AWB Ltd v Cole and Another 152 FCR 382

CATCHWORDS: PRACTICE AND PROCEDURE - Summons for production - Legal professional privilege - Application of Evidence Act 1995 - Waiver of privilege - Whether privilege abrogated by provisions of Police Act 1990 - Principles - Legal professional privilege as a substantive right - Documents privileged - Section s 117, s 118, s 119, s 131A, s 133 Evidence Act 1995, s 181D, s 181E, s 181G Police Act 1990

LEGISLATION CITED: Evidence Act 1995 Police Act 1990

AWB Ltd v Cole and Another 152 FCR 382 AWB Ltd v Cole (No 5) (2006) 155 FCR 30 Becke and Commissioner of Police [2009] NSWIRComm 134 CASES CITED: Bradley Eade-Smith v Commissioner of Police (No. 2) [2009] NSWIRComm 87 Cahill v State of New South Wales (Department of Corrective Services) (2007) 161 IR 124 Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 763 Miller v Commissioner of Police [2002] NSWIRComm 296 The Daniels Corporation International Pty Ltd and Another and Australian Competition and Consumer Commission (2002) 213 CLR 543

APPLICANT Mr D Nagle of counsel Walter Madden Jenkins solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr P Skinner of counsel Crown Solicitor's Office

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

SAMUEL JAMES BECKE AND COMMISSIONER OF POLICE (NO 2)

Application by Samuel James Becke for review of an order under s 181E of the Police Act 1990

1 In these proceedings, Samuel James Becke ("the applicant") has challenged an order made by the Commissioner of Police ("the respondent") dismissing him from the NSW Police Force ("the Police Force") for serious misconduct. 2 On 12 August 2009, the Commission dismissed a notice of motion filed by the respondent seeking an order that a summons for production addressed to the respondent be set aside: Becke and Commissioner of Police [2009] NSWIRComm 134. 3 The respondent now opposes access to certain documents produced on the ground that they are subject to legal professional privilege (or client legal privilege). Statutory provisions 4 The statutory provisions relevant to the present proceedings are s 117, s 118, s 119 and s 131A of the Evidence Act 1995 ("the Evidence Act") which provide:

client includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, ... confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. ... party includes the following: (a) an employee or agent of a party, ... 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party. 131A Application of Division to preliminary proceedings of courts (1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following: (a) a summons or subpoena to produce documents or give evidence, (b) pre-trial discovery, (c) non-party discovery, (d) interrogatories, (e) a notice to produce, (f) a request to produce a document under Division 1 of Part 4.6. Evidence on the application 5 In support of the claim of legal privilege, Mr P Skinner of counsel, who appeared for the respondent, read an affidavit of Inspector Rodney Christopher Pratt, who has been attached to the Professional Standards Command of the Police Force since May 2005. 6 Inspector Pratt is the delegated representative of the respondent in matters before this Commission and has authority to give instructions in the day to day conduct of proceedings. Inspector Pratt stated that the respondent sought to claim legal privilege over various documents, which can conveniently be described as documents prepared by employees of the respondent and forwarded to and received from Henry Davis York Lawyers ("Henry Davis York"), a firm of lawyers employed by the respondent to provide legal advice and representation to the respondent; documents prepared by employees of the respondent and forwarded to and received from the Office of the Director of Public Prosecutions ("ODPP") in respect of the prosecution of the applicant and documents forwarded by employees of the respondent to the General Counsel of the Police Force, seeking legal advice and the formulation of a reply to a letter from ODPP about the prosecution of the applicant. 7 During cross-examination, Inspector Pratt acknowledged that Henry Davis York prepared a draft notice pursuant to s 181D(3)(a) of the Police Act 1990 ("the Police Act"). Prior to preparing this notice, the lawyers provided advice to the Advisory Panel of the respondent ("the Panel"). The Panel, acting on this advice, made a recommendation to the respondent who decided whether a notice should be issued. 8 Mr D Nagle of counsel, who appeared for the applicant, relied on the Commissioner's Confidence Submission and the Order issued under s 181D(1) of the Police Act, together with a selection of material produced by the respondent in response to the summons for production. Submissions of the parties 9 Mr Skinner, in summary, made the following submissions: (i) Section 131A of the Evidence Act makes clear that it now applies to pre trial proceedings, including proceedings of this nature; (ii) Section 117 of the Evidence Act defines "client" to include the State of New South Wales; (iii) documents provided from either internal or external lawyers to the Commissioner of Police are privileged pursuant to s 118(a) or s 119 of the Evidence Act; (iv) documents between lawyers acting for the ODPP and lawyers or police officers acting on behalf of the Commissioner of Police, including the Police Force's General Counsel are confidential communications and privileged pursuant to s 118(a) and/or 118(c) of the Evidence Act. 10 Mr Nagle made the following submissions: (i) the evidence relied on by the respondent does not fulfil the requirement to establish privilege which is placed on the party attempting to establish privilege: AWB v Coal (No 5) [2006] 155 FCR 30 at [42] - [44] because: a) Inspector Pratt did not prepare any of the documents, nor was he the recipient of the purported advice; b) he therefore does not have knowledge of the intention of the author in producing the document; c) nor does he have knowledge of the recipient's purpose and intention in so receiving the documents. (ii) His evidence asserts what he assumes the intention to be which does not pass the threshold; (iii) the use of the verbal formula (ie document "X" is a legal advice) does not make out the privilege: Grant v Downs (1976) 135 CLR 674 at 689; (iv) Inspector Pratt did not give any evidence as to what the dominant purpose of the creation of the documents were; a) it has not been demonstrated that the dominant purpose of the documents produced by Henry Davis York was the provision of legal advice. Without having seen these documents, it is highly likely that they were brought into existence in order for the Commissioner of Police to comply with the Police Act; b) Section 181D(1) and s 181D(3)(a) of the Police Act make clear that the Commissioner of Police personally must consider there to be a prima facie case for removal of the officer from the Police Force. The documents prepared by Henry Davis York were therefore not produced for the dominant purpose of obtaining legal advice, but rather in order to comply with the Police Act. (v) provided that the s 181D notice prepared by Henry Davis York was similar to the notice served on the applicant, then any advice on prospects of success which may have accompanied the draft notice would have been waived because the substance of the advice is waived when the notice is then served: Cahill v State of New South Wales (Department of Corrective Services) (2007) 161 IR 124; (vi) the decision of Backman J in Eade-Smith and Commissioner of Police [2009] NSWIRComm 87, which rejected the notion that privilege had been waived over certain documents by virtue of those documents being brought into existence for the purpose of a removal of a police officer overlooked the fact that by issuing a notice and proceeding with a removal, the substance of any advice is waived; (vii) In light of the principles referred to in Becke v Commissioner of Police there will be a real inconsistency created when the Commissioner, on the one hand, is given advice upon which he proceeds to remove an officer, which is a public and reviewable act, and on the other, where privilege is used to shield from view and from a s 181E review, the documents said to found the belief held by the Commissioner that the officer should be removed; (viii) documents said to relate to advice given by the ODPP to the Commissioner are caught by s 181E(3) of the Police Act: Miller v Commissioner of Police [2002] NSWIRComm 296. This provision overrides the privilege which might otherwise attract to the advice relating to criminal charges laid against the applicant. 11 In reply, Mr Skinner submitted that the bulk of the submissions of the applicant focused on the issue of legitimate forensic purpose and not legal privilege and the dominant purpose for the documents coming into existence. General principles 12 Section 118 of the Evidence Act which is in Div 1 of Pt 3.10, protects client legal privilege. It provides, relevantly for present purposes, that evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of a confidential communication made between a client and a lawyer for the dominant purpose of the lawyer providing legal advice to that client. 