Legal practitioner ordered to disclose information as to whereabouts of the accused

Australian Building and Construction Commissioner v Construction Forestry, Mining and Energy Union (CFMEU) [2018] HCA 3; (2018) 262 CLR 157

Glencore International AG v Commissioner of Taxation [2019] HCA 26

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209

Pelechowski v Registrar, Court of Appeal [1999] HCA 19

R v Bell; Ex Parte Lees [1980] HCA 26; (1980) 146 CLR 141

Rowe v Stoltze [2013] WASCA 92

The Attorney-General for the Northern Territory of Australia v Kearney [1985] HCA 60; (1985) 158 CLR 500

Williams v Grainger [1999] WADC 133

1. Sergio Demali, one of the four accused in this matter, informed the court through his legal advisers some four weeks prior to the trial of the matter that he is overseas and does not intend to return to Australia, at least for the trial.
2. In response, on 23 September 2019 the court directed his lawyer on the record, CGL Legal, to disclose information in its possession as to Mr Demali's whereabouts.
3. CGL Legal has asserted legal professional privilege over the information in its possession as to the whereabouts of Mr Demali. It sought a formal ruling from the court as to whether it could assert legal professional privilege in relation to this information.
4. Mr Demali did not answer his bail today being the date on which he was bailed to appear for the commencement of the trial.
5. I accept that the court's direction places CGL Legal in a difficult position. It was proper for that firm to assert legal professional privilege on behalf of Mr Demali. It was then appropriate that the issue be formally argued and, for reasons of transparency, be the subject of written reasons by the court.
6. The short issue for determination is whether the communications by Mr Demali to CGL Legal of his whereabouts are properly the subject of legal professional privilege. For the reasons which follow, in my view, they are not.
7. There are two preliminary issues. The first is whether the court has the power to make the direction. The second is whether the Legal Profession Conduct Rules 2010 (WA) (LPCR) have a bearing on the operation of legal professional privilege in the particular circumstances of this case.

1. Mr Demali is charged with eight offences in the nature of threats or intimidation which involve allegations of intimidatory standover tactics to recover disputed moneys under building contracts on behalf of a builder. The builder, Talbot James Le Page, is jointly charged along with two others said to be involved in one or more of the offences, Piotr Richard Clements and Pasquale Forgione. Mr Demali is also facing three firearm charges consisting of one charge of possession of a sawn-off shotgun and two counts of possession of ammunition without being the holder of a license.
2. The four accused have each pleaded not guilty to their respective counts and the matter is listed for a three week trial before me, commencing today.
3. Mr Demali was arrested by police on 12 October 2017, and granted bail on 20 October 2017. Mr Demali later applied to vary his bail to allow him to travel overseas for business purposes. His application was listed on 17 December 2018 and, against the submission of the State, his bail was varied as requested.
4. In accordance with the varied bail conditions, by email dated 9 August 2019, CGL Legal advised the State that Mr Demali intended to travel to China for business purposes, departing 25 August 2019 and returning 3 September 2019.
5. By letter dated 5 September 2019, CGL Legal advised the court that on 3 September 2019, Mr Demali had terminated his instructions to them and counsel retained for the trial. CGL Legal further advised the court that they had been directed by Mr Demali to inform the court that he is overseas and does not intend to return to Australia.
6. The matter was subsequently listed before the court on 9 September 2019. On that occasion, counsel for Mr Demali (Mr Atkinson, the practice director of CGL Legal) advised the court in the following terms:[1]

Throughout 2018 and 2019 the accused noticed various persons following his vehicle and observing his home. In March 2018 I spoke to Senior Constable Matt Brown about the issue but no formal complaint was brought by the accused.

The accused flew to China on 25 August for business in compliance with bail conditions as varied. In China the accused was attacked by two men in the company of one third man. Mr Demali struggled free and he escaped sustaining minor injuries.

The accused has reason to believe that the men were trying to kill him and that the attempt and the incidents throughout 2018 and 2019 were directed by a person or persons associated with a prosecution witness. The accused fears for his life and the safety of his family. The accused is overseas and presently does not intend to return to Australia.

