Court of Appeal (WA)|2009-11-13|Before: Lure JA, Buss JA, Newnes JA, Murray J

RAYNEY -v- AW [2009] WASCA 203 (13 November 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RAYNEY -v- AW [2009] WASCA 203

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : AW -v- RAYNEY [2009] WASC 250

Review of magistrate's order - Application for decision on claim of legal professional privilege - Redaction of affidavits and submissions - Compulsory disclosure of redacted information to respondent's lawyers - Scope of power in s 36 of the Magistrates Court Act

Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475

Barnes v Commissioner of Taxation (Cth) [2007] FCAFC 88; (2007) 242 ALR 601

Commissioner of Taxation v Coombes [1999] FCA 842; (1999) 92 FCR 240

Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163

Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34

National Crime Authority v S (1991) 29 FCR 203

Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501

Telebooth Pty Ltd v Telstra Corporation Ltd [1994] VicRp 21; [1994] 1 VR 337

The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83

The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543

Z v New South Wales Crime Commission [2007] HCA 7; (2007) 231 CLR 75

1 McLURE JA: This is an appeal from an order made by Murray J on 14 September 2009 requiring the appellant, subject to the provision of confidentiality undertakings, to serve on the solicitor and/or counsel of record for the respondent in unredacted form all affidavits and submissions filed on behalf of the appellant containing information which was the subject of a claim by the appellant for legal professional privilege (the disclosure order). At the conclusion of the hearing, the court allowed the appeal and dismissed the notice of contention. The order made by the primary judge should be set aside. These are my reasons for joining in the making of those orders.

2 The background is as follows. On 22 August 2007 and 20 September 2007, the Western Australian police executed search warrants under s 42 of the Criminal Investigation Act 2006 (WA) at the appellant's residential address and his business address. The appellant is a practising barrister.

3 A number of items were seized by police during the execution of the search warrants including non-electronic and electronic records. The appellant notified the police that he claimed legal professional privilege over all the records seized from his business address and all of the information contained on the computers and other electronic records seized under the search warrants.

4 On 24 August 2007 and 24 September 2007, in accordance with s 151 of the Criminal Investigation Act, the respondent made two applications to the Perth Magistrates Court (the Court) in order for the claims of legal professional privilege to be determined (applications 3 and 6 of 2007).

5 In view of an impending District Court trial in relation to a charge that the appellant breached the Telecommunications (Interception and Access) Act 1979 (Cth), the respondent requested a priority review of the electronic records, in particular any audio recordings, seized from the appellant's residential and business premises. A computer forensic expert was appointed by the Court for the purpose of assisting the Court in identifying relevant records contained on the electronic records. He confirmed he had located various audio recordings from among the electronic records.

6 The audio recordings located by the expert are included in a list of 81 items, some of which include recordings of conversations between the appellant and his deceased wife, Corryn Rayney, recordings of conversations between the appellant and other persons, copies of those recordings and associated metadata.

7 The appellant withdrew a claim of privilege over one item (item 35) but maintains his claim over all the other items (items 1 to 34 and 36 to 81).

8 On 23 January 2009, the magistrate made orders for the filing of affidavits and written submissions in relation to the appellant's claim for legal professional privilege. By order 10 made on that date, the magistrate ordered:

[The appellant] may, before serving any document required to be served by these orders, redact those portions of the document which reveal the nature or content of a communication or information which is the subject of the claim of legal professional privilege ('the Redacted Service Copy') and may serve the Redacted Service Copy in place of the document required to be served.

9 There has been no appeal from that order. Pursuant to that order, the appellant filed written submissions and three affidavits on which he intended to rely in support of his claim for legal professional privilege. The appellant served on the respondent copies of the affidavits and submissions, significant portions of which had been redacted (edited) to remove information to which the appellant had made a claim for legal professional privilege.

10 The respondent informed the Court by letter that he was unable to proceed with any substantive hearing regarding the claim of legal professional privilege because the extent of the redactions did not allow the respondent to meaningfully participate in the proceedings. On 18 March 2009, the Court provided its Reasons for Ruling on the Extent of Redactions (reasons) upholding certain redactions and ruling that other material no longer be redacted and that it therefore be made available to the respondent. The reasons contained two schedules, B and C. Those schedules contain extracts of redacted material the subject of the various rulings. On 26 March 2009, the Court made orders by consent giving effect to the reasons.

