Commissioner Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501; (1997) 141 ALR 545; (1997) 71 ALJR 327 (7 February 1997)

1. Appeal dismissed.

2. Cross-appeal allowed.

3. Vary Order 3 of the Orders of the Full Federal Court to read:

"Orders 4, 5, 6 and 8 be set aside; and

(a) declare that legal professional privilege attaches to those copy

documents (if any) which were made solely for the purpose

of obtaining or giving legal advice or solely for use in legal

proceedings and which were in the possession of the ninth respondent and were seized upon execution of the warrant, issued 2 September 1993, at the premises of the ninth respondent; and

(b) order that the matter be remitted to a single judge of the

Federal Court for determination of the application in

accordance with that declaration and for determination of

the question of costs reserved by Davies J."

4. The appellants pay the respondents' costs in this Court.

7 February 1997

On appeal from the Federal Court of Australia.

Representation

M Rozenes QC with P Roberts and O P Holdenson for the appellants (instructed by DPP (Commonwealth))

D H Bloom QC with N J Williams for the respondents (instructed by

Minter Ellison)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Commissioner, Australian Federal Police & Anor v

Propend Finance Pty Limited & Ors

Evidence - Legal professional privilege - Search warrant - Copy of unprivileged documents made solely for the purpose of obtaining or giving legal advice or solely for use in legal proceedings - Evidence of illegal or improper purpose.

Crimes Act 1914 (Cth) s 10.

BRENNAN CJ. Gaudron J has stated the facts out of which this appeal arises and the course of the litigation in the Courts below. Her Honour has also cited the authorities which establish that the doctrine of this Court is that legal professional privilege "is not merely a rule of evidence applicable in judicial and quasi-judicial proceedings, but is a basic doctrine of the common law"[1]. Although this was not my preferred view[2], I am bound now to accept it. As I pointed out in Baker v Campbell[3], the view that legal professional privilege qualified the power of search and seizure conferred by a warrant issued pursuant to s 10(1) of the Crimes Act 1914 (Cth) as it stood at the time - and as it stood with some immaterial variations when the warrants in the present case were issued[4] - necessitated the devising of some procedure for determining a claim of privilege if it should be raised during the execution of a warrant. Such a procedure was not devised by the courts, but the Law Council of Australia and the Australian Federal Police agreed upon "General Guidelines". The Guidelines set out the procedure to be followed if, in the execution of search warrants on lawyers' premises or the premises of Law Societies and like institutions, a claim of legal professional privilege should be made. The authority given by the warrants in the present case was to search and seize "in accordance with the procedure set out" in the General Guidelines.

The respondents made an application before Davies J in the Federal Court for judicial review of the applications for search warrants, of the decisions to issue the search warrants and of the conduct of the Federal Police in executing them. However, the principal relief claimed (though it was said to be "in the alternative") was for a declaration that certain documents for which legal professional privilege had been claimed and which, in accordance with the General Guidelines, had been seized but not inspected were "subject to legal professional privilege". One of the grounds on which the present appellants resisted this claim was that some of the documents for which legal professional privilege had been claimed were created for or in furtherance of the commission of the suspected offences set out in the search warrants.

Among the orders made by Davies J were declarations that -

"by reason of the allegation of offences ... and of the proof given in support thereof," certain documents listed in the order "are not subject to legal professional privilege"[5].

and

"that copies of documents made for the purpose of obtaining legal advice, the originals of which are not subject to legal professional privilege are not privileged."[6]

In the Full Court, differing views were expressed on these questions. In the result, the declarations were set aside. The present appeal is brought to restore the order of Davies J.

Privilege attaching to copies of non-privileged documents

The respondents claim that the documents in question were produced solely for the purpose of obtaining professional legal advice in relation to litigation that was reasonably apprehended. In Baker v Campbell, though I would have construed s 10 of the Crimes Act as authorising, in general, the issue of a warrant to search for and seize documents to which legal professional privilege attaches, I would not have construed s 10 as authorising the seizure of documents[7] -

"(a) which are merely expressions of legal opinion; or (b) to which legal professional privilege attaches by reason of their having been brought into existence solely for use in litigation that is pending, intended or reasonably apprehended."

The problem that now arises relates to copies of unprivileged documents when the copies were brought into existence solely for use in obtaining legal advice or for use in apprehended litigation. When photocopying and multiple production by word processing have become commonplace, it may be difficult to distinguish between an original and a copy and it may seem artificial to do so. In J N Taylor Holdings Ltd v Bond[8] Debelle J said that, in general, "it would be absurd for the copy to be privileged while the original was not". And, in Lubrizol Corporation v Esso Petroleum Ltd[9], Aldous J said that he found it "incredible, in these days of the photocopier, the computer and the fax, that any distinction concerning privilege can be drawn between a copy and the original". Yet the purpose of bringing an original document into existence may not be the purpose of bringing the copy into existence and, since Grant v Downs[10], the protection of legal professional privilege has been confined to documents that have been brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings[11]. In that case, Jacobs J said[12]:

" I think that the question which the court should pose to itself is this - does the purpose of supplying the material to the legal adviser account for the existence of the material? I use the word purpose here in the sense of intention - the intended use. The question is one of fact. In some cases a mere general description of documents in an affidavit of discovery may indicate an affirmative answer without any need further to examine the documents or the circumstances in which they came into existence: Westminster Airways Ltd v Kuwait Oil Co Ltd[13]. In other cases both an examination of the documents and of the surrounding circumstances may be necessary."

The test is anchored to the purpose for which the document was brought into existence; the use to which a document is put after it is brought into existence is immaterial. So, on a strictly logical application of the test, if a copy is made solely for the purpose of providing it to a legal adviser in order to obtain legal advice or for use in connection with apprehended litigation, the copy would be privileged. A test which focuses on the purpose for which a document is brought into existence, rather than on the information given by or contained in the document, creates practical problems in ascertaining the intention of the maker of the document. If there be two copies on a file, has one (and if so, which), or both, or neither been brought into existence for a privileged purpose? Though the test raises problems of that kind, it must be applied unless there is some countervailing principle. Is there any countervailing principle? That calls for a consideration of the reason for according legal professional privilege to protect a copy of an unprivileged original from seizure or inspection.

The reason why privilege is accorded to a document produced for use in litigation or for the obtaining or giving of legal advice is because "it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers": Grant v Downs[14]. Privilege protects the confidentiality of documents produced for the purpose of communication between a potential litigant and the legal adviser and confidentiality facilitates the administration of justice. In Grant v Downs, Stephen, Mason and Murphy JJ said[15]:

"This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure ... to the solicitor."

Communications may be documentary, as Mason J pointed out in O'Reilly v State Bank of Victoria Commissioners[16]:

"But if communications in written form are to be privileged they must still be confidential communications between solicitor and client made for the purpose of advice or for the purpose of use in existing or anticipated litigation. The documents must come into existence for, and be prepared for, that purpose. So in Grant a majority of this Court held that legal professional privilege is confined to documents which are brought into existence for that sole purpose."

If privilege were denied to a copy of an unprivileged document when the copy is produced solely for the purpose of seeking advice from a solicitor or counsel or for the purpose of use in pending, intended or reasonably apprehended litigation, there would be a risk that the confidentiality of solicitor-client communications would be breached. The way would be open for the execution of search warrants by the emptying out of, and sifting through, solicitors' files and counsel's briefs. That would undermine the adversary system[17] under which most litigation is conducted[18].

Authority and principle thus combine to establish that, prima facie, copies of non-privileged documents are privileged if the copies are brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending, intended or reasonably apprehended. But the prima facie rule is subject to a qualification next to be mentioned.

In judicial and quasi-judicial proceedings, the contents of a private document are proved by producing the original document if it is in existence and can be produced. The original is the best evidence of its contents. Secondary evidence by way of production of a copy is not generally admissible at common law unless the original is not available to the party seeking to tender the document[19]. And, if a party in litigation discloses in an affidavit of documents a material document that is no longer in the party's possession or power, the procedures of discovery enable the other party to trace the location of the document[20], to require the first party to state the contents of the document[21] if the contents be known[22] or, perhaps, to be provided with a copy if the first party can obtain access to the original[23]. In "The Palermo"²⁴, discovery of copies of unprivileged documents was refused by Butt J (the refusal being upheld by the Court of Appeal) on the ground that the copies were obtained "to form part of the brief". But in Land Corporation of Canada v Puleston[25] his Lordship said that he was "not inclined to extend ["The Palermo"] at all". In that case, when an original document which had been in the possession of the party's agent was not discovered, his Lordship ordered production of the original, "or affidavit sufficiently accounting for its destruction or loss. In latter case, order for production of extracts, properly verified by affidavit."[26] Thus, in proceedings in which discovery is available, the contents of an unprivileged original document can be proved as against a party who has had the original in his possession or power, even if a copy of the original is protected from inspection by legal professional privilege. When an unprivileged original can be produced or secondary evidence of its contents can be tendered in evidence, the according of legal professional privilege to a copy does not impair, although it does not hasten[27], the administration of justice.

But the procedures of discovery are not available in aid of the execution of a search warrant and, if legal professional privilege were accorded without qualification to a copy of an unprivileged document where the copy is brought into existence for a privileged purpose, the privilege might well frustrate the power to search and seize and thereby undermine the administration of justice[28]. An offender whose premises were to be searched for incriminating documents could secure immunity from seizure of a key document in his possession by destroying or disposing of the original, after having a copy made for the sole purpose of the apprehended litigation. The offender would then be free to produce the copy at trial if, but only if, it advanced his case[29]. This was the argument advanced by counsel in Chadwick v Bowman[30] but it was not necessary to deal with it in that case because the copies which were obtained by the solicitor in that case were found not to be privileged. However, Mathew J commented:

"I think that danger would follow if the privilege against inspection were made to cover such a case as this."

The problems that arise when legal professional privilege is given an operation outside judicial and quasi-judicial proceedings may require some modification either of the privilege generally or of its operation in particular situations in order to ensure that the administration of justice - criminal as well as civil - is not impaired[31]. No modification would be permitted if the privilege were claimed in response to an application for discovery or inspection in judicial or quasi-judicial proceedings. In such proceedings, the privilege, once it attaches, is not lost[32] unless it be waived by the holder of the privilege[33]. No balancing of interests is called for, as the balancing has been done in according recognition to the privilege[34]. But when the privilege is invoked in response to the exercise of a statutory authority to search and seize, some modification is required to avoid the frustration of the statute.

A problem of the same kind evoked the doctrine of imputed waiver of privilege. In Attorney-General (NT) v Maurice[35], Mason and Brennan JJ said[36] that an "implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege". Deane J said[37] that waiver of privilege -

"occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege."

Unfairness in the context of the execution of a search warrant might be found in maintaining the confidentiality of a privileged copy of an unprivileged original when neither the original nor its whereabouts is disclosed or any secondary evidence of its contents is made available. In such a situation, privilege becomes a cloak thrown over evidence which the execution of the search warrant is intended to reveal.

The purpose of s 10(1) of the Crimes Act would not be frustrated or impaired by according legal professional privilege to copy documents if original unprivileged documents that are connected with the commission of an offence in any of the ways specified in that section are in existence and are susceptible of seizure under a warrant or if unprivileged copies of the original are available and can be tendered to prove the contents of the originals. But where privileged copies of original documents are seized under a search warrant, some qualification of the privilege is required to ensure that the person executing the warrant should have access to the contents of an unprivileged original to the same extent at least as a party to litigation can obtain access to the contents of an unprivileged original against a party who has or has had the unprivileged original in his or her possession or power. I would state the qualification in this way: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the person seeking to execute the warrant and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the privileged copy loses the privilege. The loss of privilege can be avoided by the production of a copy of the original (which might be produced by copying the privileged copy) the accuracy of which is verified by a person having knowledge of the contents of the original. So long as a copy of the unprivileged original (with verification if necessary) or other secondary evidence of its contents is available to be tendered to prove the contents of the original, the privilege attaching to any copy of the original can and should be maintained. Otherwise, I would hold the privilege of the privileged copy to be lost.

No objection to the production of an unprivileged copy or other evidence of the contents of the original can be entertained on the ground that it might expose the party to a penalty or forfeiture. That ground affords an excuse for refusing discovery or inspection in civil litigation but, once legal professional privilege is treated as a rule of general application affecting, inter alia, extra-judicial processes for the enforcement of the criminal law[38], that ground cannot operate to frustrate those processes. For that reason, I have used the words "at least" in stating the extent of the access to the contents of an unprivileged original which a person executing a search warrant should be able to obtain.

To qualify legal professional privilege in the way I have proposed is to deprive a person who has only a privileged copy in his or her possession or power of any tactical advantage that the privilege and the absence of an unprivileged original would otherwise have conferred. But the privilege is not afforded in order to confer tactical advantages; it is afforded in order to facilitate the administration of justice.

Judicial review and declaratory relief

The application of these principles to the instant case presents some difficulty. The difficulty arises because the claim for declaratory relief seems to have been regarded as an incident of, or a step towards, the granting of relief by way of judicial review of the application for search warrants, the issuing of the search warrant and the conduct of the police in executing the search warrants. In truth, the determination of the claim for declaratory relief was not, and could not have been, determinative of the claims for judicial review. The fact that there were privileged documents (or documents that were prima facie privileged) in the premises in respect of which search warrants were sought says nothing as to the validity of the applications for warrants to search those premises, assuming that such applications were "decisions" or "conduct" amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or were reviewable pursuant to s 39B of the Judiciary Act. There was nothing to show that the applications were made in bad faith to obtain warrants authorising a search for and seizure of privileged documents. Nor was the decision to issue the warrants invalid. The issuing justice restricted the execution of the warrants so as to ensure observance of the guidelines for dealing with documents in the event that a claim of privilege was made. The conduct of the police in executing the warrants complied with the guidelines. In accordance with those guidelines, the documents for which privilege was claimed were not seized under the warrant but were sealed up and delivered to a third party. The guidelines provide, in effect, that when the documents are sealed up and delivered to a third party, the execution of the warrant be suspended pending the decision in proceedings to establish the privilege. If no such proceedings are taken or such proceedings fail, the documents are released into the possession of a police officer to be dealt with under the warrant. In this way, an accommodation is reached between the legislative intention expressed by s 10(1) and the decision in Baker v Campbell.

When a claim of privilege attaching to a document seized under a warrant comes to be determined judicially, the court must ascertain for itself whether the document was brought into existence solely for a privileged purpose and, if it be found or assumed that the document is a copy of an unprivileged original but was brought into existence solely for a privileged purpose, whether the privilege has been lost. In determining the claim of privilege, the court is not reviewing judicially an executive action but is determining a distinct controversy between the person who seeks to inspect the seized document and the person who seeks to maintain its immunity from inspection on the ground of legal professional privilege. To determine that controversy, the court must act upon admissible evidence, not upon hearsay. In the present case, Davies J had regard to the sworn information laid before the issuing justice. That material was admissible to establish the basis on which the search warrant was issued and thus to support the validity of the issue of the warrant, but it was not admissible to show that the copy documents found in the custody of solicitors were not privileged.

Ulterior purpose in communications with legal adviser

In determining whether a claim of legal professional privilege can be upheld, it is open to the party resisting the claim to show reasonable grounds for believing that the communication effected by the document for which legal professional privilege is claimed was made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest[39]. I state the criterion as "reasonable grounds for believing" because (a) the test is objective and (b) it is not necessary to prove the ulterior purpose but there has to be something "to give colour to the charge"[40], a "prima facie case" that the communication is made for an ulterior purpose[41]. The purposes that deny the protection of privilege for a communication[42] (whether documentary or oral) between a client and the client's solicitor or counsel include[43] the furthering of the commission of an offence[44].

When a party in curial proceedings is seeking to rebut a claim of privilege by asserting that the communication with the legal adviser was made for an ulterior purpose, the evidence of ulterior purpose must be admissible in those proceedings. It is not sufficient to rely on the information laid before the justice who issued the warrant. The informant is not necessarily a witness and, if he or she is a witness, the admissible evidence is what is then deposed to, not a statement made to or before the issuing justice. In the present case no admissible evidence was tendered, although Davies J at first instance recorded that counsel for the parties were content that he "should have regard to" the sworn information laid before the issuing justice.

Two issues that were relevant to the claim of privilege in respect of the copy documents seized under the warrant appear to await determination. The first is whether the privilege attached at all. That question may need to be re-litigated now that it has been held that a concurrence of counsel in the judge's "having regard to" the sworn information was an inappropriate means of proving the facts relevant to that issue. The second is (in my opinion) whether, if privilege attached, it was lost by reason of the unavailability of the original unprivileged documents or of any secondary evidence of their contents.

Although these reasons differ from those of their Honours in the Full Court, the orders made by that Court suffice to allow effect to be given to these reasons. I would therefore dismiss the appeal and cross-appeal.

DAWSON J. I have had the advantage of reading the reasons for judgment of Toohey J and agree with them and with the orders which he proposes. I wish only to add the following comments.

Legal professional privilege and copy documents

The first question which arises is whether a copy of a document may attract legal professional privilege where the original does not. As Toohey J points out, it is confusing to regard legal professional privilege as attaching to documents rather than the information they communicate. Whilst it is not uncommon in judgments for the distinction to be ignored, to say that a document is privileged is merely a shorthand way of saying that the communication constituted by the document is privileged[45]. As I said in Baker v Campbell[46]:

"Legal professional privilege attaches only to communications made for the purpose of giving or receiving advice or for use in existing or anticipated litigation. Moreover, if the communication in question is in the form of a document submitted by a client to his solicitor for use in existing or anticipated litigation, privilege will attach to it only if it comes into existence solely for that purpose. The privilege cannot operate to put beyond the reach of the law documentary or other material which has an existence apart from the process of giving or receiving advice or the conduct of litigation."

The last sentence of that passage would better convey its true meaning if, instead of the words "documentary or other material", I had continued to refer to "communications" because it is the communication of information that is protected by legal professional privilege against disclosure. That is so even where a document is brought into existence for use in existing or anticipated litigation, although in that case the information communicated may be of a somewhat different kind. Privilege does not protect a document from disclosure as a mere physical object any more than it protects from disclosure any other physical object[47].

That is why a document which has been brought into existence otherwise than as a communication between client and legal adviser seeking or giving advice or for use in existing or anticipated litigation does not attract the privilege: it is not a communication which has its origin in that confidential relationship between client and legal adviser that it is the purpose of the privilege to protect. It is why a document which merely evidences a transaction - a contract, for example - which is not a communication seeking or giving legal advice or for use in the conduct of litigation (in the sense that it pre-exists any actual or anticipated litigation) does not attract legal professional privilege, even if it is subsequently given to the legal adviser for the purpose of seeking advice or for use in litigation. And it is one of the reasons why the preferred view is[48] that a communication constituted by a document will only be protected by privilege if the document is brought into existence for the sole purpose of seeking or giving legal advice or for use in legal proceedings. The view that it is sufficient if that is the dominant purpose of the communication constituted by the document disregards the implication that the communication then has an existence apart from the confidential relationship between client and legal adviser and constitutes a communication which ought not be protected against disclosure[49].

Brett MR had some of these considerations in mind in Pearce v Foster[50] when he said of the documents in question in that case:

"It seems to me, therefore, that they fall within the class of documents with regard to which there is a professional privilege, on the ground that they are brought into existence for the purposes or in the course of professional communications between solicitor and client. I do not think that, where documents are already in existence aliunde, the mere fact of their being handed to a solicitor for the purposes of the conduct of the action can create a privilege; but, where documents are brought into existence by a solicitor or through a solicitor for the purposes of consultation with such solicitor, with a view to his giving professional advice or to the conduct of an action, these are in the nature of professional communications, and are as such privileged."

The same considerations lie behind the question which Jacobs J in Grant v Downs[51] thought was appropriate to determine whether legal professional privilege existed or not, namely, "does the purpose of supplying the material to the legal adviser account for the existence of the material?"

The words of Brett MR in Pearce v Foster adopt an argument put by counsel. That argument concluded[52]: "So a mere copy of such document made for the purposes of the action is not necessarily privileged: Lyell v Kennedy[53]". Brett MR did not go so far in his judgment and it was unnecessary for him to do so for the purposes of the case before him, but it is, I think, the logical consequence of the argument which he accepted. That is illustrated by the Victorian case of Shaw v David Syme & Co[54].

