Hamilton v State of New South Wales

[2017] NSWCA 112

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Hamilton v State of New South Wales [2017] NSWCA 112
Hearing dates:	18 May 2017
Decision date:	26 May 2017
Before:	Macfarlan JA, Payne JA, Sackville AJA
Decision:	1. The application for leave to appeal is dismissed. 2. The applicant pay the costs of the respondent, including the costs of the concurrent hearing.
Catchwords:	APPEAL – application for leave to appeal – interlocutory ruling on client legal privilege – one appeal already dismissed – no issue of principle – leave refused
Legislation Cited:	Crown Proceedings Act 1988 (NSW), s 5 Director of Public Prosecutions Act 1986 (NSW), ss 4, 7(1), 8(1), 16, 32, 35 Evidence Act 1995 (NSW), ss 117(1), 118, 122, 131A Government Sector Employment Act 2013 (NSW), ss 32, 35 Law Reform (Vicarious Liability) Act 1983 (NSW), ss 9, 9B(1) Mental Health (Criminal Procedure) Act 1990 (NSW) Supreme Court Act 1970 (NSW), s 101(2)(e) Supreme Court Rules 1970 (NSW), Pt 60 r 17 Uniform Civil Procedure Rules 2005 (NSW), rr 1.9, 49.4
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Hamilton v State of New South Wales [2015] NSWSC 1430 Hamilton v State of New South Wales [2016] NSWSC 1213 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 In re the Will of Gilbert (Deceased) (1946) 46 SR (NSW) 318 Lee v New South Wales Crime Commission [2012] NSWCA 262; 224 A Crim R 94 Marshall v Prescott (No 4) [2012] NSWSC 992 Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234 Toppro Pty Ltd v Yoo [2016] NSWCA 119 Young v Cooke [2017] NSWCA 33
Category:	Principal judgment
Parties:	Janice Rita Hamilton (Applicant) State of New South Wales (First Respondent) New South Wales Director of Public Prosecutions (Second Respondent)
Representation:	Counsel: Mr PJ Brereton SC / Mr A Maroya (Applicant) Mr N Williams SC / Ms J Davidson (First and Second Respondents)   Solicitors: Hoffmann & Koops (Applicant) Crown Solicitor’s Office (First and Second Respondents)
File Number(s):	2016/280353
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2016] NSWSC 1213 Date of Decision: 31 August 2016 Before: Beech-Jones J File Number(s): 2013/55881

Judgment

1. THE COURT: This is the third stage of interlocutory proceedings arising out of a Motion filed by the second respondent, the New South Wales Director of Public Prosecutions (DPP), in proceedings commenced by the applicant in the Common Law Division (Common Law Proceedings).

The dispute

2. In the Common Law Proceedings the applicant is suing the respondent (State). The DPP is not a party. The applicant alleges that the State is vicariously liable for the alleged misfeasance in public office of four police officers who investigated and charged the applicant’s late partner, Mr Dyers, with sexual offences against children. The applicant claims that she has suffered loss and damage, including psychological harm, by reason (among other things) of witnessing Mr Dyers’ suicide. She claims that Mr Dyers’ suicide was caused or actuated by the malicious and unlawful actions of the four police officers.

3. The Motion sought an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 1.9 [1] that the DPP be excused from producing documents sought by a subpoena issued at the request of the applicant (Subpoena). Speaking broadly, the Subpoena seeks production of certain documents held by the DPP in the file concerning the prosecution of Mr Dyers (Documents). The DPP claimed that “the documents captured by the [S]ubpoena are subject to client legal privilege”.

   1. UCPR r 1.9(4) provides that a person objecting on the ground of privilege to the production of a document covered by a subpoena may not be compelled to produce the document until the objection is overruled.

4. The Motion was heard by Harrison AsJ. Her Honour upheld the DPP’s claim for client legal privilege and excused the DPP from producing the Documents (Motion Judgment). [2]

   2. Hamilton v State of New South Wales [2015] NSWSC 1430.

5. Harrison AsJ found that although the DPP voluntarily disclosed the Documents to the Crown Solicitor, who represents the State in the Common Law Proceedings, the disclosure of the Documents did not result in a waiver or loss of client privilege. Relevantly for present purposes, her Honour based this finding on s 122(5)(c) of the Evidence Act 1995 (NSW) (Evidence Act),[3] which provides, in substance, that a party claiming client legal privilege in documents does not lose that privilege merely by disclosing the documents to a person who has a “common interest” relating to legal proceedings.

   3. Motion Judgment at [47].

6. The applicant appealed to the Common Law Division pursuant to UCPR r 49.4 [4] against the Motion Judgment. Beech-Jones J dismissed the appeal (Appeal Judgment). [5] His Honour held that Harrison AsJ had erred in certain respects, but that the applicant had failed to establish any error in Harrison AsJ’s finding that the DPP had a “common interest” with the New South Wales Police Force relating to the Common Law Proceedings for the purposes of s 122(5)(c) of the Evidence Act. It followed that the applicant had failed to establish that the DPP’s conduct in providing the Documents to the Crown Solicitor resulted in a waiver or loss of client legal privilege pursuant to s 122(2) of the Evidence Act. [6]

   4. UCPR r 49.4 provides for a right of appeal to the Supreme Court from the decision of an associate judge, except where an appeal lies to the Court of Appeal. An appeal to the Court of Appeal was not available in this case: Supreme Court Rules 1970 (NSW), Pt 60 r 17.

   5. Hamilton v State of New South Wales [2016] NSWSC 1213.

   6. The relevant provisions of the Evidence Act are reproduced at [24] below.

7. The applicant now seeks leave to appeal from the decision of Beech-Jones J. Leave is required because his Honour’s decision was interlocutory. [7]

   7. Supreme Court Act 1970 (NSW), s 101(2)(e).

8. The applicant does not dispute the finding by Harrison AsJ, upheld by Beech-Jones J, that the DPP had established that the Documents were properly the subject of a claim for client legal privilege. The sole ground upon which the applicant relies on this application is that Beech-Jones J erred in upholding the finding by Harrison AsJ that there was a common interest between the DPP and the New South Wales Police in the Common Law Proceedings and that for that reason the DPP’s disclosure did not cause the DPP to lose client legal privilege in the Documents.

9. The matter was listed for a concurrent hearing of the leave application and the appeal. The Court heard full argument and reserved its decision.

Background

10. Harrison AsJ set out the background facts concisely in the Motion Judgment. Neither party takes issue with her Honour’s account which is as follows: [8]

    8. Motion Judgment at [4]-[12].

“[4]   By amended statement of claim filed 16 April 2014, Ms Hamilton alleges that four police officers, namely Detective Inspector Paul Jacob, Detective Sergeant Stuart Owen, Detective Senior Constable Graham Norris and Detective Senior Constable John Southgate (‘the police officers’), were each guilty of the tort of misfeasance in public office. The alleged misfeasance by each of the police officers occurred between April 2005 up until the death of Ms Hamilton’s de facto spouse, Ken Dyers (‘Mr Dyers’).

[5]   From 2002 to 2005, the NSW Police Force conducted investigations into allegations of sexual offences perpetrated by Mr Dyers against two complainants (‘Complainant 1 and Complainant 2’). Complainants 1 and 2 were both children whose parents were members of an organisation called Kenja, of which Ms Hamilton and Mr Dyers were the founders and leaders. The sexual abuse purportedly occurred during individual counselling sessions conducted by Mr Dyers at the Sydney premises of Kenja.

[6]   In February 2005, following a case review, the investigations into the allegations made by Complainants 1 and 2 were suspended without any charges being laid against Mr Dyers.

[7]   On 8 April 2005, one of the police officers released a written report (‘the Norris Report’) recommending that an investigation and enquiry be undertaken into Mr Dyers. In October 2005, following the recommendations in that report, the NSW Police Force set up ‘Strike Force Caroola’ to re-investigate the allegations made by Complainant 1 and Complainant 2 against Mr Dyers. The police officers were all involved in Strike Force Caroola.

[8]   On 27 October 2005, Mr Dyers was arrested in relation to the allegations. On 28 October 2005, a bail hearing took place at the Sutherland Local Court, with Mr Dyers being released on bail subject to conditions. On 24 and 25 May 2006, committal proceedings were held at the Downing Centre, and at the conclusion of such proceedings Mr Dyers was committed for trial, with bail being continued.

[9]   On 8 June 2006, Mr Dyers was indicted on 21 counts of aggravated indecent assault and aggravated sexual intercourse without consent. In September 2006, Mr Dyers made an application for a stay of the criminal proceedings. The application was opposed by the DPP. On 30 April 2007, the stay application was heard by Phegan DCJ over three days. On 3 May 2007, Phegan DCJ dismissed the application for a stay and decided that Mr Dyers was unfit to stand trial. On 7 June 2007, the Mental Health Review Tribunal determined, pursuant to the provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW) that Mr Dyers would not become fit for trial within twelve months. Bail was continued.

[10]   Sometime in 2007, a further complainant (‘Complainant 3’) made allegations of sexual abuse against Mr Dyers. In 2003, Complainant 3 had been interviewed by police, and had denied that she had been sexually assaulted by Mr Dyers. She provided reasons for retracting her denial, and assisted police with their investigations relating to her allegations. She was interviewed by the police officers, as were other witnesses.

[11]   On 24 July 2007, one of the police officers [Southgate] wrote to the Mr Dyers’ [sic] solicitors informing them that he was continuing investigations into allegations by Complainant 3, and a request was made that Mr Dyers be interviewed in relation to these allegations.

[12]   On 25 July 2007 at approximately 9.00 am, Mr Dyers was informed by his solicitor of the request made for a formal police interview. On 25 July 2007, shortly after being notified of this request, Mr Dyers committed suicide. Ms Hamilton alleges that she witnessed the suicide of Mr Dyers.”

11. Beech-Jones J found that the material before Harrison AsJ justified the conclusion that the DPP assumed the conduct of the criminal proceedings no later than the end of November 2005. [9] There has been no challenge to this finding. Accordingly, the present application proceeded on the basis that the DPP conducted the committal proceedings against Mr Dyers and resisted Mr Dyers’ application for a stay of the criminal proceedings.

    9. Appeal Judgment at [10].

The pleading

12. The applicant’s Amended Statement of Claim filed in the Common Law Proceedings (ASOC) alleges that the four police officers were employed by the State and that the State is vicariously liable for torts committed by them in the course of their duties. The ASOC alleges that one of the police officers, Detective Senior Constable Norris, did not conduct his review bona fide and made recommendations maliciously with the object of harming Mr Dyers. Three of the police officers are said to have arrested Mr Dyers on 27 October 2005 without undertaking an impartial and bona fide investigation into any of the allegations against him.

13. The ASOC asserts that at the committal proceedings held on 24 and 25 May 2006:

“Evidence was adduced … revealing deficiencies in the prosecution’s case and/or was consistent with Dyers’ version of events.”

14. The ASOC also says that the DPP opposed Mr Dyers’ application for a stay of the criminal proceedings and that:

“on the basis of the evidence adduced by Dyers on the application [the four police officers] knew, or were recklessly indifferent to, the fact that Dyers was extremely frail and weak, and would find it extremely difficult to cope with stressful situations”.

15. It is alleged that Detective Senior Constable Southgate maliciously procured an allegation from the third complainant that she had been sexually assaulted by Mr Dyers. Moreover, each of the four police officers acted upon claims by this complainant “knowing that [she] was an unreliable witness and most likely, lying”. The ASOC pleads that at all material times, the four police officers acted with malice or reckless indifference to the likelihood that the evidence of the complainants was concocted.

16. By reason of these matters, each of the four police officers is said to have committed misfeasance in public office. The ASOC pleads that the State is vicariously liable for the actions of the police officers because the Common Law Proceedings constitute a “police tort claim” for the purposes of s 9B(1) of the Law Reform (Vicarious Liability) Act 1983 (NSW) (Vicarious Liability Act). [10] Alternatively, the State is said to be vicariously liable by reason of s 5 of the Crown Proceedings Act 1988 (NSW) (Crown Proceedings Act). [11]

    10. See at [21] below.

    11. See at [19] below.

17. The applicant claims that the misfeasance in public office of the four police officers has caused her loss and damage, including psychological harm, arising from her having witnessed Mr Dyers’ suicide. She seeks damages, including aggravated and exemplary damages.

The Subpoena

18. The applicant’s solicitors caused a subpoena to be issued to the DPP on 8 December 2014 seeking the production of the file in relation to the prosecution of Mr Dyers. The Subpoena in its final form, issued on 10 February 2015, sought the following documents:

“Copies of all documents held by the DPP in the file concerning the prosecution of Kenneth Emmanuel Dyers for the period 2005-2007, which record:

(i)   matters raised by the DPP in relation to the adequacy of the Police investigation into Kenneth Emmanuel Dyers generally, or the adequacy of any particular aspect of such investigation;

(ii)   Communications with the NSW Police in relation to (i), above; and

(iii)   any requests by the DPP for further investigatory work to be undertaken by the Police.”

Legislation

Crown Proceedings Act

19. Section 5(1) of the Crown Proceedings Act provides that any person having a just claim or demand against the Crown in right of New South Wales, not being a claim against a statutory corporation representing the Crown, may bring civil proceedings against the Crown under the title “State of New South Wales”. The rights of the parties in such a case are to be as nearly as possible the same as in the ordinary case between subject and subject (s 5(2)).

Vicarious Liability Act

20. Section 8(1) of the Vicarious Liability Act provides as follows:

“Notwithstanding any law to the contrary, the Crown [in right of New South Wales] is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by a person of a function (including an independent function) where the performance or purported performance of the function:

(a)   is in the course of the person’s service with the Crown or is an incident of the person’s service …

(b)   …”

21. Sections 9 and 9B of the Vicarious Liability Act provide as follows:

“9   When torts committed by police officers

In this Part, a tort is committed, or allegedly committed, by a police officer if the tort is committed, or allegedly committed, by a person who was a police officer at the time of the tort or alleged tort (whether or not acting in a personal or official capacity).

…

9B    How can police tort claims be made?

(1)   A police tort claim is a claim for damages for a tort allegedly committed by a police officer (the police officer concerned) in the performance or purported performance of the officer’s functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person.

(2)   Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown.

(3)   A person who makes a police tort claim against the Crown in any legal proceedings may join the police officer concerned as a party to the proceedings only if the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer concerned had committed the tort.

(4)    …”

Evidence Act

22. Section 118 of the Evidence Act creates client legal privilege over certain confidential communications. It provides that evidence is not to be adduced if, on objection by the client, the court finds that adducing the evidence would result in disclosure of, inter alia, confidential communications made between a client and lawyer for the dominant purpose of the lawyer providing legal advice to the client. The term “client” is defined to include “an employee or agent of a client” and “an employer of a lawyer if the employer is … a State” (s 117(1)).

23. Section 118 of the Evidence Act must be read with s 131A. The latter relevantly provides that if a person is required by a subpoena to produce a document which would result in the disclosure of a communication subject to client legal privilege and the person objects to providing the document, the court must determine the objection by applying the provisions of Part 3.10 (including s 122) with any necessary modifications as if the objection were to the giving or adducing of evidence.

24. Section 122 deals with loss of client legal privilege. It provides as follows:

“122   Loss of client legal privilege: consent and related matters

…

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118

…

(3)   Without limiting subsection (2), a client or party is taken to have so acted if:

(a)   the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or

(b)   …

(5)   A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:

(a)   …

(b)   of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or

(c)   of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

…”

Director of Public Prosecutions Act 1986 (NSW)

25. The office of DPP is created by s 4(1) of the Director of Public Prosecutions Act 1986 (NSW) (DPP Act). The DPP is appointed by the Governor and is responsible to the Attorney General for the due exercise of the DPP’s functions. However, this responsibility does not detract from the authority of the DPP in respect of the preparation, institution and conduct of proceedings (s 4(1),(3)).

26. The principal functions of the DPP include instituting and conducting on behalf of the Crown prosecutions for indictable offences (s 7(1)). The DPP is empowered, among other things, to institute and conduct committal proceedings for indictable offences (s 8(1)).

25. The DPP may give directions to the Commissioner of Police or any other person who institutes or conducts proceedings for offences (s 16(1)). The DPP may also issue directions requiring specified information to be referred to the DPP so that consideration can be given to instituting or carrying on a prosecution for a specified offence (s 16(2)).

26. The DPP’s staff are employed under the Government Sector Employment Act 2013 (NSW) (s 32). The DPP, other statutory officers appointed under the DPP Act (such as the Solicitor for Public Prosecutions) and the DPP’s staff are given protection from liability provided that their conduct “is done in good faith for the purpose of executing any relevant law” (s 35(1), (2)). There is no provision in the DPP Act equivalent to s 9B(2) and (3) of the Vicarious Liability Act which would prevent the DPP or officers of the DPP being joined as parties to an action against the State founded on alleged wrongdoing by the DPP or officers of the DPP.

Motion Judgment

29. Harrison AsJ recorded that the Documents within the scope of the Subpoena included: [12]

“•   Internal memoranda, notes and summaries created by officers of the ODPP [Office of the DPP].

•   Notes of conference between solicitors of the ODPP and officers of the NSW Police Force.

•   Draft submissions created by officers of the ODPP.

…

•   Internal emails between ODPP solicitors, an ODPP Trial Advocate and a [sic] ODPP Crown Prosecutor regarding status of the criminal proceedings, evidence and further conduct of the criminal proceedings; and

•   Notes of conferences and telephone conversations between ODPP solicitors and officers of the NSW Police Force regarding obtaining further evidence for the criminal proceedings.”

12.    Motion Judgment at [20], [21].

30. Her Honour noted that it was not in issue that the DPP satisfied the definition of “client” in s 117(1) of the Evidence Act and thus was entitled to claim client legal privilege in respect of the Documents under s 118 of the Evidence Act. [13]

    13. Motion Judgment at [22].

31. Harrison AsJ found that:

• the Documents were the subject of client legal privilege; [14]

• (as the DPP conceded) the DPP knowingly and voluntarily disclosed the Documents to the Crown Solicitor in September 2014; [15]

• at that time, the DPP had retained the Crown Solicitor to act on behalf of the DPP in the Common Law Proceedings and accordingly the Documents were shared between joint clients for the purposes of s 122(5)(b) of the Evidence Act; [16]

• it followed that despite the voluntary disclosure of the Documents the DPP had not acted in a manner inconsistent with the claim of privilege and could maintain privilege in the Documents; [17] and

• in any event, the “Crown agencies” shared a “common interest” in the outcome of the anticipated Common Law Proceedings and, accordingly, the DPP could rely on s 122(5)(c) of the Evidence Act to maintain client legal privilege in the Documents despite the voluntary disclosure. [18]

14. Motion Judgment at [37].

15. Motion Judgment at [42].

16. Motion Judgment at [46].

17. Motion Judgment at [46].

18.    Motion Judgment at [47]-[48].

The Appeal Judgment

32. Beech-Jones J rejected the applicant’s challenge to the finding that the Documents were confidential and that they were, therefore, subject to client legal privilege. [19] The applicant does not challenge this finding.

    19.    Appeal Judgment at [40], [41].

33. His Honour pointed out that the focus by the parties on s 122(5)(b) of the Evidence Act (joint clients) was misconceived. If the DPP had retained the Crown Solicitor at the relevant time, the DPP could simply rely on client legal privilege under s 118 because any disclosure would have been to the DPP’s own solicitor. [20] However, his Honour found that Harrison AsJ erred in concluding that the evidence established that the DPP had retained the Crown Solicitor in July 2014 to act on the DPP’s behalf. [21] The DPP does not challenge this finding.

    20. Appeal Judgment at [47].

    21.    Appeal Judgment at [55]-[56].

34. Beech-Jones J upheld the alternative ground on which Harrison AsJ concluded that the DPP had not lost client legal privilege over the Documents. His Honour observed that the argument before Harrison AsJ proceeded on the basis that the “person” to whom the DPP had voluntarily disclosed the Documents was the State in its capacity as the body legally responsible for the police force and the four officers and that the Crown Solicitor had received the Documents on the State’s behalf. Beech-Jones J also noted that it had been common ground that the relevant proceedings were the Common Law Proceedings commenced by the applicant. [22]

    22. Appeal Judgment at [67].

35. Beech-Jones J referred to a number of authorities, including the observation of Bergin J in Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd (Rickard)[23] that the “concept of a ‘common interest’ is not rigidly defined, and is a question of fact in each case”. His Honour also referred to Bellew J’s observation in Marshall v Prescott (No 4) [24] that a “mere common interest in the outcome of litigation will be sufficient”.

    23. [2006] NSWSC 234 at [50], citing Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 280 (Giles J). Rickard concerned s 122(5)(b) of the Evidence Act, which, prior to the amendment of s 122 by the Evidence Amendment Act 2007 (NSW), was in substantially the same terms as the current s 122(5)(c).

    24. [2012] NSWSC 992 at [61].

36. His Honour continued as follows: [25]

“[73]   … Clearly the relevant interest must be more than a mere preference as to how the litigation should unfold. In many of the cases where a common interest was established the prospects of a non-party avoiding a legal liability on the one hand or successfully establishing a liability and recovering on the other were advanced by the party’s successful pursuit of the litigation … [A] financial interest in the outcome of litigation may suffice. In Rickard, Bergin J found that a litigation ‘funder had and has an interest in the most advantageous conduct of these proceedings by the plaintiff’ and that sufficed at least in circumstances where the relationship between the funder and the plaintiff was ‘collaborative and supportive’. [26]

[74]   … While there is no express allegation of impropriety against the DPP, an attack on the conduct of the prosecution by the DPP is implicit in the ASOC given the allegations that are made concerning the prosecution of Mr Dyers during a period after the DPP assumed the conduct of the prosecution and the absence of any suggestion that the ODPP’s solicitors were misled by any police officer or otherwise inhibited in forming their own decision as to whether to maintain the prosecution.

[75]   If [the applicant] was to succeed on so much of the ASOC that impugns the conduct of the four detectives in relation to the prosecution of Mr Dyers from the time the DPP assumed conduct of the proceedings then, leaving aside any question of whether any of the DPP, a Crown Prosecutor or ODPP solicitors are a ‘public officer’, there would clearly be an enhanced potential for them to be found liable for misfeasance in public office (or perhaps malicious prosecution). While the prospect of them being joined to these proceedings or being sued in separate proceedings now appears remote, the same could not be said as at September 2014 even allowing for possible Limitation Act defences. From the DPP’s perspective that was a realistic prospect at that time. In those circumstances her Honour was correct to hold that the DPP and the State had a ‘common interest in the outcome’ of [the applicant’s] proceedings which satisfied s 122(5)(c).” [Footnote in original.]

