Adams, R.E. v Anthony Bryant & Co. Pty Ltd

[1986] FCA 329

Re: RONALD EDWARD ADAMS
And: ANTHONY BRYANT & CO PTY LIMITED; VENN CHARLES WILLIAMS; CRAIG FRANCIS
WILLIAMS and BRIAN AHEARNE
Nos. G114 to G157 of 1986
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Practice and Procedure - Summary criminal proceedings - Pre-trial procedures - Application for order that prosecutor supply to defendants copies of statements of witnesses - Application for order to supply list of witnesses to be called - Whether statements or list of names subject to legal professional privilege - Power of court to control proceedings so as to ensure a fair trial.

Trade Practices Act 1974 ss.53, 55A, 79

Judiciary Act 1903 s.79

Supreme Court (Summary Jurisdiction) Act 1967 (NSW) Rules of the Supreme Court of New South Wales Part 75

Australian National Airlines Commission v Commonwealth of Australia (1975) 49 ALJR 338, State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579, Barton v The Queen (1980) 147 CLR 75, Grant v Downs (1976) 135 CLR 675, Baker v Campbell (1983) 153 CLR 52, Maddison v Goldrick (1976) 1 NSWLR 651, Attorney General v Findlay (1976) 9 ALR 521, The Queen v Kent; ex parte McIntosh (1970) 17 FLR 65, The Queen v Cahill; ex parte McGregor (1985) 61 ACTR 7, Cain v Glass (1985) 3 NSWLR 39 referred to.

HEARING

SYDNEY

#DATE 6:8:1986

Counsel for the Prosecutor: Mr J S Hilton

Solicitors for the Prosecutor: Director of Public Prosecutions.

Counsel for the Defendants: Mr N Hutley

Solicitors for the Defendants: Phillips Fox

ORDER

1. Not less than one month before the day appointed by the Court for the commencement of the trial of the informations NSW G.144 of 1986 to G.157 of 1986, or any of them, the prosecutor supply to the solicitors for the defendant in each of the informations to be tried a list containing the full names of each of the witnesses intended to be called on behalf of the prosecution in support of any information to be tried.

2. Not less than one month before the day appointed by the Court for the commencement of the trial of the informations NSW G.144 of 1986 to G.157 of 1986, or any of them, the prosecutor supply to the solicitors for the defendant in each of the informations to be tried copies of all documents intended to be relied upon by the prosecutor at the hearing.

3. The prosecutor permit inspection by the defendants and their legal representatives of all original documents intended to be relied upon by the prosecutor at the hearing.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

There are pending in the Court forty-four informations laid by Ronald Edward Adams, an officer of the Trade Practices Commission, against four separate defendants, Anthony Bryant & Co Pty Limited, Venn Charles Williams, Craig Francis Williams and Brian Ahearne. The charges are all related. It is alleged that the company made various misleading statements in contravention of s.53(g) of the Trade Practices Act 1974 and that it engaged in conduct that was liable to mislead the public as to the characteristics of services, in contravention of s.55A of the Act. The three individual defendants are alleged to have been knowingly concerned by omission in the commission of the offences. The misleading statements and conduct are said to relate to the terms of policies issued by Scottish Amicable Life Assurance Society.

1. There is, apparently, a considerable overlap in the facts relating to each of the alleged offences and it has been agreed between the parties that all the matters should be heard together. Counsel estimate that the hearing may take some weeks.

2. The various defendants have, by Notice of Motion, sought the following interlocutory orders:
   
   

"1. That the prosecutor provide statements of witnesses to be relied upon at the hearing;

2. In the alternative to 1 above, that the prosecutor identify the names of the witnesses intended to be called and relied upon at the hearing;

3. That the prosecutor provide copies of documents intended to be relied upon at the hearing;

4. That the prosecutor in addition to order 3 above, provide inspection of original documents intended to be relied upon at the hearing;

5. That the prosecutor provide particulars as requested in the letters of the solicitors for the Defendants dated 20 May, 1986 and 4 June, 1986."

1. The prosecutor consents to the making of orders in accordance with paras.3 and 4 of the Notice of Motion. The matter of particulars, raised by para.5, was dealt with during argument upon the motion and I need say nothing more about it.