In that case the transcript of shorthand notes of court proceedings which were held in public was held not to attract legal professional privilege, even though the transcript was brought into existence for the purpose of enabling solicitors to advise in respect of a libel action and to conduct the action. The transcript was treated as a copy of the shorthand notes, that is to say, it was not considered significant that the original was in shorthand and the copy was not. What is important is that it was held that the original was not a communication seeking or giving legal advice nor, being merely a record of proceedings which took place publicly and independently of anticipated litigation, was it brought into existence for the purposes of the anticipated litigation. Of the copy, that is to say, the transcript, Madden CJ, in delivering the judgment of the court, said[55]:

"It would, in our opinion, be wrong to say that, where a solicitor has said, 'Get me a copy of that document, the original of which if in my possession will be liable to be discovered,' and such a copy is obtained for him, that copy document has come into existence for the purpose of being put before the solicitor. The document in question is in effect merely a translation of a document which of itself and untranslated would be useless. Being in shorthand, it has to be brought into such a condition that ordinary persons can read it. Therefore it is, as I have said, merely a translation. We think this transcript was not brought into existence for the purposes of the litigation within the true meaning of the rule which gives the privilege here claimed, and it seems to be definitely established by Chadwick v Bowman[56] and Lyell v Kennedy[57] that if an original is not privileged a copy can be in no better position."

Thus it was accepted that if an original document does not attract legal professional privilege, a mere copy cannot do so. The reason for this is apparent from the emphasis placed by Madden CJ upon the fact that the copy was a mere translation. The communication constituted by the copy - the translation - was the same as it was in the case of the original. The information conveyed by the one was no more or less than the information conveyed by the other, so that the copy could be in no better position than the original so far as privilege is concerned. That is to say, if the communication constituted by the original did not (as it did not) seek or provide legal advice and was not (as it was not) made for the purpose of litigation, then the communication constituted by the copy could not be regarded differently.

The point is also illustrated by Lambert v Home[58], a case similar to Shaw v David Syme & Co. There it was held that a transcript of the shorthand notes of proceedings in open court was not privileged even though the transcript was made for use in future litigation. The transcriber had, in the words of Buckley LJ, "done nothing more than reproduce in a physical form that which came into existence in its relevant form when the witness spoke in the box. The writer is comparable to a gramophone or a photographic camera. The document as distinguished from its contents is not relevant"[59]. The same reasoning applies here. It is the contents of the document - the information which it communicates - that is the important thing. The copy distinguished from its contents is not important, for legal professional privilege attaches to the contents of a document rather than the document itself.

In Vardas v South British Insurance[60], Clarke J said of Lambert v Home that it "rejected in categoric terms the notion that a copy of a document made for use in litigation was privileged although the original was not". Clarke J disagreed with a decision of Hunt J earlier in the same year[61] where he concluded that "[i]f the sole purpose of submission to the party's legal advisers for advice accounts for the existence of the copy, it should be privileged". Hunt J cited Grant v Downs[62] and National Employers' Mutual General Insurance Association Ltd v Waind[63] in support of that conclusion, relying in particular on the well-known principle stated by Mason J in Waind[64] that legal professional privilege is concerned with the purpose for which the particular document was brought into existence rather than the purpose for which the information which it records was obtained. Expressing the distinction in that way may, perhaps, be misleading. The law is concerned with the purpose for which the information contained in the document was communicated, rather than the purpose for which the information itself was originally obtained. The former purpose remains unchanged upon the making of copies of the document. Clarke J had that in mind when he said[65] that Grant v Downs and Waind "were not concerned with, and do not deal with, the purpose of the mechanical reproduction or copying of a document. I regard the distinction between the collating and recording of information in a document and the mere reproduction of that document as one of substance."

No doubt if the communication constituted by the copy in Shaw v David Syme & Co and Lambert v Home had been accompanied by some further communication which constituted the giving or seeking of legal advice or additional documentation for use in legal proceedings, the further communication would have been privileged. No doubt also a copy may be made of an unprivileged document or unprivileged documents in such a selective way as to render the copy or copies a communication of information which is different from or additional to the information conveyed by the original or originals. In that event, the copy or copies would be privileged.

In Lyell v Kennedy[66], documents which were copies of unprivileged originals were held to attract privilege because the selection involved in the making of the copies by a solicitor "might shew what his view was as to the case of his client as regards the claim made against him"[67]. That is to say, the selected copies or the portions selected might by their very existence reveal the basis upon which the solicitor was proceeding and thus the nature of his advice to his client. It is implicit in the decision in Lyell v Kennedy that a mere copy of an unprivileged original document which does not reveal such additional information attracts privilege no more than the original. However, as was pointed out by Byrne J in Roux v Australian Broadcasting Commission[68]:

"In the modern context where indiscriminate photocopying is the norm, it may be more difficult than in earlier days of manuscript copying to establish that there has been the interposition of professional skill and judgment in the selection of the materials to be copied so that their production discloses implicitly some confidential privileged information."

Lyell v Kennedy, and the earlier decision in Chadwick v Bowman[69], appear to have been misunderstood in England for a time, perhaps because those cases did not spell out the true reason why a copy document does not attract privilege if the original does not do so. But the cases which seem to have applied a different principle were called into question by Lord Denning MR in Buttes Oil Co v Hammer (No 3)[70] where he said:

"If the original document is privileged ... so also is any copy made by the solicitor. But, if the original is not privileged, a copy of it also is not privileged - even though it was made by a solicitor for the purpose of the litigation: see Chadwick v Bowman[71]. There are some cases which appear to give a privilege to copies on their own account, even when the originals are not privileged. They range from The Palermo[72] down to Watson v Cammell Laird & Co (Shipbuilders and Engineers) Ltd[73]. But those cases are suspect. They were adversely commented on in the Sixteenth Report of the Law Reform Committee on Privilege in Civil Proceedings (1967)[74]. Since Waugh's case[75] it is open to us to reconsider them. 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. That was pointed out by Winn LJ's committee in the Report of the Committee on Personal Injuries Litigation in July 1968[76]."

The reason why a copy document attracts no greater privilege than the original is, as I have endeavoured to explain, more fundamental than that given by Lord Denning MR. It is true that to make the copy discoverable may only be to give accelerated production to the document itself, but that is an argument which has its foundation in policy rather than logic. There are exceptions to the general rule that is in the interests of justice that relevant documents be produced, and in this country that is so whether the production be for the purposes of litigation or the purposes of search and seizure preceding litigation. One of the exceptions exists where there is legal professional privilege and it exists in order to preserve the confidential relationship between client and legal adviser, a relationship which is to be fostered and preserved for the better working of the legal system. However, that relationship is not impaired and the interests of justice are best served if the client or his legal adviser on his behalf is compelled to disclose a copy of a document when production of the original might be compelled without any ground for objection. That may, I think, be said to be so as a matter of policy.

Notwithstanding the limited basis upon which Lord Denning MR justified his conclusion in Buttes Oil Co v Hammer (No 3), that conclusion appears now to be accepted in England, although again upon grounds of policy rather than principle[77]. In Australia there has been a division of judicial opinion, but the correct view is, for the reasons of policy and principle which I have identified, that a copy of a document which does not attract legal professional privilege is in no different position from the original. That view is supported by Australian authority[78].

Admissibility of hearsay to exclude

legal professional privilege

The other question which arises is whether hearsay evidence was admissible to establish that certain of the documents in question failed to attract legal professional privilege because there was a sufficient indication that they were brought into existence in furtherance of a crime or fraud. That limit upon the ambit of legal professional privilege was first recognised in R v Cox and Railton[79]. It is only those communications passing between a legal adviser and his or her client in professional confidence which are privileged and a communication made by the client for assistance in the commission of a crime or fraud lies outside any legitimate professional relationship. The issue in the present case is the nature of the evidence required to establish that the privilege is excluded on this ground.

The cases make it plain that those seeking to exclude legal professional privilege do not have to prove that the communication in question was in furtherance of a crime or fraud. In Bullivant v Attorney-General for Victoria[80], which was a case of fraud, the Earl of Halsbury LC said: "you must have some definite charge either by way of allegation or affidavit or what not". In O'Rourke v Darbishire[81] Viscount Finlay said: "there must be, in order to get rid of privilege, not merely an allegation ... of a fraud, but there must be something to give colour to the charge". That test was accepted in Attorney-General (NT) v Kearney[82] by Gibbs CJ, with whom Mason and Brennan JJ agreed. Gibbs CJ added[83] the further words of Viscount Finlay[84]:

"The statement [ie the allegation of fraud] must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact ... 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 requiring less than proof of an allegation of crime or fraud to displace legal professional privilege, the law has made a compromise in the public interest between the competing principles which require, on the one hand, the availability of all relevant evidence and, on the other, the protection of professional confidence. It has done so in favour of the availability of all relevant evidence by placing the threshold for the displacement of the privilege a considerable distance short of proof of the allegation of crime or fraud. No doubt that is so because it is in the public interest that the law should not countenance even the possibility of legal professional privilege being raised as a cloak to hide criminal or fraudulent activities. Proof - that is to say, admissible evidence of the existence of the crime or fraud - is not required. It is enough that circumstances are made to appear which sufficiently point to the bona fides and credibility of the allegation. It is apparent that for this purpose hearsay evidence cannot be excluded. Thus in O'Rourke v Darbishire Lord Sumner said[85]:

"The stage in the action is only an interlocutory one, and the materials must be weighed, such as they are, without the apparatus of a formal trial of an issue. On such materials the Court must judge whether the claim of privilege is displaced or not."

In the same case Lord Parmoor said[86]:

"Whether the circumstances brought to the notice of the Court in a particular case are sufficiently explicit to establish a prima facie case of definite fraud, either by allegation, affidavit, or in some other way, will depend on the special facts in each case: R v Cox[87]. But something more is required than mere pleading, or than mere surmise and conjecture."

Lord Wrenbury said[88]:

"the plaintiff must show to the satisfaction of the Court good ground for saying that prima facie a state of things exists which, if not displaced at the trial, will support a charge of fraud. This may be done in various ways - admissions on the pleadings of facts which go to show fraud - affidavits in some interlocutory proceedings which go to show fraud - possibly even without admission or affidavit allegations of facts which, if not disputed or met by other facts, would lead a reasonable person to see, at any rate, a strong probability that there was fraud, may be taken by the Court to be sufficient."

Of course, in interlocutory proceedings hearsay is ordinarily admissible in the form of affidavit evidence upon the basis of information and belief, but it is apparent that in determining whether the privilege is displaced not even affidavit evidence is necessarily required.

The proceedings in the present case in which Davies J determined that there was sufficient substance to the allegation of crime or fraud to displace the privilege in relation to certain documents may not perhaps be accurately described as interlocutory proceedings for they resulted in a declaration which was not part of any proceedings otherwise on foot. The true nature of those proceedings can only be seen by reference to the "General Guidelines between the Australian Federal Police and the Law Council of Australia as to the execution of search warrants on lawyers' premises, Law Societies and like institutions in circumstances where a claim of legal professional privilege is made"[89]. Under those guidelines, documents in relation to which legal professional privilege is disputed are placed by the legal adviser, under the supervision of the police officer seeking to execute the warrant, in a sealed container. The container is then jointly delivered into the custody of some independent person. That is to enable the question of legal professional privilege to be determined and that is how the proceedings before Davies J arose.

The real question before Davies J, despite the form of relief he ultimately gave, was whether the police officer was entitled to seize the documents which he wished to seize and to which the search warrant could not validly have extended if they were documents which attracted legal professional privilege. That is to say, the question which Davies J was required to decide was whether the police officer was entitled to implement the decision (the implementation being cut short by the invocation of the guidelines) which he reached, namely, the administrative decision to seize the documents in question notwithstanding the assertion of legal professional privilege. He was entitled to do so if it was sufficiently apparent that the documents came into existence in furtherance of a crime or fraud. Clearly in reaching his conclusion upon that question the police officer could act on the materials available to him and was not confined to admissible evidence. Thus if the proceedings before Davies J be considered as, in effect, a review of the police officer's decision, then clearly his Honour was entitled to have regard to the same materials as were available to the police officer. On the other hand, if they were independent proceedings to determine whether legal professional privilege was displaced, then they were in substance, if not in form, interlocutory proceedings or at least the kind of proceedings in which it is established that hearsay evidence is not excluded. As Toohey J points out, much of the evidence before Davies J was not hearsay, but in any event, in my view, his Honour was entitled to have regard to hearsay evidence in concluding that the documents in question did not attract the privilege.

TOOHEY J. The circumstances giving rise to this appeal are detailed in other judgments. It is necessary to make only brief mention of them in these reasons. I come immediately to the two questions raised for decision by the appeal. In doing so, it is not possible to divorce these questions entirely from the form of the proceedings taken by the respondents in the Federal Court, that is, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and pursuant to s 39B of the Judiciary Act 1903 (Cth).

The first question is whether, and in what circumstances, legal professional privilege attaches to a communication in a copy document when no privilege attaches to the original. The second question is, in effect, whether hearsay material may be used to displace legal professional privilege where the claim of privilege relates to a document which is said to have come into existence in furtherance of an illegal or improper purpose.

The views of the primary judge and the Full Court

In allowing in part an appeal by the respondents[90], all members of the Full Court of the Federal Court (Beaumont, Hill and Lindgren JJ) rejected the view of the primary judge, Davies J, that a copy document could not be the subject of legal professional privilege if the original document was itself not privileged, even though the copy was made for the sole purpose of obtaining legal advice, unless particular legal expertise was used in the selection of the documents[91]. However their Honours were not in entire agreement as to the test to be used to determine when the privilege might operate in respect of a copy of a non-privileged document.

Beaumont J saw the relevant inquiry in these terms: "in the particular circumstances in which the copy document came into existence, should it be treated as, in truth, part of the substantive process of the seeking or the obtaining of legal advice or of preparing for litigation"[92]. Hill J approached the matter on the footing that the privilege attaches to communications, whether they be recorded in documents or are oral. It follows, said his Honour, "that copies of documents otherwise not the subject of legal professional privilege are themselves the subject of such privilege only where the copies are made for the sole purpose of obtaining advice upon matters contained in or concerning the original and in circumstances where to compel production of the copy would or could operate to reveal the subject matter upon which advice was sought"[93]. Lindgren J thought that "the public policy which supports the existence of legal professional privilege is satisfied if copy documents stand in the same position in relation to privilege as the original"[94]. His Honour accepted that in some cases this formulation of the law might seem inadequate. He instanced the situation where inspection may reveal a line of thinking, whether of lawyer or client, which led to the selection of the copies or to the form in which the material had been assembled. Again, a copy document may bear highlighting, underlining or even annotations. Yet again, copied documentation may be so integrated and mixed up with privileged original material that the former cannot be inspected without the latter being seen or its nature revealed. Lindgren J did not see these as exceptions to any principle but rather as falling within the general principle he had enunciated. The examples given applied equally to original documents[95]. Thus, in terms of general principle, Lindgren J's approach was close to that of Davies J.

Legal professional privilege

I accept that privilege may attach to a communication in the form of a copy of a non-privileged document, but only in the limited circumstances to which Lindgren J referred. Reference to copy documents tends to obscure the fact that privilege does not attach to a piece of paper. It attaches to a communication, written or oral, and it is the communication that is at issue. While it is natural to speak of legal professional privilege in terms of documents, it is the nature of the communication within the document that determines whether or not the privilege attaches[96]. It is as a consequence of this distinction that a legal adviser may be "required to give evidence of observed fact, notwithstanding that he observed that fact while acting in the course of a retainer and would not have observed the fact had he not been so retained"[97].

As always, it is helpful to see what the author of the monumental treatise on evidence has to say. Wigmore identifies the general principle of privileged communications in the following way[98]:

"[F]our fundamental conditions are recognized as necessary to the establishment of a privilege against the disclosure of communications:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation."

Although this formulation employs the language of "confidence" and "confidentiality", the author makes it clear in what follows that confidentiality of itself does not create the privilege. Legal professional privilege relates to production, not admissibility[99]. Wigmore's formulation is important because of the emphasis it places on the communication rather than the form the communication takes. This distinction is not always maintained in the authorities. As Hill J noted[100], there are passages in judgments of this Court that speak of the privilege in relation to "documents"[101]. But, when such passages are taken in context, it is apparent that it is the information in the document with which the Court is concerned. For that reason, the question whether privilege attaches to a communication in a copy document is not answered simply by asking whether the original document is itself privileged.

Before considering further the legal principles involved in this aspect of the appeal, it is as well to recall some of the circumstances which gave rise to the appeal. Documents in the possession of the respondents had been seized by the Australian Federal Police in execution of several search warrants. The validity of the warrants was upheld by the primary judge and by the Full Court. That matter has not been pursued in this Court. The relief which was sought by the respondents, and against the granting of which by the Full Court this appeal is brought, was a declaration that certain of the documents seized "are subject to legal professional privilege" and an order for their return. Some of these documents had been seized at the offices of a solicitor who was a director of the first respondent, Propend Finance Pty Limited ("Propend"). Included in the material for which privilege was claimed on behalf of Propend was a quantity of documents in the solicitor's office which were copies of documents which themselves were not privileged. Davies J held[102]:

" There are many bundles of documents in the schedule in respect of which, in my opinion, privilege fails for the reason that the original documents themselves are not shown to be the subject of legal professional privilege. At the present time, the evidence does not show that there was any particular legal expertise used in the selection of the documents."

The present respondents successfully challenged that approach before the Full Court.

The importance of legal professional privilege has been emphasised in many decisions of this Court and of other courts. A recent instance is Carter v Northmore Hale Davy & Leake[103]. At the same time a number of cases have sounded a warning against widening the privilege lest the need for the courts to have access to all relevant documents should be unduly undermined[104]. Wigmore has said of legal professional privilege[105]:

"It is worth preserving for the sake of a general policy, but it is nonetheless an obstacle to the investigation of the truth. It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle."

This view was endorsed by Mason J in O'Reilly v State Bank of Victoria Commissioners[106]. I do not understand his Honour to have retreated from that view in Baker v Campbell[107]. The importance of the disclosure and production of all relevant documents in the possession, custody or power of parties to litigation has been stressed again and again. Legal professional privilege is an exception to that principle and can only be justified as serving the public interest which gives rise to the exception[108]. Not only that but, as Aldous J observed in Lubrizol Corpn v Esso Petroleum Ltd[109], a judge must be able to explain why the particular exception sought to be maintained is in the public interest. The difficulties of explanation are accentuated when there is a departure from the basic proposition that if an original document is not privileged, nor is a copy of that document[110].

Legal professional privilege: copy documents

In Buttes Oil Co v Hammer (No 3) Lord Denning MR said[111]:

"If the original document is privileged ... so also is any copy made by the solicitor. But, if the original is not privileged, a copy of it also is not privileged - even though it was made by a solicitor for the purpose of the litigation".

His Lordship thought that the reason why this was so was because the original, not being privileged, "can be brought into court under a subpoena duces tecum and put in evidence at the trial". But, with respect, that cannot afford a sufficient reason because it is the communication that is sought to be privileged, not the document. It may be that inspection of the copy document would disclose some confidential privileged communication. Nevertheless Lord Denning's basic proposition holds good[112].

An early case in which the privilege attaching to copy documents was at issue is Lyell v Kennedy[113]. The documents were in the possession of the defendant's solicitor but they were copies of public records or other documents which were described as publici juris. The Court of Appeal held that the copies and extracts from the originals were privileged if made or obtained by the professional advisers of a party for his defence to the action and were the result of the professional knowledge, research and skill of those advisers. Bowen LJ said[114]:

"A collection of records may be the result of professional knowledge, research, and skill, just as a collection of curiosities is the result of the skill and knowledge of the antiquarian or virtuoso, and even if the solicitor has employed others to obtain them, it is his knowledge and judgment which have probably indicated the source from which they could be obtained."

As to Lyell v Kennedy, I agree with the view expressed by Byrne J in Roux v Australian Broadcasting Commission that[115]:

"the decision in that case to uphold the privilege was in fact based on the premise that to permit inspection of the solicitors' copies, would show to the plaintiff what was the view of the defendant or its lawyers as to the issues in the plaintiff's case".

Legal professional privilege is concerned with protecting the confidence of communications between lawyer and client. If therefore an original document is not privileged, a copy of that document is not privileged merely because the lawyer receives it from his or her client, even if it is to assist in the conduct of litigation. Where privilege is claimed for the contents of a document, it is necessary to look at the purpose for which the document recording the information came into existence, not the purpose for which the information was obtained[116]. If the document was not brought into existence for the purpose of litigation, its contents are not privileged even if the information which it contains was obtained for that purpose. "Therefore, if a solicitor gets from a third person for use in conducting the client's case a document that was not created in circumstances that attract privilege, on discovery the client must produce the document to the other side."[117] There must be something in the circumstances in which a copy of a non-privileged document came into existence in order to attach privilege to the copy. An illustration is where a lawyer makes annotations on a copy document, for the purposes of the conduct of litigation. On the other hand, it might be said that once annotated the copy document is different from the original. In that event only the annotation may be privileged. Selective copying is unlikely to attract the privilege, particularly at the present time "where indiscriminate photocopying is the norm"[118]. If the position of the copy in a collection of documents or something else about the copy tends to indicate the manner in which the litigation is to be conducted, privilege may attach. That is a limited situation indeed and, in the ordinary course, there is no reason why the document in question should not be removed from the collection so that it may be inspected[119]. It must be accepted that the exercise of professional skill in the assembly of material does not offer a very certain test but it is, I think, a necessary qualification to the general proposition that a copy document does not attract privilege if the original is not privileged.

It is argued that to refuse privilege to a copy document because the original is not privileged will encourage resort by investigators to the documents in a solicitor's office rather than carrying out ordinary investigative procedures. This is an argument based on inconvenience rather than on principle. This is not to underestimate the inconvenience that may sometimes be involved though, in the case of warrants executed on the premises of lawyers, the problems have to some extent been alleviated by the General Guidelines between the Australian Federal Police and the Law Council of Australia, dated 7 June 1990[120]. And the argument tends to overlook the fact that in civil proceedings an affidavit of documents must disclose the existence of all documents that are or have been in the possession or power of the deponent, including documents for which privilege is claimed.

If a third party shows to the solicitor for a party to litigation a non-privileged document and the solicitor takes the document into his or her custody for the sole purpose of claiming the privilege, it is clear that the document is not protected by privilege[121]. As Byrne J observed in Roux[122]:

"It seems to me to be absurd in these circumstances to say that where the solicitor does not retain the original, but makes a verbatim transcript or a photocopy of the document for the relevant sole purpose, that copy document acquires immunity which the original does not have."

To take as a basic proposition that a copy of a non-privileged document does not attract privilege does not in any way undermine the importance of the privilege. Rather it sets logical bounds to the privilege[123].

Although, on the question of legal professional privilege and copy documents, the Full Court allowed the appeal from Davies J, it should not be thought that all members of the Full Court took an entirely different view of the matter from the primary judge. All their Honours were of the view that the submission to a legal adviser of a copy of a non-privileged document does not of itself attract legal professional privilege. There has to be something more. The difference between the primary judge and the members of the Full Court, as I read their judgments, is this. Davies J confined what I have referred to as the "something more" to situations in which the legal practitioner brings to bear his or her particular legal expertise in the selection of the copy documents for which privilege is claimed. Beaumont J asked whether, in the particular circumstances in which the copy document came into existence, it should be treated as part of the substantive process of the seeking or the obtaining of legal advice or preparing for litigation. Hill J's reasons led him to the conclusion that copies of documents not otherwise the subject of privilege are themselves the subject of such privilege only where the copies are made for the sole purpose of obtaining advice upon matters contained in or concerning the original and in circumstances where to compel production of the copy would or could reveal the subject-matter upon which advice was sought. Lindgren J put the matter in terms not all that dissimilar to the approach of Davies J, by asking whether the original is privileged. If the original is non-privileged, so is a copy of it even though the copy was made for a privileged purpose. The qualifications accepted by Lindgren J are somewhat wider than those recognised by Davies J. I agree with the approach taken by Lindgren J[124].

I also agree with Lindgren J that par 6 of the orders made by Davies J declaring that "copies of documents made for the purpose of obtaining legal advice, the originals of which are not subject to legal professional privilege are not privileged" needs modification to account for these qualifications[125]. Lindgren J would have allowed the appeal to the Full Court in respect of par 6, by substituting a declaration that "copies of documents made solely for the purpose of obtaining legal advice, the originals of which are not subject to legal professional privilege, are not, by that reason alone, privileged". I agree with that course. Because the orders made by the Full Court simply set aside a number of orders made by Davies J including par 6, I would allow the appeal to the extent envisaged by Lindgren J. It follows that I would refuse the cross-appeal in so far as the respondents rely upon the "sole purpose" test for the privilege.

Illegal or improper purpose

This aspect of the appeal has a somewhat artificial character. The review sought by the respondents was with respect to the issue of the search warrants. The warrants did not authorise the seizure of documents to which legal professional privilege attached. Davies J did not determine that privilege attached to particular documents. In par 4 of his order, his Honour directed that, subject to declaration 5, issues as to privilege should be determined after the documents had been examined. Paragraph 5 declares that, "by reason of the allegation of offences under section 86(1)(e) and section 86A of the Crimes Act 1914 (Commonwealth) and of the proof given in support thereof, the following documents are not subject to legal professional privilege". The documents are then identified. Paragraph 6 of the order declares that "copies of documents made for the purpose of obtaining legal advice, the originals of which are not subject to legal professional privilege are not privileged". Paragraph 6 then gives examples of such documents. His Honour ordered that documents to which privilege did not attach "be released to the Australian Federal Police"[126].

The Full Court held that the privilege is not displaced by making a mere charge of crime or fraud; there must be some prima facie evidence that the charge has some foundation in fact. The allegation that offences had been committed was made in a sworn information containing more than 40 pages and with annexures presented to this Court in three lever arch files. The informant was the second respondent, Detective Sergeant Taciak who, in the information, spoke of his belief as to various matters "on the basis of the facts stated below". The information was exhibited to an affidavit sworn by Assistant Commissioner Baer who did not depose to the truth of any of the contents of the information. Because the affidavit of Assistant Commissioner Baer merely exhibited the information and did not speak to its contents, the Full Court held that the information was hearsay as to anything it contained. In the view of the Full Court, once the material in the information was rejected, as it should have been, all that remained was a bare assertion of improper or illegal purpose. It ordered that "there be a fresh hearing on the [respondents'] claims for privilege".

I have great difficulty in understanding why it was said that the information was hearsay as to anything it contained. It is no doubt true that Detective Sergeant Taciak had no personal knowledge of much of what appears in the information. But some of the material was a matter of public record, and if admissibility is the relevant test (as to which see below) some was admissible as to the existence of the material, if not as to the truth of the contents.

The respondents also complained that Detective Sergeant Taciak was not available for cross-examination. Before this Court, counsel for the appellants said that, if the respondents had wished to cross-examine the police officer, they had only to ask and "we would have brought him forward". In all the circumstances I would not attach any importance to this aspect.

Again it is necessary to bear in mind the nature of the proceedings before Davies J. His Honour was entertaining applications for declaratory relief. His declaration that, "by reason of the allegation of offences" and "of the proof given in support thereof", some of the documents seized were not subject to the privilege was not based on the information document alone. Indeed he said expressly[127]:

"It is clear from Baker v Campbell that the mere fact that a Justice of the Peace has accepted a sworn information and has issued a warrant under s 10 of the Crimes Act will not, of itself, be sufficient to overcome legal professional privilege. The proof must be sufficient to justify the court in holding that the privilege does not apply."

And his Honour had earlier said[128]:

" I have read the sworn information of Detective Sergeant Taciak but cannot see in it sufficient material to overcome the privilege."

On this footing his Honour rejected a submission that a substantial number of documents were "exempt from privilege by reason of the allegation of offences under the Crimes (Taxation Offences) Act". But his Honour also held that a substantial number of documents "should ... be exempt from the privilege". He reached this conclusion on the footing that there was "sufficient prima facie evidence in the material before the Justice of the Peace to overcome, in the public interest, the claim of legal professional privilege". This conclusion followed a review of the material before him. With respect, I do not think that the judgments of the Full Court had sufficient regard to all the material Davies J took into account in reaching his conclusion that certain documents were exempt from legal professional privilege.

There is perhaps an ambiguity in the sentence[129]:

"But it seems to me that there is sufficient prima facie evidence in the material before the Justice of the Peace to overcome, in the public interest, the claim of legal professional privilege."

Was Davies J then reviewing a "decision" of the Justice or simply alluding to the material before her? It must have been the latter because the Justice made no decision as to exemption from privilege. She did accept, by issuing the warrant, that there were "reasonable grounds for believing" that the material "will afford evidence of the following offences". She then referred to ss 86(1)(e) and 86A of the Crimes Act 1914 (Cth) and ss 5 and 13 of the Crimes (Taxation Offences) Act 1980 (Cth)[130]. I do not think this matters in the end because it is clear that Davies J reached his own finding of "sufficient prima facie evidence". The view of the Full Court that there was no admissible evidence before Davies J is therefore not warranted.

The respondents take their stand on the judgment of Gibbs CJ in Attorney-General (NT) v Kearney (a judgment with which Mason and Brennan JJ agreed), in which his Honour said[131]:

"[Legal professional] privilege is of course not displaced by making a mere charge of crime or fraud".

Gibbs CJ then adopted the language of Viscount Finlay in O'Rourke v Darbishire[132] that

"there must be something to give colour to the charge ... there must further be some prima facie evidence that it has some foundation in fact".

Goff J put the test somewhat higher when, in Butler v Board of Trade, he said[133]:

"If one rejects the bare relevance test, as I have done, then what has to be shown prima facie is not merely that there is a bona fide and reasonably tenable charge of crime or fraud but a prima facie case that the communications in question were made in preparation for or in furtherance or as part of it."

I am not persuaded that the material before Davies J could not establish to the reasonable satisfaction of his Honour prima facie evidence of illegal or improper purpose[134]. There is no reason why hearsay material should be excluded. Indeed, the very nature of the exercise involved will often necessitate some hearsay evidence. If there is nothing more than hearsay the Court is unlikely to be persuaded to the required standard. But that is not to say that hearsay material must be disregarded.

The relevant English authorities are canvassed by Vinelott J in Derby & Co Ltd v Weldon (No 7)[135]. It is unnecessary to refer to those authorities but his Lordship's conclusion may be noted that

"it is, I think, too restrictive to say that the plaintiff's case must always be founded on an admission or supported by affidavit evidence or that the court must carry out the preliminary exercise of deciding on the material before it whether the plaintiff's case will probably succeed, a task which may well present insurmountable difficulties in a case where fraud is alleged and the court has no more than affidavit evidence"[136].

A decision directly in point is that of Dohm J in Re Milner[137] where a claim of solicitor-client privilege was met by an allegation of fraud. Dohm J asked whether there was a prima facie case of fraud on the material before the Court and held that there was, by reason of an affidavit sworn by a taxation officer setting out particulars which indicated fraudulent preferences. His Lordship concluded[138]:

"These sworn facts and the inferences go beyond mere conjecture and give credence to the sworn allegation of fraudulent misconduct."

Orders proposed

Because of the view I have taken of the question of legal professional privilege and copy documents I would allow the appeal to the extent that the order made by the Full Court directs that "there be a fresh hearing on the appellants' claims for privilege". I would confine the claims of privilege for copy documents in the manner suggested by Lindgren J. I would dismiss the respondents' cross-appeal.

GAUDRON J. The questions which fall for decision in this appeal arise out of the execution of search warrants issued pursuant to s 10 of the Crimes Act 1914 (Cth)[139]. The warrants were issued by Ms Wendy Elder JP, on an information sworn by the second appellant, Detective Sergeant Alan Taciak, a member of the Australian Federal Police. The warrants authorised named police officers to search various residential and office premises occupied by the respondents. One warrant authorised the search of office premises occupied by Mr Michael Dunkel, the ninth respondent. Mr Dunkel is a solicitor. He was retained by the other eight respondents with respect to certain taxation matters relating to their membership of or association with a partnership which carried on business under the name Best & Less ("the Best & Less Partnership").

The information sworn by Detective Sergeant Taciak revealed that it was suspected that some or all of the respondents, including Mr Dunkel, were implicated in offences against ss 86(1)(e) and 86A of the Crimes Act[140] and, also, in offences against the Crimes (Taxation Offences) Act 1980 (Cth). So far as concerns offences against the Crimes Act, it was revealed in the information that it was suspected that companies in the Best & Less Partnership had claimed deductions for garment testing carried out overseas but that the testing was carried out for much less than the remitted amount, the difference finding its way to various intermediary companies and, ultimately, being lent back to the companies in the Best & Less Partnership. It was also revealed that it was suspected that Mr Dunkel was associated with the intermediary companies and that some of the money came back pursuant to a loan agreement executed by him.

So far as concerns offences against the Crimes (Taxation Offences) Act, the information revealed that various persons had entered into an arrangement to sell the business of the Best & Less Partnership in circumstances resulting in the payment of all secured and unsecured creditors except the Commissioner of Taxation. It was suspected that this had been done contrary to ss 5(1) and 13 of that Act[141].

Members of the Australian Federal Police seized documents from various premises occupied by the respondents, including office premises occupied by Mr Dunkel. The warrant authorising the search of his premises required the persons to whom the warrant was issued to proceed in accordance with guidelines agreed between the Commissioner of the Australian Federal Police and the Law Council of Australia following the decision of this Court in Baker v Campbell[142] that s 10 of the Crimes Act does not authorise the seizure of documents to which legal professional privilege attaches ("the guidelines"). The guidelines set down procedures for the execution of search warrants on the premises of lawyers and are designed to preserve legal professional privilege and to provide for the return of seized documents if and when the privilege is established[143]. Mr Dunkel claimed legal professional privilege on behalf of his clients and, in accordance with the guidelines, the documents seized from him were placed in a sealed envelope pending a decision on the claim.

Shortly after the execution of the warrants, the respondents commenced proceedings in the Federal Court of Australia against the Commissioner of the Australian Federal Police, the second appellant, Detective Sergeant Taciak, and the issuing justice, Ms Wendy Elder JP, seeking orders for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and, also, under s 39B of the Judiciary Act 1903 (Cth)[144]. The application sought review of various decisions and of the conduct of the police officers involved in the execution of the warrants. So far as concerns the conduct of those police officers, review was sought on the ground, amongst others, that "[d]ocuments were seized to which legal professional privilege attaches"[145]. The only issue in this appeal is whether that ground has been established.

As already indicated, s 10 of the Crimes Act does not authorise the seizure of documents to which legal professional privilege attaches[146]. However, the guidelines proceed on the basis that, as with the warrant authorising search of Mr Dunkel's premises, warrants will issue in terms which encompass privileged documents. That that was so in the case of the warrant with respect to Mr Dunkel's premises clearly appears from its requirement that it be executed in accordance with the guidelines. Accordingly, it may be that it would have been more appropriate for the respondents to seek review of the decision to issue that warrant on the ground that it purported to authorise the seizure of privileged documents[147]. However, no point has been taken as to the nature of the review sought. And no point has been taken that, contrary to their objective, the guidelines do not preserve legal professional privilege[148]. Rather, the proceedings have been conducted on the footing that, if legal professional privilege attached to the documents which were in Mr Dunkel's possession until seized pursuant to the search warrant, the respondents are entitled to succeed in their application and to have the documents returned.

The respondents' application for review was heard by Davies J. It emerged at the hearing that the documents seized from Mr Dunkel included copies of documents, the originals of which, it is conceded, are not privileged. There was evidence that certain of the documents in question were copied and given to Mr Dunkel by one or more of the other respondents, either solely for the purpose of obtaining legal advice in connection with their liability to pay tax or solely for use in anticipated litigation relating to that matter. Others were copy documents included in one or more briefs to counsel to advise, the copies apparently having been made by Mr Dunkel or members of his firm solely for the purpose of obtaining counsel's advice. There was nothing to suggest that any of the copy documents bear markings or writing which distinguish them in any way from the originals.

In the hearing before Davies J, the respondents claimed that legal professional privilege attaches to copy documents in the possession of a solicitor if the copies are made solely for the purpose of obtaining legal advice or solely for use in legal proceedings. On the other hand, the appellants claimed that the privilege does not attach to copy documents the originals of which are not, themselves, privileged. The appellants also claimed that the information sworn in support of the warrants contained material which pointed to certain original documents having been brought into existence for or used in the furtherance of the illegal activities alleged in that information. They argued that copies of those documents were or were to be treated as infected with that illegality and, thus, that, quite apart from their status as copies, no privilege attaches to them.

On the question whether privilege attaches to copy documents, Davies J expressed his agreement with the view adopted by Wood J in Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd[149]. It was held in that case that privilege does not attach to a copy document unless "it involves a selective copying or results from research, or the exercise of skill and knowledge on the part of [the] solicitor"[150]. On the question of illegality, Davies J held that, so far as it concerned offences under the Crimes (Taxation Offences) Act, the information did not reveal material sufficient to displace the claim of privilege but that, so far as it concerned offences under the Crimes Act, it did constitute "sufficient prima facie evidence ... to overcome, in the public interest, the claim of legal professional privilege"[151].

The orders made by Davies J included orders declaring that, by reason of the allegation of offences under the Crimes Act, certain specified documents were not privileged (Order 5) and directing that the question whether privilege attached to the other documents should be determined after the documents were examined (Order 4). There was also an order declaring that "copies of documents [examples of which were specified] made for the purpose of obtaining legal advice, the originals of which are not subject to legal professional privilege are not privileged" (Order 6). There were further orders directing that the documents to which legal professional privilege did not attach be released to the Australian Federal Police (Order 8) and granting a stay of that order in the event of an appeal being lodged and prosecuted expeditiously (Order 9). It is not clear that the declaration in Order 6 is entirely consistent with the direction in Order 4 that questions of privilege be determined after examination of the documents.

On appeal, the Full Court of the Federal Court (Beaumont, Hill and Lindgren JJ) set aside the declaration that, by reason of the allegations of offences under the Crimes Act, privilege did not attach to the documents specified in Order 5 of the orders made by Davies J. On that issue, the Full Court held that, as Detective Sergeant Taciak had not been called as a witness, the matters alleged in the information were hearsay and, thus, there was no basis for any finding of illegality. It was ordered that there should be a fresh hearing of the issue.

The members of the Full Court differed in their views with respect to the question whether privilege attaches to a copy of a document which, itself, is not privileged. Beaumont J was of the view that a copy of what is otherwise an unprivileged document is privileged if "in the particular circumstances in which the copy document came into existence, [it] should ... be treated as, in truth, part of the substantive process of the seeking or the obtaining of legal advice or of preparing for litigation"[152]. Hill J considered that privilege attaches if but only if "the copies are made for the sole purpose of obtaining advice upon matters contained in or concerning the original and in circumstances where to compel production of the copy would or could operate to reveal the subject matter upon which advice was sought"[153]. Finally, Lindgren J adopted an approach similar to that taken by Davies J at first instance and held that privilege does not attach unless "inspection would reveal more than merely the content of the copy document"[154]. His Honour instanced cases in which a copy document would reveal a line of thinking, or is marked in a way that would reveal a line of thinking or is inextricably mixed with privileged original material. However, his Honour would have varied the declaration in Order 6 of the orders made by Davies J to make it clear that privilege does not attach to copy documents simply because they have been brought into existence for the sole purpose of obtaining legal advice.

In this Court, the appellants seek restoration of the orders made at first instance by Davies J. They argue, as they have at all stages of the proceedings, that legal professional privilege does not attach to a copy document if the original is not, itself, privileged. Alternatively, they argue that the tests propounded by Beaumont and Hill JJ in the Full Court are wrong. As well, they argue that the information sworn by Detective Sergeant Taciak provides a proper basis for holding that legal professional privilege does not attach to the documents specified in Order 5 of the orders made by Davies J. On the other hand, the respondents, who also cross-appeal, argue that the copy of a document is privileged, even if the original is not, provided that it was brought into existence for the sole purpose of obtaining legal advice. They also argue that the Full Court should, itself, have finally determined the question of illegality and should not have ordered a further hearing on that issue.

The decision in Baker v Campbell[155] which, as already mentioned, holds that s 10 of the Crimes Act does not authorise the seizure from a solicitor of documents which are the subject of legal professional privilege rests on the proposition that legal professional privilege is not merely a rule of evidence applicable in judicial and quasi-judicial proceedings, but is a basic doctrine of the common law[156]. And, being a basic doctrine of the common law, it is not abrogated by statute unless there is a clear indication that that was intended[157]. The privilege has been described as "a substantive general principle" and as "a practical guarantee of fundamental rights"[158]. And in Goldberg v Ng, Gummow J cautioned against reliance on certain English decisions which appear to treat the privilege as no more than a rule of evidence[159].

The decisions with respect to the status of copy documents are not uniform in their approach, perhaps because they consist mainly of first instance rulings on evidence or first instance decisions on applications for discovery. The clearest judicial statement in support of the primary proposition advanced by the appellants is to be found in Buttes Gas and Oil Co v Hammer (No 3)[160]. In that case Lord Denning MR expressed the view, obiter, that "if the original is not privileged, neither is a copy made by the solicitor privileged". His Lordship explained that that was for the "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", adding that "[b]y making the copy discoverable, we only give accelerated production to the document itself"[161].

