"Z" v "N" [2004] NSWCA 445

New South Wales Court of Appeal

CITATION : "Z" v "N" [2004] NSWCA 445 HEARING DATE(S) : 19 November 2004 JUDGMENT DATE : 19 November 2004

JUDGMENT OF : Mason P at 1; Giles JA at 18; Wood CJatCL at 24 DECISION : Appeal dismissed with costs.

CATCHWORDS : New South Wales Crime Commission Act 1985, s18B, s19 - review of decision of Crime Commission requiring lawyer to produce name and address of client - leave to appeal required - client legal privilege - whether power of Crime Commission to require name and address to be furnished extends to information that is or may be privileged - appellate determination not required in this case - whether Crime Commission's discretion miscarried. (D) PARTIES : "Z" v "N" FILE NUMBER(S) : CA 40148/04 COUNSEL : Appellant: S Norton SC / A Howen Respondent: P Singleton SOLICITORS : Appellant: Bolzan & Dimitri Respondent: NSW Crime Commission

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT SC 12568/03 FILE NUMBER(S) : LOWER COURT Grove J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40148/04 SC 12568/03

MASON P GILES JA WOOD CJ at CL

Friday 19 November 2004

"Z" v "N" JUDGMENT

1 MASON P: What purports to be an appeal as of right was instituted with respect to orders made by Grove J dismissing a summons that sought a review of certain decisions of the New South Wales Crime Commission and the member presiding at a hearing of the Commission. 2 There was no rule 8 affidavit as required. The respondent nevertheless did not move for the dismissal of the appeal on the ground of its incompetency. The parties addressed the competency of the appeal in their written submissions. 3 The appeal is, in my view, clearly incompetent in light of the language of s 101(2)(r) of the Supreme Court Act. The appellant and his advisors appear to have read those provisions as if the reference to appeal in the first line of para (r) related to the proceedings before Grove J. In fact they relate to the appeal which the opening words of subs (2) stipulate "shall not lie to the Court of Appeal except by leave of the Court of the Appeal". 4 Having indicated quite early the Court's strong tentative attitude on the competency issue, we heard full argument as on an appeal in relation to the grant of leave and if leave were granted the appeal respecting what turns out to be the critical issues in the proceedings before us. 5 Various issues were raised and debated to some degree in today's hearing, including questions as to the nature of the right of "review" granted by s 19(4) of the New South Wales Crime Commission Act 1985, the availability of that right in relation to a requirement by a presiding member pursuant to s 18B(4), whether that last mentioned subsection extends beyond client legal privilege, and the availability of client legal privilege with respect to a lawyer's disclosure of a person's name and address both generally and in the particular circumstances of this case. These issues do not require appellate determination in this case. There are additional factual uncertainties and a real risk of some of the issues turning out to be hypothetical. 6 In this case the Commission exercised the power conferred under s 18B(4) of the Act arming the member presiding at a hearing of the Commission to require a legal practitioner to furnish to the Commission the name and address of a person to whom or by whom a privileged communication was made. 7 If that power was lawfully exercised, the concluding words of the subsection create a statutory duty (so long as the requirement stands unrevoked) to furnish the required information. The appellant submitted that a requirement cannot as a matter of power be made if the information concerned (ie the name and/or address of the person) is within the scope of the client legal privilege. In my view that submission is untenable in view of the language and location of the second sentence in subs (4). 8 In light of subs (1) and the dictates of commonsense there is simply no purpose in arming the Commission with the power conferred by the concluding portion of subs (4) except with reference to a disclosure that would or might otherwise attract a relevant client legal privilege. The second sentence in subs (4) arms the Commission at its discretion with the power to put the matter to rest in the limited area of name and address of the person dealing with the legal practitioner. Parliament addressed an area of potential legal and factual uncertainty and spoke with language quite sufficient to meet the law's requirement that legal professional privilege is not to be abrogated or qualified save by express language or clear and unmistakable implication. 9 An alternative submission was that the Commission's discretion miscarried in relation to its presiding member's decision to require the name and address to be provided in a particular situation. The appellant submitted that the discretion had miscarried because it turned upon a contestable earlier ruling that privilege was not involved in the first place. 