1. At the conclusion of that hearing, the State foreshadowed making an application pursuant to Bail Act 1982 (WA) s 54 for Mr Demali to attend and show cause why his bail should not be revoked.
2. The matter was back before the court on 16 September 2019 on the State's application to revoke bail. Mr Demali did not appear. Mr Atkinson appeared. However, he advised the court that he did not hold any instructions as to the State's application, and did not wish to be heard. The Chief Judge issued an arrest warrant. The Chief Judge went on to state:[2]

Mr Atkinson, you indicated that you'd had some communication with Mr Demali on the previous occasion and I don't know whether you've still got lines of communication with him. But I require my comments on the previous occasion to be communicated to him and also the outcome of the proceedings today.

1. The matter then came before me on 19 September 2019 on the application by CGL Legal and trial counsel on the record to get off the record. I inquired of Mr Atkinson as to Mr Demali's present whereabouts. Mr Atkinson advised the court that he was not in a position to inform the court about that.[3] I declined to grant the application, preferring to wait and see whether the position remained the same. I listed the application before the Chief Judge on 23 September 2019.
2. On 23 September 2019, the Chief Judge expressed the opinion that legal professional privilege could not be claimed on the issue of Mr Demali's whereabouts when he had absconded with the intention of not complying with his legal obligations of bail. The Chief Judge adjourned the matter to give CGL Legal an opportunity to provide the whereabouts of Mr Demali to the police or the court.
3. The adjourned hearing on 26 September 2019 was before me. At that hearing, Mr Atkinson advised that he had obtained the advice of independent senior counsel, and advised the court that, on his understanding, the information as to Mr Demali's whereabouts was the subject of legal professional privilege. I expressed a preliminary view that that may not be the case, but accepted that the issue should be determined at a formal hearing. I listed the hearing for 1 October 2019.
4. Mr Atkinson filed an affidavit sworn 1 October 2019 in support of the position that the information as to Mr Demali's whereabouts was properly the subject of legal professional privilege. In the particular circumstances of this matter, it is appropriate that I set out the full contents of the affidavit:
   1. I am the practice director of CGL Legal, the solicitors on record for Sergio Demali (Mr Demali).
   2. I am duly authorised to swear this affidavit for orders that CGL Legal and Sam Vandongen SC (Senior Counsel) cease to be solicitor and counsel respectively on the record for Sergio Demali and also on the issue of Legal Professional Privilege (see below) .
   3. On 2 September 2019 Mr Demali telephoned me and instructed me:

1. that he was in a specific country (Country) which he named but did not provide me with more details. 2. of facts and matters (Instructions) a brief summary of which was communicated to the Court on 9 September 2019 as set out in the transcript of the hearing in this matter on 9 September 2019 a copy of which is annexed hereto and marked 'AA-1'.

