Wenkart, Thomas Richard & Anor v The Commissioner, Australian Federal Police & Ors [1996] FCA 967

Wenkart, Thomas Richard & Anor v The Commissioner, Australian Federal Police & Ors [1996] FCA 967

Legal professional privilege applied to Documents 1, 2 (excluding the specific memorandum to Mike Wiley), and 11, as they were created for the sole purpose of giving or receiving legal advice between MPS, Dr Wenkart, Mr Holden, and SJSJ, and privilege had not been effectively waived because all joint holders (applicants) did not consent to waiver. The common law 'sole purpose' test, not the Evidence Act dominant purpose test, was determinative.

Jurisdiction
Australia
Judgment Date
11 November 1996
Procedural Posture
Application for Declarations and Judicial Review / Judgment on Privilege Claim
Outcome
Declarations made upholding privilege for specified documents; further orders reserved.
Legal Topics
['legal Professional Privilege' 'documentary Evidence' 'waiver of Privilege' 'judicial Review' 'privilege Between Legal and Other Advisers']
['evidence' 'administrative Law'] ['legal Professional Privilege' 'documentary Evidence' 'waiver of Privilege' 'judicial Review' 'privilege Between Legal and Other Advisers']

Case Brief

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Procedural Posture

Application for Declarations and Judicial Review / Judgment on Privilege Claim

Legal Issues

  1. 1 ['Whether documents seized during execution of a search warrant are the subject of legal professional privilege under common law.' 'Effect of a purported waiver of privilege by one joint privilege holder on the rights of others.' "Application of the common law 'sole purpose' test to the documents in question."]

Ratio Decidendi

Legal professional privilege applied to Documents 1, 2 (excluding the specific memorandum to Mike Wiley), and 11, as they were created for the sole purpose of giving or receiving legal advice between MPS, Dr Wenkart, Mr Holden, and SJSJ, and privilege had not been effectively waived because all joint holders (applicants) did not consent to waiver. The common law 'sole purpose' test, not the Evidence Act dominant purpose test, was determinative.

Court Disposition

Declarations made upholding privilege for specified documents; further orders reserved.

Orders

  • ['Declaration that Document 1, Document 2 (excluding the copy memorandum dated 27 June 1985 to Mike Wiley), and Document 11 are the subject of legal professional privilege.' 'Court to hear counsel on further orders.']