De Simone v Bevnol Constructions & Developments Pty Ltd &Ors
[2011] VSCA 54
•3 March 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2010 0047 | |
| GIUSEPPE DE SIMONE | Applicant |
| v | |
| BEVNOL CONSTRUCTIONS & DEVELOPMENTS PTY LTD | First Respondent |
| and | |
| BRUCE JAMIESON | Second Respondent |
| and | |
| LOUIS ALLAIN | Third Respondent |
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APPLICATION ON SUMMONS
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| JUDGES | REDLICH and MANDIE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 February 2011 |
| DATE OF JUDGMENT | 3 March 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 54 |
| JUDGMENT APPEALED FROM | Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2010] VCAT 269 |
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PRACTICE AND PROCEDURE – Interlocutory appeal – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1)(a) – Failure to identify any error of law – Inspection of documents produced on summons – Criminal charges laid but not yet heard on related issues – Whether abuse of process to issue summonses in lieu of discovery – Whether summonses issued for an improper purpose – Whether inspection of documents would breach s 13 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) – Question referred to the Supreme Court pursuant to s 33(1) of the Charter – Effect of s 33(2) of the Charter considered – Whether denial of procedural fairness to not allow applicant to call or cross-examine witnesses to support objections to the inspection of the documents – Legal professional privilege – Whether error in dealing with documents produced which fell outside dates on the summons – Application for leave to adduce fresh evidence.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondents | Mr B Reid | Macpherson + Kelley Lawyers Pty Ltd |
REDLICH JA:
MANDIE JA:
This application arises out of long and protracted proceedings between the parties in the Victorian Civil and Administrative Tribunal, which have their origin in a contractual dispute concerning the construction of a retirement village in Ocean Grove. The applicant seeks leave to appeal the orders made by Vice President Harbison on 18 March 2010 pursuant to s 148(1)(a) of the Victorian Civil and Administrative Act 1998.
It is unnecessary for the purposes of determining this application to describe in full detail the claims and counterclaims between the parties, save for the following.
A party to the proceedings is Seachange Management Pty Ltd (‘Seachange’), of which the applicant is the sole director. Seachange, it appears from affidavits filed in the proceedings, is the nominee manager for the Seachange Development Partnership. As part of the respondents’ counterclaim against the applicant and Seachange, the respondents allege that on 27 July 2006 the applicant provided a letter to Bevnol Constructions & Developments Pty Ltd (the first respondent) from Seachange’s accountant which advised that the funding necessary to finance the development project was in place (‘the letter’). The respondents claim that the letter was provided in the context of the entire contract relied upon by Seachange in the VCAT proceedings being conditional on Seachange obtaining this finance within 14 days of the contract being signed. The respondents allege that the letter and its production by the applicant constituted a misrepresentation by Seachange and the applicant that funding was available to pay the first progress claim due under the contract, and that as a result of the receipt of this document, the first respondent commenced work on the site on 28 September 2006. The respondents allege that Seachange had in fact not obtained finance sufficient to enable it to meet its financial obligations under the contract, and that the representation was therefore misleading and deceptive conduct under the Fair Trading Act 1999.
In around March 2007 the first respondent lodged a complaint with the police relating to the applicant’s conduct in producing the letter to the first respondent. The police began an investigation into the complaint (‘the criminal proceedings’). Shortly after the police investigation had commenced, and prior to being charged, the applicant applied for a stay of the proceedings at VCAT relating to the respondents’ counterclaim, submitting that the proceeding could prejudice his defence of the criminal proceeding, as in defending the counterclaim he may be required to forego the right to protection from self-incrimination which he would otherwise have in the criminal proceeding. The application was dismissed by Judge Ross[1] and was the subject of an unsuccessful appeal by the applicant to this Court.[2]
[1]Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2008] VCAT 2629.
[2] De Simone v Bevnol Constructions & Developments Pty Ltd [2009] VSCA 199. The reason this Court dismissed that appeal was because the applicant had not yet been charged, and therefore a stay could not be justified.