There are earlier decisions with statements to the same effect or statements which have been treated as being to the same effect as that of Lord Denning MR in Buttes Gas and Oil. Thus, for example, in Chadwick v Bowman[162] Denman J said of the copy documents in issue in that case that "[t]he originals ... would have been admissible in evidence against the defendant, and it seems to me that there is nothing in the circumstances under which the copies came into existence to render them privileged against inspection". Similarly, it was said by Madden CJ in Shaw v David Syme & Co[163] that "it seems to be definitely established by Chadwick v Bowman and Lyell v Kennedy that if an original is not privileged a copy can be in no better position". Lyell v Kennedy[164] was concerned with copies made by a solicitor and it seems reasonably clear, as Madden CJ observed in Shaw v David Syme & Co, that discovery would have been granted "had that been all there was to be said about the matter, that they were copies"[165]. In fact, the copies had been made selectively and it was held that they were privileged.

The approach of Lord Denning MR in Buttes Gas and Oil has been applied in subsequent cases in England[166] and in this country[167], but not uniformly[168]. The approach has been treated as one dictated by logic and common sense[169]. Thus, it was said by Debelle J in JN Taylor Holdings Ltd v Bond[170] that "[g]enerally speaking, it would be absurd for the copy to be privileged while the original was not". The qualification in that statement stems from Debelle J's acknowledgment of an exception along the lines recognised in Lyell v Kennedy[171], though the exception is circumscribed more narrowly by his Honour than was done in Nickmar Pty Ltd[172]. The acknowledgment of exceptions has resulted in a tendency, in more recent cases, to state the position with respect to copy documents in terms which indicate that privilege does not attach simply because the copies were made solely for the purpose of obtaining legal advice or solely for use in litigation.

There are several problems with the approach of Lord Denning MR in Buttes Gas and Oil. First, his Lordship's remarks clearly treat legal professional privilege as a rule of evidence and not as a substantive legal principle which protects against compulsory disclosure. In this regard, it should be noted that it was not until the decision of Baker v Campbell, in 1983, that it was recognised by this Court that legal professional privilege is a substantive legal principle. More recently, the House of Lords has also recognised that the privilege is "much more than an ordinary rule of evidence, limited in its application to the facts of a particular case"[173]. Decisions and judicial statements with respect to copy documents made when the privilege was seen as merely a rule of evidence, as, for example, in Shaw v David Syme & Co, are not, in my view, a sure guide to the approach properly to be adopted once the privilege is recognised as a substantive legal principle.

Another difficulty with the view that privilege does not attach to a copy document unless the original is also privileged is that it cuts across the purpose which the privilege serves. That purpose was described by Gibbs CJ in Baker v Campbell in these terms[174]:

"It is necessary for the proper conduct of litigation that the litigants should be represented by qualified and experienced lawyers rather than that they should appear for themselves, and it is equally necessary that a lawyer should be placed in full possession of the facts to enable him to give proper advice and representation to his client. The privilege is granted to ensure that the client can consult his lawyer with freedom and candour, it being thought that if the privilege did not exist 'a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case' ".

It cannot be doubted that the prospect of search warrants being executed in solicitors' offices with a view to obtaining copies of a client's documents is a substantial disincentive to persons who might otherwise wish to put all the facts before a lawyer and, thus, also as an impediment to the provision of proper advice and effective representation.

There is a third and greater difficulty with the view that privilege does not attach to a copy document unless the original is also privileged, namely, that it pays insufficient regard to the consideration that legal professional privilege does not protect documents, as such, but protects communications between lawyer and client[175]. In Carter v Northmore Hale Davy & Leake[176], Deane J spoke in terms of a "privileged communication or document". However, a document which is brought into existence solely for the purpose of obtaining legal advice or solely for use in litigation and which is then provided to a lawyer for that purpose is, itself, a communication with the lawyer and, in accordance with the decision of this Court in Grant v Downs[177], a privileged communication. Equally, a copy of a document made solely for the purpose of obtaining legal advice or solely for use in legal proceedings is, when provided to a lawyer for that purpose, a communication to the lawyer. Save that it is likely to be more accurate, the provision of a copy document in those circumstances is no different from the oral communication, in the same circumstances, of the material contained in the original document. And the latter is unequivocally a privileged communication.

The consideration that the provision to a lawyer of a copy document is, itself, a communication different only in form from the oral communication of the contents of the original document leads me to conclude that privilege attaches to a copy document which is provided to a lawyer if the copy was made solely for the purpose of obtaining legal advice or solely for use in legal proceedings.

It does not seem to me absurd or contrary to common sense for privilege to attach to copy documents provided to a lawyer and made solely for the purpose of obtaining legal advice or solely for use in legal proceedings. If the original is not privileged, it is susceptible to whatever compulsory processes are available to secure its production; and the fact that it may be easier to obtain a copy from a solicitor than it is to obtain the original by compulsory process is no reason to cut down or abrogate legal principle, especially one of such fundamental importance to the administration of justice as legal professional privilege. Indeed, if it were held that privilege does not attach to a copy document made solely for the purpose of obtaining legal advice or solely for use in legal proceedings and provided to a lawyer for that purpose, it might well encourage less than thorough investigative methods on the part of law enforcement agencies, with the obvious risks that that entails for the administration of justice.

Although no separate argument was addressed to them, it is necessary to say something of the copy documents included in counsel's brief to advise. There is no basis for treating documents provided by a solicitor to counsel for advice or for inclusion in his or her brief on hearing any differently from documents provided by a country solicitor to his or her town agent. The latter have long been accepted as being within the scope of legal professional privilege[178]. Both are properly to be viewed as communications on behalf of the client[179].

Once it is accepted that communications by a solicitor with his or her agent and with counsel are communications on behalf of the client, it follows that communications with those persons by means of copy documents are in no different position from communications by a client with his or her lawyer by the same means. And, of course, the same is true of communications by means of copy documents by a lawyer with his or her clients. It follows that a copy document which has been brought into existence by a lawyer solely for the purpose of obtaining counsel's advice, solely for inclusion in his or her brief on hearing or solely for the purpose of advising his or her client is the subject of legal professional privilege.

It remains to consider whether, by reason of illegality, privilege has been "displaced" in relation to the documents specified in Order 5 of the orders made by Davies J. In this regard, it is to be noted that the material and the argument in this Court clearly indicate that that question is raised with respect to copy documents, not originals. Thus, it was said in reply by counsel for the appellants that his argument was that "the copies do not have any greater privilege than the originals and if we are right that they were transactional type documents made in furtherance of [the] conspiracy ... they are not privileged".

It is to be noted that it was not put that the copy documents in question were provided by the other respondents to Mr Dunkel or by Mr Dunkel to counsel in furtherance of the fraud alleged in the information. If either were the case, no privilege would attach[180]. Nor was it put that they were provided to or by Mr Dunkel "for the purpose of frustrating the processes of the law itself", a situation which Gibbs CJ said was outside legal professional privilege in Attorney-General (NT) v Kearney "even though no crime or fraud is contemplated"[181]. Rather, as already indicated, all that was put was that the originals were the means by which a fraud was effected and that the copies were infected with that same illegality.

Communications made in furtherance of future wrongdoing fall outside legal professional privilege, although there is no particularly precise statement as to the nature of the wrongdoing that produces that result[182]. However, legal professional privilege clearly extends to the situation in which a person seeks advice with respect to past misdeeds. And, once that is accepted, it follows that copy documents which relate to those misdeeds are in no different position from other copy documents provided to a lawyer for the purpose of obtaining legal advice or for use in legal proceedings. Thus, they are privileged if they were made solely for one or other of those purposes.

As there is evidence that the copy documents referred to in Order 5 of the orders made by Davies J were made solely for the purpose of obtaining legal advice or solely for use in legal proceedings and no suggestion has been made that they were provided to or by Mr Dunkel for any other purpose, they are to be treated in precisely the same way as the copy documents to which Order 4 relates. And that being so, there is no necessity for that issue to be remitted for further hearing.

It is not strictly necessary to say anything of the argument with respect to the nature of the evidence required to "displace" legal professional privilege. However, the matter was fully argued and it is appropriate to make some short observations on the subject. Because legal professional privilege attaches to communications contained in documents (including copy documents) brought into existence and provided to a lawyer solely for the purpose of obtaining legal advice or solely for use in legal proceedings, the privilege does not attach to documents which are brought into existence or which are provided to a lawyer for the purpose of furthering some illegal object. Thus, as McHugh J pointed out in Carter v Northmore Hale Davy & Leake, the so-called "exceptions" to legal professional privilege, namely, communications to further illegal purposes, communications made for the purpose of frustrating the processes of the law and communications made to further an abuse of public power "are in truth not exceptions at all"[183]. Rather, legal professional privilege never attaches to them. This has some significance in relation to the nature of the evidence necessary to raise a question of illegality.

If illegality were a true exception to legal professional privilege, it would be arguable that the person challenging the existence of the privilege should establish that the communication in question was made in furtherance of some illegal purpose[184]. However, it is not a true exception and, thus, it is not necessary that illegality be established positively. On the other hand, a mere allegation of illegal purpose is not, itself, sufficient. There must be "not merely an allegation ... of a fraud, but ... something to give colour to the charge"[185], "some prima facie evidence that it has some foundation in fact"[186]. The reason for this is obvious. Persons are presumed innocent, not guilty. And, thus, there must be evidence to raise a sufficient doubt as to a claim of privilege to cast a further evidentiary onus on the person making the claim to show that, in truth, the privilege attaches.

Inevitably, what will be sufficient to cast a further evidentiary burden on a person claiming legal professional privilege will vary according to the facts of each case. However, the presumption of innocence is not lightly displaced. Thus, for example, it was said by Lord Wrenbury in O'Rourke v Darbishire, a case involving an allegation of fraud, that there must be material which shows "good ground for saying that prima facie a state of things exists which, if not displaced at the trial, will support a charge of fraud"[187]. Similarly, in Buttes Gas and Oil, Lord Denning MR said that it was necessary for there to be "strong evidence"[188].

Bearing in mind the purpose served by legal professional privilege and the importance of the presumption of innocence, a further evidentiary burden is, in my view, cast upon a person claiming legal professional privilege only if there is evidence which, if accepted, raises a prima facie case of illegal or other purpose falling outside the privilege. Evidence of that nature need not be led by the person resisting the claim of privilege. It might emerge, for example, from documents for which the claim is made.

If a person wishes to resist a claim of privilege and to lead evidence of an illegal or other purpose inconsistent with its existence, that evidence must be in admissible form. Ordinarily, that will exclude hearsay. But if, as here, hearsay evidence is properly admitted on some other issue, ordinary considerations of fairness require that the person claiming privilege be given an opportunity to test that evidence by cross-examination. Thus, in the present case, if the allegation of illegality founded on the information sworn by Detective Sergeant Taciak had any bearing on the question whether privilege attached to the copy documents seized from Mr Dunkel, ordinary considerations of fairness would require that, notwithstanding that the information was in evidence for other purposes, it should not be relied upon in opposition to the claim of privilege without Detective Sergeant Taciak's being available for cross-examination.

The appeal should be dismissed and the cross-appeal allowed. Order 3 of the orders made by the Full Court should be varied by deleting the words "and that ... for privilege". In lieu of those words it should (a) be declared that legal professional privilege attaches to copy documents in the possession of a lawyer if the copies were made solely for the purpose of obtaining or giving legal advice or solely for use in legal proceedings and (b) be ordered that the matter be remitted to a single judge for determination of the application in accordance with that declaration and for determination of the question of costs reserved by Davies J. The respondents should have their costs in this Court.

McHUGH J. This appeal from a decision of the Full Court of the Federal Court of Australia raises two questions of law:

(1) whether legal professional privilege can apply to a copy document where no privilege attaches to the original; and

(2) whether hearsay material may be relied upon to displace legal professional privilege where the privilege is claimed for a document alleged to have been made in furtherance of an illegal or improper purpose.

I would answer the first question: yes, and the second question: no.

Nine search warrants were issued

Suspecting that the respondents were guilty of tax evasion, the Australian Federal Police ("the AFP") applied to a justice of the peace for the issue of warrants to search residential and office premises connected with the respondents. Among those premises was the office of the ninth respondent, a solicitor. Pursuant to s 10 of the Crimes Act 1914 (Cth) ("the Crimes Act")[189], the justice issued nine warrants. They were identical in terms, apart from the warrant that authorised the search of the solicitor's office. The justice directed that that warrant be executed in accordance with the "General Guidelines between the Australian Federal Police and the Law Council of Australia as to the execution of search warrants on lawyers' premises", a copy of which was attached to the warrant[190].

In issuing the warrants, the justice acted on an information sworn by a member of the AFP. In the information, the officer alleged that there were reasonable grounds for suspecting that upon the various premises were documents that would provide evidence of offences against the Crimes Act and the Crimes (Taxation Offences) Act 1980 (Cth). He swore that companies in a partnership known as the Best & Less group had claimed inflated income tax deductions for the expense of garment testing; the testing had been performed for the group by an overseas organisation for fees substantially less than the deductions claimed. The officer alleged that only part of the moneys "paid" to this organisation for garment testing went to the organisation. The rest of the money remitted went to other corporations which lent the money to Australian entities which included Propend Finance Pty Ltd ("Propend"), the first respondent. In addition, the informant alleged that the ninth respondent, Mr Dunkel, a solicitor, was suspected of being involved in this scheme.

When Mr Dunkel's premises were searched, he claimed legal professional privilege for some documents seized by the AFP. As a result, the AFP officers who executed the warrants lodged those documents with the issuing justice and, upon commencement of proceedings in the Federal Court, with the Registry of that Court. The AFP officers also gave undertakings not to inspect the seized documents until the courts resolved the privilege claim. In lodging the documents and giving the undertakings, the AFP officers were complying with the practice set out in the Guidelines.

After the warrants were executed, the respondents instituted proceedings in the Federal Court challenging the validity of the warrants and the manner of their execution. In addition, they sought the return of the documents the subject of the privilege claim.

The proceedings before the Federal Court of Australia

In the Federal Court, the respondents applied for declaratory relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) on the basis that the search warrants were invalid. Alternatively, they sought a declaration that some of the seized documents were protected from disclosure by legal professional privilege.

Exhibited to one of Mr Dunkel's affidavits in support of the proceedings was a compendious schedule entitled "Schedule of Privileged Documents". In the affidavit, he swore that each document for which privilege was claimed, or a copy thereof, had been brought into existence for the sole purpose of providing legal advice or for use in legal proceedings.

At first instance, Davies J held that, in the absence of any particular legal expertise used in the selection of the documents to be copied, legal professional privilege did not apply to them. His Honour also held that the evidence before the justice of the peace constituted prima facie evidence of fraud and prevented legal professional privilege applying to the documents. As a result, his Honour rejected the claim of legal professional privilege in respect of various documents[191].

The respondents then appealed to the Full Court of the Federal Court of Australia. That Court allowed the appeal in part and ordered that there be a fresh hearing on the respondents' claim of legal professional privilege in respect of the documents.

On appeal to this Court, the appellants seek an order that the appeal to the Full Court from the orders of Davies J be dismissed. In their cross-appeal, the respondents seek to set aside the order of the Full Court for a general hearing on the issue of privilege. They contend that the only issue on the rehearing is, which copy documents are the subject of legal professional privilege.

Whether copies of non-privileged documents may be privileged

Legal professional privilege is the shorthand description for the doctrine that prevents the disclosure of confidential communications between a lawyer and client, confidential communications between a lawyer and third parties when they are made for the benefit of a client, and confidential material that records the work of a lawyer carried out for the benefit of a client unless the client has consented to the disclosure[192]. To be protected by the privilege, a communication must be made solely for the purpose of contemplated or pending litigation or for obtaining or giving legal advice[193]. The privilege does not extend to communications that are made to facilitate the commission of crime or fraud[194], to abuse the exercise of public power[195] or to frustrate the order of a court[196].

To many, it has seemed an illogical - even absurd - proposition that the copy of a document can be privileged from disclosure when the original document is not privileged[197]. For this and other reasons, many judges who have considered the question have held that legal professional privilege cannot apply to a copy of a document unless the original was privileged. For example, the Divisional Court has held that, where letters have been lost or destroyed, no privilege attaches to copies of them taken by a solicitor for use in pending litigation[198]. But other English courts have held that a copy document may be privileged although the original was not privileged[199]. In Australia, a similar division of judicial opinion on the question has emerged[200]. However, the balance of authority in this country favours the view that, if the original is not privileged, neither is a copy, even if it was made for the sole purpose of advice or use in litigation. Because the precedents and their reasoning are so inconsistent, this Court can only decide the present case by reference to the fundamental principles and the rationale behind the doctrine of legal professional privilege.

The rationale for legal professional privilege

This Court has stated the rationale for legal professional privilege[201] in the following terms[202]:

"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. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision."

Three important points emerge from this statement. First, the statement properly identifies the inherent tension in the doctrine of legal professional privilege: on the one hand, there is the need to protect the confidences of the client and, on the other, there is the public interest in parties to litigation having access to all relevant evidence[203].

Second, the statement correctly identifies the subject matter of the privilege - communications. This point, however trite it may seem, is fundamental to the determination of the present appeal. Much of the confusion present in the case law arises from a failure to apply it. Legal professional privilege is concerned with communications, either oral, written or recorded, and not with documents per se.

Third, the statement emphasises the paramountcy of the principle of legal professional privilege in our legal system. In this country, legal professional privilege is more than a mere rule of evidence; it "is a substantive general principle which plays an important role in the effective and efficient administration of justice by the courts"[204], the best explanation of which is that it is a "practical guarantee of fundamental, constitutional or human rights"[205]. In Carter[206], I pointed out that:

"By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality."

No doubt it seems contrary to commonsense that the law should give privilege to the copy of a document when it does not give it to the original. But in this area of the law, as in other areas of law and life, commonsense turns out to be a misleading guide. This is because legal professional privilege turns on purpose, and no argument is needed to show that the purpose of a client or lawyer in making a copy document may be very different from the purpose of the person who created the original.

To concentrate on the similarity between the original and the copy or on how the copy came to be made is to miss the whole point of legal professional privilege. The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client's affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice. As long as the communication was made or the material recorded for the sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant.

Part of a protected communication may even be a document that was created for a non-privileged purpose but which has been given to, and is in the custody of, a lawyer for the purpose of obtaining legal advice or for confidential use in litigation. As Mason J, with whose judgment Barwick CJ, Stephen, Jacobs and Aickin JJ agreed, pointed out in National Employers' Mutual General Insurance Association Ltd v Waind[207], "[d]ocuments submitted by the client to his solicitors for advice or for use in anticipated litigation attract the privilege". Thus, in The Palermo[208], the Court of Appeal upheld the judgment of Butt J who had refused to order discovery of depositions made by the master and crew of a ship in proceedings before the Board of Trade which the plaintiffs had "obtained for the purposes of this action, and as the phrase is, 'to form part of the brief'." If the privilege does not attach to such documents while they are in the custody of the lawyer, disclosure of their contents while in that custody, coupled with the surrounding circumstances, might reveal the nature of the advice that the client was seeking or the client's or the lawyer's view of the pending litigation[209]. By compelling disclosure, more than just the documents themselves might be handed over to an adversary.

When original documents leave the lawyer's custody, however, they cannot by themselves identify the contents of the communication between the lawyer and his or her client. Thereafter, their privileged status depends on the purpose of their original creation. No doubt if the client is required to produce an original document which has been the subject of a communication between a lawyer and the client, an inference can sometimes be drawn as to why the document was in the lawyer's custody. But since the original document was not created solely for the purpose of obtaining legal advice or assistance, it would be stretching legal professional privilege too far to cloak the document with privilege merely because at some stage it was the subject of legal advice or assistance.

Where a claim for privilege is made in respect of the copy of a document given to a lawyer for the purpose of obtaining legal advice or assistance, it is likely that the copy was prepared solely for that purpose. Because this is so, the copy will usually have a stronger claim for privilege than the original document. It will usually have a stronger claim because the relevant communication is not the original document; it is the client's conduct in giving the copy to the lawyer. Handing the copy to the lawyer is as much a part of the communication between lawyer and client as an oral summary of the original document would be part of a communication between lawyer and client. If handing the copy to the lawyer satisfies the test in Grant v Downs[210], as it usually does, it is privileged.

It follows that, if a solicitor makes a copy of a document that was not privileged, the copy will be privileged if it was created for the sole purpose of obtaining or giving confidential legal advice or for the confidential use of legal advisers in pending litigation. Similarly, if the client makes a copy of a document solely for that purpose or use, the copy will be privileged. If this were not so, inspection of the copied material could expressly or inferentially reveal information that would destroy the confidentiality of the communication between the legal representative and the client. Either in their assembly or their selection, disclosure of the documents could reveal a line of reasoning as to the relevant issues in the case or their relative merit. Moreover, once the privilege attaches, it remains until the client waives it. The copy document constitutes and records part of the communication between the lawyer and the client and was created solely for the purpose of obtaining legal advice. In these circumstances, the copy is always privileged. Even if it is sought for use in subsequent and unrelated proceedings, it is privileged from production[211].