2. The substantial issue on the motion relates to para.1 of the Notice of Motion. Counsel for the defendants submits that, in the interests of both fairness and expedition, copies of the statements of the witnesses to be called by the prosecutor ought to be supplied to the defence in advance of the hearing. He points out that there are numerous informations, involving four separate defendants, and he suggests that this course is necessary to enable the defendants and their legal representatives to appreciate the case sought to be made in support of each information. Counsel says that although the allegations are of serious import, both in relation to the conduct alleged against the defendants and the penalties which may be imposed if the informations are found proved, his clients lack the usual advantage of defendants in criminal matters of committal proceedings at which the prosecution evidence is disclosed before trial. Counsel draws attention to the fact that the Rules of the Supreme Court of New South Wales contain provisions relating to summary criminal trials in that Court: see Part 75. Rule 11 of that Part deals with pre-trial procedures. It provides that the Judge may, of his own motion or on the application of a party, "make orders and give directions for the just and efficient disposal of the proceedings". Without limiting the generality of that provision, the rule goes on to refer to certain specific orders, including both the giving of a list of expected witnesses and the giving to the defendant of statements of evidence.

3. Order 49 of the Federal Court Rules deals with criminal proceedings in this Court. That order envisages that there may be pre-trial directions but it does not refer to any particular direction. Rule 4(2) simply provides that, on the return of the summons, "the Court shall --
   
   

(a) give any necessary directions as to the conduct of the prosecution and defence; and

(b) fix a date for hearing or further directions."

Counsel for the defendants submits that, notwithstanding the omission from Order 49 of any reference to a direction to provide statements, the power to make such a direction is specifically conferred upon the Court by the operation of s.79 of the Judiciary Act 1903. That section makes applicable to federal courts exercising federal jurisdiction in a particular State or Territory the laws of that State or Territory, including the laws relating to procedure and evidence, except insofar as is otherwise provided under Commonwealth law. In Australian National Airlines Commission v Commonwealth of Australia (1975) 49 ALJR 338 at p.340 Mason J expressed the view that s.79 does not operate "to pick up and apply in proceedings in the High Court a provision such as s.94 which is contained in a statute designed to define and regulate the powers and procedure of the Supreme Court and which confers power on that Court to order interest on damages in judgments entered by that Court in proceedings before it. No matter how widely it may travel, in some respects s.79 does not, in my view, pick up and apply in this Court a provision which empowers a particular court of a State to make orders and enter judgments in proceedings in that court". In State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579 at pp.585 Gibbs CJ pointed out that, if the view of Mason J was correct, it would apply equally to proceedings in the Federal Court.

1. The application of the view expressed by Mason J in the Australian National Airlines case would necessarily lead to the rejection of the submission that Part 75 of the Supreme Court Rules is imported by way of s.79 of the Judiciary Act. Part 75 merely empowers the Supreme Court to make certain types of orders in proceedings before it. But, even if Part 75 could be imported, the present submission would not be advanced. The imported provision has to be read as it stands. Division 2 of Part 75, which Division contains r.11, is by r.4 limited in its application to proceedings in the Supreme Court under the Supreme Court (Summary Jurisdiction) Act 1967 (NSW). The proceedings in this Court are not, of course, such proceedings.

2. Notwithstanding that r.11 of Part 75 is not directly applicable to these proceedings, it is open to the Court -- subject to any other relevant consideration -- to make such orders as are necessary for the proper conduct of a summary criminal trial. In Barton v The Queen (1980) 147 CLR 75 at p.96 Gibbs ACJ and Mason J said:
   
   

"There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial. The exercise of this power extends in an appropriate case to the grant of a stay of proceedings so as to permit a preliminary examination to take place."

I do not doubt that, in the application of that power, this Court could stay proceedings until such time as any preliminary steps, considered necessary in the interests of justice, had been taken. The question, in the present case, is whether, pursuant to the general power of the Court, I should order the supply to the defendants of statements of evidence and, if necessary, stay the proceedings until such time as those statements have been supplied.

1. Counsel for the prosecutor argues that, assuming power, it would be inappropriate to take this course. He contends that the relevant statements are subject to legal professional privilege so that they would not be obtainable in any direct manner, for example by subpoena. He says that the Court should not indirectly require that which it could not require directly.

2. In support of the claim for legal professional privilege the prosecutor, Mr Adams, has sworn an affidavit that, on 6 March 1986, the Trade Practices Commission resolved to obtain statements of evidence with a view to compiling a brief of evidence for submission to the Director of Public Prosecutions for advice as to whether the evidence disclosed a prima facie case of breaches of the Act. Pursuant to the resolution Mr Adams and two colleagues obtained the necessary statements. These were submitted in a brief delivered to the Director of Public Prosecutions on 4 April 1986.

