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Rothschild v Mullins

Rothschild v Mullins

Case [2002] TASSC 100 15 November 2002

Jurisdiction

Discovery & Disclosure

Protection of Confidential Information

Civil Litigation & Procedure

Administrative Law

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[2002] TASSC 100

CITATION: Rothschild v Mullins & Anor [2002] TASSC 100

PARTIES:  ROTHSCHILD, Justin David
  v
  MULLINS, Stephen

DIRECTOR OF PUBLIC PROSECUTIONS
(COMMONWEALTH)

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 55/2001
DELIVERED ON:  15 November 2002
DELIVERED AT:  Hobart
HEARING DATES:  6 November 2001, 14 March, 11 November 2002
JUDGMENT OF:  Underwood, Crawford and Blow JJ

CATCHWORDS:

Magistrates - Jurisdiction and procedure generally - Jurisdiction, powers and duties - Constitution of Court and generally - Tasmania - Prohibition of appearance by named legal practitioners - Protection of confidential information.

Justices Act 1959 (Tas), s38(3).
O'Toole v Scott (1965) 39 ALJR 15; Cory v Forbes (Sydney Morning Herald, 21 April 1859, Milford J); Ex parte Cory (1864) 3 SCR (NSW) (CL) 304; Australian Securities Commission v Bell (1991) 104 ALR 125; Prince Jefri Bolkiah v KPMG [1999] 2 AC 222, referred to.
Aust Dig Magistrates [7]

REPRESENTATION:

Counsel:
             Appellant:  P W Tree and R A Browne
             Respondents:  I M Arendt
Solicitors:
             Appellant:  Fitzgerald & Browne
             Respondent:  Director of Public Prosecutions (Commonwealth)

Judgment Number: [2002] TASSC 100
Number of Paragraphs: 18

Serial No 100/2002
File No FCA 55/2001

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

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
CRAWFORD J
BLOW J
15 November 2002

Order of the Court

Appeal dismissed.

Serial No 100/2002
File No FCA 55/2001

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

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
CRAWFORD J
BLOW J
15 November 2002

This appeal relates to an order made by a magistrate prohibiting certain legal practitioners from appearing for the complainant in committal proceedings before him. Those proceedings reached a conclusion at a time when this appeal was part heard. However the parties to the appeal have been unable to reach agreement as to who should bear the costs of the appeal. The appellant wishes us to allow the appeal and order that the respondents pay his costs of the appeal. The respondents contend that the appeal should be dismissed, but do not seek any order as to costs.

The history of the matter is as follows. In October 1999, after a lovers' quarrel, the appellant burnt down the rented house in which he had been living. He was charged with arson. He instructed a legal practitioner to act for him ¾a Ms Harris, who then worked for the Legal Aid Commission of Tasmania. His instructions to her were, of course, confidential. In February 2000 he was sentenced to 18 months' imprisonment on the arson charge.

The first respondent is a federal agent, ie, an officer of the Australian Federal Police. In May 2000 he commenced proceedings against the appellant by a complaint containing two charges of defrauding the Commonwealth contrary to the Crimes Act 1914 (Cth), s29D, and a third charge of being knowingly concerned in the commission of an offence against s29D. The complaint alleges that he…

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

AGLC: Rothschild v Mullins [2002] TASSC 100
Case: [2002] TASSC 100
Decision Date: 15 November 2002

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Rothschild v Mullins and Director of Public Prosecutions (Commonwealth) involves an appeal against an order made by a magistrate prohibiting certain legal practitioners from appearing for the complainant in committal proceedings. The appellant, Justin David Rothschild, argues that the respondents should be ordered to pay his costs of the appeal. The respondents contend that the appeal should be dismissed but do not seek any order as to costs. The appellant had been charged with arson and defrauding the Commonwealth, and his former legal practitioner, Ms Harris, had moved to the Hobart office of the Director of Public Prosecutions (DPP). The appellant's legal team sought an order prohibiting certain legal practitioners from appearing in the case, which was granted by the magistrate. The respondents appealed to the Full Court, arguing that the magistrate had no jurisdiction to make such an order.

The court examined whether the magistrate had the jurisdiction to prohibit the legal practitioners from appearing in the proceedings. The court noted that, while statutory provisions provided the right to legal representation, they did not necessarily limit a magistrate's power to prohibit a particular legal practitioner from appearing in a case. However, the court found that the appeal was unlikely to succeed because the magistrate's order was insufficient to protect the confidential information provided by the appellant to Ms Harris, and there was no real risk of any confidential information being disclosed. The court also considered the limited effect of the magistrate's order and the nature of the proceedings before him.

The appeal was dismissed, and no order was made as to costs. The court found that the appeal would not have succeeded if fully argued, and therefore the appellant should not recover his costs of the appeal. The decision highlights the importance of protecting confidential information and the limited power of a magistrate to prevent the disclosure of such information.

Orders