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[2009] WASC 250
procedural. The Supreme Court declined to set aside the magistrate's orders as an abuse of process, but ordered that the respondent's affidavits, annexures and submissions be served in unredacted form upon...
Police seized paper and electronic material from a barrister and the barrister claimed legal professional privilege. The magistrate allowed heavily redacted affidavits and submissions to be served on the police, which the police said prevented them from meaningfully responding. The Supreme Court held that the statute requires privileged material to be protected and that the right to be heard does not automatically include sight of material that would disclose privileged communications. However, affidavits asserting redactions are not conclusive and the court may inspect unredacted material. To balance fairness and confidentiality the Supreme Court ordered that the unredacted affidavits and submissions be served on the applicant's counsel and instructing solicitor, who must give undertakings not to disclose, thereby enabling informed submissions without breaking privilege.
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5 cited instruments linked from this judgment.
Police executed search warrants at the respondent barrister's home and chambers and seized extensive records, both paper and electronic, including audio materials [1], [6]. The respondent immediately asserted legal professional privilege over a wide range of those records [2], and the investigating officer (the applicant) applied under s 151 of the Criminal Investigation Act 2006 (WA) for the Magistrates Court to determine whether the information was privileged and, if so, in respect of which records [2]–[3].
The magistrate made programming orders and allowed the respondent to file and serve affidavits and written submissions in redacted form, permitting redaction of those parts that 'reveal the nature or content of a communication or information which is the subject of a privilege claim' [8], [9], [16]. The redactions were substantial: three affidavits (including two by unnamed solicitors) and submissions were served with numerous deletions, leaving the applicant unable to discern the factual basis for the privilege claims [10]–[14], [18].
The applicant contended that the redactions so constrained his capacity to participate that he was denied his entitlement to be heard under s 151(7) and sought review in the Supreme Court under s 36 of the Magistrates Court Act 2004, effectively challenging the magistrate's orders as an abuse of process and a denial of natural justice [20]–[27].
Murray J conducted the review. He accepted the statutory framework requires that potentially privileged material be preserved from disclosure pending determination [33]–[39], that the court may have access to all information in the records under s 151(8) and that affidavits asserting redaction are not conclusive: the court may inspect unredacted material where necessary [36], [43]–[45]. He concluded the magistrate's approach was not an abuse of process but that, in the interests of justice, the unredacted affidavits, annexures and submissions should be served on the applicant's counsel and instructing solicitor subject to strict confidentiality undertakings [60]–[62]. No order as to costs was made at that stage [62].
There are several interacting legal and practical considerations the judge balanced.
The statutory scheme. Section 151 CIA is designed to protect privileged material when records are seized during criminal investigations. It requires records be secured to prevent access by those who would not be entitled if the material were privileged, requires delivery into the court's custody and permits the court, for the purpose of deciding the application, to have access to all information in the record [3], [31], [36]. That statutory architecture prioritises preservation of confidentiality until the claim is determined.
Procedural fairness in statutory context. Murray J emphasised that the content of natural justice/procedural fairness depends on the nature of the statutory power. While s 151(7) gives parties an entitlement to be heard, that entitlement must be read against s 151(3)(c): the court must prevent access to information by anyone who would not be entitled to it if privileged [30]–[37]. Therefore, procedural fairness does not automatically require full disclosure of contested privileged material to the party opposing the claim.
Court's power to inspect and the non-conclusive nature of redaction affidavits. Drawing on discovery principles and Areva, Murray J accepted that affidavits supporting redaction are not conclusive; in cases of doubt the court may itself inspect the documents to evaluate the objection [41]–[44]. That preserves the court's independent evaluative role.
Proportional, practical tailoring. The judge recognised the competing policy needs: preserving privilege while ensuring the applicant can make informed submissions. He adopted the pragmatic solution used in commercial litigation: limited disclosure to counsel and the instructing solicitor under enforceable undertakings so that informed adversarial submissions can be made without wider disclosure of the privileged contents [49]–[56]. That ordering was treated as a just, consequent modification of the magistrate's orders under s 36(4) MCA [57]–[61].
Before this decision the statutory scheme in s 151 was settled to the extent of its text, but there was uncertainty about the practical mechanics of balancing privilege preservation and the opposing party's ability to be heard when redaction was proposed. The decision clarifies how those competing interests are to be reconciled in the Western Australian context.
Key clarifications Murray J made:
Thus, post-decision practitioners can rely on the Court's power to order limited disclosure to legal representatives subject to undertakings as an appropriate method to reconcile the statutory obligations of s 151 with procedural fairness.
"the provisions of s 151 ... the party who would otherwise not be entitled to access to the information if it were privileged, is not given an entitlement to have access to the information even in the context of the entitlement to be heard on the application" [37].
Plain English: Just because the Police are entitled to be heard in the privilege hearing does not mean they automatically get to see the privileged documents. The statute requires protection of information that might be privileged.
"Redaction is permissible where privilege is claimed, to avoid compromising the privilege, but s 151 requires that the documents be provided in unredacted form to the court so that it may independently determine the claim for privilege" [44].
Plain English: Parties can redact documents so privilege is not destroyed, but the judge must be able to see the whole material to decide whether the privilege claim is valid.
