This seemingly straightforward application for a declaration in order to uphold a disputed claim of client legal privilege, made with regard to documents seized by police pursuant to a search warrant executed upon the office of a solicitor, is, in truth, not without its complexities.
[2]
Background
The following matters were established by way of affidavit evidence before me, constituted by three affidavits with annexures read on behalf of the plaintiff, and one affidavit with annexures of a detective attached to the Organised Crime Squad read on behalf of the defendant. Neither party applied to cross-examine the deponent of the affidavits relied upon by its opponent.
Part of what follows is also based upon a document sworn in support of the application for the search warrant that was annexed to the affidavit of the detective (in recounting some of its contents, I appreciate that they were not directly sworn to before me, but they were never called into question).
In or around March 2014, Mr James Pope (the solicitor) was engaged by Mr Jason Lubek (the plaintiff in the proceedings before me) to act on his behalf in civil proceedings against the NSW Police Force (the defendant in the proceedings before me) with regard to various allegations of torts, including unlawful arrest and malicious prosecution. Those proceedings arose from events that allegedly occurred between 2006 and 2011.
In May 2016, the solicitor was instructed on behalf of the plaintiff in relation to cash seized by police found in the plaintiff's car (the May 2016 seizure).
On 30 May 2016, the solicitor made representations to the police requesting the return of the seized money.
Shortly after the May 2016 seizure, the plaintiff attended Lake Illawarra Police Station, and reported that the seized cash was from the recent sale of two vehicles that had belonged to the plaintiff and Ms Angela Tang.
On 30 May 2016, the solicitor separately informed the police that Ms Tang had instructed the solicitor that she had sold a 1996 Holden Barina Swing to Ms Charlene Gray on 22 May 2016, and that the plaintiff had instructed the solicitor that on 24 May 2016 the plaintiff had sold a Daewoo motor vehicle to Ms Danielle Ciello.
On 15 June 2016, the solicitor sent further correspondence to the police, reiterating the request that the money from the May 2016 seizure be returned.
In December 2016, police seized $18,000 cash from the plaintiff's vehicle (the December 2016 seizure). The solicitor was instructed by the plaintiff in relation to this event.
The plaintiff was convicted in the Local Court at Wollongong on 27 January 2017 of unlawful possession of property with regard to the May 2016 seizure. The plaintiff represented himself during those proceedings.
The plaintiff appealed that conviction. On 5 May 2017, the District Court quashed the conviction. The solicitor did not appear for the plaintiff on that appeal.
On 12 July 2017 in the Local Court at Liverpool, the plaintiff appeared self-represented in relation to the December 2016 seizure. The matter was part heard and relisted for 12 October 2017. At that subsequent hearing, the plaintiff also appeared self-represented.
On 6 December 2017, the plaintiff was arrested in relation to 10 offences, including offences of perverting the course of justice, supplying very significant quantities of prohibited drugs, and participating in a criminal group (the 10 offences). The plaintiff has since been bail refused on those charges.
The first charge of perverting the course of justice relates to the May 2016 seizure. In a nutshell, the police allege that on 27 May 2016 the accused requested a Ms Ciello to draft an email falsely purporting that on 24 May 2014 she purchased a motor vehicle, and that that email served as a formal receipt and proof of purchase. It is further alleged that Ms Ciello sent the email to an email address provided by the plaintiff.
Accordingly, police allege that Ms Ciello's email was false and misleading, and furthermore that the plaintiff gave false evidence under oath in general conformity with it.
The second charge of perverting the course of justice alleges in short that, in the July 2017 proceedings, the plaintiff committed perjury regarding his dealings with the cash that is the subject of the December 2016 seizure.
The solicitor was instructed to act on behalf of the plaintiff in relation to these 10 charges.
On 30 January 2018, a detective spoke with the solicitor at his office regarding his written representations of 30 May 2016 with regard to the May 2016 seizure. The solicitor agreed that he had authored the documents.
On 14 March 2018, a conversation between the plaintiff and the solicitor was electronically recorded, in which the plaintiff informed the solicitor that the plaintiff had sent him an 18 page letter regarding a person known by the pseudonym of "AP1" (Authorised Participant 1).
