Re Fritz

[1994] QCA 382

IN THE COURT OF APPEAL	[1994] QCA 382
SUPREME COURT OF QUEENSLAND

Appeal No. 34 of 1994

Before Fitzgerald P. McPherson JA. Mackenzie J

[Minister for Justice and Attorney-General and Minister for

the Arts v. Fritz]

BETWEEN:

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

and MINISTER FOR THE ARTS

(Respondent) Appellant

AND:

DENNIS MELVIN FRITZ

(Applicant) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 28/09/94

The circumstances giving rise to this appeal clearly emerge from the reasons for judgment of McPherson JA.. I agree with his Honour that the appeal should be allowed.

The respondent's initial application was to the appellant, who wrote back on 8 August 1992 indicating that the application would be dealt with as a petition for a pardon. That being so, the respondent was advised that, as a matter of protocol, he should address a petition to the Governor. The letter concluded:

"... Her Excellency may then refer the petition to me for my advice and at that stage I will have the opportunity to consider whether it is appropriate to refer your case to the Court of Appeal pursuant to s.672A of the Criminal Code."

The respondent apparently followed the course suggested and, in accordance with usual practice, the Governor's Official Secretary forwarded the petition to the Department of the Premier, Economic and Trade Development. From there, it seems that it was referred back to the appellant. At that point, the appellant could have advised the Governor to grant or reject the petition, or he could have referred the "whole case" to this Court to hear and determine "as in the case of an appeal by a person convicted": Criminal Code, ss672(a). It is unnecessary to consider ss672A(b) on this occasion.

Subsequent correspondence to the respondent from the appellant and the Official Secretary to the Governor reveals some confusion as to their respective roles, but it seems reasonable to proceed on the basis that the appellant decided (i) not to refer the "whole case" to this Court but (ii) to advise the Governor to refuse the petition for a pardon, as she did. The respondent's present concern seems to be with respect to the former decision, which I am prepared for present purposes to assume is a reviewable decision under the Judicial Review Act 1992.

For the purpose of making that decision, the appellant obtained legal advice from the Crown Solicitor, which was in turn based on other advice provided to him by legal officers of the Department of Justice. It is these legal advices which the order under appeal would require the appellant to produce for the inspection of the respondent.

McPherson JA. has demonstrated that the documents which the respondent seeks are within the categories protected by legal professional privilege. It is unnecessary for me to decide whether, in a proceeding under the Judicial Review Act, the respondent might nonetheless require their production on the basis which apparently influenced the primary judge or, if it is different, the basis upon which the respondent seeks to uphold the order made in his favour below. My tentative view is that the respondent would not be entitled to such an order in such a proceeding, at least in the absence of exceptional circumstances, which are not present in this case. Indeed, although it is unnecessary to express a concluded view, the Judicial Review Act may indicate that "(d)ecisions relating to the administration of criminal justice" are to be accorded special confidentiality, in that reason for such decisions need not be given: see subsection 31(b) and Schedule 2.

Here, as McPherson JA. points out, the respondent is one step further back. He cannot bring an application under the Judicial Review Act until he has leave to do so under the Vexatious Litigants Act 1981, and he is not entitled to a grant of leave unless there is "prima facie ground" for the application which he wishes to bring: ibid Section 8. Section 9 of that Act limits a vexatious litigant's capacity to issue a subpoena, and I have no doubt that a subpoena should not be permitted to issue to require the production of privileged documents, at least in the absence of exceptional circumstances. It is unnecessary to consider whether the Rules of Court are otherwise applicable to an application for leave under the Vexatious Litigants Act; for example, the rules relating to discovery. Once again, the production of privileged documents would not ordinarily be required. Both the public interest and the manifest policy of the Vexatious Litigants Act require that a vexatious litigant not be able to demand privileged documents in an attempt to establish a basis for a proposed proceeding for which there is no "prima facie ground" otherwise demonstrated.

The only answer sought to be made on behalf of the respondent is that, in this instance, there is some paramount public interest that requires production. There is no substantial foundation for that submission, as is manifest from what McPherson JA has said.

I agree with the orders proposed by McPherson JA.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 34 of 1994

Brisbane

Before Fitzgerald P.
McPherson J.A.
Mackenzie J.

[Minister for Justice & A-G v. Fritz]

BETWEEN

MINISTER FOR JUSTICE AND
ATTORNEY-GENERAL AND MINISTER FOR THE ARTS

(Respondent) Appellant

- and -

DENNIS MELVIN FRITZ

(Applicant) Respondent

REASONS FOR JUDGMENT - MCPHERSON J.A.