"It may facilitate the effective exercise by the applicant of its entitlement to be heard ... by giving access to all of the information ... to counsel and to the solicitor instructing counsel ... upon those individuals undertaking ... not give access ... to the applicant or any other person" [54].
Plain English: A practical fix is to let the police lawyer and instructing solicitor see the unredacted documents, but they must promise (and be bound) not to share the contents further.
"I do not consider that order 10 ... was an abuse of process ... Nor do I consider that the orders made on 18 March ... constituted an abuse of process" [60].
Plain English: The magistrate's decision allowing redactions was not unfair or unlawful overall.
This decision speaks to disputes that arise where:
In those circumstances, Murray J's decision provides the framework: (a) redaction may be permitted to preserve privilege; (b) the court may insist on inspection of unredacted materials; and (c) the court can order protective disclosure to legal representatives subject to undertakings to allow meaningful adversarial testing without wider dissemination.
Murray J drew upon and followed authorities concerning redaction and inspection (notably Areva and Mobil Oil), and applied the established discovery principles to the s 151 context [41]–[44], [49]–[53]. The decision itself operates as an instance of applying that line of authority to the statutory regime in the Criminal Investigation Act. Practitioners should expect courts to be willing to craft bespoke protective orders, disclosure to counsel and instructing solicitor under undertakings, closed hearings or suppression of parts of hearings, to reconcile preservation of privilege with the right to be heard. The decision endorses a pragmatic, case-specific approach; it is consistent with earlier commercial confidentiality jurisprudence that permits disclosure to legal advisers and nominated experts as a way of balancing competing rights [51]–[53].
Scope and enforcement of undertakings: Murray J ordered disclosure to counsel and instructing solicitor on their undertaking not to divulge the content to others [61]. Questions remain about the precise form, content and enforcement mechanisms for such undertakings. The judgment contemplates them as enforceable as obligations of officers of the court, but later practical disputes about breaches will test remedies and sanctions.
Disclosure beyond legal representatives: The judge indicated disclosure to counsel and instructing solicitor as a likely solution, and observed disclosure to experts could be appropriate in some cases [53]–[55]. When disclosure to experts (forensic or other) will be permitted and under what safeguards remains fact-specific and may generate future litigation.
Electronic discovery nuances: This case involved complex electronic records, file and directory names, metadata and audio files [6], [18]. The decision does not provide technical rules about whether file names, timestamps or metadata are themselves privileged or non-privileged. Future cases will need to refine how privilege applies to metadata and derived information in electronic searches.
Particularity and sufficiency of redaction schedules: Much of the applicant's complaint derived from the inability to identify the nature of claimed privileged material from the redacted schedules [10]–[14], [18]. The degree of factual particularity required in a redacted affidavit or schedule to enable meaningful challenge without breaching privilege is not exhaustively defined here.
Public interest privilege interplay: Murray J noted s 151 covers public interest privilege as well as legal professional privilege but did not need to explore public interest privilege's particularities [4], [31]. Cases turning on public interest privilege in seized records will require further elaboration of procedural protections within the s 151 framework.
Conclusion
Ainsworth v Criminal Justice Commission (as applied in AW v Rayney) establishes a practical template for resolving clashes between preservation of privilege and the right to a fair contest in s 151 CIA proceedings. It confirms the court's power to inspect unredacted material, rejects the conclusiveness of redaction affidavits, and authorises tailored protective disclosure to legal representatives subject to undertakings. The approach is pragmatic and fact-specific; it safeguards privilege while enabling meaningful adversarial testing. Practitioners dealing with seized electronic material should plan for possible protective disclosure orders, prepare robust confidentiality undertakings, and be ready to justify redactions with sufficient particularity while recognising the court may require inspection of unredacted material to resolve contested privilege claims.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : AW -v- RAYNEY [2009] WASC 250
Administrative law - Review of magistrate's order - Application by police officer for decision upon claim of legal professional privilege - Redaction of affidavits and submissions in support of claim - Whether denial of procedural fairness - Whether just to vary magistrate's order
Order for service of unredacted affidavits and submissions of respondents upon counsel and instructing solicitor for applicant upon giving an undertaking to preserve confidentiality
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 3] [2009] WASC 67
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115
Mobil Oil Australia Ltd & McDonalds Australia v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34
Re An Application under the Magistrates Court Act 2004; ex parte Bartholomew [2008] WASC 52
1 On 22 August 2007 and 20 September 2007, the police executed search warrants at the respondent's home in Como and his business address in St Georges Terrace, Perth. The respondent is a barrister practising out of private chambers there. Various records were seized, in paper form and in electronic form, stored on computers.
2 As soon as the seizures were made, the respondent notified the police officers that he claimed legal professional privilege, presumably both as a client and on behalf of clients of his legal practice. As a consequence, the applicant, a police officer, made two applications in the Perth Magistrates Court for decisions as to whether the claims of privilege were maintainable and, if so, in respect of which records seized. Such an application is required by s 151(4) of the Criminal Investigation Act 2006 (WA).
(1) In this section -
court means the Magistrates Court;
privileged means privileged because of either or both -
(a) legal professional privilege;
(b) public interest privilege.
(2) If a record is seized or, under an order to produce a business record issued under section 53, a business record is produced and -
(a) a person entitled to possession of the record claims that all or some of the information in it is privileged; or
(b) the officer seizing the record or to whom it is produced reasonably suspects that all or some of the information in it is privileged,
the record must be dealt with in accordance with this section.
