MacQueen v the Queen B85/2001

[2003] HCATrans 843

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B84 of 2001

B e t w e e n -

STEPHEN RAYMOND ALEXANDERSON

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B85 of 2001

B e t w e e n -

ALLAN DAVID MacQUEEN

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 10.41 AM

Copyright in the High Court of Australia

__________________

MR M.J. BYRNE, QC:   May the Court please, I appear with my friend, MR D.J. WALSH, for the applicants.  (instructed by the applicants)

MR R.G. MARTIN:   May it please your Honours, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

McHUGH J:   Yes, Mr Byrne.

MR MARTIN:   Your Honour, before my friend rises, I rise with some trepidation out of order and without notice to the Court in respect to a matter that only came to my attention yesterday afternoon.  Prior to then it was thought that Alexanderson and MacQueen would be self‑represented.  Now it is apparent that Mr Byrne appears. 

The difficulty that the Crown has is that, in the history of the litigation of this matter, Mr Byrne has appeared for the Crown on previous occasions.  He appeared in the Court of Appeal when this matter was first before the Court of Appeal.  He appeared before this Court when Alexanderson and MacQueen brought special leave applications to this Court and were defeated.  In those circumstances, I object to his appearance for reasons which are probably obvious.  Because the matter is of late notice to me, I am not as fully prepared to argue as this Court deserves, but I can draw attention to some authority – there is some authority on point in respect of the matter.

McHUGH J:   Views have changed about these things and one of the famous Thellusson Cases, I think Lord Brougham sat as a judge on an appeal from a decision in which he had appeared as counsel for one of the parties and he resisted an objection to him sitting on the basis that no one is likely to know more about the case than somebody who had been counsel at the trial, but times have moved on.  But this is a separate application, is it not?

MR MARTIN:   Your Honour, my submission is it is not an answer to my objection to say that one can hive off a certain small part of the argument.  The issue is fundamentally one of the fitness of things – of the comity of my learned friends appearing on both sides of the table, as it were, in respect of what is fundamentally the same factual matrix.

McHUGH J: But, you see, there is no record so far in this Court. An application for special leave is an application to commence proceedings in the Court and Mr Byrne is seeking to commence a proceeding on behalf of these applicants, which involves, as far as I can see, a question really concerning jurisdiction to appeal again, either under section 8(1) of the Supreme Court Act or the inherent jurisdiction of the Court.

MR MARTIN:   I understand that too.

McHUGH J:   Anyway, you said ‑ ‑ ‑

MR MARTIN:   For what it is worth, your Honour, I have managed to find at least some authority.  Can I hand a copy of a decision of the Court of Appeal of Victoria in 1999, a decision of McVeigh v Linen House.  I have not found a case that involves counsel as opposed to solicitors or that involves employed counsel, as my learned friend once was.  In McVeigh’s Case there was a solicitors firm who acted for an administrator of a company who then purported to act on appeal and the principles are set out from about paragraph [23] onwards.  The solicitor purported to work for the corporation.  At [23]:

The authorities establish that a court will restrain a solicitor from acting for a litigant not only in order to prevent disclosure of confidences of a client or former client, but also to ensure that the solicitor’s duty of loyalty to the former client is respected, notwithstanding termination of the retainer, and to uphold as a matter of public policy the special relationship of solicitor and client.

The Crown says, a fortiori, a barrister and client.  At paragraph [24] Justice Burchett is quoted as saying:

The emphasis in the judgments was placed on the solicitor’s duty to safeguard confidential information of his client.  But there are at least two other aspects of the problem to which attention has more recently been drawn; a solicitor’s duty of loyalty, which cannot be treated as extinguished . . . and the important consideration of public policy which gives a special quality to the relationship of solicitor and client that the law will not generally permit to be stained by the appearance of disloyalty.

The following paragraph advances that proposition.  I will quote the sentence.  It says:

in litigation arising out of the very matter in which he himself acted for both.

In this case, of course, he has acted previously for the Crown.

McHUGH J:   Yes.  Well, Mr Byrne, what do you say about this issue?

MR BYRNE:   May your Honours please.  Naturally if your Honours have any concerns about my appearing in this matter, I would, of course, withdraw.  However, may I make the point that the case referred to by my learned friend involved, as your Honour Justice McHugh pointed out, acting in the same transaction.  What has occurred here is that there was an appeal involving the present applicants, which has been finally disposed of, in which I appeared for the Crown.  That matter is at an end.  There is no dispute on either side of the Bar table as to the correctness of the disposition of that matter.  What occurred then was that the applicants, instructing different solicitors, invoked separate proceedings in which I appeared neither for them, nor for the Crown ‑ ‑ ‑

McHUGH J:   Can I tell you what my difficulty is.  There is this question of the appearance of loyalty to the former client and it is not a matter that I would like to give a decision on, on the run, so to speak, on a special leave application day.  Is there any reason why your junior cannot take over the running of the application?

MR BYRNE:   He has been in it longer than I have, I should indicate.  I came into it after another senior counsel became unavailable.

McHUGH J:   Yes.

MR BYRNE:   Could I perhaps indicate before your Honours pronounce on that proposition.  We were – and I make no criticism of my learned friend for the Crown for this – only informed of this after 8.30 last night. 

My junior tells me now he would prefer time if he was to present the argument.

McHUGH J:   Yes.  Would it be sufficient for your purposes to stand the matter down, or would you prefer for it to go over?

MR BYRNE:   Could I speak to my junior in respect to that?

McHUGH J:   Yes.

MR BYRNE:   Our preference would be to have the matter go over, I am instructed, your Honour.

McHUGH J:   Yes.  Well, Mr Martin, there is not much you can say about that, is there?

MR MARTIN:   Not really, in the circumstances, your Honour.  I have made my submission and I adhere to it.

McHUGH J:   Yes, thank you, Mr Martin.  Yes, this matter will be adjourned.  It is just stood over.

AT 10.49 AM THE MATTERS WERE CONCLUDED