Mullins v Rothschild - [2001] TASSC 76

[2001] TASSC 76

CITATION: Mullins & Anor v Rothschild [2001] TASSC 76

PARTIES:  MULLINS, Stephen
  DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)
  v

ROTHSCHILD, Justin David

TITLE OF COURT:           SUPREME COURT OF TASMANIA
JURISDICTION:                 APPELLATE
FILE NO/S:  LCA 27/2000
DELIVERED ON:                17 July 2001
DELIVERED AT:                 Hobart
HEARING DATES:            6 July 2001
JUDGMENT OF:                Cox CJ

CATCHWORDS:

Professions and Trades - Lawyers - Solicitor and client - Duties and liabilities to client - Former client - Conflict of interest - Acting against former client in criminal prosecution - Confidential information - Whether there was any basis for finding a real and sensible possibility of misuse of confidential information.

Prince Jefri Bolkiah v KPMG [1999] 2 AC 222, applied.
Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831; Mallesons Stephen Jacques v KPMG Peat Marwick (1990) 4 WAR 357; D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118; Newman v Phillips Fox (1999) 21 WAR 309, referred to.
Aust Dig Professions and Trades [96]

REPRESENTATION:

Counsel:
             Applicants:  I M Arendt
             Respondent:  P B Fitzgerald
Solicitors:
             Applicants:  Commonwealth Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2001] TASSC 76
Number of Paragraphs: 14

Serial No 76/2001
File No LCA 27/2000

STEPHEN MULLINS and the DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) v JUSTIN DAVID ROTHSCHILD

REASONS FOR JUDGMENT COX CJ

17 July 2001

The first named applicant in this notice to review is a Federal Police Officer who filed a complaint against the respondent alleging three counts of defrauding the Commonwealth, contrary to the Crimes Act 1914 (Cth), s29D. The second named applicant, pursuant to the Director of Public Prosecutions Act 1983 (Cth) ("the Act"), s9(5), took over the conduct of the proceedings which sought the respondent's commitment for trial on the charges which are indictable. The notice to review was amended to include the second named applicant at the hearing of the notice, without opposition from the respondent. The application was made out of caution as the standing of the first named applicant as a person aggrieved was challenged. The order which is alleged to have aggrieved both applicants was one made by a magistrate in petty sessions to the effect that, save for formal appearances, the persons mentioned on a list attached were not to appear before the magistrate to prosecute the matters. The persons named on the list are every one of the legal practitioners employed at the Hobart office of the second named applicant during the period 4 September 2000 to 23 March 2001.

The order was made in these circumstances. The respondent was charged with the offences in May 2000. He had previously faced a charge of arson brought by the Crown in right of the State of Tasmania, had been convicted and had been sentenced to a term of imprisonment. In respect of the State proceedings, he was represented by the Legal Aid Commission of Tasmania and, in particular, by one Ms Harris, a legal practitioner employed…

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.

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Details

Case: [2001] TASSC 76
Decision Date: 17 July 2001

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Stephen Mullins and the Director of Public Prosecutions (Commonwealth) have filed a notice to review against Justin David Rothschild. The applicants seek to challenge an order made by Magistrate Dixon, which restrained all legal practitioners employed at the Hobart office of the Director of Public Prosecutions from appearing before him to prosecute the respondent on charges of defrauding the Commonwealth. The respondents' previous lawyer, Ms Harris, had acquired confidential and privileged information from the respondent during their representation. After her employment with the Legal Aid Commission of Tasmania expired, she commenced employment with the Director of Public Prosecutions, Hobart office, and disclosed her conflict of interest to her colleagues. Despite this, the magistrate made an order preventing the legal practitioners from appearing before him to prosecute the respondent. The applicants argue that the magistrate's order is beyond his jurisdiction and that there is no real or sensible possibility of misuse of confidential information.

The court had to decide three issues: the standing of the applicants as persons aggrieved, the jurisdiction of the magistrate to make the order, and whether the magistrate erred in making the order. The court held that both applicants have standing as persons aggrieved and that the magistrate's jurisdiction to make the order was not the primary issue. The court adopted a test to determine whether to intervene, requiring the court to be satisfied that there is no risk of disclosure. The risk must be real, but not necessarily substantial. The court found that there was no factual material upon which the magistrate's conclusion that there can be inadvertent, unknowing communications between Ms Harris and members of the Director of Public Prosecutions' staff could reasonably be reached. The court held that the learned magistrate was in error in making the order and that it should be set aside.

The court set aside the order made by Magistrate Dixon, restraining all legal practitioners employed at the Hobart office of the Director of Public Prosecutions from appearing before him to prosecute the respondent on charges of defrauding the Commonwealth. The court held that there was no real or sensible possibility of the misuse of confidential information, and that the Office of the Director of Public Prosecutions has a statutory obligation to fulfil.

Orders