(3) The record must be secured in a manner -
(a) that prevents it from being concealed, disturbed or lost;
(b) that preserves its evidentiary value; and
(c) that prevents access to the information in it by any person who would not be entitled to access to the information if it were privileged.
(4) The officer in charge of the investigation must apply to the court to decide whether the information is privileged and must deliver the record into the custody of the court.
(5) The application must be made in accordance with rules of court and must be served on the person entitled to possession of the record or, if the identity or whereabouts of the person is unknown, on any person directed by the court to be served.
(6) The application may, if the court thinks fit, be heard in private.
(7) The applicant and any person entitled to possession of the record are entitled to be heard on the application.
(8) For the purpose of deciding the application the court may have access to all of the information in the record.
(9) If the court decides that all of the information is not privileged, the court must make the record available to be collected by the applicant.
(10) If the court decides that all of the information is privileged, the court must make the record available to be collected by the person from whom it was seized.
(11) If the court decides that some of the information is privileged, the court must make orders to enable the applicant to have access to the information in the record that is not privileged.
(12) If -
(a) the court decides that all or some of the information is privileged; and
(b) the applicant has applied to be permitted to do a forensic examination on the record,
the court must make orders that enable the forensic examination to be done on the record and to ensure that any information in it that is privileged remains privileged.
(13) After making a decision, the court may make any orders it thinks fit -
(a) as to costs;
(b) as to securing the record, or suspending the operation of any orders made under this section, until an appeal against the determination is commenced and dealt with.
(14) Proceedings under this section are part of the court's criminal jurisdiction.
(15) Subject to the Criminal Appeals Act 2004 Part 2, an appeal lies against a decision made by the court under this section.
4 The fate of the proceedings before me turns substantially on the statutory procedure, and I shall return in due course to the proper interpretation of the section. Broadly put, it can be seen that the section is designed to provide a procedure for the Magistrates Court to determine whether, and if so to what extent, the information contained in the records is subject to a maintainable claim of privilege, whether legal professional privilege, as in this case, or public interest privilege. Neither term is defined by the Act. The meaning of each concept is therefore provided by the common law.
5 Section 151(5) refers to the application being made in accordance with rules of court. The rules are contained in Pt 9 of the Magistrates Court (General) Rules 2005, rr 56 - 59. The rules are of little assistance for present purposes. They require an application to be lodged in a prescribed form, together with the seized records relating to the application, and affidavits in support of the application. The registrar of the court in which the application is lodged must list it for hearing 'on the earliest convenient date': r 58(a).
6 The number and nature of the records seized in this case have created their own complexity in the determination of the question of privilege. I make no criticism of the fact that the process before his Honour the magistrate, who has had the carriage of the matter, has taken so long, but it is the case, as the applicant says in his submissions, that '[t]he determination of the claim of legal professional privilege over the electronic records has been protracted and remains, to date, unresolved', despite the appointment by the magistrate of a computer record forensic expert, who has been required to report to the court, identifying the relevant records contained in electronic form. They apparently include not only records recoverable in visual form, but also audio recordings.
7 It appears that when the expert provided a report to the court, there were a number of directions hearings by the magistrate at which the position of the parties was supported by submissions they filed. On 23 January 2009, his Honour the magistrate published reasons for various programming orders made. In the course of those reasons, at [21], his Honour dealt with the debate about the extent to which it might be necessary, in dealing with the claim of privilege, to restrict the applicant's access to material which the respondent wished to have before the court in support of the claim for privilege. His Honour observed that while, '[t]he application must be conducted in a manner which does not destroy the privilege which is being claimed', 'judicial experience suggests that the quality of the outcome of proceedings is enhanced by competing submissions made, so far as possible, by parties on an equal footing'.
8 His Honour made it clear that while there may not be disclosure which would truly compromise the claim for privilege, he wished to preserve the capacity for parties to make meaningful competing submissions. His Honour concluded:
It is premature in this claim to give any direction other than to allow the [respondent], before serving any document which has been filed, to redact those portions which reveal the nature or content of the communication or information which is the subject of a privilege claim. It will be open to the Court to examine the redacted parts of a document in order to determine, subject to submissions from the parties, whether some or all of the redacted parts are able to be disclosed without compromising the privilege' [21].
9 His Honour went on to make programming orders. The respondent was to file and serve affidavits in support of any claim of legal professional privilege which he had identified. The applicant had leave to file and serve affidavits in reply. In the event that the matter was to be dealt with by an oral hearing, the parties were required to file and serve outlines of submissions. So far as the respondent was concerned, order 10 provided that he might:
before serving any document required to be served by these orders, redact those portions of the document which reveal the nature or content of a communication or information which is the subject of the claim of legal professional privilege ('the Redacted Service Copy') and may serve the Redacted Service Copy in place of the document required to be served.
10 The respondent took advantage of this order. Three affidavits were filed and, in redacted form, served. Submissions were also filed by the respondent and served in redacted form. In that form, those documents are before me. There is an affidavit by the respondent. It lists a large number of documents over which privilege is claimed, at least in part. The manner in which the documents are identified permits of no capacity to determine the nature of the document. The affidavit discusses various groups of documents. Substantial portions of the affidavit have been redacted. There is minimal information about the nature of the documents, and certainly insufficient to enable the reader of the redacted affidavit to know whether any claim of privilege is maintainable.