1. to disclose the Instructions and the Country to the DPP and the Court. 4. On 2 September 2019 I prepared a draft letter to the DPP setting out the Instructions in some detail and naming the Country and forwarded the same to Senior Counsel for him to settle. 5. On 3 September 2019 Mr Demali terminated my and Senior Counsel's instructions in writing. 6. On 3 September 2019 I prepared notices of ceasing to act on behalf of CGL Legal and Senior Counsel and a draft letter to the Court setting out the Instructions in some detail and naming the Country (which letter was in a more abridged form than the letter referred to in paragraph 4 above on advice of Senior Counsel). Both the notices and the draft letter were sent to Senior Counsel for his approval. 7. Neither of the draft letters referred to in paragraphs 4 and 6 were sent out on the advice of Senior Counsel. Instead: 1. a letter was sent to the Court on 5 September 2019 advising that Mr Demali was overseas and does not intend to return to Australia; and 2. on 5 September 2019 Senior Counsel was briefed in writing to appear at a mention hearing (Mention Hearing) expected to be listed pursuant to the Court's practice directions upon the filing of the notices of ceasing to act and to disclose to the Court the Instructions and the Country to the extent that Senior Counsel saw fit. 8. The Mention Hearing was listed on 9 September 2019 but I was only required to appear (Senior Counsel was not required to appear). 9. On 6 September 2019 I prepared a statement to be conveyed to the Court on 9 September 2019 having regard to the advice provided by Senior Counsel up to that time and I sent that statement to Mr Demali for his approval and to Senior Counsel for his approval and input. Both Mr Demali and Senior Counsel approved the statement. The statement was conveyed to the Court almost word for word (see the transcript of the hearing in this matter on 9 September 2019). 10. On 23 September 2019 the Honourable Chief Judge required me to give information to the Court as an officer of the Court as to Mr Demali's whereabouts. 11. I wrote to Mr Demali on 23 September 2019 seeking his consent to disclose the Country to the Court and advising him to seek legal advice as I was no longer acting and had a conflict (because I sought to be removed from the record). 12. On 24 September 2019 Mr Demali emailed me and advised me that he had obtained legal advice and that he claimed privilege in relation to all communications provided to me/Senior Counsel. In that email Mr Demali advised that he had relocated to a different country within a region which he named (which region comprises of many countries).
2. I heard argument on the issue of legal professional privilege on 1 October 2019 from senior counsel instructed by CGL Legal. The State was content to abide by the decision of the court. Counsel for the remaining accused did not wish to be heard on the issue. I adjourned the hearing until 7 October 2019, being the date on which the trial was scheduled to commence, and that date on which Mr Demali was bailed to appear and reserved my decision.

1. The jurisdiction of the District Court includes 'all powers and authorities incidental to the exercise of the jurisdiction'.[4] More specifically, in the exercise of its statutory powers, the District Court is able to call upon and exercise such powers as are reasonably required for the proper carrying out of its functions.[5] The full limits of the incidental jurisdiction of the District Court have not been explored.[6] The incidental jurisdiction at least empowers the court to prevent an abuse of its processes.[7]
2. The trial of Mr Demali on indictment IND 1552 of 2018 is clearly a matter in the jurisdiction of the District Court. His actions in refusing to answer his bail so that he may be tried on that indictment are an abuse of the processes of the court. A direction to compel his lawyer to disclose information to assist the authorities to locate him and utilise whatever legal means available (for example extradition) to bring him before the court is, in my view, an appropriate exercise of the incidental power of the District Court. An exercise of the incidental power in this manner does not conflict with a provision of any statute or of the rules of court.[8] It is, however, subject to a proper claim for legal professional privilege.

The impact of the Legal Profession Conduct Rules

1. As a matter of law, the duties of CGL Legal and trial counsel pursuant to the LPCR do not prevent them from complying with the direction of the court to provide the contact information. This is because a 'practitioner's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty, including but not limited to a duty owed to a client of the practitioner'.[9]
2. However, the duties in the LPCR do provide the context in which the issue of legal professional privilege is to be determined.
3. There are two relevant rules. The first is rule 9 dealing with confidentiality, which relevantly provides:[10]
   1. Confidentiality

client information means information confidential to a client of which a practitioner becomes aware in the course of providing legal services to the client.

(2) A practitioner must not disclose client information to a person other than the client ...

(3) Despite subrule (2), a practitioner may disclose client information to a person if -

(a) the client expressly or impliedly authorises the disclosure of the information to that person or the practitioner believes, on reasonable grounds, that the client has authorised the disclosure of the information to that person; or

(b) the practitioner is permitted or compelled by law to disclose the information to that person; or

(d) the practitioner discloses the information for the purpose of avoiding the probable commission of a serious offence; or

1. As to rule 9(3)(d), the offence which Mr Demali has (in all probability) committed in not answering his bail today has a maximum penalty of a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years, or both.[11] It is a summary offence.[12] I do not regard it as a serious offence for the purposes of this rule.
2. The second is LPCR rule 35(4) which provides:

(4) If a client informs a practitioner that the client intends to disobey a court's order the practitioner -

(a) must advise the client against that course and warn the client of its dangers; and

(b) must not advise the client how to carry out or conceal that course; and

(c) must not inform the court or the opponent of the client's intention unless -

(i) the client has authorised the practitioner to do so beforehand; or

(ii) the practitioner believes on reasonable grounds that the client's intended conduct constitutes a threat to any person's safety.

