Adams, R.E. v Anthony Bryant & Co

No judgment structure available for this case.

IPL THE FEDERAL COURT OF AUSTRALIA	)
PIEM SOUTH WALES DISTRICT REGISTRY	) No. G114 to

GENERAL DIVISION

G157 Gf 1386

BETWEEN: RONALD EDWARD ADAMS

Frosecutor

Defendants

CORAM: Evatt	J
PLACE: Sydney

DATE : 17 September 1386

MINUTE OF ORDER

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THE-COURPORBEfS-THAT

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l.	The motlon flled on 27 August 1986 herein is dismlssed.

2 . The Defendants are to pay the Prosecutor's costs of the

motion.

‘

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

1	No. G114 of 1’386

GENERAL DIVISION

to G157 of 1986

BETWEEN: RONALD EDWARD

ADAMS

Prosecutor

*&NJ

:

ANTHONY BRYANT & CO FTY LIMITED, VENN CHARLES WILLIAMS,

CRAIG FRANCIS

NILLIAMS, and BRIAN

AHEARNE

Defendants

CORAM

Evatt J .

PLACE Sydney

=

D

17

September 1986

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REASONS FOR JUDGMENT

On 6 August 1986 Wllcox

J made certain lnterlocutory orders In

matters G114/86

through to G157/86, followmg

the hearing on 15

J u l y

1986 of

a

Notice of Motion flled by varlous defendants

xhereln

they

sought

agalnst

the

abovenamed

prosecutor

the

interlocutory orders set out at p

2 of Hls Honour’s Reasons for

Judgment.

The orders sought were:

1.

That the prosecutor provlde statements

of witnesses to

be relled upon

at the hearlng;

2 .

In the

alternative

to

1 above, that the

prosecutor

ldentify the names of the

wltnesses intended

t o

be

called and relied upon

at the hearlnq;

2 . That the prosecutor provide coples of documents lntended to be relied upon at the hearing;

4. That the

prosecutor

in

additlon

to

order

3 above,

provlde inspection of

original documents Intended to

be

relied upon

at the hearing;

5.

That the prosecutor provide particulars

as requested m

the letters of the solicltors for the	Defendants dated
30 May, 1986 and 4 June, 1986.

HIS Honour's reasons then reads:

The prosecutor consents to the making of orders

In accordance

71th paras 3 and 4 of the

Notice of Motion.

The matter of

partlculars, raised by para

5. was dealt

with during argument

upon the motlon and

I need say nothlng more about

it.

The substantlal Issue on the motion relates to para	1 of the
Notice of Motlon.

At the hearing before Wllcox J-on

15 July 1986 the prosecutor had

filed an affldavit sworn

by hlm that day. Paragraphs

9, 10 and

11 of that affldavlt referred to three bundles of documents

marked respectlvely

R E A 1, REA 2 and REA 3 belng proofs of

evldence of

varlous witnesses delivered

by the prosecutor in a

Brlef to Advise to the Sydney offlce

of the Dlrector

of Public

Frosecutions In respect of the present proceedlngs.

His Honour found that the documents in each

of the three bundles

were sublect to legal privilege and in the clrcumstances, namely

that there was "no

likellhood of unfairness". stated that he was

"not prepared to take a course whlch would require the prosecutor

or

the

Commission In

effect

to

waive

his or

its

legal

professional

prinlege".

Hls Honour went on to make further

orders dealing with

the supply by the prosecutor to the Sollcitor

for the defendants In each of the informatlons a list contalnlnq the full names of wltnesses mtended to be called on behalf of the prosecution not less than one month before the day appointed

for the commencement of the

trlal of the varlous lnformatlons or

any of them and wlthin that tune

for the supply by the prosecutor

to the Sollcltor for the defendants In each matter coples of all

documents Intended

to be relled

upon

by the prosecutor at the

hearlng and further granted Inspection

by

the defendants and

their legal representatlves

of all orlginal documents lntended to

be relled upon by the prosecutor.

On 27 August 1986 by Notice of Motlon flled that day pursuant to ~.7,4(1A) of the Federal Court Act 1976 the defendants moved the Court for orders "that leave to appeal be granted from that part

of the

Reasons for Judgment of Wllcox J declming

to order the

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prosecutor to produce the bundle of documents being Exhibit

REA 3

to the affidavit of the prosecutor sworn

15 July 1986".

Paragraph 11 of the prosecutor's affldavlt

of 15 July 1986 reads:

Exhiblted before me and marked REA3 is a bundle of documents being three statements made by persons who at the tlme of

maklng

the

statements

were

employees

of

or

offlcers

of

Scottlsh Amlcable Llfe Assurance Soclety

("the

Society")

[Scottish Amlcablel

whlch were

provided to the Commlsslon

prlor to 4 April 1986 for lncluslon in the

Elrlef on Evldence.