Judgment delivered the 30th day of September 1994

The respondent to this appeal by the Attorney-General is Dennis Melvin Fritz. In 1985 he was tried and convicted at Cairns for the crime of rape and sentenced to imprisonment for nine years. An appeal to the Court of Criminal Appeal was dismissed on 19 June 1985. On 10 August 1993 he signed a document (ex. GRC 20 to the affidavit of G.R. Cooper) purporting to be a petition addressed to the Governor praying for a pardon in respect of that offence or conviction. The Attorney-General having (or so it is said) declined to refer it to the Court under s.672A of the Criminal Code, the respondent decided to institute proceedings under the Judicial Review Act 1992 for an order to review the Attorney's decision. The difficulty confronting him then was that on 21 July 1987 in O.S. 417 of 1987 it had been declared that he was a vexatious litigant and that no legal proceedings should, without leave of the Court or a Judge, be instituted by him or by anyone on his behalf.

On appeal it has been assumed, no doubt correctly, that the declaration was made under the Vexatious Litigants Act 1981. The order prohibiting the institution of legal proceedings without leave repeated, perhaps unnecessarily, the substance or effect of s.8(1) of the Act. Section 11(a) of the Act precludes the grant of leave to institute legal proceedings unless the court or judge is satisfied that it is not an abuse of process "and that there is prima facie ground therefor". In addition, in the case of an application to issue a subpoena, s.11(b) imposes a requirement that there be sufficient reason for its issue and that no abuse of process is intended or likely to result.

In order to obtain leave under s.8(1) of the Vexatious Litigants Act for the proceedings foreshadowed under the Judicial Review Act, the respondent applied by originating summons O.S.932 of 1993 for an order granting him leave to institute proceedings "for a statutory order to review against a decision of the Attorney-General". Having regard to the way in which matters have developed, it is essential to keep firmly in mind that it is only that application for leave under s.8(1) of the Vexatious Litigants Act, and not any application under the Judicial Review Act, that is now before the courts.

Having applied for leave to institute proceedings, the respondent then made a further application by summons filed on 10 December 1993 for leave under s.9 of the Vexatious Litigants Act to issue a subpoena directed to the Attorney- General to produce documents. Although the summons does not in terms say so, the purpose of the subpoena seems to have been to obtain from the Attorney-General the documents on which he relied for the decision not to refer the applicant's petition to the Court under s.672A of the Code.

The matter is expressed tentatively because the material in the record of appeal now before us does not set out the complete sequence of events and documents before the Chamber Judge on 17 December 1993, but contains details only of the proceedings at the adjourned hearing on 11 February 1994. In order to understand what is involved, it will be necessary to refer to other material filed in those applications that has not been reproduced in the appeal record.

At the hearing on 17 December 1993, counsel for the Attorney-General undertook to produce the required documents to the court at the hearing to which the application was adjourned. This was done at the adjourned hearing on 11 February 1994. A debate then took place about the right of the Attorney-General to resist production of the documents on the ground of legal professional privilege. In the end, the learned judge ordered the documents to be produced for inspection by the respondent but took steps to maintain the status quo by sealing up the documents pending an appeal against his order. It is that appeal that is now before us.

For present purposes the documents are sufficiently described as written memoranda containing legal advice sought by and given to the Attorney-General for the purpose of deciding the course to be taken with respect to the respondent's petition. The advice was given by the Crown Solicitor and was in turn based on other advice provided to him by legal officers of the Department of Justice.

Documents are immune from production on the ground of legal professional privilege if they contain communications brought into existence for the sole purpose of giving or receiving professional legal advice : Grant v. Downs (1976) 135 C.L.R. 674, 688. The privilege extends but is not confined to communications for the purpose of existing or anticipated litigation : Baker v. Campbell (1983) 153 C.L.R. 52, 122-123. Further, for reasons given in Waterford v. The Commonwealth (1987) 163 C.L.R. 54, 62, 81-82, the privilege applies to professional legal advice furnished to officers of the executive government by salaried lawyers employed in public service as it does to advice from legal practitioners in private practice.

