Baker v Campbell [1983] HCA 39

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ. Baker v Campbell [1983] HCA 39

ORDER Order that the question referred by the case stated be answered as follows:Question: In the event that legal professional privilege attaches to and is maintained in respect of the documents held by the firm can those documents be properly made the subject of a search warrant issued under s. 10 of the Crimes Act?Answer: No. Order that the defendant pay the plaintiff's costs of and incidental to the case stated to be taxed.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 26 Gibbs C.J.

The question for decision in this case is whether an officer of the Australian Federal Police force, acting under the authority of a search warrant issued pursuant to s. 10 of the Crimes Act 1914 Cth, as amended, is entitled to seize documents kept by a solicitor at his office, notwithstanding that the documents would be privileged from disclosure or production in the course of legal proceedings.

In about February 1979 the plaintiff in the present proceedings retained a member of a firm of solicitors to act as his solicitor to advise him in relation to certain aspects of a scheme which he had devised to minimize liability for sales tax. The defendant is a member of the Australian Federal Police, and therefore a constable within the meaning of the Crimes Act: see s. 3 of that Act and s. 5(1) of the Australian Federal Police Act 1979 Cth. On 7 July 1982 the defendant, acting pursuant to a search warrant granted to him on the preceding day, attempted to seize documents held by the firm of solicitors at their office. The documents were all brought into existence for the purpose of obtaining or giving legal advice, and include documents created solely for the purpose of tendering professional advice to the plaintiff otherwise than in relation to any civil or criminal proceedings then existing or in contemplation. The documents do not relate to any particular transaction that was entered into. The warrant, which was issued under s. 10 of the Crimes Act, recited that the justice issuing it was satisfied by information on oath placed before him that there were reasonable grounds for suspecting that there were, in a place, namely the premises occupied by the firm of solicitors, things, being the original or copies of certain documents, all of which had been produced or held by, for, or in respect of the plaintiff and certain other named persons, and as to which there were reasonable grounds for suspecting that the same would afford evidence as to the commission by the plaintiff and other persons of offences against the Sales Tax Assessment Acts Cth and the Crimes Act, and went on to authorize the defendant to enter the said place and to seize the said documents. The plaintiff contends that the documents are the subject of legal professional privilege whereas the defendant contends that legal professional privilege does not attach to the documents because of the purposes for which the plaintiff consulted the firm. Having regard to the form of the question asked, it is unnecessary to resolve that dispute. The defendant further contends, but the plaintiff disputes, that even if legal professional privilege attaches to the documents they may lawfully be seized under the search warrant. On or about 5 October 1982 the plaintiff and certain other persons were charged with offences against s. 86(1)(e) of the Crimes Act (conspiracy to defraud the Commonwealth), s. 86(1)(b) of the Crimes Act (conspiracy to prevent or defeat the execution or enforcement of a law of the Commonwealth, namely s. 9 of the Sales Tax Assessment Act (No. 3) 1930) and s. 86(1)(b) of the Crimes Act (conspiracy to prevent or defeat the execution or enforcement of a law of the Commonwealth, namely s. 9 of the Sales Tax Assessment Act (No. 7) 1930).