Hogan v Australian Crime Commission

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow,Hayne,Heydon,Kiefel JJ.
• Judgment Date: 16 June 2010
• Neutral Citation: 2010-0616 HCA B,[2010] HCA 21
• Court: High Court
• Docket Number: S289/2009
• Date: 16 June 2010

[2010] HCA 21

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon And Kiefel JJ

S289/2009

Paul Hogan

Appellant

and

Australian Crime Commission & Ors

Respondents

Representation

J T Gleeson SC with F Kunc SC and P Kulevski for the appellant (instructed by Robinson Legal)

S J Gageler SC, Solicitor-General of the Commonwealth with D F C Thomas for the first and second respondents (instructed by Australian Government Solicitor)

D F Jackson QC with T D Blackburn SC and T Maltz for the third respondent (instructed by Blake Dawson Lawyers)

Hogan v Australian Crime Commission

Federal Court of Australia — Powers — Restriction of publication of evidence — Section 50 of Federal Court of Australia Act 1976 (Cth) (‘the Act’) provided Federal Court may make such order forbidding or restricting publication of evidence as appears necessary to prevent prejudice to administration of justice or the security of the Commonwealth — Forensic decision to tender documents in evidence, under cover of s 50 order but pending further hearing — Order vacated at further hearing — Whether s 50 order no longer necessary to prevent prejudice to administration of justice — Whether inherent confidentiality sufficient to establish prejudice — Relevance of s 17(1) of the Act, requiring exercise of jurisdiction in open court, and relationship with s 50.

Federal Court of Australia — Practice and procedure — Inspection of documents by non-party — Interests of open justice — Principles applicable to exercise of power to grant leave under Federal Court Rules, O 46 r 6(3) — Relevance of existing order made under s 50 of the Act.

Words and phrases — ‘administration of justice’, ‘confidential’, ‘necessary’.

Federal Court of Australia Act 1976 (Cth), ss 17(1), 50.

Federal Court Rules, O 46 r 6(3).

ORDER

1. Appeal dismissed.

2. Appellant to pay the costs of the third respondents.

1 French CJ, Gummow, Hayne, Heydon And Kiefel JJ. The present litigation arises out of a special investigation conducted by the first respondent, the Australian Crime Commission (‘the ACC’), known as Operation Wickenby. In the course of its investigation, the ACC issued a notice under s 29 of the Australian Crime Commission Act 2002 (Cth) (‘the ACC Act’) requiring an accounting firm (‘the Accountants’) to produce documents concerning a number of individuals and entities, including the appellant (‘Mr Hogan’). He has been a public figure for many years, in particular since the success of the film ‘Crocodile Dundee’ 1.

2 Under the ACC Act, an examiner may by notice in writing served on a person require that person, on pain of committing an offence by non-compliance (s 29(3), (3A)), to produce documents relevant to a ‘special ACC operation/investigation’ (as defined in s 4(1)) to the person specified in the notice (s 29(1)).

3 In his reasons for judgment delivered on 19 December 2007 in a related Federal Court proceeding, Emmett J recorded that the ACC accepted that the ACC Act does not abrogate the right or duty of a recipient of a s 29 notice to claim legal professional privilege on behalf of a person (whether the recipient of the notice or a third party) who holds the privilege 2. The litigation which has reached this Court has been conducted on that footing. It also appears to have been accepted that the powers of the ACC would not extend to the use or dissemination of documents to the content of which the privilege attached, and that such use or dissemination might be restrained by injunction.

The institution of the Federal Court proceeding

4 The Federal Court proceeding which has given rise to this appeal was commenced on 23 February 2006 by application made by Mr Anthony Stewart and filed as NSD 373 of 2006 3. Mr Stewart is an adviser to Mr Hogan who gave instructions to, and received advice from, the Accountants on behalf of

Mr Hogan. By his application Mr Stewart sought, inter alia, to restrain the ACC and the second respondent, the Chief Executive Officer of the ACC, from using or disseminating those documents produced by the Accountants to the ACC over which Mr Stewart claimed legal professional privilege on Mr Hogan's behalf. The jurisdiction of the Federal Court was conferred by both s 39B(1) and par (c) of s 39B(1A) of the Judiciary Act 1903 (Cth) as an injunction was sought against an officer or officers of the Commonwealth, in a matter arising under a federal law, the ACC Act. In response the ACC contended that the documents were not brought into existence for the dominant purpose of requesting or providing legal advice and that, in any event, the documents were made in furtherance of a crime or fraud such that no privilege existed 4.