3. The statements of evidence presently held consist of statements which were included in the brief submitted to the Director of Public Prosecutions together with statements subsequent to 4 April and intended to be used in the prosecution. The statements included in the brief are predominantly those obtained by Mr Adams and his colleagues for that precise purpose but they also include three statements of employees of Scottish Amicable which were originally made in relation to contemplated legal proceedings between that Society and Anthony Bryant. Counsel for the prosecutor submits that the documents in each category are privileged as being documents prepared for the purpose of obtaining legal advice and/or for use in legal proceedings: see Grant v Downs (1976) 135 CLR 675, Baker v Campbell (1983) 153 CLR 52. The present case is to be distinguished, he submits, from Maddison v Goldrick (1976) 1 NSWLR 651 -- in which case the New South Wales Court of Appeal upheld an order by a magistrate for production to the defence of the statements of witnesses contained in the police prosecutor's brief -- upon the ground that in that case the prosecutor was not a lawyer, so that there was no question of legal professional privilege. This point is, I think, well made. Samuels JA demonstrated, at pp.663-665, that the case involved no question of legal professional privilege and this view was adopted by the members of the High Court of Australia who dealt with an application for special leave to appeal against the decision of the Court of Appeal: see Attorney-General v Findlay (1976) 9 ALR 521. In his short statements of reasons in that case, at p.522, Barwick CJ accepted the relevance of a claim for privilege, saying that "subject to the establishment of a claim of privilege, such statements may, in the discretion of the presiding magistrate, be made available in whole or in part ... for inspection by the defendant of his advisers". As is apparent from the following paragraph, in referring to "privilege" his Honour had in mind both legal professional privilege and public interest immunity.

4. More recently there have been two reported first instance decisions in which a claim for legal professional privilege in respect of the statements of prosecution witnesses in criminal proceedings has been upheld: see The Queen v Cahill; ex parte McGregor (1985) 61 ACTR 7 at p.13 and Cain v Glass (1985) 3 NSWLR 39 at pp.42-43.

5. Counsel for the defendants submits that the statements the subject of the present application are not subject to any relevant legal professional privilege. Upon the evidence, he says, the statements were collected on behalf of the Commission, not on behalf of Mr Adams. It was the Commission, and not Mr Adams, who sought advice from the Director of Public Prosecutions.

6. I think that it is correct to say, in relation to the statements contained in the brief to advise, that the repository of the relevant privilege was the Trade Practices Commission rather than Mr Adams personally. But this does not matter. Documents once privileged remain privileged until there is a waiver of the privilege -- see Bullock v Corby (1878) 3 QBD 356 at pp.358-359, Pearce v Foster (1885) 15 QBD 114 at p.119, Calcraft v Guest (1898) 1 QB 759 at p.761. The Trade Practices Commission has not waived its privilege.

7. In relation to the statements gathered for the hearing itself, the position is even more clear. These statements were procured for use in the prosecution. The privilege attaching to those statements which were taken after it was decided that Mr Adams should be the prosecutor no doubt attaches to Mr Adams. The privilege in respect of earlier statements is probably that of the Commission. It is not necessary to determine that question because there is a relevant privilege, vested in one or both of the prosecutor and the Commission, which has not been waived.

8. The three statements by officers of Scottish Amicable were, according to Mr Adams' affidavit, brought into existence for the purposes of proceedings between that Society and Anthony Bryant. Although the affidavit is somewhat cryptic, it appears that it was intended that they be used for the purposes of the conduct of those proceedings. Legal professional privilege, probably that of Scottish Amicable, would therefore attach to the statements.

9. The order sought by the Notice of Motion does not in terms require production of existing statements. It is possible that some or all of the existing statements will be amended, whether by the correction of errors, by the deletion of extraneous or inadmissible matter or by the addition of new facts, before the hearing. If that does happen, counsel will presumably choose to use the revised statements in the leading of evidence at the hearing. Order 1, if made, would be satisfied by copies of those statements being provided. But the point will remain the same. The revisions will be for the purposes of the hearing. The revised statements will be brought into existence for use at the hearing. They also will be subject to legal professional privilege.

10. The primary duty of the Court is to ensure a fair trial of the informations. If a fair trial could not be provided without taking a step which, in a practical sense, would require the prosecutor to waive legal professional privilege, I would not hesitate to take that course: cf The Queen v Kent; ex parte McIntosh (1970) 17 FLR 65 at pp.90-91 in which Fox J discussed the possibility of adjourning a trial on indictment until committal proceedings were heard, notwithstanding that this would effectively deny the Crown's entitlement to use an ex officio indictment and Barton at pp.95-96, 105-106, 115. But I am not persuaded that a trial without the prior supply of proofs of evidence would be likely to prove unfair. I do propose to order that the prosecutor furnish to the defendants in advance of the trial a list of the names of the witnesses he intends to call. The receipt of this list will enable the defendants to give consideration to, and to make any necessary investigations about, the credit of those persons. Particulars of the allegations made by the prosecutor have already been supplied. The defendants are aware of the nature of the cases they have to meet. Should any particular item of evidence fall outside the particulars or otherwise occasion surprise, the Court can meet the position by allowing such an adjournment as may be necessary for any affected defendant to consider its or his position and to call evidence in rebuttal. As the proceedings are to be heard summarily, without a jury, there is not the complication of having to disperse, and then to re-assemble, a jury.

