Lawrie v Carey DCM and Anor [2016] NTSC 23

Lawrie v Carey DCM and Anor [2016] NTSC 23 - NTSC 2016 case summary — Zoe

[17]

[3] On the 3rd of August 2012 the then Minister of Lands and Planning made a decision pursuant to a Cabinet decision made on the 10th of July 2012 to grant a Crown lease of a site located in Darwin to a Union. The decision was made without calling for expressions of interest or public tender.

[4] Ultimately, there was a change of government and the new government withdrew the offer for the grant of the lease.

[5] On the 5th of December 2013, the Legislative Assembly of the Northern Territory decided that an enquiry into the decision to grant the lease was necessary as a consequence of which the Administrator appointed Mr. John Lawler as a Commissioner to conduct an Inquiry pursuant to s 4A of the Inquiries Act (NT). One of the purposes of the Inquiry was to review the antecedent issues leading to the former government's decision to grant a Crown Lease to the Union and to assess the involvement of "relevant persons" in that decision, including the plaintiff who was then a Minister in the former government.

[6] On the 20th of December 2013, the plaintiff engaged Ms. Spurr to represent her and the former Minister of Lands and Housing, Mr. Gerry McCarthy for the purposes of the Inquiry. The letter of engagement dated that day indicates the terms of the costs agreement between the parties which includes details of how the work and disbursements will be charged and paid for. It is asserted that the solicitor engaged the barrister to act as counsel on the same date on a pro bono basis.

[7] The Inquiry commenced on the 6th of January 2014, during the course of which Mr. McCarthy and the plaintiff gave evidence. Mr. Wyvill SC was granted leave to represent them during the enquiry. Subsequently for various reasons which it is not necessary to go into at this stage, Ms. Spurr advised the Commissioner by letter dated 14 April 2014 that she and Mr. Wyvill SC "will no longer be representing Ms. Lawrie and Mr. McCarthy in this matter" because "our clients have exhausted their ability to access pro bono legal assistance."

[8] The Inquiry concluded on the 26th of May 2014 when the Commissioner's Report was handed to the Administrator. That report contained a number of criticisms of the plaintiff's conduct (the adverse findings).

[9] On the 30th of July 2014 the plaintiff filed an Originating Motion in this Court in which the Commissioner was the defendant claiming that the adverse findings and associated recommendations damaged her reputation and seeking a declaration that, in reporting adversely to the plaintiff, the Commissioner had failed to observe the requirements of procedural fairness, and for an order in the nature of certiorari to quash the report. At this stage the plaintiff was represented by Ms. Spurr and Mr. Wyvill SC. Subsequently, in late 2014 Ms. Spurr and Mr. Wyvill SC filed affidavits in that action in which they asserted that they were not expecting to receive any adverse findings against the plaintiff. An affidavit by Ms. Lawrie to similar effect was also sworn or affirmed on the 14th of November 2014. It is alleged that each of these deponents made false statements which they knew to be untrue. At some stage Mr. Wyvill SC withdrew from those proceedings and other legal representation was obtained before the matter went to hearing in late January 2015. I note that according to the reasons published by Southwood J, the affidavits of the plaintiff, Spurr and Wyvill were not read, they were not called to give evidence, and allegations set out in paragraphs 6-12 of the Statement of Facts and Issues referred to in his Honour's Judgment at para [222], although filed in court, were abandoned.

[10] On the 1st of April 2015, Southwood J delivered judgment. His Honour dismissed the application and made a number of findings which were relied upon by the second defendant in his sworn information in support of the warrants which were ultimately issued by the first defendant. It is not necessary to refer to them as no challenge is made along the lines that the material placed before the learned magistrate was insufficient to justify the issue of the warrants.

[11] On the 2nd of April 2015, a letter was sent to Mr. Wyvill SC from Southwood J's associate indicating that his Honour had determined that his conduct during the Inquiry and his representation of the plaintiff, including whether he had sworn a false affidavit, should be referred to the Law Society for investigation, and that the Law Society would be asked to consider whether there are any matters which should be referred to the Director of Public Prosecutions. On the 7th of April 2015 a referral was made to the NT Police by the Attorney-General.