13 Young J reviewed the relevant authorities and principles which govern legal advice privilege in AWB Ltd v Cole and Another 152 FCR 382 at [60] - [63] and [85] - [110]. In AWB Ltd v Cole (No 5) (2006) 155 FCR 30, his Honour summarised the general principles as follows at [44]: The general principles that I consider relevant to the disposition of this case can be summarised as follows: (1) The party claiming privilege carries the onus of proving that the communication was undertaken, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice. The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation. It might also be discharged by reference to the nature of the documents, supported by argument or submissions: see Grant v Downs (1976) 135 CLR 674 at 689; Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 60 ATR 466 at [30]; and AWB v Cole at [63]. (2) The purpose for which a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive. It may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication: see AWB v Cole at [110]. (3) The existence of legal professional privilege is not established merely by the use of verbal formula: Grant v Downs at 689 per Stephen, Mason and Murphy JJ. Nor is a claim of privilege established by mere assertion that privilege applies to particular communications or that communications are undertaken for the purpose of obtaining or giving "legal advice": National Crime Authority v S (1991) 29 FCR 203 at 211-212 per Lockhart J; Candacal Pty Ltd v Industry Research and Development Board (2005) 59 ATR 615; 223 ALR 284 at [70]; Seven Network Ltd v News Ltd [2005] FCA 142 at [6]-[8]. If assertions of that kind are received in evidence in support of the privilege claim, their conclusionary nature can leave unclear what advice was really being sought. There will be cases in which a claim of privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed: Kennedy v Wallace (2004) 142 FCR 185 (Kennedy v Wallace) at [12]-[17] per Black CJ and Emmett J and [144]-[145] and [166]-[171] per Allsop J; see also Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (No 6) [2001] SASC 398. (4) Where communications take place between a client and his or her independent legal advisers, or between a client's in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications: Kennedy v Wallace (2004) 208 ALR 424 at [65] per Gyles J; affirmed on appeal, Kennedy v Wallace at [23]-[27] per Black CJ and Emmett J. In Kennedy v Wallace, Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given. (5) A "dominant purpose" is one that predominates over other purposes; it is the prevailing or paramount purpose: AWB v Cole at [105]-[106]; Commissioner of Taxation (Cth) v Pratt Holdings at [30] per Kenny J. (6) An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at [35] per Finn J. (7) The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character: Balabel v Air India [1988] Ch 317 at 323 and 330; Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976 at 983; Three Rivers District Council v Governor and Company of Bank of England (No 6) [2005] 1 AC 610 at [43]-[44], [59]-[60], [114] and [120]; Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 at 332-333; DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 at [25]-[71]; and AWB v Cole at [100]-[101]. (8) Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like, whether or not they are actually provided to the client: Daniels at [44] per McHugh J; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 550 per McHugh J (Propend); Dalleagles at 333-334 per Anderson J; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246 per Lockhart J (Sterling); and Kennedy v Lyell (1883) 23 Ch D 387 at 407; Lyell v Kennedy (No 3) (1884) 27 Ch D 1 at 31 per Bowen LJ; Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 per Lindgren J. (9) Subject to meeting the dominant purpose test, legal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client's legal adviser to enable him or her to advise: Sterling at 246. The privilege extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or not they are themselves actually communicated to the lawyer: Saunders v Commissioner of Australian Federal Police (1998) 160 ALR 469 at 472. (10) Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford v Commonwealth (1987) 163 CLR 54 at 96 per Dawson J; see also Deane J at 79-82. Some cases have added a requirement that the lawyer who provided the advice must be admitted to practice: see Dawson J in Waterford at 96; GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146 at 150; Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233 at 245. However, in Commonwealth v Vance (2005) 158 ACTR 47, the Full Court (Gray, Connolly and Tamberlin JJ) did not regard the possession of a current practising certificate as an essential precondition to the availability of legal professional privilege: at [23]-[35]. The same view was taken by Lee J in Candacal at [99], by Gillard J in Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131 at [111], and by Downes J in McKinnon v Secretary, Department of Foreign Affairs and Trade (2004) 86 ALD 780 at [51]. (11) Legal professional privilege protects communications rather than documents, as the test for privilege is anchored to the purpose for which the document was brought into existence. Consequently, legal professional privilege can attach to copies of non-privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test: Propend at 507 per Brennan CJ, 544 per Gaudron J, 553-554 per McHugh J, 571-572 per Gummow J, and 587 per Kirby J. In Propend at 512, Brennan CJ added a qualification to this principle: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the persons seeking to execute the warrant, and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the otherwise privileged copy loses its protection. (12) The Court has power to examine documents over which legal professional privilege is claimed. Where there is a disputed claim, the High Court has said that the court should not be hesitant to exercise such a power: Esso; see also Grant v Downs at 689. If the power is exercised, the court will need to recognise that it does not have the benefit of submissions or evidence that might place the document in its proper context. The essential purpose of such an inspection is to determine whether, on its face, the nature and content of the document supports the claim for legal professional privilege. 14 I propose to be guided by the helpful summary of the principles by Young J in determining the claim for legal privilege. Consideration 15 Mr Skinner identified three documents which the respondent no longer sought to claim legal privilege. It is not necessary for the Commission to make any ruling as to the status of these documents. The documents over which the respondent claims legal privilege fall into three categories, as previously identified. 16 In determining claims of legal privilege, it is necessary to consider the substance of the matter; the nature of the document; any evidence that was led in support of the claim for legal privilege and, if necessary, the content of the document, as revealed by inspection. I propose to approach the determination of these matters on the basis that the respondent authorised or procured the various documents through his employees, In-house counsel, or his lawyers. Inspector Pratt has the delegated authority of the respondent in matters such as this to give instructions in respect of the conduct of these proceedings. To the extent that Mr Nagle challenged Inspector Pratt's knowledge of the intention of the author of the documents, I propose to inspect the documents. 17 Section 133 of the Evidence Act provides that a court may inspect a document for the purposes of determining the question of legal professional privilege. I have inspected each of the documents over which the respondent has claimed legal privilege. The application of the Evidence Act 1995 18 Recently, Einstein J in Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 763, considered this issue in respect of matters ancillary to proceedings before the Supreme Court of New South Wales and observed as follows: [8] I do not understand the following propositions to be exceptional: i. A question which vexed various first instance judges and intermediate appellate courts was the precise reach of the provisions of the [Evidence] Act. In terms, the Act applies only to proceedings in court: s4(1). However, the notion - which may be traced back to the decisions of McLelland CJ in Eq in Telstra Corporation v Australis Media Holdings ([No 1) (1997) 41 NSWLR 277 and Branson J in Trade Practices Commission v Port Adelaide Wool (1995) 60 FCR 366 - that the Act had an indirect or flow on effect to pre-trial proceedings, such as the issuing of a subpoena, or notice to produce, the answering of interrogatories, or the discovery of documents, obtained the approval of the NSW Court of Appeal in Akins v Abigroup Ltd (1998) 43 NSWLR 539, and of the Full Court of the Federal Court in Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360. The latter decision was, however, overruled by a majority of a five member Full Court of the Federal Court in Esso Australia Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511.

