Carter v Managing Partner, Northmore Hale Davy & Leake

Carter v Managing Partner, Northmore Hale Davy & Leake - [1995] HCA 33 - HCA 1995 case summary — Zoe

Parties

Applicant/Plaintiff:

Carter

Respondent/Defendant:

Managing Partner, Northmore Hale Davy & Leake

Cases Cited (34)

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

(1976) 135 CLR 674. 2. (1983) 153 CLR 52. 3. (1986) 161 CLR 475. 4. (1987) 163 CLR 54. 5. See Baker v Campbell (1983) 153 CLR 52 at 79, 90, 96-97, 104-105, 116-117, 122, 123; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 491. 6. Sankey v Whitlam (1978) 142 CLR 1 at 42; Alister v The Queen (1984) 154 CLR 404 at 414, 456; Dietrich v The Queen (1992) 177 CLR 292 at 298. And see Marks v Beyfus (1890) 25 QBD 494 at 498; D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 232-233; Cain v Glass [No 2] (1985) 3 NSWLR 230 at 246-251; Roviaro v United States (1957) 353 US 53.

for the perfect administration of justice, and for the protection of the confidence which exists between a solicitor and his client, it has been established as a principle of public policy that those confidential communications shall not be subject to production. In my opinion, the basic justification for allowing the privilege is the public interest in facilitating the application of the rule of law. 1. [1901] AC 196 at 200-201; see also per Lord Lindley, at 206; Waterford v The Commonwealth (1987) 163 CLR 54 at 62, 64.

Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks. In Waterford v The Commonwealth [14] , I said: the public interest served by legal professional privilege lies in its tendency to broaden the operation of the rule of law as well as to enhance the individual's capacity to secure its protection. 1. [1983] QB 878 at 913. 2. (1987) 163 CLR 54 at 74.

When a communication was originally privileged and in criminal proceedings privilege is claimed against the defendant by the client concerned or his solicitor, it should be for the defendant to show on the balance of probabilities that the claim cannot be sustained. That might be done by demonstrating that there is no ground on which the client could any longer reasonably be regarded as having a recognisable interest in asserting the privilege. The judge must then balance whether the legitimate interest of the defendant in seeking to breach the privilege outweighs that of the client in seeking to maintain it. This passage is not without its difficulties. If the client otherwise entitled to the privilege has no "recognisable interest" in asserting the privilege, what is the client's interest "in seeking to maintain" the privilege which has to be weighed against the interest of the defendant in the criminal trial? Counsel for the appellant was not concerned to argue for this limitation on the scope of the privilege, and the correctness of this view is not material to the present case. The exception for which counsel contended in favour of a person charged with a criminal offence was suggested to be merely an addition to the recognised categories of exceptions. Those exceptions - communications in furtherance of crime, fraud [21] or abuse of power [22] , to conceal the whereabouts of a ward of court [23] or to frustrate the execution of a court order [24] - show that the privilege cannot be invoked to effect an illegal purpose. The exceptions preclude the possibility of the privilege being used contrary to the public interest. But those exceptions offer no analogy to the present case. 1. [1988] QB 798 at 807. 2. R v Cox and Railton (1884) 14 QBD 153 at 165. 3. Attorney-General (NT) v Kearney (1985) 158 CLR 500. 4. R v Bell; Ex parte Lees (1980) 146 CLR 141 at 146. 5. Bell (1980) 146 CLR 141 at 151, 162.

While the privilege against self-incrimination extends to the production of documents by the person who would be imperilled (see Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 at 393; [1984] VR 137 at 152), it is difficult to see how it could, as a matter of principle, apply to the production of documents by that person's lawyer, bailee or agent since the "privilege is not a privilege against incrimination; it is a privilege against self-incrimination" Controlled Consultants (1985) 156 CLR 385 at 393. See, eg, Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 145; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 504, 516, 535, 548-549; Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 at 637-638. 2. cf Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 at 393.

I can see no intrinsic reason why the one principle rather than the other should prevail in a situation where they are counter-indicative. Neither is absolute: both are subject to numerous exceptions There is, then, no a priori reason why the one general principle should yield to the other. 1. [1980] AC 521. 2. Waugh [1980] AC 521 at 536-537.

Barton v The Queen (1980) 147 CLR 75. 2. (1985) 3 NSWLR 230. 3. R v James Clarke (1930) 22 Cr App R 58; Mahadeo v The King [1936] 2 All ER 813; R v Hall (1958) 43 Cr App R 29; R v Xinaris (1955) 43 Cr App R 30; R v Charlton [1972] VR 758; Maddison v Goldrick [1976] 1 NSWLR 651. 4. Berry v The Queen [1992] 2 AC 364 at 372-377.

(1976) 135 CLR 674

(1983) 153 CLR 52

(1986) 161 CLR 475

(1987) 163 CLR 54

(1978) 142 CLR 1

(1984) 154 CLR 404

(1992) 177 CLR 292

(1985) 3 NSWLR 230

(1980) 146 CLR 141

(1985) 158 CLR 500

(1983) 153 CLR 1

(1985) 156 CLR 385