It also follows that, whether the claim for privilege concerns a communication or the work product of a lawyer, purpose and not skill is the criterion for determining the claim. It is true that statements can be found in the cases to the effect that a copy will be privileged if it involves the application of legal skill on the part of a lawyer[212]. Thus in Lyell v Kennedy, Bowen LJ seems to have upheld a claim of legal professional privilege in respect of copies of public documents on the basis that their collection was "the result of professional knowledge, research, and skill"[213]. If the application of legal expertise was the test for determining whether privilege attached to a copy document, however, an unmarked photocopy of a solicitor's notes for use by counsel would arguably have no privilege.

Two arguments have been used against giving legal professional privilege to copy documents. In Roux v Australian Broadcasting Commission, Byrne J said that such a rule would result in "trial by ambush" which in the "modern era" was "no longer acceptable"[214]. But the question of privilege for a copy document has no bearing on litigation where the original non-privileged document is in the hands of the party required to make discovery. That party must produce the original, whether or not any copy of it is privileged. Moreover, if a party copied a non-privileged document with the intention of destroying the original, the copy would not be privileged even if it was also made for the sole purpose of obtaining legal advice or for confidential use in litigation. In that situation, the conclusion is inevitable that one of the purposes of making the copy was to ensure that the maker could safely destroy the original yet at the same time retain a record of the underlying transaction. Similarly, if a party copied a document and placed the non-privileged original in the custody of a lawyer, there would probably be no privilege for either document.

A second argument commonly put against giving privilege to a copy of a non-privileged document is that the public interest is not served by denying parties access to information relevant to litigation if obtaining the information in its original form would cause delay or expense. This argument has much force. But if a copy were not privileged unless the original was privileged, a lawyer could still make a summary of the original and that summary would be privileged. If copies had only a derivative privilege, lawyers would be forced to summarise the contents of original documents to protect their clients' confidences. Such a practice would add to the expense of litigation[215]. Overall, that expense would almost certainly be greater than the additional expense incurred from time to time in obtaining original documents when copies are in the possession of the person claiming privilege.

The first question in this appeal must therefore be answered, "yes".

In the present case, many of the documents listed by Mr Dunkel in the "Schedule of Privileged Documents" attached to his affidavit were described as being created solely for a privileged purpose. If this is so, then, subject to the issue of fraudulent purpose, those documents are protected by legal professional privilege. It follows that the Full Court of the Federal Court was correct in setting aside the orders made by Davies J in respect of this part of the decision.

Whether the allegations of criminal offences prevent legal professional privilege applying to the communications

In one of his orders, Davies J declared that, "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 [which he identified] are not subject to legal professional privilege."[216] I agree with Gummow J for the reasons he gives that the Full Court did not err in setting aside this declaration. However, by their cross-appeal, the respondents claim that this issue should have been decided in their favour. To this issue, I now turn.

Communications in furtherance of a fraud or crime are not protected by legal professional privilege because the privilege never attaches to them in the first place[217]. While such communications are often described as "exceptions" to legal professional privilege, they are not exceptions at all. Their illegal object prevents them becoming the subject of the privilege[218].

A mere allegation of illegal purpose or fraud is not, of itself, sufficient to displace a claim of legal professional privilege. A person who alleges that legal professional privilege does not apply to a communication tenders an issue for decision and has the onus of proving it. Subject to any statutory provisions to the contrary, any evidence tendered in a court of justice to prove an issue must comply with the ordinary rules of evidence. Legal professional privilege is a legal right. Its prima facie application to a communication can only be displaced by admissible evidence. That evidence does not have to prove that the communication was made in furtherance of a crime or the commission of a fraud, but it must establish a prima facie case that the communication was so made. In O'Rourke v Darbishire[219], Viscount Finlay said that what is required is "something to give colour to the charge. The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact."

To displace the privilege in the present case, the appellants relied on an affidavit of Assistant Commissioner Baer to which was exhibited a copy of the information put before the justice of the peace. The information was sworn by Detective Sergeant Taciak, the second appellant in this appeal, who did not give evidence before Davies J. Davies J held that the affidavit of Assistant Commissioner Baer and its exhibit was sufficient to discharge the evidentiary onus upon the appellants and to displace any attached privilege[220].

However for the purpose of the proceedings before Davies J, the statements in the informations were hearsay. The out of court statements of Detective Sergeant Taciak recorded in the information were not evidence in the proceedings before his Honour. They got before the Full Federal Court only through the affidavit of Assistant Commissioner Baer. In so far as he can be taken to have deposed to the facts in the information, his evidence was hearsay and inadmissible. There is nothing in s 10 of the Crimes Act, any other part of that Act or any other legislation which declares that the rules of evidence do not apply in determining whether a communication is privileged. That being so, the claim of the appellants that the respondents could not rely on legal professional privilege failed because there was no admissible evidence before Davies J to support the claim.

The appellants relied on Baker v Evans[221] for the proposition that the contents of the information used to obtain a search warrant can be used to prove that evidence exists to support a claim of fraudulent purpose. In Baker, a case where the prosecution appears to have relied only on the "facts" in the information to displace legal professional privilege, Pincus J held that the claim of privilege could not prevail[222]. However, while there is no legal rule that prevents the facts alleged in an information being used to determine whether legal professional privilege has been displaced, such facts can only be relied on when somebody with first-hand knowledge of them has sworn to their accuracy in the judicial proceedings which has to decide the issue of privilege. Whether or not that was the case in Baker[223], it is not the case here.

The cross-appeal must therefore be allowed because there was no admissible evidence before Davies J upon which he could find that legal professional privilege did not attach to the documents because of the respondents' illegal object or purpose.

Orders

I agree with the orders proposed by Gaudron J.

GUMMOW J. In Australia what now generally is identified as modern administrative law has its own federal statutory regime[224]. 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[225] established "the right to vote", but was the trial of an action on the case. In Musgrove v Chun Teeong Toy[226], the Privy Council, on appeal from Victoria[227], 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[228]. 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[229].

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)[230] 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[231].

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[232].

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;

(b) 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[233]. 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[234].

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 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. 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[235]:

"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[236]. 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 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 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 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 "by reason of the allegation of offences under section 86(1)(e) and section 86A of the Crimes Act 1914 (Commonwealth) and of the proof given in support thereof, the following documents are not subject to legal professional privilege ...". The second relevant declaration was that "copies of documents made for the purpose of obtaining legal advice, the originals of which are not subject to legal professional privilege are not privileged". 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 "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"[237], and after reference to some basic propositions.

Basic propositions

The first proposition is that it is settled in Australia[238] (and perhaps now in England[239]) 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[240]. This is on the ground that to hold, in accordance with Grant v Downs[241], 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.

Thirdly, 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[242]. The communication would still be "designed to facilitate future wrongdoing"[243]. 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[244]. 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.

Fourthly, it is established in Australia by Baker v Campbell[245] 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[246] and Lubrizol Corporation v Esso Petroleum Ltd[247] 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 Commissioners[248]. 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"[249].

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"[250], "a substantive rule of law"[251], or one of those traditional common law rights which is not to be abolished or cut down otherwise than by clear statutory provision[252]. 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[253], false imprisonment[254] or for other misfeasance[255]. 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[256]. In Lord Ashburton v Pape[257], 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[258], 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[259]:

"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[260]. As in the present case, a search warrant had been issued pursuant to s 10 of the Crimes Act 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[261]. 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 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[262] 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[263] 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[264], 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[265] 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. 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[266].

The propositions for which Baker v Campbell is authority are encapsulated in the following statement by Dawson J[267]:

"[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 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[268]. 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. 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[269], 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[270]. This is the second issue arising on the grant of special leave. I turn to consider the first issue.

Copy documents and communications

Whilst 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[271], 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[272]:

"Communications between legal advisers and their clients concerning contemplated or pending litigation cannot be disclosed without the consent of the client[273]. Similarly, communications made to obtain or to give legal advice cannot be disclosed without the consent of the client[274]. '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[275] 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[276].

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[277]. 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[278]. 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)[279]. 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".

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[280] and Calcraft v Guest[281], 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[282]. 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"[283]. Nor is the privilege concerned merely to protect disclosure of litigation strategy or the line of reasoning of the legal adviser[284].

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"[285]. 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[286].

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[287]. 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[288]. 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 "by reason of the allegation of offences" under s 86(1)(e) and s 86A of the Crimes Act "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 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[289] (with whom Mason and Brennan JJ agreed[290]) 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[291].

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, 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[292]:

"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[293] or to answer interrogatories[294]. In others, for example Bullivant v Attorney-General for Victoria[295], the issue arose upon an order to attend and produce documents.

The plaintiff in Butler v Board of Trade[296] 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[297] 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[298].

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[299] and, subject to the qualifications explained by Menzies J in Mulley v Manifold[300], the affidavit is conclusive. It was the view of Bowen CJ[301] that a certificate or affidavit making a claim to public interest immunity is received not as evidence in the lis 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[302]. 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[303]. 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[304], in the course of a passage partly extracted by Gibbs CJ in Attorney-General (NT) v Kearney[305] 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[306] 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[307] 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. 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[308]:

"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.

KIRBY J. In this appeal and cross-appeal from the Full Court of the Federal Court of Australia[309], special leave was granted to permit the consideration of two questions of law:

1. Whether legal professional privilege may apply to a communication in a copy document when no privilege attaches to the original; and

2. Whether hearsay material may be relied on to displace legal professional privilege where that privilege is claimed for a communication in the form of a document alleged to have been made in furtherance of an illegal or improper purpose.

Allowing an appeal from a single judge of the Federal Court[310] the Full Court determined the questions adversely to the police who now appeal to this Court.

A challenge to search warrants and access to documents

The proceedings arise out of an allegation that certain companies in partnership had made false claims for deductions from income declared for income tax. The deductions were claimed in respect of the costs of testing of garments allegedly performed by an overseas company. It is suggested that only a small part of the moneys remitted for garment testing actually went to that company. The balance is said to have found its way to companies in Luxembourg and the Cook Islands, thence to a local company, Propend Finance Pty Ltd, which was the financier of the corporate partnership. The prosecution claims that a solicitor was a director of the financier and of the corporate recipient of funds in Luxembourg and the Cook Islands. By the round-robin arrangement described, it is alleged that the moneys sent overseas found their way back to Australia in the form of a loan to the financier under an agreement settled by the solicitor. The police, represented by the appellant, the Commissioner of Australian Federal Police, came to suspect that offences had been committed against the Crimes Act 1914 (Cth), ss 86(1)(e) and 86A, involving income tax fraud. Offences against ss 5 and 13 of the Crimes (Taxation Offences) Act 1980 (Cth) were also suspected.

In September 1993, members of the Australian Federal Police obtained nine search warrants pursuant to s 10 of the Crimes Act. These warrants, on their face, authorised nominated police officers to search residential and office premises connected with the respondents who were, in turn, connected with the companies allegedly involved in the round-robin. One of the premises so nominated was the offices of the solicitor. The search of those offices resulted in a number of challenges to the validity of the search warrant and the lawfulness of its execution. Some of these challenges were rejected by Davies J[311]. One of them was the subject of earlier proceedings before the Full Court of the Federal Court, differently constituted[312]. Davies J rejected all of the arguments contesting the initial validity of the warrants and the manner of their execution. The correctness of those decisions is not now in question.

In respect of documents for which legal professional privilege was claimed, the police conformed to a practice established by agreement with the Law Council of Australia as to the execution of search warrants on lawyers' premises. Documents which had been seized and which fell within a claim of legal professional privilege were lodged, ultimately, in the registry of the Federal Court. Undertakings were given by the police not to inspect those documents until the resolution of all of the respondents' legal challenges. Relevantly, those challenges claimed a return to the solicitor of the documents in respect of which legal professional privilege was claimed by him on behalf of his clients.

Decisions in the Federal Court

The point concerning legal professional privilege, now in issue, arose before Davies J in this way. The respondents (being relevantly the solicitor and the clients) prepared a schedule of documents in respect of which they claimed privilege. A group of these comprised copies of documents the originals of which would not themselves be privileged in the possession of the clients. The respondents argued that legal professional privilege attached to the communications in those copy documents because the copies had been made for the sole purpose of obtaining legal advice for the clients in connection with anticipated litigation. There was no evidence or suggestion that the documents were in any way marked, annotated or organised in ways different from the non-privileged originals. The police asserted that privilege did not, in law, attach to the copies as such. They contended that it did not attach because the original documents were created in furtherance of the illegal schemes the subject of the anticipated criminal charges. The latter contention was expressed, otherwise, that, if privilege did in law attach, it was displaced by the "exception" applicable to communications in the furtherance of a crime or fraud[313]. In this way the two issues now before this Court were presented for decision.

Davies J upheld the police submission in respect of those communications constituted by copy documents[314]. However he left it to the parties, a judge, registrar, or other agreed independent person to determine which of the remaining documents were prima facie entitled to legal professional privilege and which were not[315]. As to these, he was obliged to resolve the suggested taint of illegality or fraud which either prevented the privilege attaching or resulted in its loss. Contrary to the submissions of the respondents, Davis J held that there had been "a sufficient particularisation of and verification of the allegations of crimes" under the Crimes Act to "overcome the privilege which would otherwise attach"[316]. As to the suspected offences against the Crimes (Taxation Offences) Act Davies J accepted that there was no evidence tending to show criminal involvement of the respondents. In respect of this category of documents, Davies J rejected the contention that the privilege, which would otherwise attach, had been lost.

The respondents' appeal wholly succeeded on the point concerning the communications with the solicitor by way of copy documents. All Judges comprising the Full Federal Court (Beaumont[317], Hill[318] and Lindgren[319]JJ), for different reasons, rejected any general proposition that, in law, legal professional privilege could not attach to communications by a client with a lawyer by way of the copy of documents which were not themselves privileged. All held that such communications could, depending on the circumstances in which they came into existence, be entitled to the privilege if the copies of documents by which the communication was effected were shown to have been made for the sole purpose of obtaining legal advice. Lindgren J was inclined to confine the privilege to copy documents only if inspection of them would reveal the confidential communication or line of thought of the client or the lawyer which was privileged from disclosure[320].

All Judges in the Full Court agreed that, in respect of communications by way of other documents which were claimed to have forfeited or lost legal professional privilege, because created or used in the furtherance of a crime or fraud, the primary Judge had erred in relying, in effect, on the police allegation of such wrongdoing without having any admissible evidence to support it[321]. Accordingly, to that extent, the Full Court set aside Davies J's orders and directed that there should be a fresh hearing on the claims for privilege. Those are the orders of the Full Court which are under challenge in the present appeal and cross-appeal.

Legal professional privilege and its importance

I address myself first to the question concerning the suggestion that legal professional privilege may attach to communications by way of copies of documents held by lawyers for the sole purpose of giving legal advice, where the original material would not itself be privileged in the hands of the client or some other person. A number of considerations inform my approach:

1. The point in issue is the subject of a great deal of conflicting judicial, academic and other legal opinion. Many (but by no means all) of the relevant English and Australian cases are collected in a helpful appendix annexed to the reasons of Lindgren J in the Full Federal Court[322]. It is not suggested that the point now before us is determined by earlier authority binding on this Court. The respondents (including the solicitor) urged that the logic of this Court's decision in Grant v Downs[323], by focussing attention on the purpose for which the particular communication was brought into existence, provided the answer to the first question in the form of a simple test, sufficient in itself. If the "sole purpose" for creating the copies was to communicate them in order to secure legal advice, then the copies had an existence and a relevant "sole purpose" of their own, separate from the originals[324]. By the common law, they were therefore entitled to legal professional privilege under the authority of this Court's decision. But nowhere in Grant v Downs did the Court address its attention to the precise controversy now before it. In the absence of a clear statutory provision or of a binding rule of the common law, this Court must resolve the problem now presented by reference to relevant decided authority, extended by logic and analogous reasoning, and to legal principle and policy[325].

2. The starting point for the resolution of what the law is, must be a recognition of the importance, for the proper administration of justice, of having all relevant evidence available to the decision-maker[326]. This is as true in the investigation by police of suspected crime as it is in the conduct of pre-trial and trial proceedings, criminal and civil. Especially in the proof of crimes of a complex character, the facility to have access to relevant contemporaneous materials, is an extremely important one to confirm or dispel suspicion on the part of police and, where confirmed, to assist in the accurate proof of the offence to a court of law. Increasingly, in recent years, including, to some extent, in criminal proceedings, the Australian legal system has moved away from trial by ambush. The limits imposed by the common law upon essential procedural facilities such as search warrants, discovery, subpoenas, etc, are generally to be fixed in such a way as not unduly to impede the beneficial operation of these facilities where applicable[327]. A realisation of this consideration has contributed to a tendency in Australia to define narrowly the applicability of legal professional privilege[328]. Indeed, it has been suggested that a brake on the application of legal professional privilege is needed to prevent its operation bringing the law into "disrepute"[329], principally because it frustrates access to communications which would otherwise help courts to determine, with accuracy and efficiency, where the truth lies in disputed matters.

3. Where the power to secure access to documents is provided by or under a statute, the limitations upon the right of access thereby conferred are any that have been expressed by, or are implied in, the legislative grant of power. The common law principles governing the ambit of legal professional privilege may be over-ridden by the legislative grant of power. Each statutory provision must be construed according to its own language and to achieve its expressed purposes. Sometimes, legislation has been held to indicate a purpose of extinguishing legal professional privilege[330]. But in respect of s 10 of the Crimes Act, which is here in issue, a majority of this Court held that the Act did not manifest a legislative purpose to oust the privilege, so important is it[331]. Any such ouster must be made plain because of the high public interest which the privilege defends. This principle, and the decision which supports it, were not called into question in these proceedings.

4. The fundamental basis of legal professional privilege, which has been upheld by the common law since at least the sixteenth century, has been variously described. Early cases suggested that it belonged to a solicitor and derived from his honour as a "professional man and a gentleman[332]". However, this explanation gave way to the current understanding that the privilege belongs to the client. It protects the client's interests; but also the interests of the entire community in the proper administration of justice. In some jurisdictions of the common law, notably England, the doctrine has, at least until lately, been seen as no more than a rule of evidence[333]. However, in other jurisdictions, it is described as resting upon a more fundamental basis. In Canada it has been suggested that, in criminal proceedings at least, its character may now be derived from the Canadian Charter of Rights and Freedoms, which guarantees to accused persons access to counsel[334]. It has therefore been characterised as a basic civil right[335]. Similar language has been used in New Zealand[336]. In this Court, the language has been, if anything, even more emphatic. In Attorney-General (NT) v Maurice[337], Deane J described the doctrine as "a substantive general principle of the common law and not a mere rule of evidence". It is "of great importance to the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law and to the administration of justice and law". It defends the right of the individual to consult a lawyer and that is "a bulwark against tyranny and oppression". For these reasons it is not "to be sacrificed even to promote the search for justice or truth in the individual case" ³³⁸. No more vivid illustration of the strength of the principle in this country, and of its rigorous application by this Court could be found than in Carter v Northmore Hale Davy & Leake[339]. A practical consideration called to notice by McHugh J in Carter needs to be kept in mind. A great deal of material in the possession of legal advisers (and clients) would not be admissible at common law as hearsay. But, under legislation for the admission of business records and other documentary evidence now applicable in most Australian jurisdictions, it would be admissible in defined cases. If that legislation were available, it might be necessary to call the legal adviser or some other person, to give evidence concerning the fact or matter referred to in the communication. That, in turn, could open up the nature and existence of the communication which would display the secret, contrary to the client's wishes and interests.

5. Once the doctrine applies and is not excluded by the various derogations and exceptions recognised by the common law, it attaches to the communications concerned. No further balancing of public interests, for example between that of protecting the privilege and that of securing the truth, is either necessary or possible[340]. Legal professional privilege is itself the product of a balancing exercise between competing public interests. The derogations and exceptions are sufficient to express the competing public interests[341]. Thus the search, where the doctrine is invoked, concerns solely whether, given its definition, it applies to the communications in question or not.