There is no dispute that these requirements are satisfied in the case of the documents for which privilege is claimed here. The only question on the appeal is whether they are, as the learned judge held, excluded from the scope of legal professional privilege by the circumstance that they constituted "the very material" used by the Attorney to make the decision in respect of which the statutory order for review is to be sought. His Honour did not give formal reasons for his decision; but his reasons appear from his interlocutory remarks immediately before making the order. The documents were, he said:

"... taken outside legal professional privilege because they are the very material which the Minister sought and used in order to make his decision which is the subject of review under the judicial review legislation."

No authority has been cited to show the existence of such an exclusionary rule, and the only decision in point is directly opposed to it. In Webb v. DFC of T. (1993) 93 A.T.C. 4679, Cooper J. rejected a submission that because the judicial review of an administrative decision exposes the material before the decision-maker, it necessarily involved a waiver of legal professional privilege. Here the question for decision is more limited than it was in that case because the respondent has not yet instituted proceedings under the Judicial Review Act, but is still at the preliminary stage of seeking leave to do so under the Vexatious Litigants Act. To succeed in that application he must first satisfy the requirement under s.11(a) of that Act of persuading the court or judge that there is prima facie ground for instituting proceedings under the Judicial Review Act for a statutory order to review. He is thus in the classical dilemma of a litigant trying to establish a case without having the evidence needed to do so. To allow him to litigate his claim to inspect the documents in the hope that they will demonstrate the prima facie ground he is now unable to establish would go a long way to defeating the purpose of the Vexatious Litigants Act, which is to discourage litigious forays by persons who are subject to the prohibition imposed by s.8(1).

In an endeavour to support the order for inspection made below, Mr Trotter, who appeared for the respondent on appeal, urged that a judicial balancing of interests was called for in determining whether or not to permit inspection of the documents produced by the Attorney. He submitted that in a matter involving criminal or penal sanctions, or the liberty of the subject, the claim to legal professional privilege was qualified by the higher public interest in ensuring that justice is done. For example, it was recognised in R. v. Bell, ex parte Lees (1980) 146 C.L.R. 141 that the privilege attaching to communications between client and solicitor was subservient to the paramount need to ensure the welfare of a child, or to prevent the furtherance of a purpose that was illegal.

There is a hint of such a notion in his Honour's interlocutory remarks in the course of the proceedings below. There is no authority that would justify its extension to a case like this, and the analogy with the decision in R. v. Bell is obviously far from complete. The personal freedom of the respondent is not at stake and it will not be jeopardised by refusing the pardon he is looking for. By 1992 he had served his sentence and is now at liberty. At common law, the grant of a pardon had the consequence of relieving a convicted felon from all corporal penalties, disabilities and forfeitures associated with that status. Both felony and its related forfeitures have long since been abolished in Queensland. No one would wish to have a conviction against his name; but, as Morris C.J. said in R. v. Cosgrave [1948] Tas.S.R. 99, 106, a pardon "is in no sense an acquittal. It contains no notion that the man to whom the pardon is extended never did in fact commit the crime ...".

It is therefore difficult to identify anything resembling a criminal or penal proceeding. Statute apart, the courts have no jurisdiction to review the exercise of the prerogative of mercy : Horwitz v. Connor (1908) 6 C.L.R. 38, 40. The statute which the respondent seeks to invoke here is the Judicial Review Act. By s.4 it is, so far as material, available only in the case of a decision of an administrative character which it is proposed to make or is required to be made "under an enactment". The assumption implicit in the respondent's petition for a pardon is that the pardoning power is exercisable under s.672A of the Criminal Code. The petition addressed to the Governor prays that she exercise the power of the Governor to pardon "pursuant to the terms and conditions of s.672A of the Queensland Criminal Code", and further that she exercise her "aforesaid powers" as she deems fit according to the rules of natural justice; "and, or", that she refer the attached documents to the Attorney-General for his referral to the Court pursuant to s.672A of the Code.

The assumption in the petition is misconceived. The power to pardon is an aspect of the royal prerogative of mercy forming part of the common law. See Chitty's treatise on the Prerogatives of the Crown, at 88-95. In Queensland, as in other former colonies, the pardoning power devolved on the Governor, who in 1892 was instructed to exercise it only on the advice of his responsible ministers. The relevant instruments are reproduced in McLeod, The Queensland Criminal Code Supplement (1915), at 21-22. The provisions of s.672A of the Criminal Code, which was introduced when the Court of Criminal Appeal was first established in 1913, did not create the pardoning power, which owed its source and existence to the common law independently of that section. See now s.8(b) of the Constitution (Office of Governor) Act 1987, read with s.7(2) of the Schedule to the Australia Acts (Request) Act 1985. Section 672A does no more than authorise the Crown Law Officer to refer the case for a pardon, or a point in the case, to the Court.