According to the affidavit of the solicitor of 5 October 2018, the solicitor would receive instructions from the plaintiff by receiving telephone calls from the latter after he was incarcerated at Parklea Correctional Centre. The calls would be initiated by the plaintiff, and "the only subject of those telephone calls was the giving of instructions and legal advice."
According to the same affidavit, the plaintiff also sent the solicitor handwritten notes containing "his version of the facts and his interpretation of events".
On 28 March 2018, the solicitor appeared on behalf of the plaintiff for a mention in the Local Court at Campbelltown with regard to the 10 offences.
On 18 June 2018, Ms Tang, the plaintiff's partner, made an induced statement to police, a redacted copy of which was placed before me. In a nutshell, she spoke of having a problem with prohibited drugs; said that she knew that the solicitor was "helping" the plaintiff with his civil proceedings against the police; and denied that the solicitor had ever legally represented her, or that she had ever provided him with instructions.
On 12 July 2018, a search warrant was issued for the seizure of certain items relating to the plaintiff from the solicitor's legal practice. The search warrant was said to pertain to an "Office suite within a multi-storey building". The search warrant speaks of, for example, "Case file notes (electronic or otherwise) Retainer/documentation/instructions regarding [the plaintiff] relating to the following;" and thereafter goes on to refer to various allegations against the plaintiff and various court dates pertaining to them.
The issue of the search warrant was preceded by a written application by the police. A detective deposed that he had reasonable grounds for believing that items of the nature spoken of above would be located in the office of the solicitor, and that those "things" were connected with the offences of perverting the course of justice and participating in a criminal group.
The grounds in support of the application (a redacted version of which was annexed to the affidavit of the detective read before me) set out, amongst other things, the police assertion that the police could demonstrate that the May 2016 seizure in truth related to cash derived from the sale of prohibited drugs; that the plaintiff was in the habit of purchasing prohibited drugs; that the police could prove that the plaintiff had committed perjury on more than one occasion; and that, in summary, the plaintiff had committed many acts of dishonesty with regard to the provenance of the subject matter of both the May 2016 seizure and the December 2016 seizure.
On 13 July 2018, the search warrant was executed, and certain materials were seized and placed in the custody of the Registry of the Local Court at the Downing Centre, pending the resolution of a claim of client legal privilege made by the solicitor.
The property seizure form pertaining to the search warrant was annexed to the affidavit read by the defendant. In tendering that document in evidence before me, however, counsel for the defendant made it clear that she was not relying upon it for a hearsay purpose, and the use of the document on behalf of the defendant was limited by me in accordance with that basis of tender.
The property seizure form speaks of items being seized at "10:25" from the "office". Those items are described as "16 page written document marked 'Evidence Defence'; 6 page written document marked 'Dear James' dated 8 March 2018; 1 manilla folder labelled file no: 17/621 in the name of [Jason LUBECK] marked 'Drug offence'".
The form also speaks of a separate item having been seized at 11:10 am from the same location. The item is described as follows: "1 manilla folder labelled file no: 17/F11 in the name of [Lubeck] & [Tang] marked 'Criminal - Proceeds of crime'".
The same document goes on to describe the seizure of an external hard drive located in an "office laptop" at "12:17". Because it was made clear, however, at the hearing before me that there was no claim of privilege in regard to that physical item, I shall not discuss it further.
On behalf of the plaintiff, the solicitor filed in the Local Court an application for orders to deny the defendant access to the materials seized pursuant to the search warrant.
On 30 July 2018, a Registrar advised the solicitor that the Local Court cannot determine "legal professional privilege" with respect to access by the police to the seized materials, and that the plaintiff may instead wish to consider seeking an order for declaratory relief from the Supreme Court. (That advice, one can infer, led to the commencement of the proceedings before me.)
In his affidavit of 3 August 2018, the solicitor claimed client legal privilege with regard to "the materials seized by the police" "at least to the extent that they relate to instructions given to me and advice given by me".
In his second affidavit of 5 October 2018, the solicitor deposed "[a]t no time did I waive legal professional privilege in relation to those materials and communications".