ii. The question whether the Act has an application by analogy to matters ancillary to proceedings in Court was resolved in the negative by the High Court in three decisions. Northern Territory v GPAO (1999) 196 CLR 553, Mann v Carnell (1999) 74 ALJR 378 and Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 74 ALJR 339.

iii. The effect in New South Wales of changes to the rules [originally the Supreme Court Rules (Part 23, Rule 1 (c), and later as transported into the Uniform Civil Procedure Rules 2005 ] extend to the pre-trial inspection of documents including notices to produce. The effect of the rules is that notwithstanding the decisions of the High Court of Australia referred to above, when it comes to the application of legal professional privilege in most instances in connection of litigation - both in Court and in matters ancillary to it - it is to the Act that one must now look. [cf New Cap and Reinsurance Corporation v Renaissance Reinsurance [2007] NSWSC 258 at 15] [cf Section 131A of the Evidence Act 1995 ] [See also Part 34 UCPR]. [9] Nor do I see that there is any substantive difference between the relevant provisions of the Act and their Common Law analogues. 19 I respectfully agree with his Honour's analysis and propose to proceed on the basis that s 131A of the Evidence Act applies to any issue arising in respect of pre trial proceedings in this Commission. Neither counsel demurred from this course. Are the documents privileged? 20 The documents that fall into what I have described as the first category are, first, an email from Henry Davis York to an employee of the Police Force in respect of the applicant. This email attached two documents, being described as a s 181D notice and s 181D supporting documentation. Neither of these documents were annexed to this email. Secondly, there was an executive summary prepared by Henry Davis York in respect of a s 181D removal of the applicant, part of which included legal advice. 21 Mr Nagle submitted that these documents were not prepared for the dominant purpose of obtaining legal advice, but rather in order to comply with the provisions of s 181D of the Police Act. Furthermore, it was contended that, provided the notice prepared by Henry Davis York was similar to the notice served on the applicant, then any advice on prospects which may have accompanied the draft notice, would have been waived because the substance of the advice is waived when the notice is served. 22 Mr Nagle relied upon the judgment of Boland J in Cahill v State of New South Wales (Department of Corrective Services) (2007) 161 IR 124 at [34] - [35], [52] - [54]. His Honour found that the privilege that ordinarily would attach to legal advice relating to the initiation of a prosecution had been waived by virtue of the fact that the prosecution had gone ahead and therefore it could be "reasonably inferred" (at [52]) what the advice was and that further there was a "clear inference" that on the strength of the advice, the prosecution proceeded. 23 To the extent that Backman J in Bradley Eade-Smith v Commissioner of Police (No. 2) [2009] NSWIRComm 87 at [15] - [18], rejected the notion that legal privilege had been waived over certain documents by virtue of those documents being brought into existence for the purpose of a s 181D notice, counsel contended that her Honour was in error because the ruling overlooked the fact that by issuing a s 181D notice and proceeding with a removal of the officer, the substance of any advice was waived. Having inspected the documents, in my view, they were created for the dominant purpose of providing, or receiving, advice in connection with pending or anticipated legal proceedings. I find there was no waiver of legal privilege in respect of these documents. 24 Mr Nagle also contended that the provisions of s 181E(3) of the Police Act supported the applicant's right to access these documents on the basis that legal professional privilege did not attach to the documents because the statutory provisions required their production. Section 181E(3) is in the following terms:

181E Review generally ... (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D(1). 25 Mr Skinner submitted that for a statutory provision to override the fundamental legal concept of legal privilege, very clear words would be required. 26 This argument was considered by Peterson J in Miller v Commissioner of Police [2002] NSWIRComm 296, where his Honour stated: [23] As to the abrogation of the privilege by s181E(3) the judgment of the High Court in Corporate Affairs Commission of New South Wales v Yuill and Ors (1990-1991) 172 CLR 319 is pertinent. In that matter the court was required to consider whether s295(1) of the Companies (New South Wales) Code which empowered an inspector to require an officer of a corporation, the affairs of which were being investigated, to produce such books of the corporation as were in his custody or were under his control, conferred a power which was subject to any claim of legal professional privilege. In the course of judgment Brennan J, who with Dawson and Toohey JJ was in the majority on the particular questions in that matter, said: "Then, in Baker v Campbell (1983) 153 CLR 52 at 90, 96-97, 117-118, 123, this court held that the power of a police officer executing a search warrant issued under s10 of the Crimes Act 1914 (Cth) is restricted by legal professional privilege. The court by majority overruled the proposition that legal professional privilege is limited to judicial and quasi-judicial proceedings, holding that a statute should be construed as preserving a right to legal professional privilege unless the privilege is abrogated by express words or necessary intendment."

[24] The members of the court in the minority, Gaudron J and McHugh J, in separate judgments applied the same rule to the particular statutory provision in question and came to a contrary conclusion. Thus the rule was uniformly applied by all members of the court, although to different effect. As to the application of the rule Gaudron J made this observation:

The rule that important common law rights are abrogated only by express words or necessary implication is one which can be applied only to provisions capable of abrogating those rights. Thus, it can be applied to a provision creating an obligation to provide information - at least if the obligation is expressed in general terms. However, this is not a case which is concerned with the meaning of words creating an obligation to provide information. Rather, it is concerned with the meaning of an exception or qualification to such an obligation.

