of the ground of his refusal cannot be determined to be not justified. He should have been required to make the nature of the claim clear.

11. The following dialogue between counsel assisting the Authority and the applicant occurred while the applicant was giving evidence at the hearing:

"Counsel: Well, are you able to produce a list of the
documents that you have on your file with some
description of them?---I could do that, but I will not.
To do that would disclose a privileged communication made
by or to me in my capacity as a legal practitioner.
So do you say that you can - you will not produce a list
of the documents that you claim privilege over? Is that
what you are saying?---That is what I am saying, yes."

12. It is perhaps desirable to preface consideration of this dialogue with observations on a matter which does not presently arise for decision. If the Authority is empowered to inspect a document at a hearing, for the purpose of deciding whether a claim, to be entitled on the ground specified in s.30(3)(b) to refuse to produce the document, is justified, the identification of the document by marking it in the manner, and for the reason, specified in the reasons for judgment of the Court of Appeal in Taylor v. Batten (1978) 4 QBD 85 might well be required. But that was not a matter in issue here.

13. Counsel for the parties on the hearing of the application to this court did not wish that resolution of the substantive question which they conceived the dialogue to have raised should be frustrated by the circumstance that description of the documents was sought in writing. It was perceived by counsel that it might be held by this court that the obligations imposed by the National Crime Authority Act 1984 on a witness at a hearing are to answer questions and to produce documents but not to make any writing. It was suggested by counsel that the question be treated as a question as to the description of each document, which the applicant had testified to be of a description specified in the summons and to be at the time of the hearing in what was called a subfile of a file in the premises of the applicant's firm. I will so treat the question. I will also for present purposes assume, but without expressing the opinion, that the Authority is not empowered to require, for the purpose of enabling it to decide whether a claim under s.30(3) is justified, an answer to a question which the witness could not be required to answer if it were not asked for that purpose : see paragraph 6 of these reasons. I hope I may make my opinion clear by taking examples. If the applicant had been asked whether he then had in his possession a certain letter which the questioner identified with particularity (as by date, names of writer and addressee and subject matter) the applicant could not in my opinion refuse to answer the question merely because the letter had been put into his possession for the purpose of enabling him to give legal advice on a subject matter to which the letter was relevant. Only if the circumstances were such that an affirmative answer would demonstrate that the applicant had got possession of the document for that purpose and would disclose something of the subject matter upon which his advice had been sought could refusal to answer the question be justified. This, I think, is the principle underlying the decision of the Court of Exchequer in Dwyer v. Collins [1852] EngR 578; (1852) 7 Ex 638; 155 ER 1104 that the plaintiff's attorney was to answer, as a witness called by the defendant's counsel, whether he then had in his possession in court a particular bill of exchange. Parke B. observed:

"The relation of attorney and client prevents the former
from disclosing any communication made to him in the
ordinary course of his employment, and on the faith of
the confidence which the client reposes in his legal
adviser. But the privilege does not extend to matters of
fact which the attorney knows by any other means than
confidential communication with his client, though, if he
had not been employed as attorney, he probably would not
have known them. Thus, he may prove the client's
swearing to the truth of an answer in Chancery; and his
handwriting, by seeing it in documents prepared by him in
the name of his employer; in the same way he may prove
the fact that a particular document is then in his
possession and in Court - for this is not a fact
professionally communicated to him; though of course he
could not be compelled to disclose the contents of any
document which is professionally entrusted to him, and
which he is acquainted with only by virtue of
professional confidence."

(See also Ex parte Campbell. In re Cathcart (1870) LR 5 Ch App 703.) Here the circumstances were very different. The applicant had testified that the documents he was being asked to describe answered a description, and were kept together in a place, which strongly suggested that the documents were all the subject of legal professional privilege. While the answer to the question under present consideration is expressed in the very general and yet inapposite language of s.30(3), it must have been understood, in the context of the whole of the interrogation which had preceded it, as a claim that each document in the subfile was privileged. If that be so, it would have been permissible, in my opinion, to require the applicant to give in respect of each document an account which would disclose the ground on which the applicant claimed that it was privileged. Thus he could have been required to say of each letter, other than a letter or copy letter written by him in performance of his task of giving legal advice to Buzz Ltd., that it had been put or taken into his possession to enable him to perform the task of giving to Buzz Ltd. the advice sought, and to say whether it had been written for that purpose, and, if it had, whether it had been written only for that purpose. But in my opinion he could not have been required to state its date or the name of its author or addressee or anything of its contents. The content of the letter (and, possibly, the fact of its having previously passed between persons of whom the applicant was not one) being known to have formed part of the information confidentially transmitted to the applicant to enable him to give the advice sought, the information which answers to the latter questions would disclose is in my opinion within the privilege. The applicant may in my opinion be required to assign a document to a category the definition of which demonstrates that, if the testimony is correct, the document is within the privilege claimed. But he cannot be required to make further description of it, in my opinion.

14. It will be ordered that each decision in respect of which application is made for an order of review be set aside.