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Mullett v Nixon

Mullett v Nixon

Case [2016] VSC 129 4 April 2016

Discovery & Disclosure

Abuse of Process

Misfeasance in Public Office

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 01520

PAUL REDMOND MULLETT	Plaintiff
v
CHRISTINE NIXON	First Defendant
and
KIERAN WALSHE	Second Defendant
and
WAYNE TAYLOR	Third Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2016
DATE OF RULING:	4 April 2016
CASE MAY BE CITED AS:	Mullett v Nixon & ors (subpoena application)
MEDIUM NEUTRAL CITATION:	[2016] VSC 129

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PRACTICE AND PROCEDURE - Subpoena – Production of documents - Claim for privilege – Disclosure waiver – Issue waiver – Associated document waiver – Derivative waiver – Tort of misfeasance in public office.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Panna QC	Stephens Lawyers & Consultants
For the Defendant	Ms R Orr QC with Mr D McCredden	Victorian Government Solicitor’s Office
For the Chief Commissioner of Police	Dr McNicol QC with Mr C Tran	Herbert Smith Freehills

HIS HONOUR:

Introduction

The plaintiff, Mr Paul Mullett, is suing former Chief Commissioner Christine Nixon over his suspension as a police officer in November 2007. He alleges that her actions were unlawful and constitute misfeasance in public office. The trial is set down before T Forrest J for 10 May 2016.

Mr Mullett was suspended pursuant to s 79(1) of the Police Regulation Act 1958 (Vic) (‘the Act’). Ms Nixon sought legal advice concerning the suspension. She does not have any documents concerning that advice in her possession - they are held by her successors.

In response to subpoenas, both the current Chief Commissioner and Victoria Police have now produced, amongst others, 41 documents related to legal advice given to Ms Nixon concerning Mr Mullett’s suspension. Ms Nixon objects to the production of the documents on the basis that they are covered by legal professional privilege. The Chief Commissioner supports this claim.

Mr Mullett accepts that the documents attract legal professional privilege. However, he contends that any privilege has been waived by reason of:

(a) disclosure waiver as a result of ‘media’ statements made to the public in relation to Mr Mullett’s suspension; and

(b) issue waiver as Ms Nixon relies upon legal advice given to her concerning the suspension in order to justify her decision to suspend Mr Mullett.

If there is a waiver of legal professional privilege, a further question arises: whether there is any derivative waiver in relation to documents which may be integral to an understanding of the documents over which privilege has been waived.

In the event that there has been a waiver, there is a question over which documents (if any) I should inspect to determine the extent of the waiver.

Background to the claims for waiver

In November 2007, Mr Mullett was the secretary of the Police Association.

At the time of his suspension, Ms Nixon told the press that Mr Mullett may have committed offences under the Telecommunications (Interception and Access) Act 1979 (Cth) (‘the Telecommunications Act’) and the Police Integrity Act 2008

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mullett v Nixon

Details

AGLC: Mullett v Nixon [2016] VSC 129
Case: [2016] VSC 129
Decision Date: 4 April 2016

CaseChat Overview and Summary

The case of Mullett v Nixon involved a dispute regarding the production of documents under subpoena. The matter was heard by the Supreme Court of Victoria. The plaintiff sought documents from the defendant, who was a former government officer, in connection with an investigation into alleged misconduct. The defendant claimed privilege over certain documents, arguing they were protected under legal professional privilege.

The primary legal issue before the court was whether the defendant had waived any privilege or protection over the documents in question. The court was also required to determine whether the defendant had waived the right to claim privilege through previous conduct, and whether associated documents or derivative documents were also subject to the waiver. Furthermore, the court needed to decide if the defendant's conduct constituted the tort of misfeasance in public office.

The court found that the defendant had effectively waived any privilege over the documents through previous disclosures and conduct. The court held that the waiver of privilege extended to associated and derivative documents as well. In relation to the tort of misfeasance in public office, the court determined that the defendant's actions did not amount to a misuse of public office for a private purpose. The court held that the plaintiff was entitled to the production of the documents as sought. The court made orders for the defendant to produce the documents to the plaintiff.

Orders