In his third affidavit of 20 November 2018, the solicitor deposed (verbatim):
"My Casefile notes in proceedings involving the Plaintiff seized in the Search Warrant include were created solely and dominantly for the purpose giving legal advice and noting instructions. There is no other reason for the Plaintiff and I to have contact except the giving of instructions and giving of advice. My only relationship with him is as his solicitor."
Finally, later in the same affidavit, it was said by the solicitor that among the items seized pursuant to the search warrant was a document marked "Evidence Defences", and a separate document entitled "Dear James". It was also deposed that those two documents appeared in the property seizure form pertaining to the search warrant under the first item. (For convenience, I shall refer to the first of those documents as "the 16 page document", and to the latter as "the 6 page document".)
[3]
Preliminary question of whether to inspect third documents
At the hearing, it was made clear by the solicitor that the only three sets of documents with regard to which client legal privilege is claimed are: the 16 page document, the 6 page document, and sundry other handwritten pages, all of which were marked for clarity's sake at the hearing.
A preliminary dispute arose at the hearing as to whether I could or should inspect copies of all of the seized documents, the subject of the claim of client legal privilege, in order to determine the application.
Submissions about preliminary question
The plaintiff submitted that I should, in that the documents themselves could powerfully speak as to their nature, and therefore whether they fall within the privilege.
Counsel for the defendant ultimately conceded (at trial transcript page 5 line 6 (TT 5.06)) that "in those two documents it might well be appropriate for the Court to inspect of those file notes", that being a reference to the 16 page document and the 6 page document. But she resisted the proposition that I should inspect in Chambers the other various handwritten documents ("the third documents") with regard to which privilege was claimed.
Counsel for the defendant submitted that I should not, because, in the absence of other probative evidence, recourse to the documents would constitute something of an exercise in "bootstrapping".
The point was also made that, if I were to do so, inevitably she would be incapable of making submissions about the documents, for the simple reason that, if she were made aware of their contents, the privilege would be very largely dissipated.
In support of her approach, counsel referred in particular to Hancock v Rinehart [2016] NSWSC 12; Rinehart v Rinehart [2016] NSWCA 58; and Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002.
It was agreed at the hearing that, rather than breaking the matter up into stages, I should hear the matter in its entirety, but thereafter reflect sequentially in Chambers: first, about whether I should have access to the copies of the third documents; and secondly, about whether I should uphold the claim of privilege with regard to all documents.
[4]
Determination of preliminary question
Turning first to the question of whether I should inspect the third documents, it is quite true that the plaintiff himself has deposed not a word about the nature of the documents in general, nor about any purpose that he possessed in bringing them into existence. Indeed, he was simply content for the solicitor to claim the privilege for him.
Having said that, I think the point is soundly made on his behalf that, bearing in mind that he is facing extremely serious charges, it is understandable that he has chosen not to swear an affidavit that would compulsorily expose him to cross-examination, even indirectly, about the subject matter of those charges.
Separately, I think there is in truth a significant amount of evidence that the third set of documents do attract client legal privilege, in accordance with ss 118 and 119 of the Evidence Act 1995 (NSW), even without me having inspected them.
(I interpolate that, at the hearing, the vexed question arose as to whether the Evidence Act or the common law rules of evidence apply in circumstances such as these, bearing in mind the analysis of s 131A of the Evidence Act in cases such as Waugh Asset Management v Merrill Lynch [2010] NSWSC 197. After reflection, however, counsel for the defendant was content for me to resolve this application on the basis that the Evidence Act does apply, because she came to the view that, whichever rules of evidence are brought to bear on the question, the result would be the same. I accept that concession, and proceed to act on it.)
Turning to that evidence: first, the documents were seized from the professional premises of the solicitor.
Secondly, they were seized from a room described as an "office" (as opposed to a foyer, or kitchenette, and so forth).
Thirdly, the solicitor is actively in practice; so much is demonstrated by his appearance before me.
Fourthly, the solicitor has been acting for the plaintiff for many years with regard to civil and criminal matters.
Fifthly, there is uncontradicted evidence that the incarcerated plaintiff has been telephoning the solicitor and providing him with instructions.
