Corruption and Crime Commission of Western Australia v Allen

[2012] WASCA 242 (S)

CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA -v- ALLEN [2012] WASCA 242 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 242 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:157/2011	Heard:	ON THE PAPERS
Coram:	MARTIN CJ NEWNES JA MURPHY JA	Delivered:	13/12/12
No of pages:	4	Judgment Part:	1 of 1
Result:	Certificate granted
Category:	B
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Parties:	CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA MICHAEL ROBERT ALLEN
Catchwords:	Practice and procedure Appeal allowed Application by respondent for certificate under Suitors Fund Appeal on question of law of general application Certificate granted
Legislation:	Suitors' Fund Act 1964 (WA), s 10(1)
Case References:	Richards v Faulls Pty Ltd [1971] WAR 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA -v- ALLEN [2012] WASCA 242 (S) CORAM : MARTIN CJ

NEWNES JA
MURPHY JA

HEARD : ON THE PAPERS DELIVERED : 13 DECEMBER 2012 FILE NO/S : CACV 157 of 2011 BETWEEN : CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA

Appellant

AND

MICHAEL ROBERT ALLEN
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : CORBOY J

Citation : ALLEN -v- CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA [2011] WASC 327

File No : CIV 1561 of 2011

(Page 2)

Catchwords:

Practice and procedure - Appeal allowed - Application by respondent for certificate under Suitors Fund - Appeal on question of law of general application - Certificate granted

Legislation:

Suitors' Fund Act 1964 (WA), s 10(1)

Result:

Certificate granted

Category: B

Representation:

Counsel:

Appellant : No appearance
Respondent : No appearance

Solicitors:

Appellant : Corruption and Crime Commission of Western Australia
Respondent : Freehills

Case(s) referred to in judgment(s):

Richards v Faulls Pty Ltd [1971] WAR 129


(Page 3)

1 JUDGMENT OF THE COURT: When judgment was delivered in this matter on 27 November 2012, the respondent's counsel orally applied for a certificate under s 10(1) of the Suitors' Fund Act 1964 (WA). Pursuant to a direction made at that time, the respondent has now provided a written outline of submissions in support of that application. The appellant did not wish to be heard on the matter.

Section 10(1) relevantly reads:

(1) Where an appeal against the decision of a Court in any proceedings

(a) to the Supreme Court;

...

on a question of law succeeds, the Supreme Court may ... grant to the respondent to the appeal ... an indemnity certificate in respect of that appeal.

2 We accept that the appellant was successful on a question of law. The question is whether the court should exercise its discretion to grant a certificate. The discretion is unfettered but it must be exercised judicially. The relevant principles were discussed in Richards v Faulls Pty Ltd [1971] WAR 129, 137 - 139. As the court pointed out in that case, the discretion is a discretion to grant, rather than a discretion to refuse, a certificate. The respondent must therefore show some ground calling for the exercise of the discretion in his favour; it is not sufficient merely to show that the appeal has been decided in his favour.

3 While acknowledging the unfettered nature of the discretion, in Richards v Faulls the court suggested that, in general terms, the discretion may be exercised where there is a question of law which might reasonably be resolved in different ways, 'so that in a sense the unsuccessful party may be thought to have suffered some 'misfortune' owing to a doubt about the correct rule of law to be applied' (138). A relevant consideration will also be the degree to which the question of law involved was some question of general application, or whether it arose by reason of the particular facts of the case.

4 The question of law in the present case involved the proper construction of s 152 of the Corruption and Crime Commission Act 2003 (WA) and, in particular, whether a record simply of a decision made by an officer of the Commission in the course of the performance of his or her duties under the Act constituted 'official information' within the meaning of s 152. The primary judge found that it did not because it was not a

(Page 4)

record of information acquired by the officer. It was not, therefore, subject to the confidentiality provisions of s 152.

5 This court found to the contrary, concluding that such a record was 'official information' because when it was recorded by the officer in the course of his or her duties under the Act it came into the possession of, and was thereby acquired by, the appellant by reason, or in the course, of the performance of its functions under the Act. Accordingly, it became 'official information' by virtue of s 152(8). It was therefore subject to the confidentiality provisions of s 152.

6 The question was one of significance and of general application. We would grant the certificate.