11 The rulings in the reasons are interlocutory in nature; they do not purport to finally determine the appellant's claim for legal professional privilege. In particular, the magistrate ruled in favour of redactions where he determined that there was a serious issue to be tried on whether the redacted information was privileged (AB 103). Information in that category included (1) the dates of audio recordings; (2) the names of persons (other than the appellant's deceased wife) with whom the appellant had telephone conversations that had been recorded; (3) the content of audio recordings (including those with the appellant's deceased wife); (4) the names of potential witnesses and the dates of communications with those witnesses; (5) the name of a solicitor with whom the appellant had dealt; and (6) computer files said to disclose the parties for whom the appellant had acted, their addresses, the matters on which the appellant acted and the names of the solicitors who instructed him.

12 The respondent filed an appeal notice against the orders foreshadowed in the reasons dated 18 March 2009 rather than the consent orders made on 26 March 2009. Be that as it may, the respondent relied on two grounds of appeal. They are in substance that the magistrate erred in law in ruling that the appellant could rely on affidavit evidence that was redacted and on submissions that were redacted 'when the extent and effect of those redactions was to deny the [respondent] natural justice in that it severely prejudiced the [respondent's] entitlement to be heard under s 151(7) of the Criminal Investigation Act 2006, by depriving the [respondent] of the opportunity to test the [appellant's] evidence and present its own evidence in relation to the [appellant's] claim of legal professional privilege'. To the extent he was able, the respondent particularised the specific rulings that were in issue.

13 The appeal came on for directions before the Chief Justice on 30 April 2009. The Chief Justice indicated his view that the appeal was incompetent and ordered that the 'proceedings proceed [as] an application for review under s 36 of the Magistrates Court Act 2004 (WA)'. The parties were ordered to file submissions.

14 The application came on for hearing before the primary judge. Over objection from the appellant, the application was conducted on the basis that the grounds of appeal were in effect the subject of a review order made under s 36(1) of the Magistrates Court Act and the hearing before the primary judge was a final hearing under s 36(4) of the Magistrates Court Act. No objection is now taken to that course.

15 However, the primary judge did not consider whether the magistrate erred in his rulings on the specific redactions identified by the respondent in his particulars. The primary judge expressly confined the question in issue to whether an order that simply permits redaction constitutes a denial of natural justice [27] - [28]. He held that it did not. It is common cause that the primary judge concluded that the magistrate had not made any error and certainly no error which would have enlivened the court's discretion under s 36(1) to make a review order.

16 Notwithstanding the primary judge's conclusion that the magistrate had made no error of any kind, he held that the court had the power to make a consequential order under s 36(4) of the Magistrates Court Act. He said:

I would summarise my views in the following way, so far as the review order is concerned. I do not consider that order 10, the order permitting redaction before service on the applicant, was an abuse of process or reflected an abuse of process, or provides a ground upon which certiorari might have been ordered. Nor do I consider that the orders made on 18 March in relation to redactions and the service of documents on the applicant, having regard to those redactions, constituted an abuse of process or the establishment of a ground which might justify an order of certiorari. Having regard to the terms of s 36(4), I am therefore not satisfied, in accordance with the review order, that I am required to set aside the orders made.

However, having regard to the terms of the [Magistrates Court Act], section 36(4), I do consider that it would be just to make certain consequential orders adding to the orders already made by the magistrate in relation to the material to be served by the respondent. I would order that the affidavits and their annexures, and the submissions on behalf of the respondents in relation to both the process of redaction and in respect of the claim for legal professional privilege, be served in unredacted form upon the persons who are the solicitor and counsel of record for the applicant, subject to the individuals concerned signing an undertaking to be given to the Magistrates Court that the individuals so served will not, in any circumstances and at any time, further divulge the content of the document served upon them to any other person, except by way of affidavits and/or submissions filed in the Magistrates Court and served upon the solicitors for the applicant [60] - [61].

17 The primary judge noted that the respondent had not sought such an order, which was made 'without the assistance of submissions for or against that proposition on the part of either the applicant or the respondent' [59].