11 The other two affidavits assert they are sworn by solicitors. The first says that to the best of the deponent's knowledge, information or belief, the contents of the affidavit are true. It says that the respondent has been a client of an unnamed entity since a date which is deleted. The deponent says that the respondent attended conferences with the deponent for the purpose of providing instructions, discussing legal matters and obtaining legal advice on a particular topic which is not revealed.
12 Otherwise, between dates which are not revealed, it is said that there were telephone conversations between the solicitor and the respondent which were of this nature, during which there was a discussion of, 'potential litigation in the [REDACTED] between the [respondent] and [REDACTED]'. Then follow nine further paragraphs, all of which have been deleted. The document is meaningless in its capacity to reveal how it may support any particular claim or claims of privilege.
13 The second affidavit by a solicitor whose identity is concealed is, if anything, even worse. For example, after three introductory paragraphs, pars 4, 5 and 6 are completely deleted. Paragraph 6 has four parts identified by (a), (b), (c) and (d). Paragraph 7 says, 'As a result of what is referred to in par 6(c) and (d) above, I provided the [respondent] with legal advice.' Paragraph 8 is completely removed. Paragraph 9, which relates to the deponent briefing someone else to provide the respondent with legal advice, reveals only that fact, and the rest of the paragraph is removed.
14 The redacted submissions say what is put for the respondent about relevant legal principles, but anything which might reveal the nature of the material being particularly discussed is redacted, including footnotes, which I presume contain references to the source of particular material or information discussed in the body of the submissions. Apart from permitting those representing the applicant to understand what was said on behalf of the respondent about the generally applicable legal principles, the discussion of their application to the particular records seized in respect of which a claim of privilege is maintained, is entirely concealed.
15 The applicant took the view that the redactions were so significant that he had no capacity, meaningfully, to participate in a hearing under s 151 of the Criminal Investigation Act. He said so to the court, and a further hearing upon this procedure took place before his Honour the magistrate on 17 February 2009. On 18 March 2009, his Honour delivered his reasons for the ruling he then made on the extent of the redactions.
16 It is clear that following the hearing on 17 February, written submissions were made to the court on behalf of the respondent, presumably concerned to justify the extent of the redactions. The applicant's solicitor affirms that these submissions were not served upon the applicant, who had no opportunity to respond to them. The reasons as published on 18 March do not in fact explain why his Honour made his rulings on the extent of the redactions which was permissible, except in the most general terms. Schedule B to the reasons does, however, explain his Honour's decision in more detail, and was published to the parties in accordance with orders made by consent, but to give effect to the reasons published on 18 March.
17 A further schedule to the reasons published, schedule C, apparently contains, in unredacted form, a description of the records seized, I presume substantially in electronic form. This was ordered to be published only to the respondent. In the document, the magistrate has shown, by underlining and shading, the redacted material which is permitted to be redacted and that which, according to his Honour's rulings made on 18 March, is to be disclosed. As I understand it, the list of the material is a schedule to the respondent's affidavit in support of the claim for privilege. I believe that the revised redacted affidavits and submissions filed by the respondent were served on the applicant on 14 April 2009.
18 I have perused this material. The redactions remain substantial, and from the schedules to the respondent's affidavit which deal with the 81 different records identified by the independent computer expert, the reader is certainly unable to discern anything about the nature of the subject matter of records in respect of which privilege is claimed, in whole or in part. It should also be said that the submissions are now by no means so heavily redacted as was formerly the case.
19 But the applicant continues to be of the view that unless he has more complete access to the material in respect of which a claim of legal professional privilege is asserted, at least by description, he remains unable to contribute meaningfully to the debate about whether the claim of privilege is sustainable or should be rejected in relation to particular documents.
20 On 31 March 2009, the applicant instituted an appeal under Pt 2 of the Criminal Appeals Act 2004 (WA) on the basis that, as provided by CIA, s 151(14), the proceedings under that section are part of the criminal jurisdiction of the Magistrates Court. The CAA, s 7, in general terms, gives a right of appeal to a person who is aggrieved by a decision of a court of summary jurisdiction. Section 6 defines the word 'decision' to include a decision made under CIA, s 151. The decision contemplated by CIA, s 151(4), is the decision whether the information is privileged, in whole or in part or not at all: see also s 151(9) - (12). Of course, no such decision has as yet been made.
21 The court informed the applicant that it was of the view that there was no right of appeal, and suggested that it might be open for the proceedings to go forward as a review of the order, order 10, made by the magistrate on 23 January 2009, in general terms, and given effect by specific orders made no 18 March 2009 in relation to the redactions specifically permitted and those which his Honour ruled were not permissible.
22 This court's power to review orders or directions made or proposed by a magistrates court is provided by the Magistrates Court Act 2004 (WA), s 36(1), which is in the following terms;
(1) If a person is or would be aggrieved by one or more of the following -
(a) the failure of a Court officer to do any act or make any order or direction -
(i) on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii) on any ground that might have justified an order of mandamus;
(b) an act, order or direction that a Court officer proposes to do or make -
(i) on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii) on any ground that might have justified an order of prohibition;
(c) an act, order or direction done or made by a Court officer -
(i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii) on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
23 The procedure for making, and in relation to, an application under s 36(1) is that set out in the Rules of the Supreme Court, O 56A: s 36(2). In this case, what was effectively a review order was made by Martin CJ on 30 April 2009. Section 36(6) gives the power to make such an order when dealing with an appeal under the Criminal Appeals Act 2004. That part of the process need not now be revisited.
