Kennedy v Wallace [2004] FCAFC 337

Kennedy v Wallace [2004] FCAFC 337

The privilege claim failed because Mr Kennedy did not discharge the onus of proof to show that the dominant purpose of creating the notes (or any part of them) was to obtain legal advice. The available evidence, comprised mainly of bare assertions in affidavits lacking detail on the thought processes or subject matter, was insufficient given the factual context and the dual legal/non-legal role of Mr Hafner. There was no error in the trial judge's approach. The Court confirmed that the privilege may extend to foreign lawyers' advice and to aide-memoire documents, but the particular facts did not support the claim.

Parties
Appellant: Trevor John Kennedy; First Respondent: Andrew Charles Verschuer Wallace; Second Respondent: Australian Securities & Investments Commission; Third Respondent: Commissioner of Police, Australian Federal Police
Jurisdiction
Australia
Judgment Date
23 December 2004
Procedural Posture
Appeal / On Appeal From a Single Judge of the Federal Court
Outcome
Appeal dismissed
Legal Topics
Legal Professional Privilege, Foreign Lawyers and Privilege, Purpose for Privilege, Evidence—onus of Proof, Procedural Fairness, Waiver and Estoppel in Privilege, Application of Crime/fraud Exception
Evidence Privilege Legal Professional Privilege Foreign Lawyers and Privilege Purpose for Privilege Evidence—onus of Proof Procedural Fairness Waiver and Estoppel in Privilege +1 more

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Parties

Trevor John Kennedy

Appellant

Andrew Charles Verschuer Wallace

First Respondent

Australian Securities & Investments Commission

Second Respondent

Commissioner of Police, Australian Federal Police

Third Respondent

Procedural Posture

Appeal / On Appeal From a Single Judge of the Federal Court

Legal Issues

  1. 1 Whether the appellant proved the dominant purpose of creating the documents was for obtaining legal advice, to engage legal professional privilege
  2. 2 Whether legal professional privilege extends to documents prepared as an aide-memoire for a meeting with a foreign lawyer who had other capacities in the relationship
  3. 3 Whether the trial judge erred in not accepting the appellant's affidavit assertions of purpose

Ratio Decidendi

The privilege claim failed because Mr Kennedy did not discharge the onus of proof to show that the dominant purpose of creating the notes (or any part of them) was to obtain legal advice. The available evidence, comprised mainly of bare assertions in affidavits lacking detail on the thought processes or subject matter, was insufficient given the factual context and the dual legal/non-legal role of Mr Hafner. There was no error in the trial judge's approach. The Court confirmed that the privilege may extend to foreign lawyers' advice and to aide-memoire documents, but the particular facts did not support the claim.

Court Disposition

Appeal dismissed

Orders

  • The respondents be restrained, until 5 pm 21 January 2005 or until further order, from acting as referred to in the order of 26 March 2004.
  • The parties have leave to move the Court on notice for any variation or discharge of order 1; notice of motion and supporting affidavits to be filed and served on or before 5 January 2005.