18 The appellant relies on one ground of appeal which is in the following terms:

The learned primary Judge erred in law in ordering that the unredacted affidavits and unredacted written outlines of submissions filed on behalf of the appellant in the Magistrates Court in support of the appellant's claim of legal professional privilege be served on the solicitor and counsel for the respondent upon such persons giving undertakings of confidentiality.

Particulars

(a) The learned primary judge purported to make the order pursuant to s 36(4)(c) of the Magistrates Court Act 2004 (WA), in circumstances in which the order was not a 'necessary consequential order'.

(b) The learned primary judge purported to substitute his own decision for the decision of the Magistrate, which was beyond the power of the learned primary Judge.

19 The actual issues that arise for determination in the appeal are not clearly identified in the ground as formulated. The same may be said of the amended ground of contention which is in the following terms:

Having found that the Respondent was deprived of the capacity to enter in the debate about the records the subject of the claim of legal professional privilege, the learned primary Judge granted a remedy pursuant to section 36(4)(c) of the Magistrates Court Act 2004 instead of section 36(4)(b) when the remedy granted:

(a) could have been granted by way of a writ of mandamus in accordance with section 36(4)(b); or

(b) as a necessary consequence of an order made pursuant to section 36(4)(b) of the Magistrates Court Act 2004.

20 The respondent's actual contention was that the primary judge had power to make an order under s 36(4)(b) notwithstanding his conclusion that the magistrate had not made any relevant error. The respondent expressly disavowed any claim that the primary judge had erred in concluding that the magistrate had not made an error that enlivened the court's discretion to make a review order.

Construction of s 36 of the Magistrates Court Act

21 The issue for determination identified by the appellant is whether the Supreme Court has the power to make a consequential order under s 36(4)(c) without making an order under s 36(4)(a) or (b) of the Magistrates Court Act. The related and determinative issue is whether the Supreme Court has the power to make an order under s 36(4) in the absence of a positive finding that the magistrate (i) failed to act on any ground specified in s 36(1)(a) or (ii) proposed to act on any ground specified in s 36(1)(b) or (iii) had acted on any ground specified in s 36(1)(c).

22 Section 35 of the Magistrates Court Act provides that a writ of mandamus, prohibition or certiorari may not be issued in respect of or directed to a court officer. Section 36 relevantly provides:

(1) If a person is or would be aggrieved by one or more of the following -

(a) the failure of a Court officer to do any act or make any order or direction -

(i) on the ground that the officer is under a duty to do the act or make the order or direction; or

(ii) on any ground that might have justified an order of mandamus;

(b) an act, order or direction that a Court officer proposes to do or make -

(i) on the ground that it would be without jurisdiction or power or would be an abuse of process; or

(ii) on any ground that might have justified an order of prohibition;

(c) an act, order or direction done or made by a Court officer -

(i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or

(ii) on any ground that might have justified an order of certiorari,

the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.

(2) The procedure for making, and in relation to, an application under subsection (1) is to be prescribed by rules of court of the Supreme Court.

(3) On an application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not.

(4) If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -

(a) order that the act, order or direction be or not be done or made or set aside, as the case requires;

(b) grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;

(c) make any necessary consequential orders.

(5) On an application made under subsection (1) in respect of an act, order or direction, the Supreme Court may -

(a) if it considers that an appeal lies under the Criminal Appeals Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and deal with the matter accordingly;

(b) if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly.

23 Order 56A of the Rules of the Supreme Court 1971 (WA) prescribes the procedure for review orders under s 36 of the Magistrates Court Act.

24 The Magistrates Court Act and the new Magistrates Court which it created commenced on 1 May 2005. The creation of the Magistrates Court was accompanied by the repeal of the Justices Act 1902 (WA) and the Local Courts Act 1904 (WA). Those repealed Acts had made provision for judicial review by the Supreme Court of the acts or omissions of officers of the Local Court and Court of Petty Sessions: Pt VII of the Local Courts Act; s 39 of the Justices Act.