The applicant was in fact charged with several offences arising out of his alleged use of the letter in early 2009. He was also charged with offences arising out of statements he had made at two VCAT directions hearings concerning the same issue. Once the criminal charges had been laid, the applicant again made an application for a stay before Judge Ross, which his Honour considered on 13 May 2009.[3] At the applicant’s request, his Honour referred a question to the Supreme Court, pursuant to s 33(1) of the Charter of the Human Rights and Responsibilities Act 2006 (‘the Charter’), as to whether the common law guidelines as to when a stay of civil proceedings should be granted where criminal proceedings are on foot or threatened should be revised in light of the Charter (particularly ss 24 and 25). Judge Ross made no specific orders staying the hearing of those paragraphs of the counterclaim which were the subject of the criminal proceeding. The Tribunal and the parties proceeded on the basis that a determination of the allegations made in the counterclaim was effectively stayed pending the outcome of the referral to the Supreme Court, due to the operation of s 33(2) of the Charter.[4] Subsequent to the hearing and determination of the application before Vice President Harbison, this Court delivered its decision in relation to the referral, holding that no question had been properly referred as there had as yet been no decision made as to any issue.[5]
[3] De Simone v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2009] VCAT 888.
[4]Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2010] VCAT 269, [53].
[5]See De Simone v Bevnol Constructions and Developments Pty Ltd & Ors [2010] VSCA 231.
Hearing before Vice President Harbison
On 16 December 2008, the first respondent issued a summons to Michael Brereton to produce documents relevant to the VCAT proceedings. In response Mr Brereton produced three folders containing a total of 1294 documents (‘the Brereton documents’). Mr Brereton’s relationship to Seachange is an issue in controversy in the VCAT proceedings. It appears that he acted in his capacity as a solicitor for Seachange for some purposes, and also had a financial interest in the Seachange Development Partnership.
On 29 April 2009 the first respondent issued a summons to Jack Chrapot to produce documents relevant to the VCAT proceedings. Mr Chrapot had been engaged in 2007 by Seachange to assist it with work on the Ocean Grove project. He produced a folder containing 179 documents to the Tribunal (‘the Chrapot documents’).
Both Seachange’s solicitor (Peter Lustig) and the applicant were given an opportunity by Deputy President Aird to inspect all of the documents produced by Mr Brereton and Mr Chrapot. The applicant compiled a spreadsheet setting out the documents which he and Seachange submitted should not be released to the respondents for inspection. The Deputy President ordered that the applicant and Seachange’s objections to the inspection of the documents be set down for hearing before Vice President Harbison on 7 December 2009.
At the hearing the applicant and Seachange sought to have the two summons set aside or, in the alternative, an order preventing inspection of certain documents by the respondents, and the release of those documents into the custody of the applicant and Seachange. The applicant submitted that the documents should not be disclosed to the respondents because:
· certain documents were protected by client legal privilege and/or were confidential,
· many of the documents were not relevant to the issues in dispute,
· certain documents covered matters relating to the Charter referral to the Supreme Court, and
· the issue of the two summonses was an abuse of process, and as such should not have been allowed.
On 22 January 2010, after the time for filing of final submissions had passed, the applicant sent an email to the Tribunal requesting that he be able to call and cross-examine witnesses, including the first respondent’s solicitor Brendan Archer. At a directions hearing to consider this application, the applicant submitted that he wished to call further evidence to support his claim that the issue of the summonses was an abuse of process, and to prove that Mr Brereton and Mr Chrapot were in a fiduciary relationship with Seachange, in order to establish that legal professional privilege applied or that disclosure of certain documents would be a breach of confidence. The Tribunal reserved its decision as to whether the applicant should be permitted to call such evidence. Vice President Harbison addressed that question by considering, in the context of each of the grounds of objection, whether the interests of justice required that the applicant be given leave to call and cross-examine the witnesses identified. Her Honour concluded, for reasons which we shall refer to, that there would be no utility in allowing the applicant to call such evidence in relation to any of the grounds and refused the application.
Decision of Vice President Harbison
The applicant and Seachange did not attempt to demonstrate by reference to particular documents how any of their objections could be made out. The objections lacked any specificity. Her Honour thus felt bound to undertake the Herculean task of inspecting and considering each individual document to ‘properly deal with the issues raised.’[6] On 18 March 2010 the Vice President published her decision. The careful and extremely thorough 92-page judgment is a testament to her Honour’s endeavour to ensure that the objections of the applicant, who was self-represented, were fully and fairly considered. The Vice President made orders refusing leave to the applicant to summon and cross-examine new witnesses, refusing to set aside the summonses as an abuse of process and rejecting the applicant’s claim that certain documents should not be released for inspection. Her Honour ordered that the Brereton and Chrapot documents produced to the Tribunal be made available for inspection by the legal representatives of the respondents, with the exceptions of certain documents. Those excepted from disclosure included those documents related to the subject matter of the stay application, those that may have been protected by client legal privilege, and one document that her Honour determined to be irrelevant. Her Honour also ordered that:
Prior to inspection of the documents referred to in these orders, the legal representatives of the respondents must file a written undertaking with the Tribunal not to disclose the contents of these documents to any person, including directors and agents of the respondent, until further order of the Tribunal.
