R v Hutson (Ruling No. 5) - [2025] QDCPR 1

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Hutson (Ruling No. 5) [2025] QDCPR 1

PARTIES:

THE KING

v

JENNIFER JOAN HUTSON

(Defendant)

FILE NO:

156 of 2021

DIVISION:

Criminal

PROCEEDING:

Pre-trial applications pursuant to s. 590AA of the Criminal Code.

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

17 January 2025

DELIVERED AT:

Brisbane

HEARING DATE:

16 December 2024, written submissions received from the defendant on 18 December 2024 and oral submissions from the prosecution on 19 December 2024.

JUDGE:

Byrne KC DCJ

ORDERS:

1. The application by G8 Education Limited seeking an order that the conversation referred to by Ms Brady in her statement dated 17 October 2023 at paragraph 21 is subject to legal professional privilege is refused.

2. The parties are invited to make submissions as to what order, if any, should be made in relation to disclosure of Ms Brady’s latest statement.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – DISCLOSURE OBLIGATIONS – LEGAL PROFESSIONAL PRIVILEGE - where a solicitor had a conversation with the Chair of a corporate client – where the solicitor declined to reveal the contents of the conversation until satisfied privilege had been waived or did not apply – where the corporate client sought an order that legal professional privilege applied to the conversation - where the Court received a confidential statement of the witness which outlined the conversation – whether legal professional privilege applied – whether the so-called fraud exception applied.

LEGISLATION:

Corporations Act 2001 (Cth), s. 184.

Criminal Code (Qld), ss. 140, 408C.

CASES:

Amcor Ltd v Barnes [2011] VSC 341.

Attorney-General (NT) v Kearney (1985) 158 CLR 500.
Clements, Dunne & Bell Pty Ltd v Commissioner of Australian Federal Police (2001) 188 ALR 515.
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.
Finers v Miro [1991] 1 All ER 182.
Grant v Downes (1976) 135 CLR 674.
Packer v Deputy Commissioner of Taxation (Qld) [1985] 1 Qd R 275.
R v Cox and Railton [1884] 14 QB 153.
R v Hutson [2021] QDC 321.

Talbot v Boyd Legal (A Firm) & Ors [2020] QSC 185.

COUNSEL:
Mr. J. Greggery KC and Ms. A. Campbell for the prosecution.

Mr. N. Clelland KC with Mr J. Jones, Mr P. Coleridge and Ms. J. Reeves for the defendant.

Mr. T. Elliss for G8 Education Limited.

SOLICITORS:
Commonwealth Director of Public Prosecutions for the prosecution.

Gilshenan and Luton for the defendant.

Allens for G8 Education Limited.

Background

The defendant faces trial on the following charges:
(a)Dishonest use of position with the intention of gaining an advantage – s. 184(2) of the Corporations Act 2001 (Cth). (Counts 1 and 3). These two offences are respectively alleged to have occurred on or about 10 July 2015 and on or about 4 August 2015.
(b)Failure to exercise powers or discharge duties for a proper purpose on or about 13 July 2015 – s. 184(1) of the Corporations Act 2001 (Cth). (Count 2).

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 R v Hutson (Ruling No. 5)

Details

AGLC: R v Hutson (Ruling No. 5) [2025] QDCPR 1
Case: [2025] QDCPR 1
Decision Date: 17 January 2025

CaseChat Overview and Summary

In the matter of R v Hutson, the defendant, who was the chair and director of G8 Education Limited, was involved in a takeover attempt of a rival childcare educator, Affinity. G8 had engaged McCullough Robertson, a law firm, to advise on the takeover. The junior solicitor from McCullough Robertson, Ms Mary-Anne Brady, had contact with the defendant through her work on the takeover attempt. The defendant allegedly acted dishonestly in relation to G8's funds, including transferring $15 million from G8 to another law firm's trust account, Mills Oakley, and purchasing ANZ bank shares. G8 sought an order that a conversation between Ms Brady and the defendant was subject to legal professional privilege. The central legal issues were whether legal professional privilege applied to the conversation and whether the so-called fraud exception applied. The court found that legal professional privilege did not apply to the conversation, as the conversation related to the defendant's alleged dishonest conduct, which fell within the fraud exception. The court also considered that the conversation was not confidential as it involved advice about the defendant's alleged dishonest conduct. The application by G8 Education Limited seeking an order that the conversation was subject to legal professional privilege was refused. The parties were invited to make submissions on what order, if any, should be made in relation to disclosure of Ms Brady's latest statement.

Orders

Orders of the court

1. The application by G8 Education Limited seeking an order that the conversation referred to by Ms Brady in her statement dated 17 October 2023 at paragraph 21 is subject to legal professional privilege is refused.

