Norman v O’Mahony [2006] FCA 1169

FEDERAL COURT OF AUSTRALIA

Norman v O'Mahony [2006] FCA 1169

PRACTICE & PROCEDURE – legal professional privilege – waiver of privilege – implied waiver – documents seized pursuant to search warrant – same documents seized in other searches and no claim for privilege made – whether omission to make a claim for privilege amounts to waiver of privilege Held: Thebehaviour of the applicant in failing to claim privilege within a reasonable period after the search was inconsistent with the maintenance of legal professional privilege.

Baker v Campbell (1983) 153 CLR 52 referred to Benecke v National Australia Bank Ltd (1993) 35 NSWLR 110 referred to Commissioner of the Police Service v Nirta [2002] 1 Qd R 364 discussed Goldberg and Anor v Ng and Ors (1995) 132 ALR 57 cited Mann v Carnell (1999) 201 CLR 1 followed Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 discussed Spedley Security Ltd (in liq) v Bank of New Zealand (1991) 26 NSWLR 711 applied Wigmore on Evidence (McNaughton Rev 1961 Vol VIII, para 2290)

LUCIANA NORMAN v SIMONE O'MAHONY and THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

NSD 394 OF 2006 COWDROY J 8 SEPTEMBER 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 394 OF 2006

BETWEEN: LUCIANA NORMAN

Applicant

AND: SIMONE O'MAHONY

First Respondent

THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Second Respondent

JUDGE: COWDROY J

DATE OF ORDER: 8 SEPTEMBER 2006

WHERE MADE: SYDNEY

THE COURT:

1. Declares that legal professional privilege attaches to documents 1(c) and 1(l) itemised in the summons. 2. Declares that legal professional privilege has been waived in respect of documents 1(a), 1(b), 1(d), 1(e), 1(f), 1(g), 1(h), 1(i), 1(j), 1(k), 1(m), 1(n) and 1(o) identified in the summons. 3. Orders that the applicant pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA