R v Dunwoody

[2004] QCA 133

COURT OF APPEAL

McMURDO P
McPHERSON JA
HOLMES J

CA No 294 of 2003

THE QUEEN
and
JOHN ERNEST DUNWOODY	Appellant

BRISBANE

..DATE 23/04/2004

JUDGMENT

THE PRESIDENT: The appellant has, at this late stage of the proceedings, asked for leave to amend the grounds of appeal. It emerged during the respondent's submissions that the respondent understood and prepared its outline of submissions on the basis of the grounds of appeal, understandably, which were:

"That the learned trial judge erred in finding that legal professional privilege was waived in respect of those documents within the schedule of documents to the Crown outline of submissions which had not been tendered in the bankruptcy examination."

The appellant now wishes to amend those grounds to:

"That the learned trial judge erred in finding that legal professional privilege was waived."

The respondent objects to that amendment, primarily because of the lateness of the application and because he has prepared the matter on the grounds argued, and also that there will be significant inconvenience in that the matter will have to be adjourned, affidavit material obtained, and possibly a change of counsel.

The appellant's submissions to me made it plain enough that he was intending to challenge the ruling of the primary Judge as to legal professional privilege in respect of all documents, including what are known as category 2 documents, and not to limit the challenge to the primary Judge's ruling to those documents set out in the ground of appeal. He is unrepresented and I think he ought to be able to make the amendment despite the lateness of his application because, it seems to me, clear enough from his submissions that this was always what he intended.

He understands that this will mean the matter will have to be adjourned and the rehearing will not be able to be brought on quickly. I cannot see that the respondent will suffer any prejudice that cannot be cured by the granting of all necessary amendments, although the course proposed is not particularly convenient to the Court or to the respondent, in my view, it seems the just course. I would allow the amendment to be made.

McPHERSON JA: I have the misfortune not to agree with the proposal that the amendment should be allowed at this stage.

HOLMES J: I agree with the President. The outline of argument clearly sets out on the opening page that part of the argument structure concerns the category 2 documents and those documents are dealt with in the body of the argument, so it seems to me that it was evident that those documents were the subject of the appeal.

THE PRESIDENT: The amendment will be allowed.
...

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CaseChat Overview and Summary

In the matter of R v Dunwoody, the appellant, John Ernest Dunwoody, sought leave to amend the grounds of appeal against a decision made by the trial judge in the context of his bankruptcy examination. The respondent, the Crown, objected to the amendment on the basis of the late stage of the proceedings and the inconvenience it would cause, including the necessity to adjourn the case, obtain additional affidavit material, and potentially change counsel. The appellant argued that the amendment was necessary to challenge the ruling on legal professional privilege in respect of all documents, not just those specified in the original grounds of appeal. The Court of Appeal was tasked with determining whether the amendment should be permitted despite the late application.

The legal issue before the Court of Appeal was whether the appellant should be granted permission to amend the grounds of appeal at such a late stage in the proceedings. The primary considerations included the appellant's intention to challenge the ruling on legal professional privilege for all documents, the inconvenience to the respondent, and the potential prejudice that might arise from the amendment. The appellant contended that the amendment was necessary to clarify his intention to appeal the ruling on privilege for all documents, not just the category 2 documents. The respondent, on the other hand, argued that the amendment would cause significant inconvenience and that the matter had already been prepared based on the original grounds.

The Court of Appeal, consisting of McMurdo P, McPherson JA, and Holmes J, considered the matter and reached a decision. McMurdo P allowed the amendment, reasoning that the appellant's intention to challenge the ruling on legal professional privilege in respect of all documents was clear from his submissions, and that any prejudice to the respondent could be mitigated by granting the necessary amendments and allowing a rehearing. McPherson JA and Holmes J disagreed, holding that the amendment should not be allowed as it would be inappropriate to permit such a significant change at such a late stage, especially given the inconvenience and potential prejudice to the respondent. Ultimately, McMurdo P allowed the amendment, despite the objections from the other judges.

The final orders of the Court of Appeal were that the appellant's amendment to the grounds of appeal was allowed, despite the objections from the respondent. The matter would be adjourned to allow for the rehearing, with the understanding that any prejudice to the respondent could be addressed through the granting of necessary amendments.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established