The respondent's claim is to inspect the documents on which a decision of the Attorney-General was based. The first step is to identify precisely the particular decision of the Attorney-General that he wishes to have reviewed. The decision is not identified by its date or otherwise in either the originating summons O.S. 932 of 1993 or the summons filed on 10 December 1993 for leave to issue a subpoena. The assumption throughout has been that the documents produced to the judge at the hearing on 11 February 1994 were memoranda of advice on which the Attorney relied in making a decision not to refer the respondent's petition to the Court under s.672A. However, an inspection of the material filed in that application fails to disclose that any such decision has ever been made. Instead, there is a letter dated 30 April 1993 (ex. GRC 21) to the respondent from the Secretary to the Governor, which refers to the respondent's petition dated 10 August 1992 "seeking to have two convictions for which you were sentenced to imprisonment reviewed by the Court of Criminal Appeal pursuant to section 672A of the Criminal Code". The letter advises that the Governor has directed the Secretary to inform the respondent "that she does not consider that there are grounds for the Attorney-General referring the case to the Court of Criminal Appeal, or for the exercise of her Royal Prerogative of Pardon".

The Secretary's letter, ex. GRC 21, shows that there were two decisions by the Governor concerning the respondent's petition. One was her decision not to exercise the power to pardon. It is not that decision as to which the statutory order to review is being sought. The other was the Governor's decision that there were no grounds for the Attorney-General to refer the case to the Court of Criminal Appeal. It may perhaps be open to question whether the effect of s.672A is to confer on the Governor a power to determine that the case of a petition for a pardon is not to be referred to the Court, or to decide that no grounds exist for doing so. On one view of the section, it is for the Crown Law Officer to say whether the case should be referred to the Court. His power to do so is, however, expressed in s.672A to arise only "on the consideration of any petition for the exercise of the pardoning power ...".

According to a letter dated 6 August 1992 from the affidavit of the respondent in O.S. 932 of 1993):

"The protocols established by the Government in such cases as this require that where a petition has been submitted directly to a Minister, it is to be returned to the petitioner with the request that he or she submit it to the Governor."

The letter ex. K goes on to suggest that the documents be submitted to the Governor "with an appropriately worded petition". It concludes by saying:

"Her Excellency may then refer the petition to me for my advice and at that stage I will have the opportunity to consider whether it is appropriate to refer your case to the Court of Criminal Appeal pursuant to s.672A of the Criminal Code."

It was evidently in consequence of this letter that the petition signed by the respondent on 10 August 1992 was transmitted to the Governor. There is a letter (ex. H) dated 11 August 1992 to the respondent from the Secretary to the Governor acknowledging receipt of the petition dated 10 August 1992, which advised that it had been transmitted by the Department of the Premier.

It is implicit in the procedure which has been followed in the case of this petition that the Attorney-General as Crown Law Officer does not begin his consideration of whether or not the case should be referred to the Court of Criminal Appeal under s.672A until the Governor has first decided whether the petition warrants the exercise of the pardoning power, or has decided to remit it for the consideration of the Crown Law Officer under s.672A. Such a procedure appears to accord with the introductory part of the section, which provides that "nothing in the preceding provisions shall affect the exercise of the pardoning power of the Governor on behalf of Her Majesty ...". The preceding provisions referred to are the provisions of s.668 to 672 of the Criminal Code creating a system of appeals in criminal cases to be heard by the Court of Criminal Appeal, now the Court of Appeal.

It is not necessary to reach a final conclusion on the correct interpretation of s.672A, which was not the subject of submissions on this appeal. What these matters show, however, is the difficulty that faces the respondent in identifying the decision of the Attorney-General which he claims to have reviewed under the Judicial Review Act. The decision not to exercise the pardoning power is one which, on all the material before us, was taken by the Governor presumably acting on the advice of the Executive Council or of the responsible Minister. No doubt the decision was arrived at after considering the advice or recommendation of the Attorney-General presumably after consultation with his colleagues in Cabinet. But that is not to say that the decision was made by the Attorney-General himself rather than by the Governor or the Governor in Council. To tender advice is not to make a decision but at most to suggest or recommend a decision which may properly or perhaps should be made.