1. For the purposes of the determination of the present issue, I proceed on the basis that CGL Legal and trial counsel have complied with LPCR r 35(4). Further, Mr Demali's intended conduct does not constitute a threat to any person's safety.
2. The net effect is that neither CGL Legal nor trial counsel are required by the LPCR to disclose the location of Mr Demali, and their assertion of legal professional privilege is consistent with their duties under those rules.

1. For the purposes of determining the present issue, I proceed on the basis that:

(a) Mr Demali retained CLG Legal and trial counsel on a basis which generally enlivened legal professional privilege;

(b) the information as to his location was provided by Mr Demali to CLG Legal and trial counsel in confidence; and

(c) Mr Demali has instructed CGL Legal to assert legal professional privilege over the information as to his location.

1. The question of the circumstances in which the address or contact details of a client may properly be the subject of legal professional privilege was considered by the High Court in R v Bell; Ex Parte Lees.[13] The circumstances of that case were that an order was made by the Family Court that a husband, Mr McJarrow, should have interim custody of a 4-year-old child of a marriage, Tanya, with her mother, Mrs McJarrow, having custody on weekends. In compliance with the order, Mr McJarrow handed over Tanya to her mother for a weekend visit. Mrs McJarrow and the child then disappeared. A week later Mrs McJarrow instructed a lawyer, Mr Lees, to take steps to protect her interest in the matrimonial home, specifically to communicate with the mortgagee of that home, which he did. Mrs McJarrow instructed Mr Lees as to how he might communicate with her and asked that this method of communication be kept confidential. The husband found out about the involvement of Mr Lees and ultimately sought an order from the Family Court that Mr Lees inform either him or the Family Court of all information in his possession, power or control which would assist in ascertaining the whereabouts of Mrs McJarrow or of Tanya. The Family Court made the order. The High Court refused to issue a writ of prohibition against the Family Court judge who made the order.
2. The starting point in the analysis was set out by Gibbs J in the following terms:[14]

It is a well settled principle, based on public policy, that communications made confidentially between a client and his legal adviser for the purpose of obtaining or giving legal advice or assistance are privileged from disclosure. In accordance with this principle, a solicitor may not, without the consent of his client, disclose his client's address if that was communicated to him confidentially for the purpose mentioned, although it will not be enough to attract the privilege that the address came to the solicitor's knowledge in consequence of his professional employment if it was not confidentially communicated to him ... In the present case it is clear that the address of the wife was communicated confidentially to Mr. Lees for the purpose of obtaining legal assistance from him, and that, if nothing more appeared, the general principle would apply and the disclosure of the address would be privileged.

1. His Honour then observed that there are 'exceptions to the general rule - cases in which the privilege will not exist even though the communication was made confidentially for the purpose of obtaining professional assistance'.[15] One such exception is that the 'the public interest in securing the welfare of the child, and in ensuring that an order made for securing that welfare is not deliberately flouted, prevails over the competing public interest that confidential communications between solicitor and client should be protected from disclosure in order that members of the public may be free to seek that legal advice without which justice cannot properly be administered'.[16] Accordingly, His Honour refused the application for prohibition.
2. Murphy J came to a similar view, holding that the child's welfare should prevail over the privilege.[17]
3. The remaining members of the court also refused to grant a writ of prohibition, but did so on wider grounds which are salient to the present issue.
4. Stephen J framed the issue in the following manner:[18]

The circumstances, already recounted, may be summarized as follows: Mrs. McJarrow, in disobedience of the Court's order, has failed to return Tanya to her husband's care and continues to keep Tanya from him; she has left her previous home and place of work, leaving behind no forwarding address and seemingly taking Tanya with her; her present whereabouts are unknown to her husband and all the circumstances of the case, including the confidentiality which she required of the applicant concerning her address, suggests that she intends this ignorance of her whereabouts to continue. It may, I think, be inferred that in instructing the applicant to preserve the confidentiality of her address she intended this to assist her in continuing to frustrate the order of the Court.

1. In response, His Honour concluded:[19]

One thing is clear. It is that privilege for an address cannot be claimed when its confidentiality was sought, as here, in order to frustrate the processes of law.