[43]

[19] There is much discussion in the authorities about the question of the particularity with which reference to the offence is required on the face of the warrant, and the purpose which is served by this requirement. On the one hand, reference to the particular offence is necessary or otherwise the warrant would be, in effect, a general warrant. It serves the purpose of limiting the boundaries of the search, not only in the minds of the police executing the warrant, but also so as to inform the person whose premises are being searched to know the object of the search. The concern of the common law, and of the legislature, is to protect as much as is reasonably possible, the privacy of the individual whose premises are being searched, whilst at the same time establishing a balance between "long established individual rights against the public interest in combating crime."[6] In this context it has been said that the particular offence need not be stated with the precision of an indictment.[7] In Different Solutions Pty limited v Commissioner, Australian Federal Police (No 2)[8] Graham J referred to a number of authorities which discussed this question. First, the prevailing view in the Federal Court of Australia is that the warrant does not need to state the offence with sufficient particularity to enable the person whose premises are being searched to know the exact nature of the search.[9] Secondly, it is not necessary for the warrant to disclose the exact object of the search; rather a broad approach was directed.[10] It is not essential that the warrant contain the name of the alleged offender.[11] If more than one offence is rolled up in the warrant, this does not invalidate the warrant on grounds analogous to duplicity.[12] Reference to the wrong section will not in itself invalidate the warrant.[13] But if the reference to an incorrect section has the result that the warrant does not specify any offence, or makes the warrant ambiguous so that it is not possible to tell what offence is referred to, it may invalidate the warrant.[14] His Honour said:

[46]

[21] Counsel for the plaintiff, Mr. Scott, submitted that the warrant was invalid because it purports to authorize seizure of things that are neither related to nor connected with any offence. First, it was put that it purportedly authorized seizure of electronic records relating to all email communications sent to and received from the persons named in the warrant over the period 18 December 2013 and 1 April 2015. These persons, other than the plaintiff, were members of the plaintiff's parliamentary office during the period specified in the warrant. It was put that it would be extraordinary if every email communication by each of these individuals over such a lengthy period was connected with the offence named in the warrant. That may or may not be so, but there was no challenge to the breadth of the warrant in these terms on the ground that the information before the learned magistrate failed to establish any such connection. In the absence of any such challenge, I must assume that there was such evidence, extraordinary as that may appear to be at face value.

[22] Secondly it was put that the warrant did not purport to limit that range of the records to those which might be connected or related to any offence. It authorized seizure of all email communications involving the persons named therein, including emails about subject matter which was at large. It is true, just looking at the "thing" described in the warrant, that the emails are not limited to emails which passed between the persons named in the warrant, or with persons such as Ms. Spurr and Mr. Wyvill SC, but included emails of any description about any subject matter whatever to and from anybody in the whole world. That impression is reinforced by the full stop in the warrant after the words "between the period 18 December 2013 and 1 April 2015." However, the warrant must be construed as a whole, and in my opinion the words "being a thing related to or in connection with an offence against a law in force in the Northern Territory, namely an offence of making a false statement in statements required to under oath or solemn declaration- Section 118 of the Criminal Code Act (Northern Territory)" were clearly intended to confine the "thing" to emails of that description. The plaintiff's first contention therefore cannot be accepted.

[52]

[26] I accept the criticism made by Mr. Moses SC that Wright dealt with quite different legislation, particularly in that s 73 of the Queensland Act has no exact counterpart in s 117(5) of the Northern Territory Act, but nevertheless it seems to me that the purposes of both provisions are the same, notwithstanding that the Northern Territory Act does not have an expressed purpose such as was contained in s 4(e) of the Queensland Act. It may fairly be assumed that in drafting s 117, the Legislative Assembly had in mind the need for the balance which is referred to in cases such as the passage I have quoted previously from George v Rockett. Does mere reference to the name of the offence and the statutory provision meet the requirements that that warrant provided particulars of the purpose for which the search was authorised and the description of the nature of things authorized to be searched? In the peculiar circumstances of this case, in the absence of any ancillary information the institution to which the warrant was addressed would not be in any position to say with even the faintest degree of clarity what documents amongst the nearly 12,000 emails have or might have a possible connection to the offence without knowing who it was is alleged to have committed the offence and where, when and, given the generality of the kind of offence relied upon, in what circumstances this is said to have occurred. I am not saying that in other cases of a different nature the same conclusion would be reached. For example, if the offence charged was possession of an illegal drug, namely cannabis plant material, it may not be necessary to say anything more than that. However, in this case the offence alleged was of an entirely different character, and, like the offence of perjury considered by Holmes J in Wright, inherently vague. In my opinion the warrant did not meet the requirements of the Act and is therefore invalid.

