Grollo B. & Ors v Commissioner of Australian Federal Police & Ors [1995] FCA 686

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIAN DISTRICT REGISTRY ) No. VG342 of 1993 GENERAL DIVISION ) BETWEEN: BRUNO GROLLO First Applicant RINO GROLLO Second Applicant GROFAM PTY LTD Third Applicant GROFAM AUSTRALIA PTY LTD Fourth Applicant GROLLO AUSTRALIA PTY LTD Fifth Applicant GROLLO BROTHERS PTY LTD Sixth Applicant GROLLO FINANCE (HOLDINGS) PTY LTD Seventh Applicant GROLLO FINANCE PTY LTD Eighth Applicant GROLLO CONSTRUCTIONS PTY LTD Ninth Applicant GROLLO NOMINEES PTY LTD Tenth Applicant AND: PETER MacAULEY Commissioner of the Australian Federal Police First Respondent GREGORY DONALD McLEOD Second Respondent

PHILLIP RAYMOND FRANCIS Third Respondent WILLIAM DRUMMOND GRAHAM Fourth Respondent GRAHAM ANTHONY BLAY Fifth Respondent PETER DAVID WOOD Sixth Respondent SALLY BROWN Chief Magistrate Seventh Respondent COMMONWEALTH OF AUSTRALIA Eighth Respondent CORAM: Jenkinson J. PLACE: Melbourne DATE: 1 September, 1995 REASONS FOR JUDGMENT

On 13th August 1993 search warrants granted under s.10 of the Crimes Act 1914 (Cwth) were executed in premises occupied by some of the applicants. Proceedings concerning the warrants and documents seized in execution of them resulted in determination of some of the questions raised in those proceedings : see Grollo v. Macauley (1993) 45 F.C.R. 336. Another question yet to be determined is whether the contents of a note book seized in execution of the warrants are the subject of the legal professional privilege claimed in respect of them by some of the applicants. The claim is that the writing in the note book is that of Robert Howard who at the time or times when the writing was made was an employé of one or several of the applicants, that the writing consists in part of records made by Mr. Howard of legal advice orally communicated by John Walker Q.C. in his presence to some of the applicants pursuant to Mr. Walker's retainer to give such advice to the applicants in respect of anticipated legal proceedings by the Commonwealth of Australia or by officers of the Commonwealth against some of the applicants in respect of what officers of the Commonwealth had suggested to be fraudulent breaches of the income tax laws. The circumstances are outlined in Grollo v. Macauley supra at 337-339. Mr. Walker's retainer commenced in October 1992, at about the time search warrants authorising seizure of things affording evidence of those breaches were executed in premises of some of the applicants and of advisers and associates of theirs. The evidence in support of the claim of privilege includes this statement: "Mr. Walker Q.C. met in conference with one or more of Bruno Grollo, Rino Grollo, Bob Howard and executives of the Grollo Group on various occasions and gave advice in relation to the matters the subject of his brief." Mr. Weinberg Q.C., who appeared with Mr. Aizen for the respondents other than the magistrate who granted the warrant, informed the court that the note book was found by those executing the warrants in a room used by Mr. Howard in business premises of the applicants and that members of the Australian Federal Police believe the handwriting in the note book to be that of Mr. Howard. Six days after execution of the warrants Mr. Howard was charged with conspiracy, under the Crimes Act 1914 (Cwth), and declined the applicants' solicitors' request that he swear an affidavit concerning the note book. The writing is on 13 pages of the note book. No page contains more than 50 words. There is no dating. It is not possible to infer confidently that all the writing relates to a single occasion when Mr. Walker was giving advice in Mr. Howard's presence in respect of the anticipated litigation and not to several such occasions. In the letter from the applicants' solicitors to Mr. Howard's solicitors the note book is said to contain "notes of discussions with various legal advisers to our clients (`the Grollo Group') including Mr. Walker Q.C., Mr. Mark Leibler of this firm and others". It may be so. I would infer that all the notes are of a single occasion and record inter alia historical narrative by Mr. Walker relevant to an understanding of his advice and of some of the material on which it was based, rather than legal advice by more than one person. But if the assertion in the letter be correct, the only consequence is that the notes record legal advice by two persons, Mr. Leibler and Mr. Walker, instead of one. I can find no indication in the notes that the advice of a person other than those two is recorded. The truth of the assertions in the letter is not attested by any witness and I find that the legal advice recorded is that of Mr. Walker alone. The writing records advice, which either is recorded as having been expressed to be advice by Mr. Walker or which I infer from the content and context to be advice by Mr. Walker, concerning the prospects of avoiding the institution of the anticipated litigation, and of success if litigation is commenced, and concerning the steps taken and to be taken by Mr. Walker and others in relation to the subject matter of the anticipated litigation. I infer that the sole purpose of the writer in making the writings was to record the advice given and the other matters so that the recollection of him or of those others present when Mr. Walker gave the advice could be aided by recourse to the writing, and so that the advice given could be accurately communicated to those of the applicants who were not present and to officers of the applicant companies who were not present. I could find in the contents of the note book nothing which would be unprotected by legal professional privilege. Counsel for the respondents, who read the note book briefly some time before making his submissions, requested that, when considering the contents of the note book, I keep in mind the classes of circumstances the existence fo which extinguishes legal professional privilege. I have complied with that request. The contents do not point to the existence of such circumstances, in my opinion. The applicants' claim to legal professional privilege in respect of the contents of the note book, a copy of which is exhibit B in the trial of the proceeding, is upheld. The question as to who is entitled to possession of the note book was not the subject of submission at trial. I will order that further consideration of the proceeding be adjourned to a date to be fixed.