The Federal Court has held that legal professional privilege attached to a number of documents obtained by the Australian Crime Commission (ACC) from several taxpayers.
The Court said the ACC, in exercise of powers under the Australian Crime Commission Act 2002 and warrants issued under the Crimes Act 1914, had obtained a large number of documents that related to the affairs of the 4 respondents in the case, being Anthony Stewart, John Cornell, Paul Hogan and Rimfire Films Pty Ltd. The ACC disputed the respondents’ claims of legal professional privilege in respect of many of those documents and sought declarations that legal professional privilege did not apply.
The Federal Court said the respondents claimed that certain of the disputed documents were governed by the law of California and they claimed that those documents were protected by legal professional privilege under the law of California because they were: (i) prepared in California; (ii) prepared by an attorney or attorneys admitted to practise in California and owing professional responsibilities to Californian Courts and under Californian law; (iii) prepared pursuant to a retainer, the proper law in respect of which was Californian law; (iv) prepared to advise clients primarily on Californian law.
The Federal Court accepted the ACC’s primary submission that no choice of law issue arose and concluded that whether the disputed documents were subject to legal professional privilege had to be determined under Australian law of legal professional privilege.
The Federal Court said that, ultimately, the claim for privilege failed in respect of many documents because the evidence was not sufficient to discharge the onus that the respondents bore to establish the requisite dominant purpose ie that the relevant document must have been brought into existence for the dominant purpose of giving or obtaining legal advice.
The Court then set out in an Annexure a list of the documents (including emails, faxes, letters, memoranda, file notes, etc), which it found did, and did not, attract privilege.
(Australian Crime Commission v Stewart & Ors [2012] FCA 29, Federal Court, Stone J, 30 January 2012.)
[LTN 19, 31/1]