[27] In these circumstances it was not in contention that I should order that the documents seized under the first warrant should be returned to the Northern Territory Government Department of Corporation and Information Services.

[53]

[28] No argument was presented in relation to the second and third warrants that they were invalid. It was contended that the warrants did not authorise the seizure of privileged documents. Despite that, the course adopted in these proceedings is similar to that followed at first instance in Commissioner of Australian Federal Police v Propend Finance Pty Ltd[18]. The way the matter was argued did not raise any questions about the question of whether or not the documents had been improperly seized. The only issue is whether legal professional privilege was attached to any of the documents in the possession of Ms. Spurr and Mr. Wyvill SC until they were seized, and if so, whether the plaintiff is entitled to have those documents returned to her or to them.

[29] No evidence, whether by affidavit or oral evidence, was given by the plaintiff, nor by Ms. Spurr or Mr. Wyvill SC in support of the claim for privilege. The only evidence was an affidavit by Mr. Collins, the plaintiff's present solicitor, who had examined the documents which had been seized. Mr. Collins has no personal knowledge of the matters to which he purports to give evidence in support of the claims. All there is before me is a bald assertion that the plaintiff claims that legal professional privilege attaches to certain documents, and that his examination of the documents "all purport to be concerned with the then anticipated Supreme Court proceedings", or "all purport to be concerned with matters relevant to Ms. Spurr's retainer" or contain "various drafts of documents and confidential file notes that purport to relate to the Stella Maris inquiry and the Supreme Court proceedings", all matters no doubt of his honest professional opinion. There was no indication whether the basis of the privilege was advice privilege within s 118 of the Evidence (National Uniform Legislation) Act 2011 (the Uniform Evidence Act), or litigation privilege within s 119 of the Uniform Evidence Act. There was nothing to indicate, for example, that certain documents were part of the brief to counsel, or that other specified documents were confidential communications between the plaintiff and Ms. Spurr for the dominant purpose of obtaining legal advice.

[30] Objection was taken to the admissibility of much of Mr. Collins' affidavit in so far as it sought to establish a basis for establishing the claim to privilege, which I upheld. In Kennedy v Wallace[19] Black CJ and Emmett J said that mere assertions not supported by any evidence was insufficient:

[59]

[33] Mr. Scott, referring to Grant v Downs[21] and AWB Ltd v Cole and Another (No 5)[22] submitted that I should myself inspect the documents to see if I am able to decide whether or not the claim for privilege could be supported. I accept that I have a discretion to do so,[23] but in the circumstances of this case, I declined to exercise my discretion for the reasons which follow.

[34] First, as there is no admissible evidence in the form of an affidavit properly providing particulars of the claim for privilege, both the parties and the court are at a disadvantage. This is a case where, to the knowledge of the plaintiff and her advisors, any claim for legal professional privilege was disputed on the ground that the documents were evidence of communications made between Mr. Wyvill SC, Ms. Spurr and the plaintiff in the furtherance of activities and actions to provide advice, and to carry out illegal activities, for an improper purpose. It was asserted that until the plaintiff abandoned paragraphs [6] -[12] of the Statement of Facts and Issues in the Supreme Court proceedings before Southwood J, she had adopted and approved a conscious and deliberate strategy to abandon her participation in the Stella Maris inquiry to enable her to come to this court and wrongly maintain that she had been denied procedural fairness. Part of that strategy involved the making of false statements in letters sent to Commissioner Lawler as well as in affidavits filed in this Court in the proceedings before Southwood J. The burden of proving that contention was upon the second defendant. The plaintiff, no doubt in order to protect herself from the possibility of incriminating herself, chose, no doubt on good advice, not to file an affidavit herself in support of her claim, which meant that she was not liable to be cross-examined. The same might be said about the decision not to put on any affidavit by Ms. Spurr or by Mr. Wyvill SC. I do not go so far as to decide that this failure may give rise to an inference that their evidence would not have supported the claim for privilege, but it leaves the Court and the parties in a dilemma. It would require the Court to review some 300 documents, largely unaided by submissions by the plaintiff's present counsel, and entirely unaided by submissions by counsel for the second defendant who would not have seen the documents. As was said in Rinehart v Rinehart[24] quoting with approval what Brereton J had said at first instance:

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