FEDERAL COURT OF AUSTRALIA

[2004] FCA 332

Kennedy v Wallace

SUMMARY

In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a brief summary to accompany the reasons for judgment that are to be delivered today but form no part of the judgment.  It must be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment.  This summary is intended to assist in understanding the principal conclusions reached by the Court, but it is necessarily incomplete.

25 March 2004

FEDERAL COURT OF AUSTRALIA

[2004] FCA 332

Kennedy v Wallace

SUMMARY OF EFFECT OF REASONS FOR JUDGMENT
GIVEN ON 25 MARCH 2004

On 13 November 2003 a search warrant issued pursuant to the Crimes Act 1914 (Cth) was executed at the home of the applicant Mr Trevor Kennedy (Kennedy) by officers of the Australia Federal Police assisted by officers of Australian Securities and Investments Commission.  Amongst the things seized were:

1. A sheet of notepaper of the Ritz Hotel, London with handwritten notes on it.
2. A sheet of notepaper of the Florhof Hotel, Zurich with handwritten notes on it.
3. A notepad of the Ritz Hotel, London with no visible handwriting on it.

Kennedy brought this proceeding to recover those things and for consequential orders.  He claimed:

1. That each sheet of notepaper was wrongly seized as it was the subject of legal professional privilege.
2. That the notepad was not the kind of document described in the warrant as liable to seizure.

The judgment finds that:

1. Neither sheet of notepaper with handwritten notes was the subject of legal professional privilege.
2. The notepad was wrongly seized as it was not described in the warrant.

There are two reasons for rejecting the claim of legal professional privilege for the sheets of notepaper with handwritten notes.  The first is that Kennedy did not establish that the dominant purpose for making the notes was to obtain legal advice.  The second is that Kennedy did not establish that any legal advice that might have been related to the handwritten notes had any connection with the administration of justice or the proper functioning of the legal system in Australia that provides the basis for a claim of legal professional privilege for communications concerning seeking or obtaining legal advice.  Any such advice would have related to the taking advantage of Swiss laws in order to keep assets and transactions secret from Australian authorities.

At the request of the parties, no formal orders will be made today in order to give the parties the opportunity to consider the implications of these reasons for judgment.

The full text of the judgment is available on the Federal Court’s website at: www.fedcourt.gov.au