5 On 11 May 2006 Mr Hogan was joined as the second applicant in the proceeding 5. On 21 July 2006 Emmett J held that prima facie, and with minor exceptions, the documents in dispute were subject to legal professional privilege enjoyed by Mr Hogan 6. On 17 November 2006 a further amended application was filed in which Mr Stewart was no longer named as an applicant in addition to Mr Hogan 7. Mr Hogan continued his claim for relief to protect those documents in the ACC's possession in respect of which he asserted privilege. The ACC maintained its submission that the crime or fraud exception applied.

The section 50 orders

6 Emmett J made a number of orders in reliance upon s 50 of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’). As it then stood 8 s 50 stated:

‘The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of

particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.’

7 Two points respecting s 50 should be made immediately. The first is that s 50 qualifies the general provision in s 17(1) of the Federal Court Act that the jurisdiction of the Federal Court is to be exercised in open court. The second concerns the phrase ‘the administration of justice’. In reading what follows in these reasons it should be borne in mind that, to adapt remarks of Mason CJ in R v Rogerson9, in no sense does the ACC administer justice; that duty was entrusted relevantly to the Federal Court.

8 The s 50 orders made by Emmett J variously prohibited publication of the name and address of both Mr Hogan and Mr Stewart, affidavits and exhibits thereto, and the reasons for judgment delivered by Emmett J on 21 July 2006. Some of those orders were sought by Mr Hogan, and others were sought by the ACC. In each case, the party not seeking the s 50 order either supported or, at the least, did not oppose the making of the order. Those orders were made because each of the parties, for his or its own reasons, desired that details of, and much of the evidence in, the proceeding not be made publicly available. The ACC desired to keep secret the result of the exercise of its powers of investigation under the ACC Act, and Mr Hogan his identity and financial affairs.

The discovery application

9 On 8 June 2007 Mr Hogan sought orders that the ACC provide discovery in relation to its case that the crime or fraud exception to privilege applied. On 9 August 2007, Mr Hogan filed an amended motion to that effect and Emmett J ordered the ACC to conduct enquiries and produce a list of documents concerning the inferences said to support the crime or fraud exception. The list was produced by the ACC and supplied to Mr Hogan, as later explained in these reasons.

10 In response, Mr Hogan filed a motion on 7 December 2007 seeking from the ACC further and better discovery with respect to its case that the crime or.

fraud exception applied. This application was heard by Emmett J on 19 May 2008.

11 In support of Mr Hogan's discovery application his solicitor, Mr David Peter Rydon, affirmed an affidavit on 13 February 2008. The affidavit of Mr Rydon was read in court by Mr Hogan's counsel on 19 May 2008 at the hearing of the application and thereby became evidence in the proceeding. Emmett J had been provided with a copy of Mr Rydon's affidavit in advance, and allowed it to be filed in court at the hearing. The exhibit to Mr Rydon's affidavit, exhibit DPR-1, contained material divided into a number of parts. Of critical importance in this appeal are the documents behind tabs C and E (‘the parts C and E documents’). It was upon these documents that the argument in this Court was focused.

12 Two points should be made immediately with respect to the parts C and E documents. First, they were not among the documents in respect of which the contested claim of legal professional privilege was made by Mr Hogan. Secondly, they were put in evidence by Mr Hogan as a step in support of his case that the privilege was not, as the ACC contended, defeated by the crime or fraud exception.

13 The part C document in exhibit DPR-1 was referred to in the proceeding as ‘the Inference Schedule’. The Inference Schedule had been produced by the ACC pursuant to orders made by Emmett J on 19 December 2006. Order 1 made on that day required the respondents to ‘file and serve a schedule identifying the inferences the respondents will contend at the hearing of this matter can be drawn from the evidence on which they rely’. The Inference Schedule sought to detail the inferences that could be drawn, as to the alleged involvement of Mr Hogan in tax evasion schemes, from documents in the ACC's possession. The Inference Schedule had been served on Mr Hogan on 8 February 2007, but was not then filed. However, it formed part of exhibit DPR-1 to Mr Rydon's affidavit, which was ultimately read in Mr Hogan's case and filed in court on 19 May 2008.

14 The part E documents in exhibit DPR-1 comprise file notes and accounting...