Sixthly, the terms of the search warrant itself were apt to capture documents that could attract client legal privilege; in particular, they purported to capture "instructions".
Seventhly and finally, leaving aside entirely their contents, the titles of the 16 page document and the 6 page document - "Evidence Defence" and "Dear James" - have been placed before me, whether by way of the property seizure form, or in any event by way of the affidavit evidence of the solicitor. In my opinion, those titles support the proposition that the contents of those documents are confidential communications in the form of instructions from the plaintiff to the solicitor acting for him about his pending criminal matters, and accordingly that they fall within s 119 of the Evidence Act. (In order not to destroy the efficacy of the claim of privilege, I shall not in this judgment explore the contents themselves of those documents.)
Those two documents are not, of course, the documents with regard to which inspection was resisted by counsel for the defendant. But the fact that they were handwritten documents seized from the same office of the same solicitor on the same occasion as the documents with regard to which inspection is resisted is some evidence that the latter are documents that could attract client legal privilege.
In short, despite the admitted paucity of direct evidence in support of the claim of privilege with regard to the third documents, I consider that there is a significant concatenation of circumstantial evidence that the third documents could well be written instructions from the plaintiff to his solicitor about his pending litigation. At the least, I consider that there is sufficient evidence for me to inspect the documents.
Separately, it is true that many judges of many courts have warned against the upholding of client legal privilege without an adequate evidentiary foundation external to the subject documents themselves: Barnes v Federal Commission of Taxation [2015] FCA 282; Hancock v Rinehart; Rinehart v Rinehart; and Tavcol Pty Ltd v Valbeet Pty Ltd.
I respectfully adopt and apply that principle. Having said that, the Court of Appeal of this State itself noted that the circumstances in Hancock v Rinehart were most unusual, in that there undoubtedly was a client-lawyer relationship, but the crucial question, unanswered by the claimant of the privilege, was the role that she had been playing in the course of that relationship. And I have already accepted the proposition that it is understandable that the plaintiff here has not provided an affidavit upon which he almost inevitably would be cross-examined. Finally, as I have said, I think that there is here a sufficient circumstantial case of the third documents attracting client legal privilege, at least with regard to the preliminary question of whether I should inspect them.
For all of the above reasons, and in accordance with the procedure in which the parties agreed, I determined that I should exercise my discretion to examine the third documents in Chambers, and have done so.
[5]
Submissions of plaintiff about substantive question
At the commencement of his oral submissions about the substantive question, the solicitor made a number of important refinements of his case. I summarise them briefly for clarity.
First, no claim of client legal privilege was maintained before me with regard to any transcripts of intercepted telephone calls between the plaintiff and the solicitor.
Secondly, it was not my role to determine the validity of the search warrant, and I should simply determine the claim of client legal privilege on the working assumption that the search warrant was indeed valid.
Thirdly, the claim was being made by the solicitor on behalf of his client, the plaintiff.
Fourthly, no such claim was being made by the solicitor on behalf of Ms Tang.
Fifthly, the 16 page document and the 6 page document and the various separate pages that I have collectively called the third documents remained the subject of a claim of privilege on behalf of the plaintiff.
Sixthly, I was not being asked to determine definitively whether a claim of client legal privilege at all stages of all proceedings would be extant; rather, I was merely being asked to determine that claim for the purposes of whether the police should be prohibited from accessing the seized documents, on the evidence placed before me.
Seventhly, the solicitor was content for the question to be resolved in accordance with the Evidence Act (I have already referred above to the contentment of counsel for the defendant with the same course of action).
In that clarified context, the solicitor made the following submissions (bearing in mind that he himself was constrained, by the need to maintain the efficacy of the proceedings, not to discuss the precise contents of the 16 page document, the 6 page document, or the third documents).
In written submissions, the solicitor emphasised that there was no allegation made by the defendant of fraud or other disentitling conduct, pursuant to s 125 of the Evidence Act.
Nor, it was said, did the defendant submit that client legal privilege had been lost in any of the ways enumerated in s 122 of the Evidence Act.
