MM v Australian Crime Commission [2007] FCA 2026

FEDERAL COURT OF AUSTRALIA

MM v Australian Crime Commission [2007] FCA 2026 LEGAL PROFESSIONAL PRIVILEGE – where notices requiring production of documents issued to persons or entities other than holder of the privilege – whether notices invalid – whether requirement to give holder of privilege a reasonable opportunity to assert legal professional privilege. Australian Crime Commission Act 2002 (Cth)ss 28, 29, 30 and 59 Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403 cited May v Commissioner of Taxation (1999) 92 FCR 152 cited Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 cited MM AND ANOR v AUSTRALIAN CRIME COMMISSION AND ANOR NSD1477 OF 2006

EMMETT J

19 DECEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1477 OF 2006

BETWEEN: MM

First Applicant

DD

Second Applicant

AND: AUSTRALIAN CRIME COMMISSION

First Respondent

CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION

Second Respondent

JUDGE: EMMETT J

DATE OF ORDER: 19 DECEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The proceeding be dismissed. 2. The Applicants pay the Respondents' costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1477 OF 2006

BETWEEN: MM

First Applicant

DD

Second Applicant

AND: AUSTRALIAN CRIME COMMISSION

First Respondent

CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION

Second Respondent

JUDGE: EMMETT J

DATE: 19 DECEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This proceeding is concerned with the validity of notices issued under the Australian Crime Commission Act 2002 (Cth) (the Act) requiring the production to the Australian Crime Commission (the Commission) of documents in respect of which there may be a claim for legal professional privilege. The applicants claim to have legal professional privilege in relation to documents produced by third parties in response to such notices. They claim the return of documents in respect of which legal professional privilege is asserted to exist. 2 The Court has conducted a final hearing on the basis of admissions made on the pleadings. However, if the applicants succeed in their primary contentions, it will be necessary for there to be a further inquiry in order to identify relevant documents and to determine what consequences should flow if it be the fact that privileged documents have been produced to the Commission without the consent of the applicants. 3 In order to put the issues raised in the proceeding in context, it is necessary to say something about the scheme of the Act. I shall then say something about the relevant facts arising from the pleadings.