Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33

High Court of Australia Brennan, Deane, Toohey, Gaudron and McHugh JJ Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33

ORDER Appeal dismissed with costs

Cur adv vult

The following written judgments were delivered:—

14 June 1995 Brennan J.

Louis James Carter was the leader of a team of accountants who conducted the audit of Rothwells Ltd, a merchant bank which, after an attempted rescue from financial failure in October 1987, went into liquidation. Carter now stands charged on indictment before the Supreme Court of Western Australia on five counts: on one count that he conspired with two directors of Rothwells to defraud the public and on four counts that, being an auditor of Rothwells Ltd, he concurred in the publishing of false financial reports with intent to deceive members or creditors of Rothwells Ltd. For the purposes of his defence, he caused to be issued five subpoenas duces tecum seeking documents and other records relating to the rescue and the provision of financial accommodation to Rothwells Ltd or relating to three actions pending in the Federal Court of Australia. In those actions the State of Western Australia is seeking damages against Wardley Australia Ltd and Wardley Australia Securities Ltd (the Wardley companies). The first respondent in this appeal is the managing partner of a firm of solicitors acting for the Wardley companies in that litigation. The subpoenas are directed, inter alia, to the managing partner of that firm and to the proper officers of the Wardley companies. The documents sought by the subpoenas include documents which are the subject of legal professional privilege including proofs of evidence prepared for the purpose of legal advice in relation to the pending actions.

Objection was taken on affidavit to the production of documents which are the subject of legal professional privilege. Seaman J upheld the objection on that ground and an appeal against his decision was dismissed by the Full Court of the Supreme Court of Western Australia. The question for determination on this appeal is whether persons having in their possession or power documents which are subject to legal professional privilege can be compelled to produce those documents on subpoena issued on behalf of an accused person in criminal proceedings when those documents may establish the innocence of the accused or may materially assist his defence but the person entitled to the privilege does not waive it.