11. Because there is no likelihood of unfairness, in the end, I am not prepared to take a course which would require the prosecutor or the Commission, in effect, to waive his or its legal professional privilege. I accept that, in the absence of exceptional circumstances such as an over-riding need to provide a fair trial, the Court should not indirectly deprive a party of a privilege conferred by law. However, I comment that it would be highly desirable if, upon reflection, the prosecutor decided voluntarily to supply to the defendants proofs of the evidence expected to be adduced from the witnesses to be called by him. Provided that the proofs are accurate statements of the evidence actually intended to be led, read and approved by the witnesses, this course is unlikely to prejudice the prosecution case. Experience under the Supreme Court (Summary Jurisdiction) Act (NSW), shows that prior provision of witnesses' statements saves considerable time at the hearing. At the lowest, knowledge by counsel for the defence of the evidence to be given by a witness tends to lessen objections to that evidence; objections often arise from unfounded fears of what is to come. At its highest, the supply of the statements often leads to the admission of facts which, upon consideration, the defence realises cannot realistically be contested. Given the public cost of the proceedings, it is most important that the prosecutor take all steps reasonably open to him to minimise the length of the hearing.

12. Counsel for the prosecutor submits that the order sought by para.2 of the Notice of Motion, for the supply of the names of witnesses, also runs into problems of legal professional privilege. He refers to Phipson on Evidence (13th ed) at para.15.28 where, under the heading "Privileged" is stated: "The names of party's witnesses, merely as such, are protected from disclosure before trial". Phipson cites two authorities for that statement: Marriott v Chamberlain (1886) 17 QBD 154 and Knapp v Harvey (1911) 2 KB 725. In fact, neither case supports the proposition. Marriott v Chamberlain was a libel case. The substance of the libel was that the plaintiff had fabricated a story that a circular letter signed by the defendant had been sent to certain people. In interrogatories the plaintiff was asked the names of those to whom the letter had been sent. He objected upon the grounds that he intended to call those persons at the trial. The Court of Appeal held that the question must be answered. There is no mention in the case of legal professional privilege; the whole discussion turns upon relevance.

1. Similarly in Knapp v Harvey the issue was relevance. In this case an interrogatory asking the names of persons alleged to have been bitten by the defendant's dog was disallowed; but only because the names were not material to an issue. It was held not to be relevantly material that the defendant wished to make inquiries about those people and, possibly, to interview them. As Vaughan Williams LJ put it at p.730, he was not prepared "to depart from the rule that it is not admissible to put interrogatories asking the names of persons for the mere purpose of getting the names of the witnesses whom the other party is going to call at the trial". But it was not suggested that, if the names were relevant to an issue, a party would be exempted from answering the question because of legal professional privilege.

2. In principle, as it seems to me, information as to proposed witnesses cannot be a matter which is subject to legal professional privilege. The rationale of the doctrine of legal professional privilege is that it protects communications between a client and his or her legal advisers, enabling the client to seek and to receive advice and to give instructions without the fear that the communication will subsequently be used in evidence. A letter from a client to his or her solicitor containing suggestions or instructions as to witnesses to be called in pending legal proceedings would undoubtedly be privileged. A request for information from the solicitor of a party regarding the witnesses to be called does not require the solicitor to divulge the instructions given by the client. The names supplied may or may not co-incide with any specific instructions given to the solicitor by the client. Indeed, it will be a rare case in which the client has given specific instructions as to witnesses; most litigants sensibly leave the decision as to witnesses to their lawyers.

3. I have already adverted to the advantage to the defendants in knowing in advance the names of witnesses. This advantage, which goes to fairness, is so important that it would probably justify the Court in over-riding, in effect, any legal professional privilege which attached to the list of names. But, particularly as there is no such privilege, it is appropriate to order that the prosecutor supply to the defendants a list of the relevant names not less than one month before the day appointed for the commencement of the hearing.

4. Each of the parties has had partial success and partial failure in relation to the orders sought by the Notice of Motion. Under those circumstances the fair course is to make no order as to costs.