Cicolini v Spencer - [2005] QSC 338

SUPREME COURT OF QUEENSLAND

CITATION:

Cicolini v Spencer & Anor [2005] QSC 338

PARTIES:

CLIFFORD ROGER CICOLINI and SHARYN LOUISE CICOLINI
(Applicants)
v
ROBERT SPENCER
(First Respondent)

COMMISSIONER OF POLICE
(Second Respondent)

FILE NO/S:

279,280 of 2005

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

27 October 2005

DELIVERED AT:

Cairns

HEARING DATE:

2 September 2005

JUDGE:

Jones J

ORDER:

The application is dismissed.

The applicants pay the respondents’ costs of and incidental to the application, to be assessed on the standard basis.

CATCHWORDS:

MISCELLANEOUS MATTERS – OTHER MATTERS – where applicants claimed legal professional privilege in respect of a conversation at committal proceedings – where magistrate ruled the claim for privilege was not made out – applicants sought review of Magistrate’s decision under Judicial Review Act 1991 (Qld) – the conversation did not give rise to legal professional privilege, and if it did the privilege was waived – the decision of the magistrate did not affect any substantive legal right because it would not be binding on any court that will ultimately hear the matter

Judicial Review Act 1991 (Qld)
Attorney-General (NT) v Maurice (1986) 161 CLR 475
ACCC v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526
R v Braham & Mason [1976] VR 547
Esso Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49

Griffith University v Tang [2005] HCA 7
Mann v Carwell (2000) 201 CLR 1

COUNSEL:

Mr P Butler SC for the applicant
Mr P Davis for the respondents

SOLICITORS:

William Royds Lawyers for the applicants
Queensland Police Solicitor for the respondents

By this application, the applicants seek a Statutory Order of Review of the decision of the first respondent, a Stipendiary Magistrate, who presided over committal proceedings in respect of charges of fraud brought by the second respondent against the applicants. The decision made by the respondent which is sought to be reviewed was to the effect that the evidence of a witness, Mr John Hill, was not protected by legal professional privilege.

Background

In early 2002 the National Australia Bank (“NAB”) granted finance to the applicants to complete the purchase of a large grazing property in Cape York. As part of the security for that finance the applicants granted mortgages over realty, chattels and stock. The transaction on behalf of NAB was arranged by Mr Peter Anderson who was the Agri-business Manager located at Atherton.

On 27 April 2002 Mr Anderson received a call from the applicants asking to see him “to bring [him] up to date with what was happening”.[1] Prior to receiving this call Mr Anderson had been given information from police officers attached to the Stock Squad to the effect that stock over which the mortgages had been granted did not exist.
[1]Depositions 52/58 Ex CS1 to affidavit of Colin Strofield sworn 19 August 2005.

An arrangement was made for the applicants to meet with Mr Anderson at the bank premises on 28 April 2002. Soon after the applicants arrived arrangements were made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cicolini v Spencer

Details

AGLC: Cicolini v Spencer [2005] QSC 338
Case: [2005] QSC 338
Decision Date: 27 October 2005

CaseChat Overview and Summary

The applicants in Cicolini v Spencer sought a review of a decision made by a magistrate regarding the claim of legal professional privilege over a conversation that occurred during committal proceedings. The applicants contended that the conversation was privileged and thus should not have been disclosed. The respondents argued that no privilege applied, and if it did, it was waived. The applicants sought judicial review under the Judicial Review Act 1991 (Qld) to challenge the magistrate's ruling that the privilege claim was not valid.

The primary legal issue before the court was whether the conversation at the committal proceedings was protected by legal professional privilege and, if so, whether this privilege was waived. The court had to determine if the magistrate's decision to deny the privilege claim affected any substantive legal right, as this would be a necessary condition for the application of judicial review. The respondents argued that the decision did not affect any substantive legal right because it would not bind any future court that would ultimately hear the case.

The court found that the conversation did not give rise to legal professional privilege and, if it did, the privilege was waived. It held that the magistrate's decision did not affect any substantive legal right as it would not be binding on any future court. Therefore, the court dismissed the application for judicial review and ordered that the applicants pay the respondents' costs of and incidental to the application, to be assessed on the standard basis.

Orders

Orders of the court

1. The application is dismissed.

2. The applicants pay the respondents’ costs of and incidental to the application, to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Cicolini v Spencer & Anor [2005] QSC 338
PARTIES:	CLIFFORD ROGER CICOLINI and SHARYN LOUISE CICOLINI (Applicants) v ROBERT SPENCER (First Respondent) COMMISSIONER OF POLICE (Second Respondent)
FILE NO/S:	279,280 of 2005
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	27 October 2005
DELIVERED AT:	Cairns
HEARING DATE:	2 September 2005
JUDGE:	Jones J
ORDER:	The application is dismissed. The applicants pay the respondents’ costs of and incidental to the application, to be assessed on the standard basis.
CATCHWORDS:	MISCELLANEOUS MATTERS – OTHER MATTERS – where applicants claimed legal professional privilege in respect of a conversation at committal proceedings – where magistrate ruled the claim for privilege was not made out – applicants sought review of Magistrate’s decision under Judicial Review Act 1991 (Qld) – the conversation did not give rise to legal professional privilege, and if it did the privilege was waived – the decision of the magistrate did not affect any substantive legal right because it would not be binding on any court that will ultimately hear the matter Judicial Review Act 1991 (Qld) Attorney-General (NT) v Maurice (1986) 161 CLR 475 ACCC v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 R v Braham & Mason [1976] VR 547 Esso Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 Griffith University v Tang [2005] HCA 7 Mann v Carwell (2000) 201 CLR 1
COUNSEL:	Mr P Butler SC for the applicant Mr P Davis for the respondents
SOLICITORS:	William Royds Lawyers for the applicants Queensland Police Solicitor for the respondents