24 The matters which came before me were therefore those which required hearing in accordance with the review order. My powers are those provided in MCA, s 36(4), which is in the following terms:
(4) If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -
(a) order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b) grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c) make any necessary consequential orders.
25 In Re An Application under the Magistrates Court Act 2004; ex parte Bartholomew [2008] WASC 52, I said:
It is useful, for present purposes, to come to a clear understanding about how s 36(1) and (4) are intended to operate. The provisions are difficult to read because the draftsman has collapsed into two subsections what, in my respectful view, might have been more clearly expressed at greater length in separate provisions.
One thing is clear. I respectfully agree that the section is designed to be a statutory process of review by the Supreme Court of the acts, orders and directions of the Magistrates Court and of the refusal of that court to perform an act, make an order, or give a direction, in proceedings before it. It is designed to replace the formerly available prerogative writs of mandamus, prohibition and certiorari, but s 36(1) is to be read on its own terms and it would be a mistake, in my opinion, to put s 36(1) into the framework of the grounds it would have been necessary to make out to obtain a formerly available form of prerogative relief. That is not to say that it will not be instructive to consider, on a review under s 36, whether the act done, order made, direction given or refusal to do any such thing of which complaint is made, is of a kind and in circumstances which would ground an order in the nature of mandamus, prohibition or certiorari. Section 36(1) makes that inquiry directly relevant to the exercise of the powers on review, in any event. [19] - [20]
26 The grounds upon which the review proceeded were the original grounds of appeal. Rather than summarise them, it is best, I think, to set them out in full:
(a) The Magistrate erred in law in finding, at [17], that the redaction of certain dates was justified on the basis that it may disclose the contents of privileged communications.
(b) The Magistrate erred in law in finding, at [22(a)], that the names of the other party to the conversations and the dates of the conversations may reveal the content of the privileged material.
(c) The Magistrate erred in law in finding, at [22(b)], that revealing the identity of the Respondent's lawyer in conjunction with a revelation that the Respondent used a particular technique to prepare for identified litigation would reveal the content of the privileged communication.
(d) The Magistrate erred in law in finding, at [24] and [25], that computer files containing the 'file and directory names' listed in LPR 3 and 'computer addresses' listed in LPR 4 should not be released to the Appellant, when those files directory names and computer addresses do not, of themselves, disclose any privilege communications.
(e) The Appellant is unable to provide further particulars of any other errors of law due to the extent of the redactions contained in the Respondent's affidavit evidence.
(a) The Magistrate erred in law in finding, at [20], that the redaction of submissions and footnotes was justified as they may reveal the contents of privileged material because the submissions and footnotes refer to cases and principles that are 'factually analogous' to the Respondent's circumstances, notwithstanding the Appellant was unaware (until receipt of the reasons for decision) of the Respondent's circumstances and therefore could not have known there was any factual similarity.
(b) The Appellant is unable to provide particulars of the errors in law due to the extent of the redactions contained in the Respondent's submissions.
27 Shorn of the particulars, the grounds reveal that in the specific aspects mentioned, it is asserted that the applicant has been denied natural justice in the proceedings under CIA, s 151, insofar as they have been conducted, because the ruling and the consequential orders made in respect of the process of redaction has effectively deprived the applicant of the entitlement to be heard on the application, secured to it by CIA, s 151(7). Grounds expressed in those terms may appropriately be raised on the review as a challenge to the orders and directions made by the magistrate, on the ground that the orders for redaction constituted an abuse of process in that they represented a denial of natural justice because they were orders and directions made in breach of CIA, s 151(7).
28 I propose to deal with the grounds on that basis. It follows, however, that I will not enter into the question of the claim for privilege which has not, as yet, been finally heard by the magistrate, and I will therefore not consider whether, having regard to the privilege claimed, the particular redactions from the affidavit material and the respondent's submissions in support, were wrongly permitted, having regard to what, in his reasons, the magistrate said about the disclosures that would be involved if redaction was not permitted and their relationship to the question whether the claim of privilege was maintainable in respect of particular documents. I add that, in my opinion, it is consistent with that view that the court has not been supplied with the unredacted material about which the applicant's complaints are made.
29 Considering the grounds in that way enables the court to focus appropriately on the question of abuse of process by the denial of natural justice and procedural fairness, a ground which might, if it is made out, justify an order of certiorari: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564. In my view, the way in which I propose to proceed brings the review squarely within both limbs of the MCA, s 36(1)(c).
30 The parties are not at odds over the question whether the hearing of an application under the CIA, s 151, is to be one in respect of which both parties are to be accorded procedural fairness, nor do they put in issue the proposition that the rules of natural justice, insofar as they are concerned with the provision of procedural fairness, take their content from the particular circumstances of the matter before the court and the nature of the statutory power which the court is to be asked to exercise. It is for that reason that courts tend to issue reminders from time to time that procedural fairness is a concept which may only be understood, in pragmatic terms squarely related to the context in which the judgment as to what is required is to be made: Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115 per Martin CJ [3] - [4].