[6]Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2010] VCAT 269, [83]–[84].
It should be noted that the applicant appeared to construct his arguments before this Court on the basis that her Honour had ordered the documents to be released. In fact, her Honour only ordered that the documents be made available to the respondents’ solicitors for inspection.
Application for leave to appeal
In Secretary to the Department of Premier and Cabinet v Hulls,[7] Phillips JA summarised the principles governing the granting of leave as follows:
When leave is sought to appeal under s. 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question … will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.[8]
[7][1999] 3 VR 331.
[8]Ibid 337, applied in Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, 56.
Only the applicant has sought leave to appeal. Before turning to the proposed grounds of appeal we should say that the submissions of the parties made the Court’s task on this application much more onerous than it should have been. As to the applicant’s submissions, we note that he has legal qualifications and appears to well understand the litigation process. As the respondents correctly submitted, nowhere in the applicant’s proposed grounds or outline of submissions did he make reference to any passage of her Honour’s reasons which he submitted demonstrated error. As was apparently also the case before the Tribunal, his written submissions remained devoid of any specificity. Despite inquiry from the bench, the oral submissions did nothing to illuminate his complaints. He did not identify any error in her Honour’s discussion of the principles which related to each of the applicant’s objections. He did not, by reference to any specific document, seek to demonstrate that her Honour erred in her conclusions. He maintained bald and general assertions that her Honour erred in various ways. And he accepted during oral argument that his primary submissions depended upon contradictory assertions of fact. In addition, he advanced new submissions not pursued before her Honour or adumbrated in his proposed grounds or in his written submissions.
The respondents’ written submissions and the accompanying exhibits of over three hundred pages were unhelpfully voluminous. The respondents may have felt obliged to place such a large volume of material before the Court because of the generality of the applicant’s submissions, but if that was the reason, it was counterproductive. The leave process requires the issues to be sharply defined and the accompanying submissions to be clear and succinct.
Error in dealing with the abuse of process claim (Grounds 1 and 9)
Vice President Harbison, in determining whether it was an abuse of process to issue the summonses, made reference to the contents of the documents produced pursuant to those summonses. Her Honour made specific reference to Roberts v Victoria Police[9] and stated:
My reading of the decision is that it stands for the simple proposition that it is necessary to closely examine all of the circumstances relating to the issue of the summonses and the potential relevance of the evidence sought to be subpoenaed in determining whether to allow the summonses to be issued or the subpoenaed material to be used.[10]
[9](2003) VCAT 2028.
[10]Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2010] VCAT 269, [626].
The applicant attacked her Honour’s conclusion that the issuing of the summonses was not an abuse of process on three apparent grounds. Firstly, he submitted that her Honour failed to properly consider the abuse of process occasioned by the use of the summonses to produce documents in lieu of discovery being sought and obtained.
The applicant had submitted before the Vice President and on this application that discovery was not complete between the parties when the summonses were issued, and that the documents were included in the affidavit of documents filed on behalf of Seachange. Both before her Honour and in this Court the respondents submitted that the discovery provided in the affidavit was deficient in the manner and extent of disclosure. The documents were not described with sufficient particularity to enable the respondents to match the documents provided through discovery with those produced by Mr Brereton and Mr Chrapot. No arrangement had therefore been made to inspect the documents.
After considering the cases of Commissioner of Railways v Small[11] and Australian Competition and Consumer Commission v Shell Co of Australia Ltd,[12] Vice President Harbison concluded that:
the fact that discovery is not yet complete is not a decisive reason to prohibit inspection of documents obtained under subpoena in this case. The fact that they may have already been discovered through the affidavit of documents of Seachange is also, in my view, not a sufficient reason to prevent disclosure of these documents which have been produced to the Tribunal.
This case has already become protracted, with many interlocutory applications and affidavits having been filed. It is not easily (sic) to ascertain exactly what documents have been relied on in evidence by each party. In the particular circumstances of the history of this litigation, which has already amassed many volumes of Tribunal documents, over ten preliminary rulings, and a confusion of issues, I take the view that it is not of itself unreasonable or to be characterised as an abuse of process for Bevnol to have decided not to pursue the normal processes of discovery before issuing these summonses.[13]
[11][1938] 38 SR (NSW) 564.
[12](1999) 161 ALR 686.
[13]Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2010] VCAT 269, [599]–[600].
We can see no error in the reasoning employed by her Honour.
The second basis upon which the applicant submitted the summonses were an abuse of process appeared in ground 1 of the applicant’s draft notice of appeal in the following terms:
The learned judge erred in law in not taking any account or proper account of the discretion to [avoid] of (sic) the abuse of process inherent in the seeking of the documents which were alleged to already be in the possession of the Respondent due to the wrongful disclosure of those documents by the persons served with the Summonses (sic) and thereby rendering nugatory any claim that might have been raised against Michael Richard Brereton and/or Jack Chrapot for breaches of duty and confidentiality owed to the appellant and/or Seachange Management Pty Ltd.
The applicant in his supporting affidavit filed 3 May 2010 identified a new and discrete basis for this ground. He deposed that in the criminal proceedings he intends to issue a summons to the respondents’ solicitor to produce documents and to attend court to give evidence for the purpose of demonstrating, by way of defence to the allegations against him, that the first respondent (or its solicitor) was aware of certain matters at the time the letter was sent, presumably to demonstrate that the letter was not misleading. The applicant submitted that if the solicitor can have access to the documents produced, ‘it will be impossible to determine whether he or his clients had earlier access to the documents and [will] render nugatory any evidence of what was in their possession at the time the complaint was made through to the time the charges were laid on 23 March 2009.’
This argument appears to be distinct from the one raised before Judge Harbison, that the summonses were designed to cover up co-operation, in breach of their fiduciary duty, by Mr Chrapot and Mr Brereton with the respondents and their solicitor. Both arguments rest upon the assertion that the releasing of the documents to the respondents’ solicitor would ‘render nugatory’ the applicant’s attempt to demonstrate in later proceedings what information or documentation was in their possession at various relevant times. No error has been demonstrated in her Honour’s rejection of this submission.
Even if there is some forensic advantage to be gained by the course which the applicant intends to follow at trial, by her Honour’s order the documents would only be available for inspection by the solicitor for the respondents. He would be bound by the undertaking required by her Honour. To enable his clients or any other person to obtain access to such documents or convey to them the information they contain, would, as her Honour stated in her reasons, require a further application to her Honour.[14] In the event that such an application was made, documents so used could be marked in an appropriate way so that there could be no dispute as to when they came into the respondents’ or their solicitor’s possession. Her Honour was satisfied that the documents were relevant to the proceedings and was not satisfied that the applicant would be prejudiced by the documents being made available for inspection. No error has been shown in her Honour’s conclusion.
[14]Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2010] VCAT 269, [633].
Under ground 8 the applicant submitted that he had been denied procedural fairness because he was not given any opportunity to provide input into the form of undertaking that the legal representatives of the respondents were required to give. He submitted that once the documents were disclosed to the respondents’ legal representatives, it was only a matter of time before those legal representatives would pass those documents on to their clients.
There is no merit in this submission. The form of the undertaking her Honour ordered is in broad terms and is adequate to provide protection against disclosure beyond the legal representatives of the respondents. There was no need for her Honour to seek the applicant’s opinion as to its adequacy before making her order.
The applicant also submitted that her Honour had erred in that she failed to appreciate that it is an abuse of process for a party to seek production of documents through the issuing of a summons when it already has those documents in its possession, and that the inference should have been drawn that it was for an ulterior purpose. There is no substance in this further complaint. Her Honour recognised that one of the bases upon which the applicant and Seachange submitted that the issuance of the summonses was an abuse of process was because
[i]t was also said that all of the documents in the summonses either had already been disclosed to Bevnol, in this or in other proceedings, or were identified in De Simone's affidavit of documents, sworn in this proceeding. And so the issue of the summonses was unnecessary.[15]
[15]Ibid [575].
Her Honour’s understanding of this submission is reflected in the following passage of her judgment:
the larger question is whether I should conclude from the material filed that it is more likely than not that the summonses have been issued for an improper purpose, and exercise the discretion which I have to determine whether the documents should be inspected, in such a way as will show the Tribunals (sic) disapproval of the manipulation of the subpoena process.[16]
[16]Ibid [634].
It is not clear from her Honour’s judgment whether the applicant had specifically submitted that some of the documents were already in the respondents’ possession because Mr Chrapot and Mr Brereton had ‘leaked’ information to them. Before this Court the applicant conceded that only some of the Chrapot and Brereton documents had already passed into the respondents’ possession at the time the summonses were issued. He was unable to identify which documents they already had. Hence this factual foundation for the attribution of improper purpose collapsed.
Her Honour was right to reject the contention that the issuing of the summonses was an abuse of process.
Error in failing to take into account breach of Charter provisions (Ground 2)
The applicant submitted under ground 2 that Judge Harbison had failed to take into account or give proper weight to the application of s 7 of the Charter, in that the inspection of the documents produced pursuant to the summonses breached his rights as set out in ss 8, 12, 13, 15, 20, 24, and 25 of the Charter.
The applicant did not rely upon any Charter rights in his submissions before the Tribunal other than the right to privacy and reputation expressed in s 13. It is not open to the applicant to raise provisions of the Charter for the first time on appeal in order to demonstrate error of law in the decision below. He did not, in any event, advance any submission as to how her Honour’s decision infringed any of these other rights.
The applicant claimed that the release of the documents for inspection would breach his right to privacy under the Charter because he was the author of the Brereton documents and the author or recipient of the Chrapot documents. He asserted that the right attaches equally to business correspondence and personal correspondence. The respondents submitted that the applicant did not provide any evidence before the Tribunal to establish that the applicant was the ‘author’ of each of the documents in his personal capacity, rather than as director of Seachange.
Be that as it may, s 13 provides that
a person has the right … not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.[17]
[17]Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13 (emphasis added).
The right protects the individual from unlawful or arbitrary intrusions into his or her privacy. It is highly unlikely that the production of documents pursuant to a summons, and their release for inspection to the solicitors for a party in proceedings pursuant to an order of a judicial member of a Tribunal following a hearing of objections, would ordinarily constitute an unlawful or arbitrary interference with that person’s right. Assuming that it could, the Charter does not confer absolute unqualified protection of human rights. Section 7(2) provides that the rights set out in the Charter may be subject to ‘such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.’ That led her Honour to conclude as follows:
disclosure of the documents in relation to which privacy is asserted by De Simone can be demonstrably justified as reasonable having regard to the need for this proceeding to be conducted in a fair manner.
…The documents are relevant to the case which he and his company seeks to prove. Access to these documents will enable the respondent to litigation to properly prepare its case and to defend itself from the claim brought by Seachange and also to properly prepare the counterclaim against both Seachange and De Simone.[18]
[18]Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2010] VCAT 269, [460]-[462].
Although the issue was not the subject of any detailed submissions or a comprehensive review of authority or principle before her Honour or in this Court, the applicant submitted that as Vice President Harbison’s decision was one of the first (if not the first) decision in this State to consider the interplay between the provisions of the Charter and discovery of documents, it is appropriate that this Court make an ‘authoritative determination’ of the balance to be struck under s 7 of the Charter. It was not the subject of any oral submission in this Court. We do not consider that the approach taken by her Honour is attended by sufficient doubt to warrant a grant of leave on this ground.
Error in assessing the documents relevant to the criminal proceedings (Grounds 3 and 4)
The applicant said that all the documents in the summons addressed to Mr Brereton had been obtained by Victoria Police under a search warrant and were part of the evidence in (and therefore relevant to) the criminal proceedings involving the applicant.
These grounds therefore rest upon a factual basis fundamentally inconsistent with factual basis for the grounds alleging abuse of process. Under the latter grounds the applicant submitted that the respondents already had the Brereton and Chrapot documents in their possession, although during oral submissions he conceded that he could only say that as to some of the documents.[19] The submission under grounds 3 and 4 is predicated on the assumption that the respondents and their witnesses do not presently have access to these documents.[20] The applicant complains that the release for inspection of these documents will prejudice him in his criminal proceedings, as it will forewarn the respondents and their witnesses as to matters contained in those documents and will deny him a forensic advantage.
[19]See [29] above.
[20]The applicant conceded in his oral argument that his submissions were ‘schizophrenic’.
The applicant submitted that to make any order for inspection or release with respect to the documents would be in breach of s 33(2) of the Charter which provides:
If a question has been referred to the Supreme Court under subsection (1) [of s 33], the court or tribunal referring the question must not –
(a)make a determination to which the question is relevant while the referral is pending; or
(b)proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question.
The applicant’s argument proceeded as follows. The Brereton and Chrapot documents related to the issues in the counterclaim. They were also the subject of the criminal proceedings. They were therefore the subject matter of the (second) stay application before Judge Ross, which he had referred pursuant to s 33(1) to the Supreme Court. At the time of the hearing that referral had not been determined. Therefore the Tribunal could not proceed while the referral was pending.
Her Honour rejected this argument as she was not persuaded that a decision relating to the release of documents for inspection should be characterised ‘as a determination relevant to the Charter question’ or that proceeding would involve ‘a determination inconsistent with the opinion of the Supreme Court on the Charter referral’.[21] We observed in passing during the oral argument that the question referred to this Court under the Charter was concerned solely with whether the common law principles stated in McMahon v Gould[22] should be reviewed in the light of the Charter. The question of a stay was not the subject of the referral. Accordingly the assumption upon which the applicant’s argument rested was unsound.
[21]Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2010] VCAT 269, [483].
[22](1982) 7 ACLR 202.
However, out of an abundance of caution, her Honour proceeded on the assumption that the words in s 33(2)(a) could be applied to any determination which she would make to allow inspection or release of the Brereton and Chrapot documents. She examined each document to see whether it was relevant to the subject matter of the stay application. Her Honour concluded that a small number of documents which related to the allegations of misleading and deceptive conduct should not be disclosed until the Supreme Court had considered the referral question.
The applicant’s complaint on appeal appeared to be that, on this basis, her Honour should not have allowed the release of any of the Brereton documents, because all such documents had been obtained by the police pursuant to a search warrant, and accordingly must by definition be relevant to the criminal proceedings. He did not identify any document which he says was relevant to the criminal allegations but which her Honour did not exempt from inspection, nor did he otherwise advance any argument that her Honour erred in her approach.
These grounds of appeal do not support a grant of leave.
Denial of a fair hearing (Grounds 5, 6 and 7)
Under grounds 5, 6 and 7 the applicant submitted that Vice President Harbison denied the applicant a fair hearing, either by:
· Refusing to allow the applicant to call and cross-examine the witnesses he identified - including the respondents’ solicitor, Mr Archer, who disputed the evidence given by the applicant and Seachange as to why the documents should not be released for inspection - before making her determination,
· Not first making a determination as to the applicant’s request to be able to call witnesses, then allowing the parties to make final submissions before determining the application to prevent the release of the documents for inspection, or
· Requiring that all evidence be provided on affidavit, when the applicant could not obtain evidence voluntarily from ‘unwilling witnesses’.
The applicant had been given numerous opportunities at directions hearings held by Deputy President Aird to raise objections or call evidence as to why he objected to the release of the documents. At the directions hearing held by Vice President Harbison on 8 December 2009 all parties accepted that her Honour should proceed to determine the application in Chambers. As we have already mentioned, when the applicant at a very late stage after the time for making final submissions had elapsed, emailed the Tribunal requesting that he be allowed to call and cross-examine witnesses to support his objections to the documents being released, her Honour, over objection by the respondents, called a directions hearing on 3 February 2010. At that directions hearing the applicant was given the opportunity to make submissions to her Honour as to why he should at such a late stage be allowed to call further witnesses and cross-examine them. Her Honour subsequently found that there was no satisfactory reason provided as to why the
application was made at such a late stage.[23] We note in passing that the right of the applicant to call such witnesses for the purpose of cross-examination was never explored.
[23]Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2010] VCAT 269, [664].
Having heard the applicant’s submissions as to why he wished to call such evidence, her Honour decided that the best way to deal with the applicant’s request was to consider each ground of objection and then consider whether the evidence which the applicant foreshadowed he would call from each witness was of such relevance that it could affect the determination of whether the objection was made out. Her Honour made the following findings:
· In relation to the claim for privilege, it was unlikely that any credible evidence could be called and there was no useful purpose to be served by calling further evidence.[24]
· In relation to the claim of confidentiality, further evidence would not help to discern a ground on which the documents should not be disclosed.[25]
· In relation to the Charter right to privacy claim, there was no possible evidence that could have bearing on her Honour’s decision.[26]
· In relation to the abuse of process claim, it would cause undue delay and would be unlikely that the witnesses would agree to give evidence or that the evidence they give would assist her Honour in finding the relevant facts.[27]
· It is presently impossible for this Tribunal to hear from persons who may be witnesses in the criminal trial in respect of matters which will be live issues in that criminal trial.[28]
[24]Ibid [379]–[386].
[25]Ibid [449].
[26]Ibid [467].
[27]Ibid [663]–[674].
[28]Ibid [668]–[669].
Accordingly, her Honour did not allow the applicant to call and cross-examine the witnesses and decided the matter based on an examination of the documents, the evidence then before her and the parties submissions. We note that the rejection by her Honour of the claim by the applicant and Seachange that a large portion of the documents were the subject of legal professional privilege is not the subject of appeal.
The applicant’s submission was that despite the opportunity afforded him to explain the significance of the evidence that he wished to elicit by cross-examination, and the conclusion reached by her Honour that such evidence would not advance his objections, her Honour should nonetheless have allowed him to call and cross-examine those witnesses. Again, the applicant did not identify any error of principle or any error in her Honour’s assessment of the potential impact of the foreshadowed evidence on the objections. We see no error with the course adopted by her Honour for dealing with the applicant’s request to call further evidence or with the conclusions which she reached as to the potential significance of such evidence. Pre-trial and interlocutory proceedings should not be made more complicated than is absolutely necessary to dispose of the preliminary issues in an efficient and fair manner.
Although the applicant did not appeal against her Honour’s rejection of the claim of legal professional privilege, by an indirect route he still sought to challenge her Honour’s finding. First, he contended that the basis for the assertion that Mr Brereton was Seachange’s solicitor at the material times when the documents came into his possession was said to come from a finding in a separate VCAT proceeding (No J89/2009) that Mr Brereton was acting as a solicitor during the same period in relation to another development known as the ‘Collendina project’, in which Seachange was involved. It was submitted that her Honour failed to give any weight to that finding and as a result there had been inconsistent findings in two proceedings in VCAT. There is nothing in this point. Her Honour had rightly concluded that :
the issue which I must decide is not whether Mr Brereton acted as solicitor to Seachange or to De Simone in relation to some other disputes or matters on which legal advice was required during the time when these documents were generated, or at the time when he received the documents which are the subject of this application. The question is whether the documents which are the subject of this application were generated or received in order for Mr Brereton to provide legal advice to De Simone or Seachange or assistance to Seachange or De Simone in litigation. There is no evidence of this at all in the affidavits filed by Seachange or De Simone.[29]
[29]Ibid [266]-[268].
Second, in his oral submissions he contended that her Honour’s decision to allow inspection and release of the Chrapot and Brereton documents would facilitate a tortious wrong because Mr Brereton and Mr Chrapot had breached their fiduciary duties owed to Seachange and the applicant by producing those documents. This argument, not raised before her Honour, is also predicated on the applicant’s assertion of fact, that Mr Brereton and Mr Chrapot were, at the relevant times, acting as solicitors for Seachange, and therefore owed the company certain duties. As we have already said, that objection had not been sustained by her Honour in her careful assessment of the claims of legal professional privilege and confidentiality. The applicant has not identified any error in the principles applied by her Honour, nor in the findings of fact that she made in that regard.
In further support of these grounds, the applicant in oral argument also submitted that her Honour had wrongly proceeded on the basis that he and Seachange bore the burden of proving that the respondents should be prevented from inspecting the documents. This was not the subject of a ground of appeal nor was it raised in the applicant’s outline of submission. The applicant and Seachange had argued before the Tribunal that the burden of proof that the documents should be released for inspection rested on the respondents. Her Honour stated in her reasons for judgment that there had been some controversy between the parties as to who were to be viewed as the applicants, given that the application before her was not initiated by a formal document from either side, but was listed pursuant to orders made by Deputy President Aird. Her Honour said as to this issue:
For the purpose of this application it seems to me that where matters are asserted by De Simone and Seachange which they say require me to prohibit disclosure of the documents, the burden of proving those matters lies upon them. Where facts are asserted by Bevnol which are said to be relevant to the decision as to whether or not to release the documents, the burden of proof of those matters is on Bevnol. Unless otherwise referred to in these reasons, the proof required is the civil standard – that is, is it more likely than not that the facts alleged are true.[30]
[30]Ibid [68].
Her Honour ‘s approach to the burden of proof does not disclose any error.
These grounds do not raise a question which would warrant the grant of leave.
Error in applying the test for relevance (Ground 10)
The applicant submitted that the test of relevance applied by Vice President Harbison to the documents ‘did not properly take into account the extent of the pleadings.’ We can detect no error in her Honour’s careful and thorough approach.
After discussing cases which considered what test of relevance a judge should apply when determining if documents covered by a summons or subpoena are relevant, her Honour said:
Applying the principles set out in the cases outlined above, my task is to decide relevance from a broad perspective – as being capable of affecting the probability of existence of a fact which has a connection to the issues in dispute between the parties.