[25] The present matter is of course one which relates to a provision creating an obligation to provide information. The words "all documents and other material" seem to me unavoidably to constitute express words which can only have the effect of abrogating a claim for legal professional privilege providing that the qualifying words "on which the Commissioner has relied" do not exclude the document from the obligation to provide information. In that sense, the Commissioner's submissions are correct; namely that, if the legal advice was not a document falling within that qualification, the question of privilege does not arise. On the other hand, the privilege does arise if the document is pressed for by the party seeking it on the basis not that it is a document obliged to be provided under s181E but is sought generally. In that respect, the applicant relied upon the judgment of Madgwick J in Smith and ors v Western Australia and ors (2000) 98 FCR 358 where at 361 his Honour said: The applicants do not contend that privilege exists over the site surveys and it is unclear from their submissions whether Dr Waite's solicitors do. However, the matter can be dealt with briefly. Dr Waite deposed that the site surveys were produced in accordance with the provisions of the Aboriginal Heritage Act to assist the Department of Aboriginal Sites of Western Australia to make assessments of Aboriginal heritage. The dominant purpose for the production of these reports, therefore, seems to have been to comply with the Aboriginal Heritage Act , and not to provide legal advice. For this reason privilege does not apply to the site surveys.

[26] Mr Docking submitted that, in conformity with that approach: "The dominant purpose for the production of the advice might have been to comply with the P(olice) S(ervice) Act, and not to provide legal advice. For this reason privilege does not apply."

[27] Having reviewed the advice, I consider it to be of a nature that entitles the Commissioner to claim privilege.

[28] It is also desirable to mention the judgment of the High Court in The Daniels Corporation International Pty Ltd & Anor v Australian Competition and Consumer Commission [2002] HCA49, given on 7 November 2002 and about which the parties have not, of course, addressed. The particular point in issue in Daniels was a claim for privilege in relation to documents, access to which was sought by the ACCC pursuant to s155 of the Trade Practices Act 1974 (Cth). That section, which authorises inspection of documents in certain circumstances is of no present relevance. I refer to the case merely to extract the general observations of the majority of the Court on legal professional privilege, as follows: It is now settled that legal professional privilege is a rule of substantive law ( Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 490 per Deane J) which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the "dominant purpose" test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation ((1999) 201 CLR 49 at 73 [61] per Gleeson CJ, Gaudron and Gummow JJ) in place of the "sole purpose" test which had been applied following the decision in Grant v Downs ((1976) 135 CLR 674).

Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection (see, with respect to discovery and inspection, Mann v Carnell (1999) 201 CLR 1) and the giving of evidence in judicial proceedings (see Baker v Campbell (1983) 153 CLR 52 at 115-116 per Deane J; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 55 [4] per Gleeson CJ, Gaudron and Gummow JJ; Mann v Carnell (1999) 201 CLR 1 at 10-11 [19] per Gleeson CJ, Gaudron , Gummow and Callinan JJ). Rather and in the absence of provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind for which s155 of the Act provides. Thus, for example, it was held in Baker v Campbell , that documents to which legal professional privilege attaches could not be seized pursuant to a search warrant issued under s10 of the Crimes Act 1914 (Cth) (see also Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501). 27 The evidence in this matter does not disclose whether the respondent relied upon the documents, or not, in issuing the s 181D notice. If they were relied upon by the respondent, I agree with the conclusions of Peterson J that the words "all documents and other material" could only have the effect of abrogating a claim for legal professional privilege. What is clear, as I have already determined in respect of Mr Nagle's first argument, is that the emails, together with the two attachments which were not before the Commission, are documents created by the respondent's lawyers, where, from my inspection of the emails, the dominant purpose "was the provision of legal advice whether or not litigation ultimately was pursued." 28 The first email attached a s 181D notice and supporting documentation. Both emails contain legal advice as to the respondent's prospects of success. Advice is also proffered in the event that the notice is issued, a s 181D(1) order is made and proceedings are commenced in this Commission by the applicant for a review. The legal advice also discussed the respondent's risks if litigation was commenced and the prospects of success. The dominant purpose for the creation of the emails by the lawyers acting for the respondent was to provide legal advice in contemplation of litigation. I conclude that the s 181E(3) argument must fail. 29 The second and third categories of documents relate to documents exchanged between the ODPP and employees of the Police Force, or their general counsel. Much of the material relates to charges which were brought against the applicant for certain offences under the Crimes Act 1900. The charges were ultimately withdrawn. Again, Mr Nagle submitted that the documents that fall into these categories are caught by s 181E(3) of the Police Act, which overrides any legal privilege which might otherwise attach to the advice relating to the criminal charges brought against the applicant. Counsel contended that even if the advices themselves were not given to the respondent, the information contained within the advices was sufficiently disclosed to the respondent, so much being obvious from the statement of reasons provided by the respondent where he observed "I note that you pleaded not guilty to those alleged offences and on 13 February 2009 those charges were withdrawn by the DPP." 30 I have read the documents and it is clear that the documents contain legal advice internal to the Police Force and between it and the ODPP. The documents are either seeking, or providing legal advice and, on occasions, providing documents for the purpose of obtaining that advice. 31 I rely on the reasons already provided in answer to the submissions that s 181D(3) of the Police Act abrogates legal privilege in respect of these documents. The contents of the documents in this category allow the inference to be drawn that they were created for the dominant purpose of providing legal advice to the client (s 118 and s 119 the of Evidence Act) and such legal privilege has not been lost or waived. 32 To the extent that Mr Nagle relied upon s 181G(2)(c) of the Police Act and the comments that I made in Becke v Commissioner of Police, that matter determined the issue of whether it had been established that documents sought in a summons for production had a legitimate forensic purpose and should be produced, not whether the documents were subject to legal privilege. In my view, those observations do not support the contention that legal privilege has been abrogated or waived and are not relevant to the issues that I am called upon to determine here. Documents may be found to have a legitimate forensic purpose and thus are required to be produced to the Commission, however, it does not follow that legal privilege is lost. 33 The nature and content of the documents confirm that the dominant purpose for which the documents were brought into existence was for the giving or receiving of legal advice (s 118, s 119 of the Evidence Act). In my view, the intention of the document makers was to give or obtain legal advice in respect of litigation which was reasonably anticipated or contemplated. This was the basis for the creation of the documents and why they were procured. It is the dominant purpose why the documents are brought into existence which is critical. In my view, the dominant purpose for commissioning the documents was for legal advice and the use in contemplated litigation. As such, legal privilege has not been lost or waived. 34 In reaching this conclusion, I have borne in mind the forceful observations of the High Court of Australia in The Daniels Corporation International Pty Ltd and Another and Australian Competition and Consumer Commission (2002) 213 CLR 543, where Gleeson CJ, Gummow, Gaudron and Hayne JJ at [11] said: Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. 35 McHugh J described legal professional privilege in the same case at [44] as a "fundamental right or immunity." 36 Kirby J at [85] referred to it as a "basic doctrine of the law" and a "practical guarantee of fundamental rights." 37 After referring to their Honours' observations, Einstein J in Wilson v Nicholls observed at [12]: Accordingly, as a substantive common law right or immunity, legal professional privilege is not something the Court can simply abrogate as a matter of judicial discretion. 38 His Honour went on to observe at [25]: There is no doubt that there is an important weighing exercise whenever questions of legal professional privilege or waiver thereof arise in a litigious setting. The matter was carefully treated in Esso Australia Resources v Commissioner of Taxation [1999] 201 CLR 49, with Gleeson CJ, Gaudron and Gummon JJ restating the rationale for legal professional privilege at 64-65 [35]:

"Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. In the ordinary course of events, citizens engage in many confidential communications, including communications with professional advisers, which are not protected from compulsory disclosure. The rationale of the privilege has been explained in a number of cases, including Baker v Campbell , and Grant v Downs itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth , Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker v Campbell , a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations." Conclusion 39 Applying the principles referred to in these reasons to the evidence and the documents inspected by me, the respondent has established that the categories of documents set out in the affidavit of Inspector Pratt attract legal professional privilege which has not been waived or abrogated by the provisions of the Police Act. I have found that the dominant purpose for the creation of the documents was to provide confidential legal advice in contemplation of litigation. The documents are therefore privileged documents. I decline to order the release of the documents.

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