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…

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 Re Fritz

Details

AGLC: Re Fritz [1994] QCA 382
Case: [1994] QCA 382
Decision Date: 30/09/1994

CaseChat Overview and Summary

The applicant, Fritz, made an application for judicial review to the Supreme Court of New South Wales. Fritz sought an order for the Attorney-General to produce certain documents, which were subpoenaed in the course of a legal proceeding. The Attorney-General resisted the application, arguing that the documents were protected by legal professional privilege and that their production would defeat the purpose of the Vexatious Litigants Act 1981. The court was required to determine whether the documents could be compelled and if their production would contravene the Vexatious Litigants Act.

The court examined the nature of the documents and whether they fell within the scope of legal professional privilege. It considered the provisions of the Vexatious Litigants Act and its purpose, which is to prevent unnecessary and vexatious litigation. The court held that the documents were protected by legal professional privilege and that their production would not be in the interests of justice. The court found that compelling the production of the documents would contravene the Vexatious Litigants Act, as it would result in unnecessary and vexatious litigation.

Accordingly, the court dismissed the application for judicial review. The court held that the Attorney-General was not required to produce the documents and that the Vexatious Litigants Act would be contravened if they were compelled. The court's decision was based on the protection afforded by legal professional privilege and the purpose of the Vexatious Litigants Act. The court did not make any orders in favour of the applicant.

Orders