6. Various reasons of a practical character have been suggested as to why the common law developed such a strong principle which would be "accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence"[342]. Many of these reasons refer to the need to provide to every person a protected zone for completely candid communication with a lawyer concerning civil or criminal proceedings commenced or apprehended. The doctrine's practical object is thus to remove from the client's concerns an apprehension that matters communicated to the lawyer for the purpose of securing such advice might thereafter be used against the interests of the client[343]. If that were a possibility, and the rule were not simple and clear in its operation, clients might not frankly and fully communicate their problems to lawyers and produce all documents and other evidence relevant to the provision of proper legal advice. This would be counter-productive to the efficient and accurate provision of advice, the best available presentation of the client's case (if need be) and the achievement of well-informed settlements in civil litigation or pleas in criminal trials. Other authorities view the doctrine as an outgrowth of the adversary system of trial observed by the common law[344]. That system may have defects and be in need of reform[345]. But whilst it is maintained, the boundaries of the doctrine of legal professional privilege must take into account the fundamental assumption of the system that parties should ordinarily be able to communicate with their lawyers without fear that the confidentiality of their communication will be invaded except in clear, limited and defined circumstances. Respecting that fundamental assumption has been said to contribute to community respect for the law[346].

7. In considering the boundaries of the operation of the doctrine of legal professional privilege, it is essential both to fulfil the purposes upheld by the doctrine, as described above, and to confine its operation to the extent strictly necessary for the fulfilment of those purposes. In Australia, two relevant limitations in the expression of the ambit of the common law doctrine of legal professional privilege may be mentioned. The first is that it is now settled that the privilege, at common law, extends only to communications brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings[347]. In England, Canada and other common law jurisdictions, a test of "dominant purpose" was adopted[348]. But not by the Australian common law[349]. Secondly, it is repeatedly emphasised that what is protected is communication between lawyer and client and with a third party in connection with the giving of legal advice. It is not the documents, as such, which attract the privilege, still less the information within them. It is the communication to and by the lawyer[350]. However, for practical purposes, in response to search warrants, orders of discovery and subpoenas, proof of the communication in the past would ordinarily involve documents. Because of advances in information technology, compulsory process will now, increasingly, involve the multitude of material forms used in effecting communication: ranging from photocopies of original documents to audio/video tapes and computer software. Necessarily, the doctrine of legal professional privilege must adapt to a world in which these media are the stuff of disputes concerning criminal and civil obligations and the rights of clients.

8. A large controversy exists in respect of the duration of legal professional privilege. Some authorities support the proposition that, once it attaches, it endures for all time, unless waived or otherwise lost by the operation of the doctrine[351]. Other authorities suggest that communications with third parties (as distinct from with the client itself) may not continue to enjoy privilege beyond the end of the relevant litigation or dispute[352]. Other authorities (including the opinion of Hill J in the Full Court in the present case) are prepared to accept that the privilege may be spent in time[353]. In the circumstances of this case, it is unnecessary to explore that issue as the proceedings are still current.

Legal professional privilege and copies - four possible approaches

Various responses have been expressed in judicial opinions in respect of communications constituted by copies of evidentiary materials not themselves entitled to privilege but which are submitted to legal advisers for advice or for use in legal proceedings and for that use only. Four different responses can be discerned. It will be helpful to conceptualise the competing possibilities by mentioning the approaches hitherto endorsed by courts.

1. First, there are the cases which have held that no copy acquires the protection of legal professional privilege, in whatever circumstances, if the original is not itself privileged. The contrary view has been described as "absurd and anomalous"[354] and "suspect"[355]. It has been said that, to accept it, is to defy commonsense[356]. Various hypotheses have been paraded to demonstrate the unacceptability of extending the privilege, notably the possibility that the client could destroy the original documents, give a copy to its lawyer for advice and then shelter behind the privilege[357]. Since the advent of photography, it is argued, the copy is but the mirror image of the original. So it is with electronic reproductions. The original, held in the lawyer's office would not be entitled to protection of legal professional privilege simply because of its locus[358]. Accordingly, the facsimile or photographic copy could not do so. This view probably commands majority judicial assent in common law countries and much support in academic writing, including in Australia[359].

2. Then there are the authorities which disclaim a universal rule for communications with lawyers by copies but would allow, in certain circumstances, that copies might attract the protection of legal professional privilege. Thus, if copy documents bore the notes of a lawyer they would, to that extent, be privileged[360]; if selective copying revealed the line of the client's concerns or the lawyer's advice, the copies to that extent would be privileged[361]; if the copies come into the hands of the lawyers after the compulsory process in question and are placed in counsel's brief, they may be exempt from production[362].

3. A third approach suggests that copies may be the subject of the privilege but not in respect of documents available in public registers or otherwise legally exempt[363].

4. A fourth group of cases supports the proposition that, in every disputed instance, a simple task of characterisation must be performed. If the sole purpose of the production of the particular medium of communication (original or copy) is for submission of that medium to legal advisers for advice or for use in actual or apprehended legal proceedings, that is enough. The privilege attaches to it. If those with access to compulsory process wish to enforce that process, they must do so by directing that process to the holder of the original, if they can. They cannot invade the confidentiality of the communication between the client and the legal advisers unless, for other legal reasons, the privilege is excluded or lost.

Legal professional privilege may attach to copies

In my view, the Full Federal Court was right to conclude that legal professional privilege may attach to the copies of communications provided to a lawyer for the sole purpose of advice or use in actual or apprehended legal proceedings. Legal authority on this point has, until now, been unclear, at least in this country. Here, as in England and elsewhere, it has vacillated. To resolve the difference, it is necessary to recall the basic reason for legal professional privilege. The trend in English judicial authority, generally supporting the limits which the appellant has urged on this Court, is to be understood by viewing the doctrine of legal professional privilege as a mere rule of evidence. Until recently, that is how the English Courts have seen it[364]. But as repeated and recent authority of this Court has made plain, in Australia it is more than that. In its modern understanding, it is a fundamental feature of our system for the administration of justice. It is essential to the defence of rights and freedoms and for the protection of the individual who is, or apprehends that he or she may be, in legal difficulties. It is true that, sometimes, hiding behind the privilege, are powerful wrong-doers. But the law protects them because the privilege is deeply embedded in our society's notions as to how the rule of law can best be achieved for all. The privilege protects the weak, the frightened, the unpopular and the disadvantaged.

Having regard to the way in which this Court has lately portrayed the privilege, and explained its purposes, it should defend the right of the individual to provide to legal advisers all relevant copy material necessary to obtain accurate legal advice. It would be artificial, absurd and anomalous if a client were forced to seek advice by oral communications, rote learning of documents or summaries, only or mainly, to avoid the peril that the provision of actual copy documents, and copies of like evidentiary material, would be susceptible to compulsory process. Far from reducing the argument for extending the privilege to copies because of technological developments, such advances make it essential that the law acknowledges their existence and that they need to be provided to lawyers in the course of a client's securing appropriate legal advice.

If the task of characterising the "sole purpose" of bringing the material communication into existence is properly performed, it affords a sufficient answer to the first question before the Court in the appeal. Thus, if, properly characterised, a copy document was brought into existence to permit the original to be destroyed and not solely for the purpose of securing legal advice, it would fall outside the protection of the privilege. If the destruction of the original were done in pursuance of a crime or fraud, the privilege could be lost. Conceding that there are some anomalies whichever view the Court adopts, there are fewer artificialities if the Court insists upon the logic of the principle established by it in Grant v Downs[365]. Only by doing so will the Court safeguard the zone of professional confidentiality which serves the high purposes which have repeatedly and rightly been upheld. Only in this way will we offer a principle appropriate to the adversary system which is a cardinal feature of the administration of justice in this country.

The view to which I have come was well expressed by a Canadian Judge[366]:

"[A]ny benefit that might flow to the parties and the court in this case by ordering such production would be gained at the expense of serious interference with our adversarial system of justice and would reduce the likelihood of full and early disclosure in future cases.

The adversarial system is based on the assumption that if each side presents its case in the strongest light the court will be best able to determine the truth. Counsel must be free to make the fullest investigation and research without risking disclosure of his opinions, strategies and conclusions to opposing counsel. The invasion of the privacy of counsel's trial preparation might well lead to counsel postponing research and other preparation until the eve of or during the trial, so as to avoid early disclosure of harmful information. This result will be counter-productive to the present goal that early and thorough investigation by counsel will encourage an early settlement of the case. Indeed, if counsel knows he must turn over to the other side the fruits of his work, he may be tempted to forgo conscientiously investigating his own case in the hope he will obtain disclosure of the research, investigations and thought processes compiled in the trial brief of opposing counsel ...

[Although statute may derogate] I believe, that the ... privilege is required to preserve the integrity of the adversarial system."

With some adaptation, the same comments apply to the search warrant in issue here. Test it further thus. If copies of original documents could be secured by the simple expedient of executing search warrants in complex criminal cases, upon offices of the known legal advisers of the accused, various consequences might follow. Certainly, documents and other materials would in some cases be secured under search warrant which may help to win cases, prove difficult points, bring the guilty to justice and establish their wrong-doing. But these consequences would be bought at too high a price. Clients would lose their faith in their supposed entitlement to consult legal advisers with copies of all relevant materials produced for their advice. The legal advisers themselves would doubtless advise the client not to provide copy documents or other materials and to store them elsewhere than in the legal offices. The disruption to solicitors' offices and the orderly provision of advice, including advice to other, unconnected, clients, would be considerable. Lazy prosecution practices would be encouraged so that instead of going to the source, for the original medium, police and other investigators would be tempted to seek copies from suspects' or accuseds' legal advisers. An undesirable practice of "trawling", to use the word of the Director of Public Prosecutions, in the offices of legal advisers might become the norm. Evidentiary materials, the originals of which are outside the jurisdiction, could be obtained by this expedient whereas the originals could not. Such consequences would undermine not only the adversary system, as it has heretofore operated, but also respect for the rule of law. Of course, it is said that these extreme possibilities would never, in practice, occur. Perhaps not. But the legal proposition advanced for the appellants must be tested by the consequences that would follow if it became a general rule and a common occurrence. Following the logic of Baker v Campbell[367], if it is to become such in respect of search warrants such as those here in question, it must happen with the express authority of Parliament.

In every case, it is for the lawyer whose materials are seized, and who believes them to be the subject of legal professional privilege to claim that privilege on behalf of the client. If the materials apparently fall within the warrant, and there is a dispute as to excepting them, it is then necessary to invoke the process of differentiation in which Davies J became engaged in the present case. Neither the assertion of the privilege, nor an allegation that it is lost, will establish those propositions if they are disputed. It is for a judicial officer or other appropriate decision-maker, if it goes so far, to examine the materials and to rule upon them seriatim[368]. There is thus a safeguard which permits the conflicting public interests at stake to be evaluated and the law to be upheld in deciding a contested claim for legal professional privilege.

The question as to whether legal professional privilege can apply to a copy document when no privilege attaches to the original should therefore be answered in the affirmative. To that extent, the appeal from the orders of the Full Court of the Federal Court should be dismissed. To clarify what should now happen I agree in the course which Gaudron J has proposed for the disposal of the appeal and cross-appeal.

Attempt to overcome the privilege

A second point was argued, upon which it is convenient to make some comments. Davies J determined that the material provided to him by the police was sufficiently persuasive of the existence of a disqualifying crime or fraud, as to displace any legal professional privilege in relation to documents allegedly connected with offences against the Crimes Act, but not the Crimes (Taxation Offences) Act.

In respect of the documents falling into the latter class, the police relied upon the sworn information which was placed before the primary Judge as an annexure to an affidavit of an Assistant Commissioner of Federal Police read in an early interlocutory stage of the proceedings. That affidavit had been produced in connection with a claim of public interest immunity made in respect of part of the information no longer relevant. The Assistant Commissioner was neither the informant who had sworn the original information for the purpose of securing the search warrant. Nor was he able personally to swear to the truth of the matters contained in the information or even his belief in such truth. When the question arose before Davies J as to whether identified documents were covered by legal professional privilege, no affidavit was supplied by the police officer who had sworn the information, viz, the then Detective Sergeant Alan Taciak, the second appellant before this Court. Nor was Mr Taciak called to give oral evidence before Davies J. The police representative simply read again, over objection, the affidavit of the Assistant Commissioner.

In these circumstances, the respondents contend that Davies J erred in upholding[369] the submission that any part of the material, the subject of the claim for legal professional privilege, lost that privilege on the ground that it had been shown to have come into existence in furtherance of a disqualifying purpose, ie a crime or fraud. In the Full Court, Beaumont J[370] sustained this complaint. He found that, in the absence of "some admissible evidence to show why the Court should disallow the privilege", Davies J had erred in upholding the police contention that any privilege had been lost. Hill J[371] concluded that, absent any evidence as to the truth of its contents, the copy information did not prove the truth of the matters stated in it, so that the objection for the respondents to its being read should have been upheld. Lindgren J[372] agreed.

The appellant argued that it was permissible to rely on the information itself to prove that there was evidence supporting the truth of the allegations made[373] and that Davies J had been entitled to look at its contents to see whether, on its face, a case had been made for displacement of legal professional privilege on the ground, relevantly, of illegality. In support of this argument it was urged that search warrants are, of their nature, investigative facilities. They are secured to ascertain if a suspected criminal offence has occurred and if there is sufficient evidence to lay criminal charges against identified persons. In these circumstances, it would defeat the achievement of their lawful purpose to require the informant, seeking the issue of a search warrant, to establish in every case, with particularity, proof that illegality had in fact occurred when the investigation of such illegality was the very subject-matter of the proposed search.

Displacement of the privilege for crime or fraud

The principles applicable to the resolution of these conflicting arguments are not in doubt, although their application sometimes gives rise to difficulty:

1. The person alleging that legal professional privilege is lost for illegality must state clearly the charge of illegality made for the purpose of showing, with some precision, what it is[374]. Vague or generalised contentions of crimes or improper purposes will not suffice.

2. The mere making of an allegation of a crime or of fraud is not sufficient to "get rid of privilege"[375]. Something more must be added, as it has been described, to "give colour to the charge"[376]. The reason for this requirement is simple enough. It is a serious thing to override legal professional privilege where it would otherwise be applicable. Once overridden, it is difficult, or impossible, to restore the status quo ante. That is why, where a contest arises, it is important that it be resolved accurately and lawfully because the situation can rarely, if ever, be retrieved. Where, as is sometimes the case, it is suggested that the lawyer has been a party to the relevant crime or fraud, the allegation, if made good, will ordinarily have extremely serious consequences for the person so accused. This is another reason why a mere allegation, without more, is insufficient to displace the privilege[377].

3. Some decisional authority suggests that evidence, even "strong evidence" is required to "do away with the privilege"[378]. Whilst what is required will depend upon the particular facts of each case[379] and although surmise and conjecture will never be sufficient, something less than the full proof of illegality by admissible evidence must suffice. This is because of the nature and purposes of the compulsory process, the interlocutory stage at which the consideration of this issue typically takes place and the complete unacceptability of turning that stage into a full-scale trial of the suggested illegality[380]. The primary decision-maker is certainly entitled to look at the sworn information[381]. But something more is required, by way of "admission or affidavit allegations of facts"[382]. Otherwise, the information amounts to no more than the prosecutor's assertion of what it is hoped may be proved. When some evidence is supplied then, "the seal of secrecy is broken"[383]. But not before.

Loss of privilege: conclusions

When the foregoing principles are applied to the facts of this case, I come to the same conclusion as did the Judges in the Full Court of the Federal Court. Something more was required than the information attached to an affidavit, prepared for a different purpose by a deponent who could not be questioned on it and who did not even swear to his information and belief.

It is impossible to fix with precision the material that will be required. But it is such as would "lead a reasonable person to see" a strong probability that there was a disqualifying crime or fraud[384], although not necessarily that the lawyer was a party to it[385]. The line lies short of the full trial of the issue, for that would be inappropriate to the process invoked. Indeed, in many cases it would defeat or frustrate the achievement of its purpose. Equally, it falls short of the requirement to make out with "strong evidence" a prima facie case of crime or fraud. But it also goes beyond an unchallengeable allegation by hearsay evidence such as was offered in this case.

The second question upon which special leave to appeal was granted therefore requires an elaborated answer. Hearsay evidence may be relied upon to displace legal professional privilege where that privilege is claimed for materials alleged to have come into existence in furtherance of crime or fraud. But hearsay evidence alone, which amounts to no more than the assertion of what is suspected and sought to be proved, will not be sufficient to displace the privilege. Something more will be required to warrant the serious step of overriding the legal professional privilege and thus of depriving the client of the protections of such privilege. Something more was required in the facts of this case.

This was especially so because the proceedings in this case were not conducted upon the basis that the copy documents in question were provided by the lawyer in furtherance of a fraud or to frustrate the processes of the law. What was suggested was that the originals were the means of effecting the fraud or illegality and that the copies were, for that reason, equally tainted by the illegality of the original. Once that view is rejected, the documents were properly seen as communications prima facie entitled to the shield of legal professional privilege. To penetrate that shield the police needed more than a mere assertion about the originals, and that based upon untestable hearsay evidence.

Future cases must be decided on their own facts taking into account the preliminary character of the decision as well as its serious consequences for the various interests involved. But in this case the Full Court rightly exposed a defect in the procedure followed by the primary Judge. The challenge to that finding fails.

Orders

I agree in the orders proposed by Gaudron J.

[1] See Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 93-94.

[2] See Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 105-107.

[3] [1983] HCA 39; (1983) 153 CLR 52 at 105.

[4] Section 10(1) then read as follows:

" 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;

(b) 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."

[] 5[ Order No 5.

6] Order No 6.

[7] [1983] HCA 39; (1983) 153 CLR 52 at 110.

[8] [1991] SASC 3069; (1991) 57 SASR 21 at 34; affd (1992) 57 SASR 38.

[9] [1992] 1 WLR 957 at 961; (1993) 20 FSR 64 at 68.

[10] [1976] HCA 63; (1976) 135 CLR 674.

[11] [1976] HCA 63; (1976) 135 CLR 674 at 688; National Employers' Mutual General Insurance Association Ltd v Waind [1979] HCA 11; (1979) 141 CLR 648 at 654; Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 86, 122.

[12] [1976] HCA 63; (1976) 135 CLR 674 at 692.

[13] [1951] 1 KB 134.

[14] [1976] HCA 63; (1976) 135 CLR 674 at 685 per Stephen, Mason and Murphy JJ; Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 487.

[15] [1976] HCA 63; (1976) 135 CLR 674 at 685; and see Cross on Evidence, 5th Aust ed (1996) at 693.

[16] [1983] HCA 47; (1983) 153 CLR 1 at 22-23.

[17] Anderson v Bank of British Columbia (1876) LR 2 Ch 644 at 649-650; Hodgkinson v Simms (1988) 55 DLR (4th) 577 at 582-583.

[18] See In re L (A Minor) [1997] AC 16 at 25.

[19] Doe d Gilbert v Ross [1840] EngR 64; (1840) 7 M & W 102 [151 ER 696]; Dwyer v Collins [1852] EngR 578; (1852) 7 Ex 639 [155 ER 1104]; Commissioner for Railways (NSW) v Young [1962] HCA 2; (1962) 106 CLR 535 at 556-557; Butera v Director of Public Prosecutions (Vict) [1987] HCA 58; (1987) 164 CLR 180 at 194 per Dawson J; but cf s 51 of the Evidence Act 1995 (Cth, NSW). Section 48 of those Acts and s 45C of the Evidence Act 1929 (SA) provide for a number of other ways of proving the contents of a document.

[20] Lethbridge v Cronk (1875) 23 WR 703; Lacharme v The Quartz Rock Mining Company [1862] EngR 822; (1862) 1 H & C 134 [158 ER 832]; Theodore v Australian Postal Commission [1988] VicRp 38; [1988] VR 272.

[21] Wolverhampton Waterworks Co v Hawksford [1859] EngR 281; (1859) 5 CB (NS) 703 [141 ER 283]; Ramsey v Ramsey [1956] 1 WLR 542; [1956] 2 All ER 165.

[22] Dalrymple v Leslie (1881) 8 QBD 5; Dunbar v Perc [1956] VicLawRp 90; [1956] VLR 583 at 590.

[23] Taylor v Blundell [1841] EngR 256; (1841) Cr & Ph 104 [41 ER 429] but cf Theodore v Australian Postal Commission [1988] VicRp 38; [1988] VR 272 at 280.

24 (1883) 9 P 6.

[25] [1884] WN 1.

[26] [1884] WN 1 at 2.

[27] Buttes Oil Co v Hammer (No 3) [1981] QB 223 at 244.

[28] See Ventouris v Mountain [1991] 1 WLR 607 at 621 per Bingham LJ; [1991] 3 All ER 472 at 484.

[29] Of course, destruction of the document might well redound to the offender's disadvantage: see Allen v Tobias [1958] HCA 13; (1958) 98 CLR 367 at 375; Gray v Haig [1855] EngR 469; (1855) 20 Beav 219 [52 ER 587].

[30] (1886) 16 QBD 561 at 562.

[31] Manes and Silver, Solicitor-Client Privilege in Canadian Law, (1993) at 172-173.

[32] Hobbs v Hobbs and Cousens [1960] P 112; Giannarelli v Wraith [No 2] [1991] HCA 2; (1991) 171 CLR 592 at 601.