It may be that at the trial of this proceeding documents which I may view as potentially relevant to the issues in dispute are found not to have such relevance. Not having the advantage of hearing all of the evidence to be presented at the final hearing, it is impossible for me to make a categorical determination.
Not having the benefit of detailed submissions as to why the documents are said to be irrelevant, I have inspected each document said to be not relevant and compared it to the allegations set out in the pleadings.
I have done so from the viewpoint that if a document is shown to have a potential connection to an issue in dispute on the pleadings, or to the credit of a potential witness, then that it is sufficient to render it relevant for the purpose of inspection at this stage of the proceeding.[31]
[31]Ibid [114]-[117].
Her Honour determined after consideration of each separate document that all but one were relevant to an issue in the proceedings.
Unrestrained by the proposed grounds of appeal or his outline of submission, the applicant argued that her Honour wrongly permitted inspection of relevant documents produced by Mr Brereton which fell outside the dates specified in the summons. The applicant submitted that her Honour should not have applied the same test for relevance to documents that were within the dates stipulated in the summons, which the applicant described as compulsory production, and those that were outside those dates and were thus produced voluntarily.
The argument before the Tribunal was that the scope of the summonses was ‘oppressive’ because some of the documents fell outside the dates specified on the summonses.[32] Her Honour stated as to this contention:
Although it would have been clearly open to those persons to whom the summonses was directed to apply to this Tribunal for the summonses to be set aside on the grounds that they were oppressive or irrelevant to the issues in dispute, it does not seem to me that either Seachange or De Simone is able to maintain an argument in relation to the perceived oppressiveness of the summonses in circumstances where the documents have in fact already been produced to the Tribunal.[33]
[32]Ibid [578].
[33]Ibid [579].
Her Honour rejected the applicant’s submission that the Tribunal had no jurisdiction to deal with those documents which related to dates beyond those specified in the summonses.[34] Those summonsed to produce documents raised no objection to their production. Her Honour proceeded to apply the same test of relevance to all of the documents produced and considered the applicant’s objections in relation to each. The applicant has not established that any arguable error attended her Honour’s decision to deal with those documents ‘outside dates’ in the manner in which she did.
Failure to properly exercise discretion to refuse access (Ground 11)
[34]Ibid [580]–[581].
Ground 11 appears to be a catchall ground of complaint. Under this ground the applicant submitted that her Honour failed to properly exercise her discretion to refuse the respondents’ solicitor access to the relevant documents. The applicant does not further elucidate on how the discretion is said to have miscarried. In the absence of a finding that it is reasonably arguable that her Honour erred in any of the ways raised by the applicant in the grounds discussed above, this ground cannot justify a grant of leave to appeal.
Application for leave to adduce fresh evidence
At the very end of his oral submissions the applicant sought leave of the Court to file fresh evidence in the form of a two page affidavit with numerous exhibits which he said established that there had been collusion between the respondents and the informant in relation to the criminal proceedings, improper disclosures to them of documents by Mr Brereton and Mr Chrapot, and unprofessional conduct on the part of the respondents’ legal representatives. The respondents objected to the tendering of this material. The Court has examined the material now produced and for the following reasons, we would not admit it into evidence.
It is clear from the judgment of Vice President Harbison, and from the material now provided, that the applicant had been alleging for some 12 months prior to the hearing before the Tribunal that there has been collusion between the respondents and the informant and Mr Brereton and Mr Chrapot. All of the material now produced is material that the applicant could with reasonable diligence have obtained before the Tribunal hearing.[35] Some of the material makes clear that the applicant had some of the documentation in his possession at the time of the hearing. Accordingly, the material does not satisfy the requirements of fresh evidence.
[35]Clark v Stingel [2007] VSCA 292, [25].
In any event we are not persuaded that had such evidence been adduced at the hearing, it would have made any difference to her Honour’s reasoning or conclusions concerning the applicant’s objections.[36] This material does not further advance the applicant’s hypothesis that the respondents and those persons identified colluded in issuing the summonses for an improper purpose. That contention was plainly before her Honour, and was considered by her when assessing the applicant’s objections. In our view, such material would have made no difference to her Honour’s decision to allow inspection of the documents.
[36]Ibid.
The Court accordingly declines to exercise its power pursuant to r 64.22(3) of the Supreme Court (General Civil Procedure) Rules 2005 to receive such evidence.
For these reasons we would refuse leave to appeal.
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