A3 v Australian Crime Commission (No. 2) [2006] FCA 929

FEDERAL COURT OF AUSTRALIA

A3 v Australian Crime Commission (No. 2) [2006] FCA 929 A3 & ANOR v AUSTRALIAN CRIME COMMISSION & ANOR NSD373 OF 2006 EMMETT J 21 JULY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD373 OF 2006

BETWEEN: A3

FIRST APPLICANT

P

SECOND APPLICANT

AND: AUSTRALIAN CRIME COMMISSION

FIRST RESPONDENT

CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION

SECOND RESPONDENT

JUDGE: EMMETT J

DATE: 21 JULY 2006

PLACE: SYDNEY

REASONS FOR INTERIM CONCLUSIONS 1 The first respondent, the Australian Crime Commission ('the Commission'), is conducting a special investigation pursuant to a determination made by its Board under s 7C of the Australian Crime Commission Act 2002 (Cth) ('the Commission Act'). By notice issued pursuant to s 29 of the Commission Act ('the Notice'), a firm with an office in Sydney ('the Firm') was required to produce to an office of the Commission documents described in the Schedule to the Notice. The Schedule referred to documents pertaining to any or all of a number of individuals and entities, including the first applicant ('A3') and the second applicant ('P'). The Firm produced a number of documents to the Commission in compliance with the Notice. 2 However, P and A3 claim legal professional privilege in respect of a number of the documents produced to the Commission. The basis of the claim is that each of the disputed documents was prepared for, or evidenced a communication made for, the dominant purpose of the giving of instructions for, or the obtaining of, legal advice, or the provision of legal services, for or on behalf of A3 or P. The Commission, on the other hand, disputes that the documents were prepared for or evidenced communications made for those purposes. The Commission also contends that, even if the documents were prepared for or evidenced communications made for those purposes, there are reasonable grounds for believing that any such communications were made in the furtherance of a crime or fraud or other impropriety, such that legal professional privilege did not attach to any of the documents in dispute. 3 The Commission proposes to adduce evidence in support of the latter contention, but asks for an order that parts of that evidence not be made available to anyone other than counsel and solicitors for the Commission. The Commission also asks that access to part of the evidence to be relied on in support of the proposed order restricting access also be restricted. The question of whether access to the evidence should be restricted in that way arises because an examiner of the Commission proposes to examine A3, under the provisions of the Commission Act, in several weeks' time. The Commission is concerned that disclosure of the evidence to be relied upon by the Commission in support of its application to restrict access could be prejudicial to the conduct of the examination. 4 I have previously ruled that, in the present circumstances, I would be disposed to restrict access, but have not yet determined the material that should be the subject of such a restriction. Clearly, there are practical difficulties in deciding that question in circumstances where counsel and solicitors for A3 and P have also been denied access to the material. 5 The question of whether the documents in dispute were made or evidence communications made in the furtherance of a crime or fraud or other impropriety does not arise unless I conclude that the documents in dispute were prepared for or evidence communications made for the purposes indicated above. I have heard all of the evidence on that latter question and the parties have made full submissions on it. They have requested that I decide that question in advance of argument on the Commission's contentions, since the latter would become irrelevant if I determined the first question adversely to A3 and P. I propose to accede to the parties' request and indicate my conclusions on the first question and my reasons for that conclusion.