25.    Appeal Judgment at [73]-[75].

26. Rickard at [41].

37. Beech-Jones J pointed out that if the allegations in the ASOC were made out, the litigation would reflect adversely on the conduct of the DPP and the DPP’s staff. His Honour inclined to the view that the DPP’s interest in avoiding adverse findings of this kind would suffice to establish a common interest. However, it was not necessary to decide this question. [27]

    27. Appeal Judgment at [77].

38. Beech-Jones J also noted that the applicant had contended that Harrison AsJ erred in proceeding on the basis that all “Crown agencies” share a common interest in anticipated legal proceedings against the State. His Honour did not understand Harrison AsJ to have proceeded on this basis and thus the issue did not arise. [28]

Reasoning

28. Appeal Judgment at [78].

Preliminary

39. As we have noted, the Motion was argued on the basis that the DPP is the party entitled to claim client legal privilege in the Documents. No submission was put that the State might also be regarded as the client, having regard to the legislation providing that the DPP institutes and conducts prosecutions on behalf of the Crown. [29]

    29. DPP Act, s 7(1); see at [26] above.

40. Beech-Jones J adverted to but did not need to consider a possible argument that the “Crown agencies”, including the DPP, share a common interest in anticipated (or actual) legal proceedings against the State. Since the DPP conducts prosecutions on behalf of the Crown and the DPP’s staff are employed in the Public Service, it may be arguable that the DPP has a common interest with the State in assisting it to defend a claim, at least where that claim alleges misconduct in the course of proceedings conducted by the DPP on behalf of the Crown.

41. Mr Williams SC, who appeared with Ms Davidson for the DPP, indicated that he did not wish to seek leave to file a notice of contention raising this issue. He stated that the DPP was content to support the approach taken by Beech-Jones J in the Appeal Judgment.

Principles governing the grant of leave to appeal

42. Although the Court heard argument on the application for leave to appeal and the appeal concurrently, the first question that arises is whether this Court should grant leave to appeal.

43. The applicant seeks leave to appeal from a decision that involves a matter of practice and procedure and does not determine the substantive rights of the parties. It is well established that:[30]

“leave to appeal will ordinarily not be granted from a decision involving a matter of practice and procedure unless the application raises an issue of principle or the applicant can demonstrate that a significant injustice is likely to result if leave is not granted. [31] This is because unless appellate courts exercise restraint in interfering with decisions of trial judges on matters of practice and procedure, the result will be excessive delays, expense and uncertainty in the conduct of litigation. [32] ” [Footnotes in original.]

30. Young v Cooke [2017] NSWCA 33 at [20] (Gleeson JA, Macfarlan JA agreeing).

31. ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [29] (Tobias JA, Basten JA and Handley AJA agreeing); Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[33] (Basten JA, Tobias AJA agreeing).

32. Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39 at [9] citing Re the Will of Gilbert (1946) 46 SR (NSW) 318 at 322-323. See also Toppro Pty Ltd v Yoo [2016] NSWCA 119 at [19].

44. There is a particular need for caution in the present case. The applicant has already exercised her right of appeal from the decision of Harrison AsJ. She failed before Beech-Jones J on the only issue she now seeks to re-agitate in this Court. A grant of leave to appeal in these circumstances is apt to encourage litigants with “a long purse or a litigious disposition”[33] to increase delays and costs by prolonging interlocutory disputes. It must also be borne in mind that the Common Law Proceedings were not instituted until February 2013, five and a half years after the death of Mr Dyers. The DPP’s Motion was filed over two years ago. It is now nearly ten years after Mr Dyers’ death and the Common Law Proceedings have not yet been set down for trial.

    33. In re the Will of Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323 (Jordan CJ, Nicholas CJ in Eq agreeing).

Should leave be granted?

45. The applicant’s written submissions contain a suggestion that the application for leave to appeal raises an issue of principle by reason of Beech-Jones J’s citation of the observation of Bellew J that a “mere common interest in the outcome of litigation will be sufficient”. However, in the course of argument in this Court it was pointed out that Beech-Jones J went on to consider what kind of interest was required for the purposes of s 122(5)(c) of the Evidence Act. His Honour accepted that more was required than a “mere preference as to how the litigation should unfold”. [34] He found that there was a realistic prospect, as at September 2014, that the DPP and the DPP’s solicitors might have been joined to the proceedings and that the joinder could have led to findings that they had committed misfeasance in public office, for which the State would be vicariously liable. In his Honour’s view, the possibility of joinder leading to the DPP and the DPP’s solicitors being found to have committed misfeasance in public office gave the DPP an interest in common with the State in the Common Law Proceedings.