10 That submission must, in my view, be rejected in the light of the material that appears in the blue appeal book 33 N to Z. I am quite satisfied that the presiding member proceeded to exercise the s 18B(4) discretion on the assumption that he may have earlier been wrong in his conclusion that client legal privilege had descended upon the relevant limited information. 11 If the appellant had particular grounds for seeking to be relieved of the obligations stemming from a s 18B(4) requirement he had adequate opportunity to put them before the Commission in the present case. On my reading of the transcript he invoked client legal privilege and nothing else. 12 But if I am wrong there is, and the Commission acknowledges this, no impediment to the appellant, provided he acts promptly seeking to place relevant information before the presiding member and seeking to have the 18B(4) requirement lifted or varied. 13 For those reasons I would refuse leave to appeal in this matter. 14 The question of costs was raised. In my view they should follow the event. The Court knows too little about what may or may not be the full circumstances to do otherwise than proceed on the basis of the information that it does know, its normal practice and the fair exercise of the discretion as to costs in light of what it knows as distinct from what it may hypothesise. 15 No order for costs was made at first instance. The ruling of Grove J, which I would propose be effectively affirmed by the order I propose, followed a full hearing, was accompanied by reasons and amply armed the practitioner involved with the protection of the law with respect to any obligation towards the practitioner's putative client. 16 I do not in any way suggest or imply any irregularity in taking the matter on appeal, but I see no reason why the usual consequences should not follow in the present situation when the application for leave to appeal is refused in effect on the basis that a critical argument was untenable in my opinion. 17 Accordingly, for those reasons I propose that the appeal be dismissed with costs. 18 GILES JA: I agree that leave to appeal is necessary. In what follows I proceed on the assumption that the claimant's knowledge of the name and address came through a communication attracting legal professional privilege. Any appeal would turn on the questions whether the concluding words in s 18B(4) empowered the presiding member to require the claimant to furnish the name and address to the Commission and whether the discretion involved was shown to have appealably miscarried. 19 I agree with the President that the discretion has not been shown to have miscarried. I am not as confident as the President of an affirmative answer to the first question. 20 Usually the name and address of the person communicating with the legal practitioner will not be the subject of privilege, and an understandable reason for the concluding words in s18B(4) is that, the legal practitioner being entitled to decline to disclose or produce the privilege communication, the Commission should know the identity and have the means of contacting the possessor of the privilege so that it can seek disclosure or production directly from that person. There is, in my view an arguable case that s 18B(4) is not directed to the unusual case of the name and address or one of them being the subject of privilege, and that in light of the importance attached to privileged communications with a legal practitioner it should be construed so as to exclude from its scope a requirement to furnish a name and/or address itself the subject of privilege. 21 I appreciate the counter-argument, apart from reliance on the unqualified words with which s18B(4) concludes, that those words would be unnecessary if they did not extend to a requirement to furnish a name and/or address itself the subject of privilege, because in any event the legal practitioner could be required to furnish the name and/or address. The argument may not accommodate that the concluding words are arguably directed to a requirement outside the answering of questions or producing of documents at a hearing, its purpose being as earlier described. The language of the concluding words is different from the language of answering questions or producing documents at a hearing found elsewhere in s 18B and in the Act. 22 Notwithstanding this, I understand that Wood CJ at CL agrees with the President. If s18B(4) applied and was correctly employed, that will be an end to any appeal. Their Honours are of the view that leave to appeal should be refused. Where the scope of the concluding words in s18B(4) has been extensively canvassed in submissions, despite my seeing more of an arguable case on that question I therefore see no point in a grant of leave to appeal. 23 In these circumstances, I concur in the order that leave to appeal should be refused and with the order as to costs which is proposed. 24 WOOD CJ at CL: I agree with the President and with the orders as to leave and as to costs which have been proposed. 25 MASON P: I will add to the orders that I proposed in my reasons for judgment an order that leave to appeal should be refused. And in light of the reasons of the Court I make the following orders: 1. Appeal dismissed with costs. 2. Leave to appeal refused. 