31 In this case, therefore, one must start with s 151 of the CIA under which the application before the Magistrates Court was for a decision as to whether the information contained in a seized record is privileged, and as to the extent to which the record contains privileged information, because it is only to that extent that the confidentiality of the information is preserved.
32 The starting point in relation to the provision of procedural fairness is s 151(7). Both parties, or more correctly, the applicant and any person entitled to possession of the record, are entitled to be heard on the application, ie, they are entitled to be heard on the question whether the information in records seized is, to any extent, and if so to what extent, legitimately the subject of legal professional privilege, including that limb sometimes termed litigation privilege, or what is the subject of public interest privilege.
33 In view of the approach which I have concluded I should take to the proceedings before me, it is unnecessary that I should examine at length the nature of legal professional privilege generally or in its potential application to the records seized in this case. It is sufficient to observe, without the citation of relevant authority, that legal professional privilege attaches to private or confidential communications. Therefore, when the confidentiality of the communication has been breached by disclosure of the information, it will generally be the case that any claimed privilege will be taken to have been waived, and once it has been lost in that way it is abundantly clear that the capacity to claim the privilege has been lost forever.
34 Subject to that, information the subject of legal professional privilege will be that which is contained in a communication between a client and a legal practitioner acting for that client which is made for the dominant purpose of enabling the client to obtain legal advice, generally or in respect of litigation which is actually proceeding or in contemplation. It is because the existence of the privilege is determined by the dominant purpose for which the communication was made that a communication which is made to facilitate, or further, or evidence the commission of a crime, any fraud or other illegal purpose, cannot attract the protection of the privilege claimed.
35 The CIA, s 151, is concerned to preserve the privilege in a case where otherwise the consequence of the lawful seizure of records would be their use to further, or in the course of, a criminal investigation. Despite the lawful seizure the privilege is maintained, and therefore until it is determined in respect of which records seized and to what extent in respect of such records, the privilege exists, the records are to be handled in such a way as to prevent access to the information, 'by any person who would not be entitled to the information if it were privileged': s 151(3)(c). That is a requirement which is obviously designed to prevent the ultimate determination about the existence of the privilege being a pyrrhic victory because of the involuntary disclosure of the information. It is accepted that the persons who are prevented from having access are any persons other than those within the confidential process of communication and the court and its officers.
36 It is consistent with that that we find that the records seized must be delivered into the custody of the court: s 151(4), and, if necessary, the application may be heard in private: s 151(6). Such a hearing would, of course, having regard to s 151(7), be one which would not exclude the parties and their legal representatives. But, significantly, s 151(8) provides merely that, for the purpose of deciding the application, 'the court may have access to all of the information in the record'.
37 To my mind, it is significant that the provisions of s 151 are so worded and it follows, I think, that when one is having regard to the concept of procedural fairness in the context of that section, the party who would otherwise not be entitled to access to the information if it were privileged, is not given an entitlement to have access to the information even in the context of the entitlement to be heard on the application.
38 His Honour the magistrate, at [21] of his reasons given on 23 January 2009, the portion of his reasons which I have quoted above, seems to me to have been appropriately alive to the tension between the competing interests with which s 151 has to deal. His Honour said he would permit redaction of those portions of the records, 'which reveal the nature or content of the communication or information which is the subject of a privilege claim'. His intention in relation to the process of redaction was to confine it to that material, the disclosure of which would compromise the privilege claim.
39 To my mind, the clear effect of s 151 is to preserve from disclosure so much of the material as may potentially be the subject of a claim of privilege, protecting the party whose privilege it would be from the disclosure of that information, subject to the determination of the claim. In that case, the entitlement to be heard on the application must be tempered or take its content from the decision of the magistrate as to what information was to be provisionally protected from disclosure so as ultimately to enable the privilege to be maintained, if that should prove to be the proper decision of the application in respect of all or some of the information.
40 That that is the correct approach seems, in fact, to be explicitly asserted by the applicant who, a number of times in the submissions provided in writing, and orally to me, said that the information the subject of the application which need not be disclosed to the applicant would be that which was confidential and legitimately the subject of the claim of legal professional privilege. There is a recognition in such submissions that this is a question to be determined before the claim to maintain the privilege has been determined.
41 In Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 3] [2009] WASC 67, Martin CJ discussed the permissible process of redaction at some length in the context of a sworn discovery process where extracts of documents had been discovered, the remainder being redacted on grounds of irrelevance and legal professional privilege. At [14] - [34], his Honour reviewed an extensive series of cases decided in England, New South Wales, Queensland, South Australia, Victoria and in the Federal Court. His Honour referred to earlier Western Australian cases.
42 I note for the purpose of these reasons that the discovery process, pursuant to the Rules of the Supreme Court, involves an obligation upon the party giving discovery to allow the other party to inspect the documents mentioned in the list, other than any which he objects to produce. However, the court may require a party to produce to the court any discoverable document, and so the court may have access to the document for the purpose of determining whether the objection to production, very often on the grounds of legal professional privilege, is maintainable. But it does so before according to the other party access to the document held to be discoverable and not privileged.