What flows from this is that the documents produced at the hearing on 11 February 1994 cannot be regarded, as the learned judge was inclined to view them, as "the very material" used by the Attorney-General in order to make a decision which it is sought to review. It was therefore not correct to hold that the Attorney-General was deprived of the right to rely on legal professional privilege in order to resist the respondent's application to inspect the documents produced at the hearing on 11 February 1994. Instead, those documents contained the advice he received from the Crown Law Officer and presumably used in formulating the advice or recommendation on which the Governor acted in making her decision not to exercise the pardoning power in response to the respondent's petition dated 10 August 1992, and not to refer it to the Attorney- General for his consideration and action under s.672A.

It may be added that examination of the documents themselves amply justifies the Attorney's claim to legal professional privilege. The documents in question contain legal advice from the Crown Solicitor and other legally qualified officers of the Department concerning the disposition of the respondent's petition. The documents will be resealed and are not to be inspected without leave of the Court or a Judge.

The appeal must be allowed with costs. The order made on 11 February 1994 should be set aside. In lieu it should be ordered that the respondent is not to be at liberty to inspect the documents produced by counsel for the Attorney- General on that date. The respondent is to have a certificate under the Appeal Costs Fund Act.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 34 of 1994

Brisbane
[Minister for Justice & A-G v. Fritz]

BETWEEN

MINISTER FOR JUSTICE AND
ATTORNEY-GENERAL AND MINISTER FOR THE ARTS

(Respondent) Appellant

- and -

DENNIS MELVIN FRITZ

(Applicant) Respondent

Fitzgerald P.
McPherson J.A.

Mackenzie J.

Judgment delivered 30/09/94
Separate reasons for judgment by each member of the Court.

APPEAL ALLOWED WITH COSTS. ORDER MADE ON 11 FEBRUARY 1994 SET ASIDE. IN LIEU ORDER THAT THE RESPONDENT IS NOT TO INSPECT THE DOCUMENTS PRODUCED BY COUNSEL FOR THE ATTORNEY- GENERAL ON THAT DATE. THE RELEVANT DOCUMENTS ARE TO BE RESEALED AND ARE NOT TO BE INSPECTED WITHOUT THE LEAVE OF THE COURT OR A JUDGE. RESPONDENT TO HAVE A CERTIFICATE UNDER THE APPEAL COSTS FUND ACT.

CATCHWORDS	VEXATIOUS LITIGANT - Application to commence proceedings for Judicial Review - Applicant subpoenaed Attorney-General to produce documents - Challenged on ground of legal privilege - Whether production of documents would defeat purpose of Vexatious Litigants Act 1981.
EVIDENCE - PRIVILEGE - Legal Professional - Whether documents excluded from privilege when constituting the very material used to make decision sought to be reviewed - Privilege in context of Vexatious Litigants Act discussed.
CROWN PREROGATIVE - PETITION FOR PARDON - Nature of pardoning power discussed - Effect of s.672A Criminal Code discussed.
Counsel:	P. Keane Q.C., with him R. Atkinson, for the appellant
R. Trotter for the respondent
Solicitors:	Crown Solicitor for the appellant James Walker Solicitors for the respondent

Hearing Date: 7 September 1994
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 34 of 1994

[Minister for Justice v. Fritz]

BETWEEN:

MINISTER FOR JUSTICE AND

ATTORNEY-GENERAL AND MINISTER FOR THE ARTS

(Appellant)

AND:

DENNIS MELVIN FRITZ

(Respondent)

The President
McPherson JA

Mackenzie J

Judgment delivered 30/09/1994
Judgment - Mackenzie J.

Appeal allowed with costs. The order made on 11 February 1994 should be set aside. In lieu it should be ordered that the respondent is not to be at liberty to inspect the documents produced by counsel for the Attorney-General on that date. The respondent is to have a certificate under the Appeal Costs Fund Act.

Counsel: 

P. Keane Q.C., S.G. and R. Atkinson for
appellant
R. Trotter for respondent

Solicitors: 

K.M. O'Shea, Crown Solicitor for

appellant
James Walker for respondent

Hearing date: 7 September 1994
IN THE SUPREME COURT

OF QUEENSLAND

Appeal No. 34 of 1994

Brisbane

Before The President

McPherson JA

Mackenzie J

[Minister for Justice v. Fritz]

BETWEEN:

MINISTER FOR JUSTICE AND

ATTORNEY-GENERAL AND MINISTER FOR THE ARTS

(Appellant)

AND:

DENNIS MELVIN FRITZ

(Respondent)

JUDGMENT - MACKENZIE J.

Judgment delivered 30 September 1994.