[33] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 481, 487-488, 492-493, 497-498; Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 96-98.

[34] Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 64-65, 74; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128, 134, 163.

[35] [1986] HCA 80; (1986) 161 CLR 475.

[36] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 487-488.

[37] [1986] HCA 80; (1986) 161 CLR 475 at 492-493.

[38] See, for example, s 10(1)(b) under which a search warrant may be issued with the very object of obtaining incriminating evidence.

[39] Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 514-515; R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at 147, 156, 159, 161.

[40] O'Rourke v Darbishire [1920] AC 581 at 604, 633; Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 516, 517, 525, 527.

[41] Butler v Board of Trade [1971] Ch 680 at 689.

[42] Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 515; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 163.

[43] Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 516, 528-529.

[44] R v Cox and Railton (1884) 14 QBD 153 at 175; O'Rourke v Darbishire [1920] AC 581 at 613, 632; Varawa v Howard Smith & Co Ltd [1910] HCA 11; (1910) 10 CLR 382 at 385, 386, 389-390; Butler v Board of Trade [1971] Ch 680 at 689.

[45] See O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1 at 22-23 per Mason J.

[46] [1983] HCA 39; (1983) 153 CLR 52 at 122.

[47] cf National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; (1910) 10 CLR 1 at 10 per Griffith CJ.

[48] See Grant v Downs [1976] HCA 63; (1976) 135 CLR 674.

[49] cf Waugh v British Railways Board [1979] UKHL 2; [1980] AC 521.

[50] (1885) 15 QBD 114 at 118-119.

[51] [1976] HCA 63; (1976) 135 CLR 674 at 692.

[52] (1885) 15 QBD 114 at 117.

[53] (1884) 27 Ch D 1.

[54] [1912] VicLawRp 62; [1912] VLR 336.

[55] [1912] VicLawRp 62; [1912] VLR 336 at 340-341.

[56] (1886) 16 QBD 561.

[57] (1884) 27 Ch D 1.

[58] [1914] 3 KB 86.

[59] [1914] 3 KB 86 at 91-92.

[60] [1984] 2 NSWLR 652 at 659.

[61] See McCaskill v Mirror Newspapers Ltd [1984] 1 NSWLR 66 at 68.

[62] [1976] HCA 63; (1976) 135 CLR 674.

[63] [1979] HCA 11; (1979) 141 CLR 648.

[64] [1979] HCA 11; (1979) 141 CLR 648 at 654.

[65] See Vardas v South British Insurance [1984] 2 NSWLR 652 at 660.

[66] (1884) 27 Ch D 1.

[67] (1884) 27 Ch D 1 at 26 per Cotton LJ.

[68] [1992] 2 VR 577 at 599.

[69] (1886) 16 QBD 561.

[70] [1981] QB 223 at 244.

[71] (1886) 16 QBD 561.

[72] (1883) 9 P 6.

[73] [1959] 1 WLR 702; [1959] 2 All ER 757.

[74] Cmnd 3472.

[75] [1979] UKHL 2; [1980] AC 521.

[76] Cmnd 3691, para 304.

[77] See Ventouris v Mountain [1991] 1 WLR 607; [1991] 3 All ER 472; Dubai Bank Ltd v Galadari [1990] Ch 98; Dubai Bank Ltd v Galadari (No 7) [1992] 1 WLR 106; [1992] 1 All ER 658; Lubrizol Corporation v Esso Petroleum Co Ltd [1992] 1 WLR 957; Barclays Bank Plc v Eustice [1995] 1 WLR 1238; [1995] 4 All ER 511.

[78] See Shaw v David Syme & Co [1912] VicLawRp 62; [1912] VLR 336; Vardas v South British Insurance [1984] 2 NSWLR 652; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44; JN Taylor Holdings Ltd v Bond [1991] SASC 3069; (1991) 57 SASR 21; Roux v Australian Broadcasting Commission [1992] VR 577; Langworth Pty Ltd v Metway Bank Ltd [1994] FCA 1436; (1994) 53 FCR 556; 126 ALR 428; Bayliss v Cassidy [1995] 2 Qd R 464.

[79] (1884) 14 QBD 153.

[80] [1901] AC 196 at 201.

[81] [1920] AC 581 at 604.

[82] [1985] HCA 60; (1985) 158 CLR 500 at 516.

[83] [1985] HCA 60; (1985) 158 CLR 500 at 516.

[84] [1920] AC 581 at 604.

[85] [1920] AC 581 at 614.

[86] [1920] AC 581 at 623.

[87] (1884) 14 QBD 153.

[88] [1920] AC 581 at 633.

[89] The guidelines appear as an appendix to the judgment of Beaumont J in the Full Federal Court: see (1995) 58 FCR 224 at 245-248; 128 ALR 657 at 677-680.

[90] Propend Finance v Commissioner, Federal Police (1995) 58 FCR 224; 128 ALR 657.

[91] Propend v Commissioner AFP (1994) 35 ALD 25 at 40-41.

[92] (1995) 58 FCR 224 at 238; 128 ALR 657 at 671.

[93] (1995) 58 FCR 224 at 259; 128 ALR 657 at 690.

[94] (1995) 58 FCR 224 at 265; 128 ALR 657 at 696.

[95] See (1995) 58 FCR 224 at 266-267; 128 ALR 657 at 696-698.

[96] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 690 per Jacobs J.

[97] National Crime Authority v S (1991) 29 FCR 203 at 218; 100 ALR 151 at 166 per Heerey J.

[98] Wigmore on Evidence, McNaughton rev (1961), vol 8, par 2,285.

[99] R v Tompkins (1977) 67 Cr App R 181 at 184; R v Governor of Pentonville Prison; Ex parte Osman [1989] 3 All ER 701 at 730.

[100] (1995) 58 FCR 224 at 253; 128 ALR 657 at 684.

[101] For instance Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 688; National Employers' Mutual General Insurance Association Ltd v Waind [1979] HCA 11; (1979) 141 CLR 648 at 657.

[102] (1994) 35 ALD 25 at 41.

[103] (1995) 183 CLR 121. See also R v Derby Magistrates' Court, Ex parte B [1996] 1 AC 487 and the note in (1996) 112 The Law Quarterly Review 535.

[104] Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 147, 150-154. See also Zuckerman, "Legal Professional Privilege and the Ascertainment of Truth", (1990) 53 Modern Law Review 381.

[105] Wigmore on Evidence, McNaughton rev (1961), vol 8 at par 2,291.

[106] [1983] HCA 47; (1983) 153 CLR 1 at 25; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 147.

[107] [1983] HCA 39; (1983) 153 CLR 52.

[108] Ventouris v Mountain [1991] 1 WLR 607 at 611-612; [1991] 3 All ER 472 at 476.

[109] [1992] 1 WLR 957 at 960.

[110] In appendices to his judgment Lindgren J lists cases in which it has been accepted that legal professional privilege attaches to copies simply because the purpose of making the copy was a privileged purpose satisfying the relevant test and also cases in which that view has been rejected, though in some of the latter cases reference is made to additional factors which might make the copy privileged.

[111] [1981] QB 223 at 244.

[112] The view that a copy of a non-privileged document is itself not privileged is shared by a number of Australian decisions including Shaw v David Syme & Co [1912] VicLawRp 62; [1912] VLR 336; Vardas v South British Insurance [1984] 2 NSWLR 652 at 659-660; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 59-62; Bayliss v Cassidy [1995] 2 Qd R 464. It also represents the preponderance of English authority. In addition to Buttes Oil Co v Hammer (No 3), see Chadwick v Bowman (1886) 16 QBD 561; Lambert v Home [1914] 3 KB 86; Dubai Bank Ltd v Galadari [1990] Ch 98; Ventouris v Mountain [1991] 1 WLR 607; [1991] 3 All ER 472; Lubrizol Corpn v Esso Petroleum Ltd [1992] 1 WLR 957.

[113] (1884) 27 Ch D 1.

[114] (1884) 27 Ch D 1 at 31.

[115] [1992] 2 VR 577 at 597, endorsed by Lindgren J in Propend Finance v Commissioner, Federal Police (1995) 58 FCR 224 at 267; 128 ALR 657 at 698.

[116] Waind [1979] HCA 11; (1979) 141 CLR 648 at 654.

[117] Williams, "Four Questions of Privilege: the Litigation aspect of Legal Professional Privilege", (1990) 9 Civil Justice Quarterly 139 at 154-155.

[118] Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 599.

[119] Grofam Pty Ltd v ANZ Banking Group Ltd (1993) 43 FCR 408; 116 ALR 535.

[120] The guidelines are set out in the judgment of Beaumont J: (1995) 58 FCR 224 at 245-248; 128 ALR 657 at 677-680.

[121] R v King [1983] 1 WLR 411 at 414; [1983] 1 All ER 929 at 931; Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 598.

[122] [1992] 2 VR 577 at 598-599.

[123] See generally McNicol, Law of Privilege, (1992) at 94-97.

[124] Lindgren J's approach was adopted by Moore J in Alphapharm Pty Ltd v Eli Lilly, unreported, Federal Court of Australia, 14 August 1996.

[125] See (1995) 58 FCR 224 at 269-270; 128 ALR 657 at 700.

[126] The orders which in the end were made by Davies J differ from those proposed, as to which see (1994) 35 ALD 25 at 46.

[127] (1994) 35 ALD 25 at 46.

[128] (1994) 35 ALD 25 at 45.

[129] (1994) 35 ALD 25 at 44.

[130] See George v Rockett [1990] HCA 26; (1990) 170 CLR 104.

[131] [1985] HCA 60; (1985) 158 CLR 500 at 516.

[132] [1920] AC 581 at 604.

[133] [1971] 1 Ch 680 at 689.

[134] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362.

[135] [1990] 1 WLR 1156; [1990] 3 All ER 161.

[136] [1990] 1 WLR 1156 at 1173; [1990] 3 All ER 161 at 177.

[137] (1968) 70 DLR (2d) 429.

[138] (1968) 70 DLR (2d) 429 at 432.

[139] At the time the warrants were issued s 10(1) relevantly provided that: " 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 ...:

...

(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of [an] ... offence [against any law of the Commonwealth or of a Territory];

...

... 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 ... named or described in the warrant, and to seize any such thing which he or she might find there."

[140] Both provisions related to conspiracies to defraud the Commonwealth or a public authority under the Commonwealth.

[141] Section 5(1) provides that: " Where a person enters into an arrangement or transaction for the purpose, or for purposes which include the purpose, of securing, either generally or for a limited period, that a company or trustee (whether or not a party to the arrangement or transaction) will be unable, or will be likely to be unable, having regard to other debts of the company or trustee, to pay sales tax payable by the company or trustee, the person is guilty of an offence." In effect, s 13 allows various provisions of the Crimes (Taxation Offences) Act, including s 5(1), to have application as if references, in those provisions, to sales tax and terms related to sales tax were references to income tax and related terms.

[142] [1983] HCA 39; (1983) 153 CLR 52.

[143] In summary, the guidelines ensure that, where the lawyer agrees to assist the police in their search, no documents identified as potentially within the warrant will be inspected before an opportunity is given to the lawyer to make a claim of legal professional privilege. If a claim of privilege is maintained, the documents subject to the claim may not be inspected by the police until such time as the claim is abandoned, waived or dismissed by a court. For the text of the guidelines, see (1986) 21(11) Australian Law News 21-24. See also, Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 245-248.

[144] Sub-section (1) of that section provides that: " The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth."

[145] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 27.

[146] Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52.

[147] More accurately, on the ground that, to that extent, it was not authorised by law: s 5(1)(d) of the Administrative Decisions Judicial Review Act 1975 (Cth).

[148] As to the loss of privilege when documents pass into the possession of another, see Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 67-68 per Gibbs CJ, 80 per Mason J, 109-110 per Brennan J, 112 per Deane J, 129 per Dawson J and the cases there cited. And see, as to the circumstances in which equity will require third parties to observe confidentiality, Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 at 459-463 per Gaudron J.

[149] (1985) 3 NSWLR 44.

[150] Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 61-62, referring to Lyell v Kennedy (1884) 27 Ch D 1.

[151] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 44.

[152] Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 238.

[153] Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 259.

[154] Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 266.

[155] [1983] HCA 39; (1983) 153 CLR 52.

[156] [1983] HCA 39; (1983) 153 CLR 52 at 88-89 per Murphy J, 94 per Wilson J, 116-117 per Deane J, 127-128 per Dawson J.

[157] See [1983] HCA 39; (1983) 153 CLR 52 at 123 per Dawson J and the cases there referred to.

[158] Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 93 per Deane, Dawson and Gaudron JJ and 121 per Gummow J respectively. For similar descriptions, see also: Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 480 per Gibbs CJ (a "fundamental or essential" rule), 491 per Deane J ("a fundamental principle of our judicial system"); Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 132 per Deane J ("a substantive and fundamental common law principle"), 145 per Toohey J (as being of "fundamental importance to the protection and preservation of the rights, dignity and equality of the ordinary citizen under the law"), 161 per McHugh J ("a substantive rule of law ... [best explained as] 'a practical guarantee of fundamental, constitutional or human rights' ").

[159] [1995] HCA 39; (1995) 185 CLR 83 at 121.

[160] [1981] QB 223.

[161] [1981] QB 223 at 244, referring to the Report of the Committee on Personal Injuries Litigation, (1968) [3691] at par 304.

[162] (1886) 16 QBD 561 at 562. Note, however, that, as Mathew J pointed out at 562, the documents did not come "into existence for the purposes of the action".

[163] [1912] VicLawRp 62; [1912] VLR 336 at 341.

[164] (1884) 27 Ch D 1.

[165] [1912] VicLawRp 62; [1912] VLR 336 at 341.

[166] See, for example, Dubai Bank Ltd v Galadari [1990] Ch 98; Ventouris v Mountain [1991] 1 WLR 607; [1991] 3 All ER 472; Lubrizol Corporation v Esso Petroleum Co Ltd [1992] 1 WLR 957.

[167] See, for example, Vardas v South British Insurance Co Ltd [1984] 2 NSWLR 652; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44; Roux v Australian Broadcasting Commission [1992] 2 VR 577; Bayliss v Cassidy (1995) 2 Qd R 464.

[168] See, for example, McCaskill v Mirror Newspapers Ltd [1984] 1 NSWLR 66; R v Board of Inland Revenue; Ex parte Goldberg [1989] QB 267; Davis v Lambert-Bain Pty Ltd [1989] TASSC 73; [1989] Tas R 274.

[169] See, for example, McNicol, Law of Privilege (1992) at 94-97; Ligertwood, Australian Evidence, 2nd ed (1993) at 218; Cross on Evidence, 5th Aust ed (1996) at 710.

[170] [1991] SASC 3069; (1991) 57 SASR 21 at 34. (Upheld on appeal: Bond v JN Taylor Holdings Ltd (1992) 57 SASR 38.) See also Vardas v South British Insurance [1984] 2 NSWLR 652 at 660; Water Authority (WA) v AIL Holdings Pty Ltd (1991) 7 WAR 135 at 138; Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 598-599.

[171] (1884) 27 Ch D 1 at 26 per Cotton LJ, 31 per Bowen LJ.

[172] (1985) 3 NSWLR 44 at 61-62. See also Vardas v South British Insurance [1984] 2 NSWLR 652 at 660; Water Authority (WA) v AIL Holdings Pty Ltd (1991) 7 WAR 135 at 139.

[173] R v Derby Magistrates' Court; Ex parte B [1996] 1 AC 487 at 507.

[174] [1983] HCA 39; (1983) 153 CLR 52 at 66, quoting Greenough v Gaskell (1833) 1 My&K 98 at 103; [1833] EngR 333; 39 ER 618 at 621. See also Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 685; R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at 152, 161; Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 74, 89, 93, 105-106, 114, 128; Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 480, 487, 490; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 126-128, 132, 144-147.

[175] See Grant v Downs (1976) [1976] HCA 63; 135 CLR 674 at 690 per Jacobs J.

[176] (1995) 183 CLR 121 at 139; see also at 131, 133-138, 140-141.

[177] [1976] HCA 63; (1976) 135 CLR 674 at 688, 690.

[178] See Hughes v Biddulph [1827] EngR 840; (1827) 4 Russ 190 [38 ER 777].

[179] See also Hobbs v Hobbs and Cousens [1960] P 112.

[180] See, generally, Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500.

[181] [1985] HCA 60; (1985) 158 CLR 500 at 515. See also R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141.

[182] As to the different formulations of the nature of the wrongdoing which "displaces" legal professional privilege, see Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 528-529 per Dawson J and the cases there cited.

[183] (1995) 183 CLR 121 at 163.

[184] As to the onus of proving matters which except a situation from the general rule, see, generally, Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249.

[185] O'Rourke v Darbishire [1920] AC 581 at 604 per Viscount Finlay, cited with approval in Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 516 per Gibbs CJ.

[186] O'Rourke v Darbishire [1920] AC 581 at 604.

[187] [1920] AC 581 at 633.

[188] [1981] QB 223 at 246.

[189] At the time s 10(1) of the Crimes Act relevantly provided: "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;

(b) 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."

[190] The Guidelines are set out in the judgment of Beaumont J in Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 245-248.

[191] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25.

[192] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500; Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121.

[193] Grant [1976] HCA 63; (1976) 135 CLR 674; O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1; Carter (1995) 183 CLR 121 at 160-161.

[194] R v Cox and Railton (1884) 14 QBD 153 at 165; Bullivant v Attorney-General for Victoria [1901] AC 196 at 201; Varawa v Howard Smith & Co Ltd [1910] HCA 11; (1910) 10 CLR 382 at 385, 386, 390; Carter (1995) 183 CLR 121 at 151, 160.

[195] Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500.

[196] R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141.

[197] Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 62; Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 598; J N Taylor Holdings Ltd v Bond [1991] SASC 3069; (1991) 57 SASR 21 at 34; Lubrizol Corporation v Esso Petroleum Ltd [1992] 1 WLR 957 at 961.

[198] Chadwick v Bowman [1886] 16 QBD 561 per Denman and Mathew JJ. In recent years the preponderance of English authority is against the existence of the privilege in these circumstances. See, for example, R v King [1983] 1 WLR 411; [1983] 1 All ER 929; Lambert v Home [1914] 3 KB 86; Buttes Gas and Oil Co v Hammer (No 3) [1981] 1 QB 223 at 244; Dubai Bank Ltd v Galadari [1990] Ch 98; Ventouris v Mountain [1991] 1 WLR 607 at 616; [1991] 3 All ER 472 at 480; Lubrizol Corporation [1992] 1 WLR 957.

[199] The Palermo (1883) 9 P 6; Watson v Cammell Laird [1959] 1 WLR 702; [1959] 2 All ER 757; R v Board of Inland Revenue, Ex parte Goldberg [1989] QB 267; R v Derby Magistrates' Court, ex parte B [1995] 3 WLR 681; [1995] 4 All ER 526.

[200] For cases rejecting the proposition that such copies can be privileged see, Shaw v David Syme & Co [1912] VicLawRp 62; [1912] VLR 336; Vardas v South British Insurance Co Ltd [1984] 2 NSWLR 652; Nickmar (1985) 3 NSWLR 44; Bond v J N Taylor Holdings Ltd (1992) 57 SASR 38; Roux [1992] 2 VR 577; Langworth Pty Ltd v Metway Bank Ltd [1994] FCA 1436; (1994) 53 FCR 556; Water Authority (WA) v AIL Holdings Pty Ltd (1991) 7 WAR 135; DPP (Cth) v Blake [1992] ACL Rep 250 NSW 5; Bayliss v Cassidy [1995] 2 Qd R 464. Cases in which it has been accepted that legal professional privilege may attach to copy documents include: Wade v Jackson's Transport Services Pty Ltd [1979] Tas R 215; Kaye v Hulthen [1981] Qd R 289; McCaskill v Mirror Newspapers Ltd [1984] 1 NSWLR 66; Davis v Lambert-Bain Pty Ltd [1989] TASSC 73; [1989] Tas R 274.

[201] For the historical development of the privilege see, Wigmore on Evidence, (1961) par 2290; Cross on Evidence, 5th Aust ed (1996) par 25215; McNicol, The Law of Privilege, (1992) at 46-51; ALRC Report No 26, Evidence, (1985), vol 1 at 494-495; Law Reform Commission of Western Australia, Project No 90 (1993), Report on Professional Privilege for Confidential Communications at 29-30; Lai, "History and Judicial Theories of Legal Professional Privilege", Singapore Journal of Legal Studies, (1995) at 558; Williams, "Discovery of Civil Litigation Trial Preparation in Canada", (1980) 58 Canadian Bar Review 1 at 45-46; R v Derby Magistrates' Court, ex parte B [1995] 3 WLR 681 at 692-696; [1995] 4 All ER 526 at 538-540 per Lord Taylor CJ.

