MM v Australian Crime Commission [2007] FCA 2026

MM v Australian Crime Commission [2007] FCA 2026

The notices were not invalid merely because the applicants, as non-recipient holders of possible legal professional privilege, were not given an opportunity to assert privilege before production. The Act preserves legal professional privilege by allowing recipients to claim it, including on behalf of others, but ss 29A and 29B show that the existence of notices may be kept from investigation targets while notations operate. The Examiner was not bound to consider the possibility that a recipient might fail to assert another person's privilege, and therefore the decisions to issue the notices were not an improper exercise of power.

Jurisdiction
Australia
Judgment Date
19 December 2007
Procedural Posture
Proceeding Challenging the Validity of Notices Issued Under the Australian Crime Commission Act 2002 (cth) Requiring Production of Documents Said to Be Subject to Legal Professional Privilege / Final Hearing on Admissions Made on the Pleadings
Outcome
Proceeding dismissed with costs.
Legal Topics
['australian Crime Commission Notices' 'compulsory Production of Documents' 'non Disclosure Notations' 'relevant Considerations' 'wickenby Investigation']
['administrative Law' 'legal Professional Privilege' 'criminal Investigation Procedure'] ['australian Crime Commission Notices' 'compulsory Production of Documents' 'non Disclosure Notations' 'relevant Considerations' 'wickenby Investigation']

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Procedural Posture

Proceeding Challenging the Validity of Notices Issued Under the Australian Crime Commission Act 2002 (cth) Requiring Production of Documents Said to Be Subject to Legal Professional Privilege / Final Hearing on Admissions Made on the Pleadings

Legal Issues

  1. 1 ['Whether the Australian Crime Commission Act 2002 (Cth) abrogated legal professional privilege in respect of documents produced by third parties under notices.' 'Whether holders of legal professional privilege, who were not recipients of notices, had to be given a reasonable opportunity to assert privilege before documents were produced.' "Whether the Examiner's decisions to issue notices were invalid because the Examiner did not take into account the applicants' entitlement to claim legal professional privilege."]

Ratio Decidendi

The notices were not invalid merely because the applicants, as non-recipient holders of possible legal professional privilege, were not given an opportunity to assert privilege before production. The Act preserves legal professional privilege by allowing recipients to claim it, including on behalf of others, but ss 29A and 29B show that the existence of notices may be kept from investigation targets while notations operate. The Examiner was not bound to consider the possibility that a recipient might fail to assert another person's privilege, and therefore the decisions to issue the notices were not an improper exercise of power.

Court Disposition

Proceeding dismissed with costs.

Orders

  • ['The proceeding be dismissed.' "The Applicants pay the Respondents' costs of the proceeding."]