43 The question which often arises, whether the affidavit made to justify the redaction is conclusive, because made on oath, in the same way that the affidavit is conclusive in respect to the listing of documents which are discovered, was dealt with by his Honour the Chief Justice in the following way. His Honour held:
In summary, the practice should be that while it is open to a party providing inspection of documents to mask a document provided, in the event of contention, that party will carry the onus of satisfying the court that masking the document was appropriate. An affidavit of that party or its solicitor will not be regarded by the court as conclusive, and in cases of doubt, the court may itself inspect the document in its entirety in order to evaluate the objection [38]
44 It seems to me that the statutory framework in which the question of redaction arises for decision in this case is very much the same as that governing the process of discovery. In my view, the same approach should be taken. Redaction is permissible where privilege is claimed, to avoid compromising the privilege, but s 151 requires that the documents be provided in unredacted form to the court so that it may independently determine the claim for privilege.
45 In short, it seems to me that in this case the magistrate has acted appropriately. His Honour did not accept the original redactions, but in his later judgment he determined the extent to which the redactions should continue to be permitted in advance of the hearing of the claim for privilege. It is evident that he did not regard himself as bound to accept the respondent's assertions as to the appropriateness of the redaction.
46 The applicant continues to doubt the appropriateness of the redactions, but it has made its submissions in general terms about that process and how it must be related to the possible content of a legitimate claim of legal professional privilege. It has referred to such matters as the concealment of the name of a lawyer, the name of the client, dates upon which recordings of conversations were made, the names of the parties whose voices were recorded and how the recordings were made, whether covertly or with an appropriate consent.
47 All of these are matters which are capable of being argued as requiring disclosure because to do so would not, by itself, compromise any claim of legal professional privilege. To the extent that such arguments require presentation to the magistrate, in light of the latest decision about the redaction, I have no doubt that his Honour would receive and consider such submissions made in a timely manner.
48 Beyond that, I appreciate that the present situation deprives the applicant of the capacity to enter into a debate in specific terms about particular records or classes of record in relation to the ultimate question whether, and to what extent, privilege is claimable in respect of them. But there is, I think, a way in which the applicant's concerns may be accommodated.
49 In commercial litigation, a question often arises of the confidentiality of documents which are discovered, particularly in cases of third party discovery, or documents which are produced on behalf of a party or a non-party under compulsion of a subpoena duces tecum. The question which arises is how the court may have access to relevant documents and have the benefit of submissions and argument by the parties, while preserving the confidentiality of the documents. Very often the matter involves a commercial relationship between a third party and either or both of the parties to the litigation.
50 Of course, there is always the implied undertaking that the information contained in documents produced in that way is to be used solely for the purpose of the litigation in which they are produced, and not for any collateral purpose. But it is ordinary practice that that general undertaking may be modified, and indeed varied in different ways during the course of litigation, so as to assist the court to have the benefit of informed submissions in relation to documentary evidence, but at the same time so as to preserve the confidentiality of the documents generally so that the information may not be misused in the context of commercial relations quite apart from the factual circumstances of the litigation before the court.
51 The case of Mobil Oil Australia Ltd & McDonalds Australia v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, involved a party who wished to inspect tender documents provided by a third party. Inspection was resisted on grounds of commercial confidentiality. In the Victorian Court of Appeal, the principal reasons were those of Hayne JA, then of that court, with which Winneke P and Phillips JA agreed. His Honour said:
Where it is said that the documents are confidential, it may be accepted that the fact that the documents are confidential will not ordinarily be a sufficient reason to deny inspection by the opposite party. In most cases, the fact that the documents may not be used except for the purposes of the litigation concerned will be sufficient protection to the party producing them. But where, as here, the party obtaining discovery is a trade rival of the person whose secrets it is proposed should be revealed by discovery and inspection, other considerations arise (38).
52 I will not set out the passages in full, but at 39 - 40 his Honour went on to speak of the desirability of balancing the needs of the parties to the litigation against the legitimate concerns of a trade rival to maintain secrecy of commercially sensitive information. His Honour described the need for the court to be sensitive to its capacity to mould orders to meet the needs of justice in the particular case. He said:
Where, as here, the problem is one of balancing the needs of a party to the litigation and the legitimate concern of a trade rival to retain secrecy of commercially sensitive information, it may well be necessary to mould orders that will distinguish between the plaintiff, its officers, its legal advisers and experts. Again it may be accepted that generally a party is entitled to inspect the documents of an opposite party by itself its servants or its agents. But in the present kind of case, is it necessary to destroy the legitimate claim to confidentiality from trade rivals by permitting the principal of that rival to look at the documents? Is it sufficient to permit counsel and solicitors (and nominated experts) to do so? It is now commonplace in the courts for material to be made available only to the legal advisers of the parties and nominated experts. Of course such arrangements bring with them their own difficulties and are arrangements that should be adopted only where there is a need to do so; of course they are arrangements that may need to be reviewed as the matter progresses towards trial or as the trial itself proceeds. But they are arrangements that are made and should be made when doing so would strike a fair balance between the competing interests of the party seeking inspection and the party claiming confidentiality. No more specific rule can be laid down - each case will fall for determination according to its own facts.