I am Informed and verlly belleve that those statements were

made In relation to proceedings

beti;een

the

Soclet?

and

-4nthony Bryant

& CO Pty Llmlted.

4.

The affidavit filed in support of the present motion

was that of

Julle

Terese Kalfas sworn

2 7

Auqust 1986. As to paragraph

3

thereof, Mr Hutley, who appeared for the defendants, dld not

read

that paragraph

In

vlew

of what was sald by Counsel for the

prosecutor on 15 July 1986 at pp	3 and 4 of the transcrlpt before
Wilcox J whlch reads:

I have received

those instructions now. Scottlsh CScottlsh

Amlcable3 wlsh

to clalm leqal privilege ln respect of those

statements.

I cannot provlde Your Honour

wlth the relevant

affldavlt evldence at	the moment.	Perhaps that matter could
be deferred.

In respect of bundle REA 3 HIS Honour determlned as follows:

The three statements of offlcers of Scottlsh Amlcable were, accordlnq to Mr Adams' affldavit. brought lnto exlstence for

the purposes of-- proceedmgs	between that Soclety and Anthony
Eryant.

The Anthony Bryant there referred to

1s the first named defendant

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--h~e-+n-Hl-s..Honour-went-on~----U-

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Although the affldavlt

1s somewhat cryptic it appears that It

was intended that they (that 1 s the three statements) be

used

for the purposes of

the conduct of those proceedlngs. Legal

prlvlleqe,

probably

that of Scottlsh

Amlcable,

would

therefore attach to the statements.

Mr Hutley argued before the Court

as presently constituted that

the only evidence before Wilcox J concerning the three statements

was slmply (i) that they had been delivered by Scottish Amicable

to the

Trade

Practlces Commisslon prlor to

4

April 1986 for

mclusion In the Brlef on Evldence dellvered by

the Commlsslon

and!or

Mr Adams to the Dlrector of Fublic Prosecutions: (ii) that

Scottlsh Amlcable's

action agalnst Anthony Bryant was a totally

dlfferent proceedlng to the present proceedlng and

(111) that the

dellvery of the statements to the Commission in the clrcumstances

as set out in paragraph

11

of the prosecutor's said affidavit

permitted only one

mference to be drawn, namely a walver by

Scottish Amicable

of

any legal privilege attaching to those

documents. Accordingly, Mr Hutley submltted Hls Honour had erred

in refusing the defendants access to these three statements.

This mference of course cuts across

what was said by Counsel for

the prosecutor on 15 July 1986 before Wilcox J m the passage set

out above. But the transcript shows that

"that matter could be

deferred". Yet a perusal of the transcrlpt before Wilcox

J shows

that the matter

was not again mentioned by Counsel nor was any

affldavlt evidence dlrected to Scottish Amlcable's clalm to legal

privilege tendered.

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Accordingly, Mr

Hutley submltted that in all the clrcumstances

leave should

be

granted allowing the defendants

to appeal ln

respect of this part of His Honour's judgment.

Mr

Katz.

for the

prosecutor,

submltted

that

on

a proper

construction of sub-section 24(1A)

of the Federal Court

Act,

leave to appeal from an lnterlocutory decislon should not be granted simply because the decision appealed from may be in the oplnion of the Court hearlng the motlon seekmg leave, Incorrect. He submltted that authority In respect of slmilar sectlons both

E.

m England and under the Supreme Court

of Victoria, where leave

provlslons have been

in force for many years, support the

n e w

that

It

1 s necessary that on any appllcatlon seeking leave to

appeal it

1 s not sufflcient to show merely that the decislon at

flrst Instance

1s wrong or doubtful but the party seeklng leave

must demonstrate that substantial in~ustlce

would be done If the

motlon for leave

1s refused.

In respect of

hls submlsslons Mr

Katz referred the Court to Nlemann v Electronlc Industrles Ltd

C13783 VR

431 and the cases thereln referred

to.

In that case

Murphy J at p 441 stated:

Likewlse In Perrv v

Smith (1901) 27 VLR 66 and the Darrel

Lea Case C19691 VR 401, the Full Court held

that leave should

only be granted to appeal from

an interlocutory ~udgment

or

order, ln cases

where substantial Injustice

1s done

by the

~udgment

or order Itself. If the order

was correct then It

--follcws

that substantlal injustlce could not follow.

If the

order 1 s seen to be

clearly

wrong,

thls

1 s

not

alone

sufflcient. It must

be shown, ln addltion,

to

effect a

substantial ~n~ustice

by Its operation.

view that this Court should	follow the principles laid	down In
cases such as Niemann’s case.

interlocutory orders in respect of the three statements making	up
bundle REA 3.

substantial injustlce to the defendants would	follow if leave was
refused.

refused.	The defendants are to pay the prosecutor‘s costs of the
motlon.

[1986] FCA 402

17 Sep 1986