26 NORTON: That leaves the issue of what happens to Grove J's judgment. The six months is up. The appeal is now over so I imagine it goes into the public domain. 27 WOOD CJ AT CL: I don't think grammatically. I think his Honour indicated after six months he would consider the position. I think you'd need to apply to him for it to either go or to not go and his Honour is on extended leave until the end of this year. 28 SINGLETON: His Honour said it was his intention to revoke after six months. So your Honour Justice Wood is correct in that response. 29 MASON P: The question is, is there a need for a version of the judgment to be generally available in that it decides one point albeit by saying we think it's clear beyond argument. What does the Commission want? 30 SINGLETON: We would seek say a week but if we can get a transcript of the judgment in a week just to check carefully that there's no danger to the public interest and if we could then communicate with my learned friends and then advise the Court that we have no objection to publication which I anticipate would be the likely result. 31 NORTON: We having listened to it can't see anything in there that's a problem but if there's going to be a week we may as well look at it in writing as well but I don't anticipate there'll be any application from us. 32 SINGLETON: There is one issue that arises however, if the judgment is to become a public judgment and with no imputation at all to the applicant we would be seeking an order or an undertaking that he not take steps to send this judgment to his former client even without his adding any communication to it. The mere fact that he sends it to his former client would invite the client to wonder why he got such a judgment. 33 MASON P: Haven't you got the undertaking from him already from the Commission - I thought he - he's given some promise that he'll never speak to the client. 34 SINGLETON: Your Honour may have recalled an adequate consideration, p 6 of the blue book, and if that's the undertaking in my respectful submission it doesn't quite cover the situation. I'm not imputing anything against the applicant of course but the public interest needs to be preserved. 35 MASON P: I see your point. 36 SINGLETON: It's perhaps a matter to consider in the intervening days because the judgment is-- 37 MASON P: If we can deal with it now. Miss Norton, it may not be covered by the existing undertaking is it possible for you to get instructions to give an undertaking as sought to this Court? 38 NORTON: I think the undertaking was that we not send a copy of the judgment to our former client. 39 MASON P: Correct. 40 NORTON: I just want to know the wording. 41 MASON P: That's it yes. Is there any point in changing the initials? 42 NORTON: Instead of Z? 43 GILES JA: Its been listed as Z v N but that may pass it to history. If we made that judgment A v B or something like that or X v Y. 44 MASON P: We all know it's the Crime Commission. 45 SINGLETON: N is pretty obvious. 46 MASON P: If the judgment is published it will be clear. 47 NORTON: There is nothing this Court could do to - but we would have to ask Grove J to use the same initial otherwise life will become difficult. 48 WOOD CJ AT CL: He could always do that as a condition of publishing his judgment he could always change the way it's referred to. 49 NORTON: The initial to whatever this Court makes it so that it's possible to link them up. I don't know whether it would be best just to have a different letter on the judgment or to change the matter name. 50 GILES JA: We can't un-write documents that are already in the file. 51 NORTON: That's what I thought. So if you report it under a different letter we are quite content. 52 MASON P: Do you ask us to do that? 53 NORTON: Yes. I think the Commission wants it done too. 54 MASON P: Would X v The New South Wales Crime Commission suffice? 55 NORTON: There's a problem with that because Grove J's decision refers to the informants as being X and that might become confusing. 56 MASON P: We will note the undertaking given on behalf of the appellant. We will order that the record of the proceedings in this court including the judgment change the parties' names so that they will read "Z" v "N" and I will reiterate the direction that the entirety of the proceedings today have taken place in camera. When the reasons for judgment have been corrected they will be sent to the counsel involved who within seven days after receipt are at liberty to put a written submission to my associate making any suggested suggestions with respect to further anonymity. Subject to that then the Court will consider itself at liberty to publish the reasons in the ordinary course, the balance of the proceedings in this Court remaining subject to the confidentiality order already referred to. 57 NORTON: My junior has to report to the Attorney-General and he is required to do a report but he's not quite sure what he can say in his report to the Attorney-General. 58 MASON P: Is it a report that can be deferred until the Court publishes its reasons in due course? 59 NORTON: That's what I suggested to him. 60 MASON P: If it's necessary for any further disclosure to be made he'll need to make application to me to cover that.