25 Judicial review is a supervisory function that is distinct from an appeal or other review on the merits. Judicial review concerns itself solely with the legality of decisions. The focus is on jurisdictional errors. At common law, the scope of judicial review is determined by the availability of the prerogative writs, which include mandamus, prohibition and certiorari. For all intents and purposes, the right and remedy are indistinguishable at common law.

26 The scope of judicial review varies according to the nature and power of the decision-maker. The common law grounds of judicial review applicable to courts and analogous tribunals are significantly narrower than the grounds of review of decisions of administrative tribunals: Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 - 179; Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [181].

27 There can be no doubt that the power in s 36 of the Magistrates Court Act is a judicial review power. The purpose of s 36 is to replace, and provide a statutory alternative to, the common law relating to judicial review of the acts or omissions of officers of the Court. The intention is to permit judicial review in those situations in which the specified prerogative writs would have been available but also to free the courts from the technical requirements associated with those ancient remedies. That purpose is evident in the language and context of s 35 and s 36. Section 35 takes away the Supreme Court's power to issue a prerogative writ in the form of a writ of mandamus, prohibition or certiorari and substitutes the remedies in s 36(4). A review order, like an order nisi, is an order to show cause why the relief in s 36(4) should not be granted.

28 The language and purpose of s 36 in its broader statutory context compels the conclusion that the power in s 36(4) to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established.

29 Section 36(1) is not solely concerned with the standing of a person to apply for a review order. Importantly, it identifies the purpose and content of a review order. The review order must require the court officer (and any other affected persons) to satisfy the Supreme Court at a hearing that the act, order or direction referred to in pars (a), (b) or (c) of s 36(1) should or should not be done, made or set aside by reference to the grounds of review specified in subpars (i) and (ii) of those paragraphs.

30 The 'hearing' referred to in s 36(1) is the hearing for final relief in s 36(4). Thus, there is an express link between the grounds enlivening the power to make a review order in s 36(1) and the power to grant relief in s 36(4).

31 Section 36(3), when read with s 36(1), provides the source and scope of the court's power to make a review order. The Supreme Court 'may make any review order that is just, whether it has been applied for or not'. Satisfying the threshold (whatever that may be) for an error of a type identified in subpars (i) and (ii) of s 36(1)(a), (b) or (c) (a reviewable error) is a precondition to the exercise of the power to grant a review order. The expression 'that is just' is not intended to empower the court to make a review order requiring the decision-maker to show cause if the decision-maker has not made (at least) an arguable reviewable error. The expression 'that is just', in context, means the court has the power to grant a review order whether or not there is an application for such an order and whether or not a specific ground of reviewable error has been relied on by the applicant. The expression also empowers the court in appropriate circumstances (such as the availability of an appeal) to decline to make a review order even if the threshold test of a reviewable error has been established. The power is, in that limited sense, discretionary.

32 The expression that 'the Supreme Court is not satisfied in accordance with the review order' in s 36(4) corresponds with the requirement in s 36(1) that the court officer (and any other affected persons) satisfy the Supreme Court in relation to the alleged reviewable error the subject of the review order. The central question in this case is the meaning of the words 'or if it is just to do so' in s 36(4). Those words are not intended to make the power to grant final relief at large. By analogy with the similar expression in s 36(3), the power in s 36(4) is conditioned upon establishing a reviewable error. The expression 'just to do so' is intended to permit the court to grant final relief in relation to a reviewable error falling within s 36(1) even if it falls outside the scope of the reviewable errors identified in the review order. Having regard to the language and statutory purpose of s 36 the expression cannot sensibly be interpreted to mean that the Supreme Court can exercise one or more of the powers s 36(4)(a), (b) or (c) whether or not there is a reviewable error or indeed any error at all. Such an approach would turn the notion of judicial review completely on its head.

33 This construction of s 36(4) is consistent with the scope of the available relief in s 36(4). The power to grant the relief in pars (a) and (b) of s 36(4) corresponds precisely with the relief required to address the acts and omissions specified in pars (a), (b) and (c) of s 36(1). Further, the power in s 36(4)(c) 'to make any necessary consequential orders' can only be a reference to a prior substantive order made under pars (a) or (b) of s 36(4). A consequential order is one which follows logically or of necessity from a prior substantive order: Pera v Pera [2008] FamCAFC 87; (2008) 218 FLR 222 [61].

