Case: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501
Outcome: applied
The High Court cases of Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52 (' Baker ') at 76, 97 and 132, Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 (' Propend ') at 506, 513, 523, 533, 567-568 and 576, and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 213 CLR 543 (' Daniels ') at 549 [3], 561 [37], 567 [56] and 585 [117] proceed on the footing that the Federal Court has original jurisdiction to declare that legal professional privilege attaches to a document whose production has been compulsorily required, without any need to review or set aside the decision of the relevant officer to seize the document or to require its production. In Propend , Brennan CJ said at 513: '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.' Both parties submitted that the Court can approach the question of legal professional privilege in the manner indicated by Brennan CJ. 40 In their joint judgment in Daniels , Gleeson CJ, Gaudron, Gummow and Hayne JJ construed s 155(1) and (2) as not conferring a power that abrogated legal professional privilege. They did so for essentially two reasons. In the first place, their Honours observed that subss (1) and (2) of s 155 must be construed consistently. Section 155(2) of the TPA is similar to the search warrant provision in s 10 of the Crimes Act 1914 (Cth) (' Crimes Act ') that was considered in Baker and Propend . They said that it was difficult to see any basis upon which that subsection could be construed, consistently with Baker and Propend , as authorising entry to premises for the purpose of inspecting and copying material to which legal professional privilege attaches: at 558-559 [27]-[28]. Secondly, their Honours thought that s 155(5)(a) did not support the implication that the Full Court had drawn from it (at 560 [33]): 'It is very much to be doubted that sub-s (5)(a) is exhaustive of the matters that may be raised in answer to a charge of failing to comply with a notice under s 155(1). At the very least, ordinary principles of construction would suggest that there is an intentional element to the offences created by s 155(5) and (6A). More to the point, however, it is necessary to determine the meaning and effect of s 155(1) before it can be determined what constitutes a refusal or failure to comply with a notice.' 102 The question whether the draft statement of contrition that now constitutes Exhibit 665 was brought into existence for the dominant purpose of obtaining legal advice is a question of fact. In answering this question it must be kept firmly in mind that the privilege protects confidential communications, and not documents as such. As Dawson J said in Propend at 515, 'to say that a document is privileged is merely a shorthand way of saying that the communication constituted by the document is privileged': see also Toohey J at 525, Gaudron J at 543, McHugh J at 552 and Gummow J at 569. 103 The decision in Propend turned fundamentally on the proposition that legal professional privilege protects communications rather than documents. This explains why, as the High Court held in Propend , legal professional privilege can attach to copies of non-privileged documents; the purpose of bringing the copy into existence may be different from the purpose of bringing the original into existence, and may attract legal professional privilege: see Brennan CJ at 507, Gaudron J at 544, McHugh J at 553-554, Gummow J at 571 and Kirby J at 587. 104 In this case, attention must focus on the creation and circulation of the draft statement of contrition that became Exhibit 665. The confidential communications involved in those steps are distinct from the possible future step of communicating a statement of contrition to the public through the medium of evidence to be given by Mr Lindberg at the Inquiry. 118 The mere fact that the draft statement of contrition was sent by email to Mr Zwier, amongst others, for his legal advice is not determinative of the dominant purpose for which the draft statement was created. Nor does it determine that one intended use of the document was more dominant than other intended uses. As Brennan CJ said in Propend at 508, the test is anchored to the purpose for which the document was brought into existence. I have taken into account Mr Lindberg's evidence that it was always contemplated that any statement of a public relations kind would have to be part of, or a sub-set of, the legal strategy of AWB in dealing with the Inquiry. By this, Mr Lindberg explained that he meant that if the statement were to proceed it had to be supported by legal advice, including the accuracy of the facts and conduct about which AWB was prepared to apologise. Mr Lindberg said that his most important concern was about giving clear, honest and true evidence to the Inquiry. I accept that the proposed statement of contrition had to be evaluated against legal advice. None of this evidence is inconsistent with, or causes me to doubt, my finding that the statement of contrition was brought into existence for multiple purposes and none was dominant. 119 The Solicitor-General for the Commonwealth argued that the heading of Exhibit 665 indicates the character and purpose of the document, which was to influence public opinion through the vehicle of a statement that was to be made by Mr Lindberg during the course of his evidence to the Inquiry. The Solicitor-General added that it should be inferred that this purpose was to be implemented, conditional on the course of action being cleared by AWB's lawyers. It seems to me that this characterisation goes further than the evidence permits. The evidence does not allow me to find that the purpose of making a public relations statement was the sole purpose, or that it had matured to the point where it was going to be implemented, subject to legal clearance. In addition, I consider that the submission tends to confuse the purpose of possible future evidence to the Inquiry with the purpose and intended use of the draft statement that constituted Exhibit 665. 120 In its submissions, AWB contended that the evidence discloses three possible purposes for the creation of Exhibit 665 which it referred to as the immediate purpose, the intermediate purpose and the ultimate purpose. The immediate purpose of the document was said to be disclosed by the fact that it was brought into existence at the direction of Mr Zwier, notwithstanding that it was authored by Mr Lindberg. AWB submitted that Mr Zwier's purpose is important, taken together with the objective purposes of the document and its context. In my view, this submission misstates the relevant evidence. 127 As an adjunct to the first limb of the privilege, protection against disclosure has been extended to documents that record confidential legal advice or confidential legal work. Examples commonly given include legal research memoranda, draft pleadings, summaries of argument and draft agreements: see Daniels at 563 [44] per McHugh J; Propend at 550 per McHugh J and at 569 per Gummow J; Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 (' Maurice' ) at 496 per Dawson J; Sterling [1978] 36 FLR 244 at 246 per Lockhart J; Mostyn v West Mostyn Coal Co (1876) 34 LT 531; and Packer v Deputy Commissioner of Taxation (Qld) [1984] 1 Qd R 275 (' Packer' ) at 284-285. 129 Gummow J proffered a similar explanation in Propend at 569: 'It also is significant, as Beaumont J emphasised in the present case 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. This identification of the privilege with communications, rather than merely with documents, is important for the first issue on the grant of special leave.' 131 In Wenkart , Branson J said that legal professional privilege extends to any document prepared either by the client or the legal adviser from which the nature of the advice sought, or given, might be inferred (eg a draft pleading, a solicitor's draft letter to the other side, or a bill of costs): see NJ Williams, 'Four Questions of Privilege: the Litigation Aspects of Legal Professional Privilege', Civil Justice Quarterly , vol 9, no 139, 1990, at p 142; and Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 236-237 per Beaumont J. 132 The principles that emerge from these cases operate to protect privileged communications against the risk that they will be disclosed by secondary evidence: see Tomlinson J in Three Rivers [2002] EWHC 2730 (Comm) at [3]. The question whether privileged communications will be disclosed by virtue of the disclosure of another document, such as a draft pleading, draft agreement or draft witness statement, raises a question of objective fact that depends on what the other document actually states or conveys, either explicitly or as a matter of reasonable inference. To adapt the language used by Gummow J in Propend and Anderson J in Dalleagles , the question is whether the disclosure of the document in question will directly reveal, or allow its reader to infer, the actual content or substance of a privileged communication. 180 Propend does not lend any support to the contention that the Commissioner's ruling on legal professional privilege is amenable to judicial review. Although there were judicial review applications in Propend , the case proceeded on the basis that the appropriate form of relief to resolve the privilege issue was a declaration in pursuance of the Court's jurisdiction under s 39B of the Judiciary Act : at 506 and 513 per Brennan CJ, and at 568 and 576 per Gummow J.