Knight v Spadano & Anor

[2003] VSCA 102

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7642 of 2001

JULIAN KNIGHT
	Appellant
v.
PAUL SPADANO & ANOR.	Respondents

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JUDGES:	ORMISTON and PHILLIPS, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 July 2003
DATE OF JUDGMENT:	23 July 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 102

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Courts – Procedure – Declaratory relief.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr Stephen Donaghue	Brimbank Community Legal Centre
For the Respondents	Mr L.W. Maher	C. Devlin, Legal Officer, CORE

ORMISTON, J.A.:

1. This is an appeal from a judgment by a judge of the Trial Division which took the form of a ruling which led to the striking out of the appellant’s originating motion.  Essentially his Honour reached his conclusion because the remaining issue, not accepted by the appellant as having been resolved by the course of the proceedings, was whether the appellant was entitled to a declaration as to whether the documents in question had been liable to seizure though legal professional privilege had been claimed.  In the circumstances of the case, and in respect to the operation of the Corrections Act, which in certain aspects has been subsequently amended, his Honour concluded that it was inappropriate to resolve that claim for declaratory relief because it raised a hypothetical or theoretical question. 

1. In short the appellant was and is a prisoner in Barwon Prison who created what he described as an “Inquest Brief”, which consisted of a file of documents not relating to himself but to the unfortunate death of another inmate of the prison who was found hanging in his cell.  These documents were alleged to be legal documents to which legal professional privilege attached.  They were inspected by the learned judge who then listed and described them in some detail, as appears from pages 9 to 11 of the transcript of the hearing.  They consisted of six witness statements provided for the purpose of the inquest including one by the appellant, four press articles, a number of letters either expressing thanks for assistance for certain persons or about other inconsequential matters such as applications for emergency management days, a body of documents being either statutes, regulations, correctional standards and the like, and finally a one-page list of incident or computer codes.

1. In the course of a visit by certain para-legals from two community legal centres, the appellant sought to hand over this bundle of documents but was refused by prison staff and it was effectively seized by correctional officers.  The two respondents were the general manager and acting general manager of the prison at the relevant time.

1. The originating motion also sought injunctions for the return of the documents to the appellant.  In the course of the hearing, with the exception of one document, the respondents agreed to the return of all the other documents once consent was obtained from the makers of those statements other than the appellant.  Again during the hearing the appellant did not press for the return of the final document, that setting out the incident or computer codes, and it is not, and was not, the subject of any further controversy. 

1. The final item of relief sought and still sought by the appellant was expressed as follows:

“A declaration that prisoners have at common law and pursuant to s.47(2) of the Corrections Act 1986 (Vic), the right of access to the courts, the right of legal advice and the right to communicate confidentially with a legal adviser under the seal (sic) of legal professional privilege.”

The first two claims were not pressed and it has been suggested that some attempt was made to amend that declaration, but I am unable to be satisfied that any adequate formulation of different relief was made.

1. It is not difficult to see why the learned judge refused to entertain the application further or to resolve the claim for relief for the declaration sought.  It went far beyond what otherwise was raised on the somewhat inadequate materials - there were no pleadings – and any genuine dispute was resolved by the return, in substance, of the file.  No other relief was sought.  No threat existed that the particular conduct would be repeated as such, for the conduct complained of took place in the specific context of the documentary file seized and by then in substance returned.  The learned judge has more than adequately explained in his reasons why it was and is inappropriate that the court should further consider the application for a declaration, for, in essence, it could lead to no further specific relief and would have no other practical consequences.  I would add that, for myself, I would doubt that either singly or in combination the file of documents had the necessary element of confidentiality which would attract the principles of legal professional privilege, especially as the appellant was only a witness to certain aspects of the death and it was not suggested that he was responsible in any way for it.  Moreover, it was only a

bundle of documents and was not said to contain any confidential and protected communications.  Be that as it may, I have considered the appeal on the assumption that a claim for the relevant privilege might have been made out with respect to some at least of the documents. 

1. Counsel has valiantly sought to show why the judge’s “discretion” miscarried.  The only point which might be said not to repeat the matters properly dealt with by the judge is a complaint that it was irrelevant that, as the judge asserted, further contested questions of fact would have to be resolved before granting relief.  Necessarily disputed questions of fact may be and often must be decided in claims for declarations, and in order to determine precisely what issue is raised it is always necessary, as it was in this case, for those facts to be resolved.  I see no basis for complaint in that respect.  It is wrong to say that the issue could be decided by reference only to legal principle and questions of statutory construction.  Of course the legal issue must be resolved in that way, but it can only be resolved in the context of facts agreed or proved.  There was no general denial of the principle on the part of the defendants and the case could only be resolved by a consideration of the actual facts relating to the particular file and its seizure, as to which there were obvious disagreements.

1. One would not wish to deny the importance of the principle of legal professional privilege, but, as the judge rightly concluded, this was not a case in which the issue was sufficiently raised or could properly be resolved.  It was and is a matter of “discretion”, as it is understood in this field, whether a declaration can properly be granted, and it has not been shown that the judge erred in his application of accepted principle.  The appeal must be dismissed.

PHILLIPS, J.A.: 

1. I agree.

ORMISTON, J.A.: 

1. The order of the Court therefore is that the appeal be dismissed.

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