Hogan v Australian Crime Commission (No 4) [2008] FCA 1971

FEDERAL COURT OF AUSTRALIA

Hogan v Australian Crime Commission (No 4) [2008] FCA 1971

PAUL HOGAN v AUSTRALIAN CRIME COMMISSION and ANOR

NSD 373 of 2006

EMMETT J

22 DECEMBER 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 373 of 2006

BETWEEN: PAUL HOGAN

Applicant

AND: AUSTRALIAN CRIME COMMISSION

First Respondent

THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION

Second Respondent

JUDGE: EMMETT J

DATE: 22 DECEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This proceeding has had a chequered history. It is concerned with claims of legal professional privilege in respect of documents seized pursuant to summonses and notices issued under the Australian Crime Commission Act 2002 (Cth) (the Commission Act). The documents were in the custody of the respondents, the Australian Crime Commission (the Commission) and its Chief Executive Officer.

2 The proceeding was commenced in February 2006 by Mr Anthony Stewart, shortly after he became aware of the seizure of the documents. Mr Stewart is an adviser to the present applicant, Mr Paul Hogan. Mr Hogan was joined as an applicant in May 2006 and Mr Stewart ceased to be a party in July 2006. Mr Hogan has continued thereafter as the only applicant. In the current form of the application, which was filed on 3 November 2008, Mr Hogan claims relief on the basis that, for some time, copies of a number of documents in respect of which he claims legal professional privilege (the Disputed Documents) were in the custody of the Commission or its officers and were examined to a greater or lesser extent by officers of the Commission.

3 In July 2006, I published interim conclusions to the effect that, prima facie, the Disputed Documents were the subject of legal professional privilege, in that they appeared to have been brought into existence for the predominant purpose of either requesting or providing legal advice in relation to the affairs of Mr Hogan: see A3 v Australian Crime Commission (No 2) [2006] FCA 929. I did so after inspecting the Disputed Documents, which were not made available for inspection by counsel for the respondents. At that stage, the respondents maintained that the claimed privilege did not exist because, they said, the Disputed Documents had been brought into existence in furtherance of fraud or the commission of offences (the Cox & Railton Exception): see R v Cox & Railton (1884) 14 QBD 153.