    34. Appeal Judgment at [76].

46. It was also pointed out in argument in this Court, as noted above, that the DPP Act does not contain provisions equivalent to s 9B(2) and (3) of the Vicarious Liability Act. Accordingly, in September 2014 there was no statutory impediment to the DPP or the DPP’s solicitors being joined to the Common Law Proceedings even though the Crown would be vicariously liable to the applicant for any tortious conduct of the DPP or the solicitors. Moreover, the protection given to the DPP by s 35 of the DPP Act only applies to actions taken in good faith.

47. Following these exchanges, Mr Brereton SC, who appeared with Mr Maroya for the applicant, accepted that the draft notice of appeal did not raise any issue of principle, but involved only challenges to factual determinations made by Beech-Jones J. Nonetheless, so Mr Brereton argued, the factual challenges justified a grant of leave to appeal. Specifically, Mr Brereton challenged Beech-Jones J’s findings on the grounds that:

• the DPP presented no evidence to demonstrate that the Office of the DPP was concerned about the prospect of being joined to the Common Law Proceedings; and

• contrary to Beech-Jones J’s findings, the ASOC did not attack the conduct of the DPP or the DPP’s solicitors.

48. Even if these factual challenges were reasonably arguable, they would not justify granting leave to appeal. As Mr Brereton accepted, they raise no issue of principle. The fact that an applicant has an arguable case is not, of itself, a basis for a grant of leave in the absence of the applicant demonstrating that a denial of leave would cause significant injustice. [35] The outcome of this interlocutory dispute is not dispositive of the applicant’s claim against the State. While no doubt the applicant’s advisors would prefer to inspect the Documents, Mr Brereton did not identify any significant injustice that would clearly flow from a denial of leave to appeal.

    35. See, for example, Lee v New South Wales Crime Commission [2012] NSWCA 262; 224 A Crim R 94 at [12] (Bathurst CJ, Macfarlan and Barrett JJA agreeing).

49. In any event, there is insufficient merit in the applicant’s arguments to warrant a grant of leave to appeal. The ASOC makes allegations about the police officers’ reasons for arresting and charging Mr Dyers at a stage before the DPP became involved in the criminal proceedings. But the pleading also alleges, in effect, that the evidence adduced in the committal proceedings revealed deficiencies in the prosecution’s case and/or was consistent with Mr Dyers’ version of events. The ASOC further alleges that on the basis of the evidence adduced by Mr Dyers on the stay application, the four police officers knew that Mr Dyers was extremely frail and weak and would find it difficult to cope with stress. Since it was common ground that the DPP was responsible for concluding both the committal proceedings and the stay application, it is difficult to interpret the ASOC otherwise than as implicitly impugning the manner in which the DPP and the DPP’s officers discharged their statutory responsibilities. The terms of the ASOC also provide an evidentiary foundation for Beech-Jones J’s finding that there was a realistic prospect, as at September 2014, that the DPP or the DPP’s officers might be joined as parties to the proceedings.

50. The applicant’s written submissions contended that the DPP could not have a common interest with the State in the Common Law Proceedings because the DPP was “not interested in the outcome” of the applicant’s claim against the State based on the alleged misfeasance of the police officers. This argument was not developed in the oral submissions, but it seems to assume that none of the allegations made against the police officers could be understood as impugning actions of the DPP or the DPP’s officers. For the reasons that have been given, this assumption is not correct.

Orders

51. The following orders should be made:

1.   The application for leave to appeal is dismissed.

2.   The applicant pay the costs of the respondent, including the costs of the concurrent hearing.

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Endnotes

Decision last updated: 26 May 2017