The respondent was declared a vexatious litigant on 21 July 1987. A consequence of this declaration is that neither he nor anyone on his behalf may institute proceedings without leave of the court or a Judge. Such leave may not be granted unless the court or Judge is satisfied that instituting or taking the proceedings is not an abuse of process and that there is a prima facie ground therefor. Further in the case of an application for leave to issue a subpoena the court or Judge must not grant leave unless it or he is satisfied that there is sufficient reason for the issue of the subpoena and that no abuse of process is intended or is likely to result from the issue of it.

On 3 August 1993 the respondent filed a summons seeking leave to institute proceedings for a statutory order of review against a decision of the Attorney-General of Queensland. Although it is not explicit on the face of the summons and, as Fitzgerald P. has said, there is some confusion in the relevant correspondence as to the roles of the Governor and the Attorney-General, it seems to be common ground that what he wishes to have reviewed is the decision of the Attorney-General not to refer the whole of his case to the Court of Criminal Appeal under s.672A of The Criminal Code. On 10 December 1993 he filed a summons for leave to apply for the issue of subpoenas for production of documents.

Apparently at the hearing on 17 December 1993 counsel for the Attorney-General undertook to produce documents to the court on the date to which the matter was to be adjourned. For reasons given by McPherson JA, in the ordinary course of events the documents would be protected by legal professional privilege.

On 11 February 1994, after the issue of whether the documents were subject to legal professional privilege was discussed in some detail, the Chamber Judge ruled as follows:

"They are taken outside legal professional privilege because they are the very material which the Minister sought and used in order to make his decision which is the subject of review under the Judicial Review legislation.

The purpose of the legislation in a situation like this can't be thwarted by the fact that the very essence of that which the court is authorised to review is a matter of legal advice. It puts it into a special category, in my view, and consequently I hold that it is not protected."

The issue to be decided in this appeal is whether in proceedings under the Vexatious Litigants Act for leave to institute proceedings there was a legal basis for ordering that the documents be made available to the respondent for inspection. It is not whether, in proceedings under the Judicial Review Act, such an order may be made. In the event that proceedings under the Judicial Review Act come into being, issues will be whether that Act allows a review of a decision not to refer a case to the Court of Criminal Appeal under s.672A, (which is a statutory accretion to the prerogative power to pardon), whether there is a principle of the kind relied upon by the Chamber Judge which overrides legal professional privilege, and whether there is the even broader principle, put in the submission by counsel on behalf of the respondent, that a judicial balancing of interests is called for in cases where criminal sanctions and the liberty of the subject are involved. In other words, it was submitted, this was a case where the public interest in making the documents available outweighed the ordinary principles of legal professional privilege. Of course, while the respondent obviously remains aggrieved at his conviction, he is no longer in prison, having already served the term imposed on him.

The question of the reviewability of the decision need not be finally determined in the present proceedings. As to the overriding of legal professional privilege, there is, as yet, no application under the Judicial Review Act because the necessary leave to institute it has not been given. Assuming there is a decision of the kind discussed in Webb v. Deputy Federal Commissioner of Taxation (1993) A.T.C. 4679 that decision is against the proposition where such proceedings are in being. As to the public interest point, there appear to be difficulties in the way of such an order.

One is that, assuming that there is a residual category of cases where legal professional privilege may be overridden by public interest considerations, this case appears not to display the kinds of indicia that one would expect to find in such a case. For example, the kinds of considerations referred to in R. v. Bell, ex parte Lees, (1980) 146 C.L.R. 141 are not present in this case given the stage in events at which the respondent applies.

Where the Judicial Review Act proceedings are not yet in being and leave is necessary under the Vexatious Litigants Act for them to be instituted, it is difficult to conceive of circumstances in which an otherwise valid claim of legal professional privilege would be overridden. The policy embodied in the Vexatious Litigants Act which requires that the litigant demonstrate a prima facie ground before proceedings can be authorised is inconsistent with the notion that otherwise privileged documents may be obtained for the very purpose of demonstrating there is a prima facie ground for bringing the proceeding. It should also not be overlooked that this is a case where reasons for the decision, which may have revealed the basis of the decision, were not sought under Part 4 of the Judicial Review Act. Therefore, no basis is demonstrated for ordering that the advices upon which the Attorney-General's decision not to refer the matter to the Court of Appeal was based be made available to the respondent at this stage of proceedings. The order made below cannot be supported. I agree with the orders proposed by McPherson JA.