It was emphasised that there was no evidence to the contrary of that of the solicitor to the effect that the communications did indeed fall within ss 118 and 119 of the Evidence Act.
It was said in writing that, on the evidence placed before me, I would be satisfied that, at the least, the dominant purpose of the documents brought them within the necessary sections.
The final written submission maintained before me by the solicitor was that, pursuant to s 133 of the Evidence Act, Parliament has specifically envisaged the results of inspection of the documents in question in these proceedings being used to determine that very question.
In oral submissions, the following was said on behalf of the plaintiff.
First, the solicitor accepted that there was a need for evidence to support a claim for client legal privilege, which is why he filed his third affidavit.
Secondly, the solicitor emphasised that this case is civil in nature, but nonetheless connected to a criminal matter. Relatedly, he submitted that there are logistical problems with the plaintiff swearing an affidavit, and there is an understandable reluctance to expose him to cross-examination.
Thirdly, in response to a case relied upon by counsel for the defendant, the solicitor submitted that Barnes v Commissioner of Taxation emphasises the need for focus upon the manner in which the questioned document was created. The solicitor submitted that, in accordance with the third affidavit, and even accepting the limitations on inferences that he himself claimed to have drawn from characteristics of the documents, the 6 page document and the 16 page document are to be understood as handwritten notes sent by the plaintiff to the solicitor from prison for the purposes of his pending charges. Accordingly, it was said, those two documents are certainly protected by client legal privilege.
Fourthly, it was submitted on behalf of the plaintiff that this case is to be distinguished from Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796, because this is not a case where some other professional purpose of the documents may be inferred, such as accounting. The only purpose that would be inferred, it was said, is the relationship between solicitor and client, and for the general purpose of preparation for litigation.
Fifthly, the solicitor submitted that, leaving aside any inferences that could be drawn from inspection of the documents, I should be satisfied on the balance of probabilities that the documents would be protected by client legal privilege on the basis of the property seizure form itself. The following indications on the form were said to support an inference of client legal privilege: the description of some of the documents ("Evidence Defence" and "Dear James"); the location of the documents (the solicitor's office); the date on which they were seized, at which time one would readily infer that the plaintiff had criminal proceedings pending against him; the notation about the manila folder with the name of the plaintiff on it; and the reference to a drug offence on that folder.
In reply, the solicitor submitted that I should have regard to the fact that the claim directly concerns a criminal matter and the liberty of the plaintiff. It was also said that the Court should consider the consequences of refusing the claim for privilege which would be greatly prejudicial to Mr Lubeck's defence, who is liable to be imprisoned for many years at the end of any trial.
[6]
Submissions of defendant about substantive question
The following written submissions of counsel for the defendant remained apposite after the process of refinement of issues that had occurred by the end of the hearing.
First, the evidence in support of the claim for client legal privilege fell a long way short of the requirement for evidence that is "focused and specific", to use the phrase spoken of in Barnes v Commissioner of Taxation and Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4). In the former case, it was said that "mere general assertions of the purpose of the creation of the documents are insufficient to discharge [the necessary] onus".
Secondly, she emphasised that the onus is upon the plaintiff to establish all of the factual elements necessary to establish the purpose that underpins client legal privilege.
Thirdly, despite the reliance by the plaintiff upon the most recent affidavit of the solicitor, it was said that the evidence before me consists of little more than generalisations and conclusions rather than specific, detailed assertions of fact sufficient to discharge the onus with regard to the claim of privilege.
In oral submissions, the following matters were emphasised.
First, it was submitted that this case fell squarely within what was said in Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337. That case and the present matter both involved a claim for privilege in relation to handwritten documents which was not supported by any "revealed reasoning process". Further, it is noteworthy that the client in that case and this matter did not give evidence as to the interactions with their respective solicitors.
Secondly, counsel emphasised that the descriptions of the documents on the property seizure form simply inform the Court "when and where" the documents were found, and I understood her point to be that, she herself had tendered the document for a limited purpose, and any further use of its content was the subject of objection pursuant to s 69(3)(b) of the Evidence Act.
Separately, not all documents found in a solicitor's officer are privileged simply by that fact.