53 It may be sufficient to order disclosure to counsel, or to counsel and solicitors, to secure to the court the benefit of informed submissions which may, where necessary, be received in private without entailing the risk of disclosure to a party. Sometimes, as seems indeed to have happened here, disclosure might be required to an expert, who may then report confidentially to the court, or whose report may only be shared with counsel, as well as being made to the court. It takes little imagination to perceive that it may be appropriate that some such moulding of appropriate orders might provide a solution which would satisfy all parties in this case.
54 As to that, I return to the provisions of the CIA, s 151. In my opinion, it would be open to adopt a solution such as that discussed above. At the present stage of the proceedings, the records have been secured, as required by s 151(3), and the court has been given access to the information pursuant to s 151(8). In my opinion, it may facilitate the effective exercise by the applicant of its entitlement to be heard on the application by giving access to all of the information in the records seized to counsel and to the solicitor instructing counsel, acting for the applicant. That may be done upon those individuals undertaking to the court that they will not give access to the information the subject of the claim for privilege, to the applicant or any other person, except to the extent that the records are ultimately held not to contain privileged information..
55 That would preserve the privileged status of the records, pending the final determination of that issue. But at the same time, the court would be able to have the benefit of informed submissions in relation to the question of privilege. Orders would need to be made to preserve the privileged confidentiality of the records, to the extent that the content of those submissions might reveal it. It may be necessary, at least in part, to hear the application in private, or to make orders which would prevent the publication generally of the hearing of the application or those parts of it which might compromise the legal professional privilege claimed.
56 Ultimately, if the information is not privileged, the records will be made available to be collected by the applicant pursuant to s 151(9). Alternatively, to the extent that the claim of privilege is maintained, the applicant will be given access to the information, if at all, that is not privileged: s 151(10) and (11). In short, it would never be the case that the information contained in the records seized would be divulged to the applicant or anybody else, by counsel or a solicitor or solicitors instructing counsel for the applicant.
57 So far as this court is concerned, in the case of Bartholomew, at [50], I said that, in my view, the powers of this court on the hearing of the review, were those contained in s 36(4) of the MCA. The review order, which I have said was made in this case, in the present circumstances, places an onus upon the person aggrieved to satisfy this court that the order made by the Magistrates Court, in relation to the redactions that have been permitted, should be set aside: MCA, s 36(1).
58 I have set out the terms of s 36(4). It is difficult to read, but I remain of the view that it sets out completely the powers of the court upon the hearing of the review. In this case, if I take the view that the order made, which simply permits redactions, should be set aside, I may grant any remedy which would otherwise be appropriate on the grant of prerogative relief, and make any necessary consequential orders.
59 I appreciate, of course, that in this case the applicant did not seek to distinguish between the information which should be provided to the applicant and his counsel and instructing solicitors. But I have arrived at the settled view that that would be the appropriate course to take, to enable the confidentiality of the information in respect of which the privilege is claimed to be preserved and at the same time to enable the magistrate to have the benefit of informed submissions as to the appropriateness of the redaction, and the claim for privilege made in respect of the entirety of the unredacted records. I appreciate that I take that view without the assistance of submissions for or against that proposition on the part of either the applicant or the respondent.
60 I would summarise my views in the following way, so far as the review order is concerned. I do not consider that order 10, the order permitting redaction before service on the applicant, was an abuse of process or reflected an abuse of process, or provides a ground upon which certiorari might have been ordered. Nor do I consider that the orders made on 18 March in relation to redactions and the service of documents on the applicant, having regard to those redactions, constituted an abuse of process or the establishment of a ground which might justify an order of certiorari. Having regard to the terms of s 36(4), I am therefore not satisfied, in accordance with the review order, that I am required to set aside the orders made.
61 However, having regard to the terms of MCA, s 36(4), I do consider that it would be just to make certain consequential orders adding to the orders already made by the magistrate in relation to the material to be served by the respondent. I would order that the affidavits and their annexures, and the submissions on behalf of the respondents in relation to both the process of redaction and in respect of the claim for legal professional privilege, be served in unredacted form upon the persons who are the solicitor and counsel of record for the applicant, subject to the individuals concerned signing an undertaking to be given to the Magistrates Court that the individuals so served will not, in any circumstances and at any time, further divulge the content of the documents served upon them to any other person, except by way of affidavits and/or submissions filed in the Magistrates Court and served upon the solicitors for the respondent.
62 Having regard to the particular circumstances of this case, which are most unusual, I would be inclined to make no order as to the costs of the proceedings in this court, but I will hear counsel on the question of costs, if desired. My present view is that the effect of the orders I will make in the terms set out above will be to provide to the applicant a substantial remedy, although not in the terms sought by the application. The respondent has successfully resisted the making of more comprehensive disclosure to the applicant, but has not succeeded in maintaining confidentiality of the records entirely, being required to make disclosure to counsel and an instructing solicitor for the applicant, subject to them giving undertakings as officers of the court.
63 If neither party seeks an order for costs, the review need not be listed for further hearing and I will make the final orders in terms of a minute which I will settle to give effect to these reasons.
Ainsworth
Criminal Justice Commission
(1992) 175 CLR 564
The Supreme Court declined to set aside the magistrate's orders as an abuse of process, but ordered that the respondent's affidavits, annexures and submissions be served in unredacted form upon the applicant's counsel and instructing solicitor, on condition those persons sign undertakings not to divulge the content, and made no order as to costs (subject to submissions) [60]–[62].