[202] Grant [1976] HCA 63; (1976) 135 CLR 674 at 685. More recently see, Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 79, 93-94; Maurice (1986) 161 CLR 475 at 487 per Mason and Brennan JJ; Carter (1995) 183 CLR 121 at 126-128, 132-133, 144-147, 160-161.

[203] See dicta to this effect in Waterford [1987] HCA 25; (1987) 163 CLR 54 at 64-65.

[204] Goldberg v NG [1995] HCA 39; (1995) 185 CLR 83 at 93-94. See also, Carter (1995) 183 CLR 121 at 161; R v Derby Magistrates' Court, ex parte B [1995] 3 WLR 681 at 695; [1995] 4 All ER 526 at 540-541 per Lord Taylor CJ.

[205] Carter (1995) 183 CLR 121 at 161.

[206] (1995) 183 CLR 121 at 161. See also Maurice [1986] HCA 80; (1986) 161 CLR 475 at 490 per Deane J, where his Honour described the privilege as "a bulwark against tyranny and oppression". A similar sentiment was expressed by McEachern CJBC in the leading Canadian authority on point, Hodgkinson v Simms (1988) 55 DLR (4th) 577 at 581.

[207] [1979] HCA 11; (1979) 141 CLR 648 at 654.

[208] (1883) 9 P 6 at 8.

[209] McCaskill [1984] 1 NSWLR 66 at 68.

[210] [1976] HCA 63; (1976) 135 CLR 674.

[211] McCaskill [1984] 1 NSWLR 66 at 68.

[212] Nickmar (1985) 3 NSWLR 44 at 61-62; Roux [1992] 2 VR 577 at 597-599.

[213] (1884) 27 Ch D 1 at 31. Cotton LJ, however, upheld the claim on the basis that to disclose the copies "might shew what [the solicitor's] view was as to the case of his client as regards the claim made against him", at 26. Fry LJ agreed with both judgments, at 31. In so far as the headnote to the case suggests that the use of professional knowledge, research or skill is the test for determining whether a copy is privileged, it is misleading.

[214] [1992] 2 VR 577 at 599.

[215] Williams, "Four Questions of Privilege: the Litigation aspect of Legal Professional Privilege", (1990) 9 Civil Justice Quarterly 139 at 160.

[216] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 46.

[217] R v Cox and Railton (1884) 14 QBD 153; Varawa [1910] HCA 11; (1910) 10 CLR 382; Kearney [1985] HCA 60; (1985) 158 CLR 500; Sut v Nominal Defendant [1968] 2 NSWR 78; L T & K T Conlon v Lensworth Interstate (Vic) Pty Ltd [1970] VicRp 36; [1970] VR 293.

[218] Carter (1995) 183 CLR 121 at 163.

[219] [1920] AC 581 at 604 cited with approval in Kearney [1985] HCA 60; (1985) 158 CLR 500 at 516 per Gibbs CJ.

[220] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 42.

[221] (1987) 77 ALR 565. This case concerned a search pursuant to a warrant issued under s 10 of the Crimes Act of a solicitor's office for documents relating to an allegedly fraudulent tax scheme.

[222] (1987) 77 ALR 565 at 574.

[223] (1987) 77 ALR 565.

[224] Administrative Appeals Tribunal Act 1975 (Cth), Ombudsman Act 1976 (Cth), Administrative Decisions (Judicial Review) Act 1977 (Cth).

[225] [1790] EngR 55; (1703) 2 Ld Raym 938 [92 ER 126].

[226] [1891] AC 272. See also Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395 at 417.

[227] (1888) 14 VLR 349.

[228] Bradlaugh v Gossett (1884) 12 QBD 271.

[229] Wilkes v Wood [1763] EngR 103; (1763) Lofft 1 [98 ER 489]; Entick v Carrington [1765] EWHC J98; (1765) 2 Wils KB 275 [95 ER 807]. See also George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110.

[230] Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224; 128 ALR 657 on appeal from Propend v Commissioner, AFP (No 2) (1994) 35 ALD 25 (Davies J).

[231] [1983] HCA 39; (1983) 153 CLR 52.

[232] Section 10 was later repealed by s 5 of the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth) and s 4 thereof inserted in the Crimes Act a new Pt 1AA (ss 3C-3ZY), headed "SEARCH WARRANTS AND POWERS OF ARREST". Nothing for this appeal turns upon the repeal of s 10.

[233] (1995) 58 FCR 224 at 239-244; 128 ALR 657 at 673-677.

[234] (1995) 58 FCR 224 at 245-248; 128 ALR 657 at 677-680.

[235] (1995) 58 FCR 224 at 264; 128 ALR 657 at 695.

[236] (1995) 58 FCR 224 at 250; 128 ALR 657 at 682.

[237] R v Derby Magistrates' Court; Ex parte B [1996] 1 AC 487 at 512.

[238] Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 64-65, 74, 98.

[239] R v Derby Magistrates' Court; Ex parte B [1996] 1 AC 487 at 508, 509, 511; but cf In re L (A Minor) [1997] AC 16 at 27, 30, 33.

[240] Waugh v British Railways Board [1979] UKHL 2; [1980] AC 521; Guardian Royal Assurance v Stuart [1985] 1 NZLR 596. The Canadian decisions are divided: Sopinka, Lederman and Bryant, The Law of Evidence in Canada, (1992) at 656-657. Section 119 of the Evidence Act 1995 (Cth) states the privilege in terms of "the dominant purpose" of the preparation of a "confidential document", a term defined in s 117(1). The scope of s 119 is unsettled: Sparnon v Apand (1996) 138 ALR 735 at 738. The new law applies to litigation in the Federal Court but (s 4) not to proceedings the hearing of which (as with this case) began before 18 April 1995.

[241] [1976] HCA 63; (1976) 135 CLR 674.

[242] R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at 145.

[243] Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 163.

[244] Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500.

[245] [1983] HCA 39; (1983) 153 CLR 52.

[246] [1991] 1 WLR 607 at 611-612; [1991] 3 All ER 472 at 475-476.

[247] [1992] 1 WLR 957 at 960.

[248] [1983] HCA 47; (1983) 153 CLR 1.

[249] R v Derby Magistrates' Court; Ex parte B [1996] 1 AC 487 at 507; but cf In re L (A Minor) [1997] AC 16.

[250] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 490; cf Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 129.

[251] Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 161.

[252] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 491; Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 17-18; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437-438, 446.

[253] Parton v Williams (1820) 3 B & Ald 330 [106 ER 684]; Crozier v Cundey (1827) 6 B & C 232 [108 ER 439]; Dillon v O'Brien (1887) 16 Cox CC 245. See also Field v Sullivan [1923] VicLawRp 12; [1923] VLR 70.

[254] Hoye v Bush [1840] EngR 928; (1840) 1 Man & G 775 [133 ER 545]. See also Little v The Commonwealth [1947] HCA 24; (1947) 75 CLR 94.

[255] Section 64B of the AFP Act renders the Commonwealth liable as a joint tortfeasor in respect of a tort committed by a member of the AFP "in the performance or purported performance of his duties as such a member".

[256] Ritz Hotel v Charles of the Ritz (No 22) (1988) 14 NSWLR 132 at 134; Goddard v Nationwide [1987] QB 670; Webster v James Chapman & Co [1989] 3 All ER 939; Hartogen Energy Ltd v AGL Co (1992) 36 FCR 557 at 566-568; Andrews, "The Influence of Equity upon the Doctrine of Legal Professional Privilege", (1989) 105 Law Quarterly Review 608; Newbold, "Inadvertent Disclosure in Civil Proceedings", (1991) 107 Law Quarterly Review 99.

[257] [1913] 2 Ch 469.

[258] [1898] 1 QB 759.

[259] Zuckerman, "Legal Professional Privilege and the Ascertainment of Truth", (1990) 53 Modern Law Review 381 at 383. The distinction to be drawn between privilege and confidence was further emphasised by Scott J in Webster v James Chapman & Co [1989] 3 All ER 939 at 943-944.

[260] [1983] HCA 39; (1983) 153 CLR 52.

[261] cf Smorgon v Australia and New Zealand Banking Group Ltd [1976] HCA 53; (1976) 134 CLR 475 at 478-479.

[262] [1983] HCA 39; (1983) 153 CLR 52 at 68.

[263] [1983] HCA 39; (1983) 153 CLR 52 at 110.

[264] [1993] HCA 56; (1993) 178 CLR 408 at 426-428.

[265] [1993] HCA 56; (1993) 178 CLR 408 at 459-460.

[266] Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 132.

[267] [1983] HCA 39; (1983) 153 CLR 52 at 132.

[268] cf Harrington v Lowe (1996) 70 ALJR 495 at 503; 136 ALR 42 at 52.

[269] See Bullivant v Attorney-General for Victoria [1901] AC 196 at 206.

[270] Follett v Jefferyes [1850] EngR 919; (1850) 1 Sim (NS) 3 at 17 [61 ER 1 at 6]; R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at 152.

[271] [1976] HCA 63; (1976) 135 CLR 674 at 690.

[272] (1995) 183 CLR 121 at 159.

[273] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500; Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54.

[274] Minet v Morgan (1873) 8 Ch App 361; Bullivant v Attorney-General (Vict) [1901] AC 196.

[275] (1995) 58 FCR 224 at 237; 128 ALR 657 at 670.

[276] See Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at 245-246; Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 87.

[277] Many of them are collected and summarised in the appendices to the judgment of Lindgren J (1995) 58 FCR 224 at 270-273; 128 ALR 657 at 701-703.

[278] (1995) 58 FCR 224 at 254-255; 128 ALR 657 at 685-686.

[279] [1981] QB 223 at 244.

[280] [1913] 2 Ch 469.

[281] [1898] 1 QB 759.

[282] cf Lyell v Kennedy (1884) 27 Ch D 1 at 26, 31; Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 597-598; R v Inland Revenue; Ex parte Goldberg [1989] QB 267 at 276; Langworth Pty Ltd v Metway Bank Ltd [1994] FCA 1436; (1994) 53 FCR 556 at 566-567; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 61-62.

[283] Meaning the work which is reflected "in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways": Hickman v Taylor [1947] USSC 5; (1947) 329 US 495 at 511; see also National Labor Relations Board v Sears, Roebuck & Co [1975] USSC 81; (1975) 421 US 132 at 154-155. The substantial nature of this "work-product" may be significant where protection in equity is sought in respect thereof to prevent breach of confidence: see Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 at 461.

[284] cf J N Taylor Holdings Ltd v Bond [1991] SASC 3069; (1991) 57 SASR 21 at 37.

[285] R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at 154.

[286] See Williams, "Four Questions of Privilege: the Litigation aspect of Legal Professional Privilege", (1990) 9 Civil Justice Quarterly 139 at 160.

[287] Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 95, 120, 130.

[288] R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at 145.

[289] [1985] HCA 60; (1985) 158 CLR 500 at 516.

[290] [1985] HCA 60; (1985) 158 CLR 500 at 516-517.

[291] (1994) 35 ALD 25 at 42.

[292] (1995) 58 FCR 224 at 260; 128 ALR 657 at 691.

[293] O'Rourke v Darbishire [1920] AC 581; Buttes Oil Co v Hammer (No 3) [1981] QB 223; Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500.

[294] Follett v Jefferyes [1850] EngR 919; (1850) 1 Sim (NS) 3 [61 ER 1].

[295] [1901] AC 196.

[296] [1971] Ch 680.

[297] [1971] Ch 680 at 687.

[298] [1901] AC 196 at 207.

[299] Lyell v Kennedy (1884) 27 Ch D 1; Brambles Holdings Ltd v Trade Practices Commission (No 3) [1981] FCA 83; (1981) 58 FLR 452 at 454; Fruehauf Finance v Zurich Australian Insurance (1990) 20 NSWLR 359 at 366; Bray on Discovery (1885) at 211. Other authority decides that there is a discretion in the court to permit cross-examination: National Crime Authority v S (1991) 29 FCR 203 at 211; Hartogen Energy Ltd v AGL Co (1992) 36 FCR 557 at 560-561.

[300] [1959] HCA 23; (1959) 103 CLR 341 at 343.

[301] Young v Quin (1985) 4 FCR 483 at 485-486.

[302] See also Zarro v Australian Securities Commission (1992) 36 FCR 40 at 60-61.

[303] Sankey v Whitlam (1978) 142 CLR 1 at 44, 58-59.

[304] [1920] AC 581 at 604.

[305] [1985] HCA 60; (1985) 158 CLR 500 at 516.

[306] (1884) 14 QBD 153.

[307] (1884) 14 QBD 153 at 165.

[308] [1938] HCA 34; (1938) 60 CLR 336 at 361-362.

[309] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224.

[310] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 per Davies J.

[311] (1994) 35 ALD 25 at 27-37.

[312] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 1) 94 ATC 4399.

[313] R v Cox and Railton (1884) 14 QBD 153 at 165; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 130.

[314] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 37-46 per Davies J.

[315] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 42 per Davies J.

[316] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 44.

[317] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 238.

[318] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 259.

[319] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 263.

[320] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 268.

[321] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 238-239 per Beaumont J, 260 per Hill J, 270 per Lindgren J.

[322] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 270-273.

[323] [1976] HCA 63; (1976) 135 CLR 674.

[324] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 688; National Employers' Mutual General Insurance Association Ltd v Waind [1979] HCA 11; (1979) 141 CLR 648 at 656; O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1 at 22-23; cf Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 677.

[325] Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 at 252.

[326] See for example Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128; Waugh v British Railways Board [1979] UKHL 2; [1979] 3 WLR 150; [1979] 2 All ER 1169.

[327] Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 600 per Byrne J.

[328] Ligertwood, Australian Evidence, 2nd ed, (1993) at 226-227, 228-229; Cross and Tapper on Evidence, 8th ed (1995) at 472; cf United States of America v Mammoth Oil Co [1925] 2 DLR 966.

[329] Zuckerman, "Legal Professional Privilege and the Ascertainment of Truth" (1990) 53 Modern Law Review 381.

[330] See for example O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1 in respect of the Income Tax Assessment Act 1936 (Cth), s 264(1) (now in part overruled by Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52. See also Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 in respect of the Companies (New South Wales) Code, s 295(1); cf Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 341; Mortimer v Brown [1970] HCA 4; (1970) 122 CLR 493 at 499; Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1985] HCA 6; (1985) 156 CLR 385.

[331] Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 per Murphy, Wilson, Deane and Dawson JJ; Gibbs CJ, Mason and Brennan JJ dissenting.

[332] Discussed in Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed (1992) at 635. Remnants of this view persist in the United States of America, as Gummow J points out.

[333] The English position appears to be in the process of change. See R v Derby Magistrates' Court; ex parte B [1996] 1 AC 487 at 507; but cf Re L (A Minor) [1997] AC 16 at 24-25.

[334] Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed (1992) at 672.

[335] Solosky v The Queen (1980) 105 DLR (3d) 745 at 760 per Dickson J.

[336] R v Uljee [1982] 1 NZLR 561 at 569 per Cooke J. See also the position in the European Court of Justice in A M & S Europe v Commission [1983] QB 878 at 913 noted in Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 145; cf Saunders v United Kingdom, unreported, European Court of Human Rights, 17 December 1996.

[337] [1986] HCA 80; (1986) 161 CLR 475.

338 [1986] HCA 80; (1986) 161 CLR 475 at 490; cited in Goldberg v Ng (1994) 33 NSWLR 639 at 654-655.

[339] (1995) 183 CLR 121.

[340] Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54.

[341] Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 64; Carter v Northmore Hale Davy & Leake 183 CLR 121 at 134-5.

[342] Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 65.

[343] Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128.

[344] Hobbs v Hobbs and Cousens [1960] P 112 at 116; Regional Municipality of Ottawa-Carleton v Consumers' Gas Co Ltd (1990) 74 DLR (4th) 742 at 748-749.

[345] Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 133 per Deane J. The Australian Law Reform Commission is examining aspects of the suggested defects of the adversarial system: see Australian Law Reform Commission, Background Paper No 3 - Adversarial - Judicial and Case Management (1996).

[346] Miller, "The Challenges to the Attorney-Client Privilege" (1963) 49 Virginia Law Review 262; noted in Yuill v Corporate Affairs Commission of New South Wales (1990) 20 NSWLR 386 at 405. See also Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 86, 112; Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 490.

[347] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 688.

[348] See now Evidence Act 1995 (Cth), s 118; Gillies, Law of Evidence in Australia, 2nd ed (1991) at 448.

[349] See for example National Employers' Mutual General Insurance Association Ltd v Waind [1979] HCA 11; (1979) 141 CLR 648 at 648; O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1 at 22-23.

[350] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 238 per Beaumont J, 253, 258 per Hill J and 264 per Lindgren J.

[351] See Hobbs v Hobbs and Cousens [1960] P 112 at 117; Re Goodman and Carr and Minister of National Revenue (1968) 70 DLR (2d) 670.

[352] Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed (1992) at 659.

[353] See for example R v Ataou [1988] QB 798 at 807 per French J; citing R v Craig [1975] 1 NZLR 597 at 598 per Cooke J.

[354] Vardas v South British Insurance Co Ltd [1984] 2 NSWLR 652 at 660 per Clarke J.

[355] Buttes Gas and Oil Co v Hammer (No 3) [1981] QB 223 at 244.

[356] Ligertwood, Australian Evidence, 2nd ed, (1993) at 218; Zuckerman, "Legal Professional Privilege and the Ascertainment of Truth" (1990) 53 Modern Law Review 381 at 383.

[357] Zuckerman, "Legal Professional Privilege and the Ascertainment of Truth" (1990) 53 Modern Law Review 381.

[358] See for example Hodgkinson v Simms (1988) 55 DLR (4th) 577 at 594 per Craig JA.

[359] Ligertwood, Australian Evidence, 2nd ed, (1988) at 218; Heydon, Cross on Evidence, 5th Australian ed, (1996) at par 25275.

[360] McCaskill v Mirror Newspapers Ltd [1984] 1 NSWLR 66 per Hunt J; Water Authority of Western Australia v AIL Holdings Pty Ltd (1991) 7 WAR 135 at 139.

[361] Dubai Bank Ltd v Galadari [1990] Ch 98; J N Taylor Holdings Ltd (in liq) v Bond [1991] SASC 3069; (1992) 57 SASR 21; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 61-62 per Wood J.

[362] TNT Management Pty Ltd v Trade Practices Commission (1983) 47 ALR 693 at 699.

[363] See for example Watson v Cammell Laird & Co (Shipbuilders and Engineers) Ltd [1959] 1 WLR 702; [1959] 2 All ER 757; R v Board of Inland Revenue, ex parte Goldberg [1989] QB 267; Shaw v David Syme & Co [1912] VicLawRp 62; [1912] VLR 336; Davis v Lambert-Bain Pty Ltd [1989] TASSC 73; [1989] Tas R 274.

[364] See now R v Derby Magistrates' Court; ex parte B [1996] 1 AC 487 at 507; cf discussion of the Police Bill 1996 (UK) in House of Lords, Parliamentary Debates (Hansard), 26 November 1996 at 203-242.

[365] [1976] HCA 63; (1976) 135 CLR 674.

[366] Regional Municipality of Ottawa-Carleton v Consumers' Gas Co Ltd (1990) 74 DLR (4th) 742 at 748-749 per O'Leary J.

[367] [1983] HCA 39; (1983) 153 CLR 52.

[368] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689.

[369] Propend Finance Pty Ltd v Commissioner, Australian Federal Police [No 2] (1994) 35 ALD 25 at 42.

[370] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 238-239.

[371] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 260.

[372] Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 58 FCR 224 at 270.

[373] cf R v Cox and Railton (1884) 14 QBD 153 at 175-176.

[374] Bullivant v Attorney-General for Victoria [1901] AC 196 at 201; applied Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 516.

[375] O'Rourke v Darbishire [1920] AC 581 at 604. See also K-West Estates Ltd v Linemayr, McCandless and Zacharias; Westcoast Savings Credit Union v Linemayr [1984] 4 WWR 375 at 379.

[376] O'Rourke v Darbishire [1920] AC 581 at 604.

[377] Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 516 per Gibbs CJ.

[378] Buttes Gas and Oil Co v Hammer (No 3) [1981] QB 223 at 246; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 165-166.

[379] O'Rourke v Darbishire [1920] AC 581 at 623.

[380] O'Rourke v Darbishire [1920] AC 581 at 614.

[381] cf Baker v Evans (1987) 77 ALR 565.

[382] O'Rourke v Darbishire [1920] AC 581 at 633.

[383] Clark v United States [1933] USSC 52; (1933) 289 US 1 at 15.

[384] O'Rourke v Darbishire [1920] AC 581 at 633.

[385] Clark v United States [1933] USSC 52; (1933) 289 US 1 at 15.