1. As to the basis for this conclusion, among other reasons, His Honour observed:[20]

At least for some one hundred and fifty years the privilege afforded to communications o legal advisers has been regarded as founded upon the need of laymen for professional assistance in the protection, enforcement or creation of their legal rights. They should have the benefit of that assistance, free of any restraint which fear of the disclosure of their communications with those advisers would impose. In Greenough v. Gaskell ..., Lord Brougham L.C. spoke of the opportunity which the law must afford, that of 'an ignorant man safely resorting to professional advice'. The privilege, he said arises 'out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on' unless professional advice, based on full and frank instructions, is available free of the fear of subsequent disclosure of those instructions ... In Russell v. Jackson ..., Sir George Turner V.C. treated the privilege as founded upon the client's 'prosecution or defence of his rights' and his need, for that purpose, 'with safety' (to) 'state to his solicitor the true position of his case'. In this Court the judgments in Varawa v. Howard Smith & Co. Ltd ... acknowledge this to be the basis of the privilege. This being its basis and purpose, it will also dictate its limits. The law, although anxious to ensure unrestrained recourse to professional advice on the part of those whose legal rights or duties are in question, has no concern to encourage those who seek advice so that they may the better undertake or continue criminal or fraudulent conduct.

1. The decision of Wilson J, with whom Aickin J agreed, is along similar lines. Again there is recourse to the public interest underlying legal professional privilege:[21]

The privilege is grounded in public policy. It is in the public interest that confidential professional communications between solicitor and client should be uninhibited by any fear of disclosure. But it would be odd if the privilege extended to protect communications which were directed against the public interest. It is therefore necessary to ask whether the attachment of confidentiality to the wife's address was against the public interest in such a sense as to deny to it the cloak of privilege.

1. As to where the balance lay, Wilson J observed the following:[22]

One must therefore examine the circumstances to discern the purpose of the action of the wife in attaching confidentiality to her address. It is irrelevant that [Mr Lees] had no knowledge of the custody proceedings, or of her reasons for instructing him in the manner she did. The privilege is the client's privilege, and it is the knowledge and purpose of the client which determines whether or not the privilege will attach to the communication. [Counsel for Mr Lees] argued that no illegality tainted her action in communicating her address to the prosecutor because the purpose of that communication was to enable the wife to negotiate in relation to the property question. But this argument fails to have any regard to the critical aspect of the communication, which was not the communication of her address but the attachment to that information of strict confidentiality.

No reason appears to suggest that the subject matter of her instructions to the solicitor, namely, a settlement of the matrimonial property, called for any secrecy to attach to her whereabouts. In my view, there is only one construction that can be placed on the action of the wife in this regard. Confidentiality was imperative in order to enable her to avoid discovery of herself and the child, and so continue her defiance of the order of the court. To extend privilege to such a communication does nothing in the circumstances to facilitate 'the perfect administration of justice'. On the contrary, it enables the continuance of a contempt of court, and bears on its face the taint of illegality.

1. The scope of the decision in Bell was considered by the High Court in The Attorney-General for the Northern Territory of Australia v Kearney.[23] In Kearney Gibbs CJ was of the view that the decision in Bell is 'authority for the view that legal professional privilege will be denied to a communication which is made for the purpose of frustrating the processes of the law itself, even though no crime or fraud is contemplated'.[24] Mason and Brennan JJ agreed with Gibbs CJ.[25]
2. Wilson J agreed with Gibbs CJ as to the outcome, but adopted a narrower view, stating that the 'principle may be expressed by saying that, generally speaking, the public interest in the protection of alleged confidential professional communications will not be outweighed by the public interest in ensuring that all relevant evidence is admissible save when the professional relation is abused in a manner involving dishonesty that goes to the heart of the relationship'.[26]
3. Dawson J, who disagreed in the outcome, also adopted a narrower view, observing that there 'was clear authority for the proposition that a solicitor is obliged to give to a court any information, including his client's address, which will enable the court to discover the whereabouts of a ward of court whose residence is being concealed from the court and that such information may not be the subject of a claim for professional privilege'.[27] His Honour went on to state that it did not seem that 'any real support is to be found in [Bell] for the extension of the exception to legal professional privilege to encompass evasions or infractions of the law other than crime or fraud'.[28]
4. For the purposes of determining the present issue, I accept the principle as stated by Gibbs CJ in Kearney. Legal professional privilege will be denied to a communication which is made for the purpose of frustrating the processes of the law itself, even though no crime or fraud is contemplated. This statement of principle is consistent with recent decision of the High Court in Glencore International AG v Commissioner of Taxation.[29] In that case the court stated that legal professional privilege is properly characterised as an immunity from the exercise of powers which would otherwise compel distance of privileged communications.[30] The court then reiterated that, in 'providing an immunity, the law's purpose was to enhance the administration of justice'.[31] Communications which frustrate the processes of the law, axiomatically, do not enhance the administration of justice.
5. In the present case, the circumstances are that:

(a) Mr Demali has informed CGL Legal that he is overseas and does not intend to return to Australia for his trial commencing on 7 October 2019;

(b) a warrant has been issued for his arrest for breach of bail, which remains in effect and outstanding;

(c) he did not in fact present to court today in answer to his bail; and

(d) as at 24 September 2019 CGL Legal knew the country which Mr Demali was then present in.

1. The processes of the law have already been frustrated in that I have today ordered that the trial of the remaining accused proceed in the absence of Mr Demali. This trial is scheduled for three weeks. At the point in time when Mr Demali is ultimately found, if necessary extradited, and brought before the District Court, there will need to be another multi-day jury trial, canvassing much of the same evidence as will be canvassed in the trial of the accused whose trial commences today.
2. I can discern no legitimate purpose consistent with the maintenance of legal professional privilege in the location of Mr Demali remaining confidential. As Wilson JJ recognised in Bell, there may well be circumstances in which the location of a client may properly be held in confidence consistent with the maintenance of legal professional privilege. One circumstance could be where the client is negotiating through the lawyer as to the basis on which he will voluntarily return to Australia in answer to an arrest warrant. However, there are no such circumstances in the present case.
3. The point can be tested in this way. Assume that Mr Demali's lawyers had knowledge that he was at a particular address in the Perth metropolitan area. It cannot possibly enhance the administration of justice for them to be able to withhold that information, and frustrate the efforts of the police to execute a bench warrant on him for the purpose of immediately bringing him before the court for the trial to commence. The public interest requiring disclosure does not change if his whereabouts is Seville Grove, Sydney or Sarajevo.
4. For these reasons, I am of the view that Mr Demali is not entitled to claim legal professional privilege over the information he communicated to his lawyers as to his location, and that there is no basis on which CGL Legal can decline to comply with the direction of the court to disclose this information.
5. I will hear from counsel for CGL Legal as to the form of the direction.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[4] District Court of Western Australia Act 1969 (WA) s 6(1): Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209 [16] (Steytler J, with whom Wallwork J agreed) (Murcia); Rowe v Stoltze [2013] WASCA 92 [28] (Newnes JA, with whom Pullin and Murphy JA agreed).

[5] Australian Building and Construction Commissioner v Construction Forestry, Mining and Energy Union (CFMEU) [2018] HCA 3; (2018) 262 CLR 157 [52]; Pelechowski v Registrar, Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 [50] - [51]; Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 16 - 17; Williams v Grainger [1999] WADC 133 [15] (Viol DCJ).

[11] Bail Act 1982 (WA) (BA) s 51(6).

[12] BA s 52.

[13] R v Bell; Ex Parte Lees [1980] HCA 26; (1980) 146 CLR 141 (Bell).

[14] Bell (144) - (145) (references omitted).

[20] Bell (152) (references omitted).

[23] The Attorney-General for the Northern Territory of Australia v Kearney [1985] HCA 60; (1985) 158 CLR 500 (Kearney).

[29] Glencore International AG v Commissioner of Taxation [2019] HCA 26.

[30] Glencore International AG v Commissioner of Taxation [12] (judgment of the court).

[31] Glencore International AG v Commissioner of Taxation [31].