It was submitted that whilst the title of the 16 page document, described as "Evidence Defence" may provide some evidence to support the plaintiff's claim, the same could not be said about the 6 page document, simply described as "Dear James".
Thirdly, counsel submitted that the plaintiff, as the moving party in these proceedings, had sought to rectify the deficiencies in evidence in relation the 6 page document and 16 page document, but not the third documents. Accordingly, it was said, I could perhaps draw an adverse inference against the plaintiff in that regard.
[7]
Determination of substantive question
Turning to my central determination, I am soundly satisfied that the 16 page document, the 6 page document, and the third documents attract the privilege. That is so for the following reasons, in ascending order of importance.
First, I repeat generally all of the circumstances that I have set out above with regard to the preliminary question.
Secondly, I have been content to determine this substantive question on the assumption, unfavourable to the plaintiff, that the property seizure form is not evidence of the truth of its contents.
Thirdly, it is true that the evidence relied upon by the plaintiff, external to the contents of the documents themselves, is rather sparse. Having said that, the undisputed evidence of the solicitor, in my opinion, goes beyond bland generalisations; for example, there is direct evidence of the professional relationship between the plaintiff and the solicitor, and the ways in which they were in the habit of communicating.
Fourthly, and in any event, as I have said, I have inspected all of the disputed documents, in accordance with the specific procedure contemplated by Parliament in s 133 of the Evidence Act. And, pursuant to s 183 of the Evidence Act, I am entitled to draw reasonable inferences from the contents and characteristics of those documents themselves, and I do so.
Without descending to a level of specificity for obvious reasons, having read all of the documents, I have formed the opinion that the 16 page document, the 6 page document, and the third documents are all are patently, self-evidently, obviously, written instructions from a client to his solicitor for the purposes of litigation.
It follows that I am affirmatively satisfied that the documents with regard to which privilege has been claimed fall within the statutory definition. It further follows that I shall make the declaration sought by the plaintiff.
[8]
Costs
In the result, the plaintiff has been successful with regard to the preliminary question, and also with regard to the 16 page document, the 6 page document, and the third documents.
The general rule is that costs should follow the event. But counsel for the defendant contingently submitted that, even if her client were to be comprehensively unsuccessful, nevertheless the plaintiff should not have his full measure of costs. That was said to be so for the following reasons.
First, the third affidavit of the solicitor in relation to the 6 page document and the 16 page document was served at a late stage, in circumstances in which the parties were still required to appear before me.
Secondly, owing to the lateness of the third affidavit, the defendant had prepared the case based on the deficiencies in the evidence served on behalf of the plaintiff prior to the day before the hearing.
Thirdly, as a matter of fairness, any victory by the plaintiff with regard to the 6 page document and the 16 page document should lead to costs being "split" with the defendant. That was because, it was said, had the plaintiff filed the significant affidavit earlier, time would have been saved in dealing with those documents in written and oral submissions.
Turning to my determination of the discrete question of costs, there is force in the proposition, with respect, that this matter could have been more efficiently and focusedly prepared by the solicitor on behalf of the plaintiff.
Having said that, the plaintiff succeeded at all phases of my determination. As well as that, even after the receipt of the material that was served late, the defendant never abandoned its opposition to the maintained claims of privilege, and a full, complex hearing was conducted before me.
Furthermore, the defendant - no doubt advisedly - applied for, obtained, and executed a search warrant upon the office of a solicitor that, in its terms, sought instructions from a client of that solicitor. Having taken that course, and having subsequently unsuccessfully resisted before me a claim of client legal privilege, I think it appropriate for the defendant to be liable for the entirety of the costs of the plaintiff, on the ordinary basis.
[9]
Orders
I make the following orders:
1. A declaration that the defendant, the NSW Police Force, must not access the material identified in this judgment as the "6 page document, the "16 page document" and the "third documents", seized as a result of the search warrant executed at the premises of Pope & Spinks on 13 July 2018, because of client legal privilege; and
2. The defendant, the NSW Police Force, must pay the costs of the plaintiff, Mr Jason Lubeck (a pseudonym), of the proceedings before me.
[10]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 May 2019