Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3

ORDER

1. Appeal dismissed.

2. Cross-appeal allowed.

3. Vary Order 3 of the Orders of the Full Federal Court to read: Orders 4, 5, 6 and 8 be set aside; and

(a) declare that legal professional privilege attaches to those copy documents (if any) which were made solely for the purpose of obtaining or giving legal advice or solely for use in legal proceedings and which were in the possession of the ninth respondent and were seized upon execution of the warrant, issued 2 September 1993, at the premises of the ninth respondent; and

(b) order that the matter be remitted to a single judge of the Federal Court for determination of the application in accordance with that declaration and for determination of the question of costs reserved by Davies J.

4. The appellants pay the respondents' costs in this Court.

Cur adv vult

The following written judgments were delivered:—

7 February 1997 Brennan CJ.

Gaudron J has stated the facts out of which this appeal arises and the course of the litigation in the Courts below. Her Honour has also cited the authorities which establish that the doctrine of this Court is that legal professional privilege "is not merely a rule of evidence applicable in judicial and quasi-judicial proceedings, but is a basic doctrine of the common law" [1] . Although this was not my preferred view [2] , I am bound now to accept it. As I pointed out in Baker v Campbell [3] , the view that legal professional privilege qualified the power of search and seizure conferred by a warrant issued pursuant to s 10(1) of the Crimes Act 1914 Cth as it stood at the time — and as it stood with some immaterial variations when the warrants in the present case were issued [4] — necessitated the devising of some procedure for determining a claim of privilege if it should be raised during the execution of a warrant. Such a procedure was not devised by the courts, but the Law Council of Australia and the Australian Federal Police agreed upon "General Guidelines". The Guidelines set out the procedure to be followed if, in the execution of search warrants on lawyers' premises or the premises of Law Societies and like institutions, a claim of legal professional privilege should be made. The authority given by the warrants in the present case was to search and seize "in accordance with the procedure set out" in the General Guidelines.