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. THE PEOPLE INVOLVED 6 Privilege is claimed by P in respect of all but one of the documents in dispute. Privilege is claimed by A3 in respect of that other document. However, A3 has been involved in the communications relating to the documents over which P claims privilege. Before dealing with the specific documents in dispute, it is necessary to say something about P, A3 and the other persons involved in the communications. DEPONENT AND THE FIRM 7 Deponent is an employee in the Sydney office of the Firm. Deponent is the principal point of contact between A3 and the Firm in relation to the various matters in which the Firm has been retained by A3 from time to time to provide professional services. 8 A3 told Deponent that he acted for P and that he would need to obtain advice from the Firm, from time to time, on issues concerning P's affairs. A3 said that there would be no need for Deponent to talk to P, but that A3 would give the Firm instruction on P's behalf and the Firm would give A3 advice, which A3 would relay to P and implement, or otherwise use, as A3 thought necessary. 9 Deponent has communicated directly with P on only one occasion. Instructions to the Firm on behalf of P have always been given by A3 and all of the advice given by the Firm was given to A3, either orally, or by written correspondence, including email, addressed to A3. P AND A3 10 Very little evidence has been given as to the activities of P or the activities of A3. Further, there is no direct evidence of the precise relationship between P and A3. Neither P nor A3 has given evidence in the proceeding. They invite the Court to draw inferences from the evidence of Deponent and the documents themselves. 11 The failure of A3 and P to give evidence, notwithstanding that it is they who claim privilege in respect of the documents in dispute, is not necessarily fatal to their claims. It is matter for the Court to determine, on the basis of the evidence available, whether, from an objective point of view, the documents in dispute were made or evidence communications made for the relevant purposes. I do not consider that any adverse inference on that question should be drawn simply by reason of the absence of evidence from A3 and P. On the other hand, where there is a question of doubt that could have been clarified by evidence from one or other of them, an inference can be drawn that the evidence that they could have given would not be favourable to them. THE DOCUMENTS IN DISPUTE 12 The documents in dispute have been referred to by reference to numbers in a schedule prepared by the parties. Many of the documents in respect of which P claims privilege consist of groups of documents. That is to say, each numbered document itself consists of a number of communications on a particular topic. 13 It is convenient to deal first with the document in respect of which A3 claims privilege. I do not consider that the document was made for the dominant purpose of A3 obtaining legal advice or legal services or for the purpose of giving legal advice or providing legal services to A3. 14 Save for minor exceptions, I consider, on the balance of probabilities, that all of the other documents in dispute are documents brought into existence for the predominant purpose of either requesting or providing legal advice in relation to the affairs of P. The instructions were given by A3 and the advice was furnished to A3. 15 I do not consider that the advice could fairly be characterised as mere accounting or taxation advice, in the sense of expressing opinions concerning accounting treatment or accounting records. The advice recorded can fairly be characterised as legal advice in relation to certain consequences of proposed action on the part of P. 16 It is difficult to see how that advice would be of relevance to any person other than P. No hypothesis has been advanced by the Commission as to why any person other than P, or a person acting for and on behalf of P, would have sought the advice that is the subject of the communications. 17 On the balance of probabilities, A3 was acting in that regard as agent for, and on behalf of, P in giving instructions and receiving advice. Whether the specific instructions came from P and whether the advice was passed on to P by A3 is not clear. However, with the exceptions indicated, an inference should be drawn that A3 was acting within the scope of his authority from P, to give instructions and to receive advice in connection with P's affairs. Prima facie, with minor exceptions, all of the documents in dispute would be subject to legal professional privilege of P. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 14 August 2006 Counsel for the Applicant: Mr A Robertson SC and Mr F Kunc Solicitor for the Applicant: Cosoff Cudmore Knox Counsel for the Respondent: Mr T Game SC and Ms S McNicol Solicitor for the Respondent: Australian Crime Commission Date of Hearing: 13 and 14 July 2006 Date of Reasons: 21 July 2006