2. The parties are invited to make submissions as to what order, if any, should be made in relation to disclosure of Ms Brady’s latest statement.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Some of the factual background is summarised in an earlier interlocutory judgment in these proceedings in R v Hutson[1] (“Judge Williamson’s judgment”). Due to the subsequent discontinuance of counts 5-13, his Honour’s observation at [7](e) of the judgment is now redundant. [1][2021] QDC 311, [5]-[10]. Some further detail is desirable for the purposes of this ruling, although I will attempt to simplify what are complicated and convoluted factual allegations. In doing so, I will omit or gloss over some of the finer details, while retaining the essential relevance of the allegations. Some of it has been taken from material placed before the Court at various other interlocutory hearings of this matter, but it is uncontentious and the facts placed before the Court on the hearing were merely highlighting aspects of that factual background. Both G8’s and the prosecution’s submissions were premised on a broad understanding of the factual allegations. At the relevant time, the defendant was both a director and the chair of G8 Education Limited (“G8”). G8 was, at the relevant time, involved in a take-over attempt of a rival childcare educator, Affinity, and had engaged the law firm McCullough Robertson to advise on the takeover attempt. Ms Mary-Anne Brady was a junior solicitor employed by McCullough Robertson and undertook work in relation to G8’s takeover attempt. Her contact with G8 was through the defendant. McCullough Robertson held substantial funds in trust on behalf of G8 as part of that work. The defendant is alleged, in part, to have acted dishonestly in relation to some of G8’s funds in different ways. She is alleged to have arranged the transfer of $15 million from G8 to the trust account of another law firm, Mills Oakley, ostensibly for the purposes of a joint venture proposal with an entity called Isola. This had nothing to do with the Affinity takeover, but a little over $8.5 million of those funds are, in effect, alleged to have funded unauthorised purchases of Affinity shares by a third party at the defendant’s instigation. Those funds were transferred from the Mills Oakley trust account to settle those purchases by 3 August 2015. By 4 August 2015 the Isola joint venture proposal had failed. On that date, G8’s managing director requested the defendant to arrange the return of the $15 million held on trust with Mills Oakley. On the same day, the defendant is alleged to have arranged the transfer of $10 million from the trust funds held by McCullough Robertson to the Mills Oakley trust account. It is alleged this was done to cover up the shortfall of over $8.5 million caused by the Affinity share purchases by the third party. On or about 5 August 2015 Mills Oakley returned the $15 million held on trust to G8. However, on the prosecution case, the $10 million transferred to Mills Oakley from McCullough Robertson would eventually have to be accounted for. It is also alleged that over broadly the same period, the defendant, through a privately operated company, purchased a number of shares in ANZ bank for a total cost of $928,500. It is convenient to ignore the fact her company was the purchaser, and to just refer to her as the purchaser. It is alleged that she used part of the balance of the initial transfer of $15 million to the Mills Oakley trust account to effect those purchases. The settlement for those purchases occurred on or about 11 August 2015.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Hutson (Ruling No. 5) [2025] QDCPR 1
PARTIES:	THE KING v JENNIFER JOAN HUTSON (Defendant)
FILE NO:	156 of 2021
DIVISION:	Criminal
PROCEEDING:	Pre-trial applications pursuant to s. 590AA of the Criminal Code.
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	17 January 2025
DELIVERED AT:	Brisbane
HEARING DATE:	16 December 2024, written submissions received from the defendant on 18 December 2024 and oral submissions from the prosecution on 19 December 2024.
JUDGE:	Byrne KC DCJ
ORDERS:	1. The application by G8 Education Limited seeking an order that the conversation referred to by Ms Brady in her statement dated 17 October 2023 at paragraph 21 is subject to legal professional privilege is refused. 2. The parties are invited to make submissions as to what order, if any, should be made in relation to disclosure of Ms Brady’s latest statement.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – DISCLOSURE OBLIGATIONS – LEGAL PROFESSIONAL PRIVILEGE - where a solicitor had a conversation with the Chair of a corporate client – where the solicitor declined to reveal the contents of the conversation until satisfied privilege had been waived or did not apply – where the corporate client sought an order that legal professional privilege applied to the conversation - where the Court received a confidential statement of the witness which outlined the conversation – whether legal professional privilege applied – whether the so-called fraud exception applied.
LEGISLATION:	Corporations Act 2001 (Cth), s. 184. Criminal Code (Qld), ss. 140, 408C.
CASES:	Amcor Ltd v Barnes [2011] VSC 341. Attorney-General (NT) v Kearney (1985) 158 CLR 500. Clements, Dunne & Bell Pty Ltd v Commissioner of Australian Federal Police (2001) 188 ALR 515. Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. Finers v Miro [1991] 1 All ER 182. Grant v Downes (1976) 135 CLR 674. Packer v Deputy Commissioner of Taxation (Qld) [1985] 1 Qd R 275. R v Cox and Railton [1884] 14 QB 153. R v Hutson [2021] QDC 321. Talbot v Boyd Legal (A Firm) & Ors [2020] QSC 185.
COUNSEL:	Mr. J. Greggery KC and Ms. A. Campbell for the prosecution. Mr. N. Clelland KC with Mr J. Jones, Mr P. Coleridge and Ms. J. Reeves for the defendant. Mr. T. Elliss for G8 Education Limited.
SOLICITORS:	Commonwealth Director of Public Prosecutions for the prosecution. Gilshenan and Luton for the defendant. Allens for G8 Education Limited.