The Full Federal Court has unanimously dismissed the appeal of the taxpayers (ie Anthony Stewart, John Cornell, Paul Hogan and Rimfire Films Pty Ltd) from the decision at first instance in Australian Crime Commission v Stewart & Ors [2012] FCA 29 in which the Federal Court held that legal professional privilege did not apply to a range of documents obtained by the Australian Crime Commission in relation to the business affairs of the taxpayers. The taxpayers had claimed that certain disputed documents were protected by legal professional privilege under the law of California because they were prepared in California by attorneys admitted to practise in California and were prepared to advise the taxpayers primarily on the operation of Californian law.
In dismissing the taxpayers’ appeal, the Full Court agreed with the decision of the Court at first instance that no “choice of law” issue arose and that the question of whether the disputed documents were subject to legal professional privilege had to be determined under Australian law of legal professional privilege. (However, Besanko J found that the “choice of law” issue did arise but nevertheless found that the Australian law of privilege was the relevant law to choose because of relevant connecting factors with the Australian forum – namely, that the production of documents or a request for their production and the assertion of privilege occurred in the Australian jurisdiction.)
The Full Court then held that the Court at first instance had not erred in finding that the taxpayers failed to discharge the onus that they bore to establish the relevant documents had been brought into existence for the dominant purpose of giving or obtaining legal advice. In this regard, the Full Court noted, among other things, that the Court at first instance had properly sought to approach the matter by reference to distinguishing those documents which contained legal advice and those which contained commercial advice and had reached the conclusion that the requisite dominant purpose had not been established.
(Stewart & Ors v Australian Crime Commission [2012] FCAFC 151, Full Federal Court, Besanko, Jagot and Bromberg JJ, 29 October 2012.)
[LTN 210, 30/10]