34 In summary, the power to make an order under s 36(4) only arises if the challenged act or omission of the court officer satisfies one or more of the grounds specified in s 36(1)(a), (b) or (c). As neither party contended in the appeal that the magistrate made any reviewable error, it follows that the primary judge did not have the power to make the disclosure order.

35 The disclosure order made by the primary judge was not sought by any party and was not the subject of submissions. If the primary judge had followed the usual procedures which are informed by the principles of procedural fairness, he may not have led himself into error.

36 In making the disclosure order, the primary judge relied on the practice of courts in this and other jurisdictions to fashion orders limiting the disclosure of confidential commercial information in the course of legal proceedings (see for example, Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, which was relied on by the primary judge). However, the crucial difference in cases of that nature is that the court has the power to compel the unrestricted disclosure of the information in question. That is not the case for information the subject of a valid claim to legal professional privilege.

37 Legal professional privilege is a rule of substantive law 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: The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 [9]; Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, 490. The majority in Daniels 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. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect [11].

38 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 and the giving of evidence in judicial proceedings but may be availed of to resist the giving of information or the production of documents under investigatory procedures such as a search warrant: Daniels [10]. It was not contended by either party that s 151 of the Criminal Investigation Act so altered the appellant's common law right in relation to legal professional privilege as to empower the court to compel the disclosure of that information to the lawyers for the respondent.

39 A claim for legal professional privilege is to be contrasted with a claim of public interest immunity in which the court is required to undertake a balancing of competing public interests: The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83 [32].

40 Where there is a claim for legal professional privilege, the only appropriate and proper course is for the court to consider and determine the claim before making any disclosure order.

41 As a result of the restricted scope of the notice of contention, no issues arise in this court as to the propriety of the procedure adopted by the magistrate for determining the claim to legal professional privilege or the merits of the rulings he made on the permissible redactions. However, it is appropriate to make a number of general observations.

42 Ordinarily, the person claiming and carrying the onus of establishing legal professional privilege is required to (a) list each communication the subject of the claim for privilege; (b) state the form in which each communication is contained, stored or recorded, whether it is an original or a copy and the date when each was made; (c) identify the persons between whom the communication or communications were made; and (d) provide evidence as to the basis of the claim for legal professional privilege: National Crime Authority v S (1991) 29 FCR 203, 212; Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 [13].

43 That procedure reflects the general rule which is that the date or dates of a communication and the identities of the persons involved in the communication are not ordinarily protected by legal professional privilege: see Z v New South Wales Crime Commission [2007] HCA 7; (2007) 231 CLR 75 [4], [36]; Commissioner of Taxation v Coombes [1999] FCA 842; (1999) 92 FCR 240 [31]; Barnes v Commissioner of Taxation (Cth) [2007] FCAFC 88; (2007) 242 ALR 601. Moreover, communications with opponents are not ordinarily the subject of legal professional privilege: Telebooth Pty Ltd v Telstra Corporation Ltd [1994] VicRp 21; [1994] 1 VR 337, 339; Sugden v Sugden [2007] NSWCA 312; (2007) 70 NSWLR 301 [63] - [64]. The statement of the general rule recognises that such information may be privileged in exceptional circumstances.

44 On any view of the matter, the appellant's claim for privilege is very broad and includes matters not ordinarily the subject of legal professional privilege. If that information is not the subject of privilege, it should be

available to the respondent for the purpose of testing the merits of the core claims.

45 It is over two years since the respondent applied to the Court for the appellant's claims of legal professional privilege to be determined. By any measure that is a very lengthy delay. The proper administration of justice requires that the applications before the Court, and any appeal or other application arising therefrom, be heard and determined expeditiously.

46 BUSS JA: I joined in the orders made by the court on 22 October 2009 for the reasons now published by McLure JA.

47 NEWNES JA: The reasons of McLure JA reflect my own reasons for allowing the appeal and dismissing the notice of contention.

Investigation Act 2006

(Interception and Access) Act 1979

Court (Civil Proceedings) Act 2004

RAYNEY -v- AW [2009] WASCA 203 (13 November 2009)

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RAYNEY -v- AW [2009] WASCA 203 (13 November 2009)

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