State of Victoria v Villan

[2022] VSCA 106

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0079

STATE OF VICTORIA	Applicant
v
JADE VILLAN	Respondent

---

JUDGES:	KENNEDY and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2022
DATE OF JUDGMENT:	7 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 106
JUDGMENT APPEALED FROM:	Villan v State of Victoria (Supreme Court of Victoria, Keogh J, 29 June 2021)

---

PRACTICE AND PROCEDURE – Application for leave to appeal – Interlocutory costs order – Issue of principle regarding duty of solicitor to notify witness of consequences of giving evidence – Wide-ranging practical implications – Exceptional circumstances established – Leave to appeal granted.

PRACTICE AND PROCEDURE – Appeal – Costs – Civil jury trial – Respondent allegedly abused by school principal – Proceeding stayed pending criminal investigation – Where judge ordered State to pay respondent’s costs, in ex tempore ruling – Whether trial judge made error by requiring State to give principal legal advice – Limited interpretation of judge’s ruling preferred – No error demonstrated – House v The King (1936) 55 CLR 499, applied – Appeal dismissed.

PRACTICE AND PROCEDURE – Application for leave to adduce new evidence on appeal –Where parties not on notice as to issues ultimately relied upon by trial judge – Interests of justice permit new evidence – Leave granted.

---

Counsel
Applicant:		Ms M Britbart QC with Mr B House
Respondent:		Mr C Winneke QC with Mr M Hooper
Solicitors
Applicant:	Thomson Geer Lawyers
Respondent:	Maurice Blackburn

KENNEDY JA
WALKER JA:

1. This application for leave to appeal concerns an interlocutory costs order. We emphasise at the outset that only in an exceptional case will this Court grant leave to appeal in relation to an order of that kind. Nonetheless, for the reasons set out below, we have concluded that this is an exceptional case. That is because it raises an issue of principle concerning the proper conduct of a solicitor in relation to a witness in a civil proceeding, where the witness may be the subject of future criminal prosecution in relation to the issue raised in the civil proceeding.

2. The substantive proceeding in which the costs order was made is a proceeding in tort by the respondent, Mr Villan, against the applicant, the State of Victoria. Mr Villan alleges that, while he was a pupil in a school operated by the State, he was sexually assaulted by the school principal (identified by the pseudonym EFG). He alleges that the State is directly and vicariously liable for EFG’s acts. EFG is not a party to the civil proceeding. Mr Villan had not, at the times relevant to this application, made a complaint to police concerning EFG. 

3. By its defence the State denies the allegations concerning EFG’s acts. It proposed to call EFG as a witness at trial and he had agreed to give evidence. The solicitors for the State told EFG that they did not act for him and advised him to obtain legal advice, but EFG did not do so, due to financial constraints.

4. The trial commenced before a jury and, on day three of the trial, when Mr Villan was giving evidence in chief, the jury asked a question: ‘Has there been a criminal charge against EFG’? The jury was told that the answer to the question was ‘no’. Mr Villan was asked questions about this issue, and he said that he had not made a complaint to police, but in light of advice he had received from his lawyers that he could make such a complaint at any time, he had decided that he would do so. 

5. EFG had not, at that stage, given evidence. On day four of the trial, senior counsel for the State informed the Court that, having been told of the plaintiff’s evidence, EFG wished to obtain independent legal advice about whether he should give evidence in the trial. The State applied for the jury to be discharged and the proceeding to be adjourned to allow EFG to obtain independent legal advice. The trial judge granted that application.

6. After he had received legal advice, EFG decided that he was unwilling to give evidence and opposed any application that he be required to do so. That triggered consideration of s 128 of the Evidence Act, under which it was possible for the Court to require EFG to give evidence and to grant him a certificate that would protect him from having such evidence used, directly or indirectly, against him in criminal proceedings. However, the trial judge held that it was not in the interests of justice that EFG be required to give evidence, given that it was likely that the allegations against him would be the subject of a criminal investigation.[1] As a consequence the proceeding was stayed.

   [1]Villan v State of Victoria [2021] VSC 354, [31] (‘Reasons’).

7. Following those orders, the trial judge determined the question of costs and ordered, in an ex tempore judgment, that the State pay Mr Villan’s costs thrown away by reason of adjournment of the trial. That order is the subject of this application for leave to appeal.

8. In addition, each party has sought to rely upon evidence that was not adduced before the trial judge. We would grant both parties’ applications to rely on new evidence on the appeal.

9. For the reasons that follow we would grant leave to appeal but dismiss the appeal. 

Factual background

1. It is not necessary to set out in any detail the facts relating to the alleged abuse. Rather, the relevant facts are those leading to the stay of the trial.

2. The proceeding was commenced by writ filed in the Supreme Court of Victoria on 8 November 2019. Mr Villan was represented by Maurice Blackburn, and the State was represented by Thomson Geer. EFG was not a party to the proceeding.

3. On 1 May 2020, Thomson Geer sent a letter to EFG asking whether he would meet with employees of Thomson Geer and/or the Department of Education and Training. In that letter, Thomson Geer, stated that:

   (a)Mr Villan ‘alleges you sexually abused him whilst he was a student of the School between 1985 and 1987’;

   (b)they were providing EFG with ‘an opportunity to co-operate with us and respond to the serious allegations made against’ him;

   (c)they wished to take a detailed statement from EFG;

   (d)they would provide further details of the allegations in advance of any meeting;

   (e)EFG was under no legal obligation to meet with Thomson Geer;

   (f)if Mr Villan were to be successful, the State reserved the right to seek recovery of damages against EFG personally.

   At two points in the letter Thomson Geer recommended that EFG ‘seek independent legal advice’ in relation to the contents of the letter and the proposed meeting. The letter set out the contact details for the Law Institute of Victoria lawyer referral service.

4. Between 1 May 2020 and 15 May 2020, Cameron Roberts, a partner of Thomson Geer, had at least two telephone conversations with EFG during which he stated that:

   (a)he did not act for EFG, but acted for the State;

   (b)he could not advise EFG; and

   (c)EFG should seek independent legal advice.

5. On 15 May 2020, Thomson Geer sent a further letter to EFG, which:

   (a)reiterated that EFG was under no legal obligation to meet with Thomson Geer;

   (b)again recommended that EFG seek independent legal advice; and

   (c)again set out the contact details for the Law Institute of Victoria lawyer referral service.

6. Mr Roberts’ evidence was that between 15 May 2020 and April 2021 he had numerous telephone conversations, an audio-visual conference and one meeting in person with EFG; and that, in all or at least the majority of those conversations he reminded EFG that he did not act for EFG, that he could not advise EFG and that EFG should seek independent legal advice.

7. Mr Roberts also gave evidence that during a number of his conversations with EFG he had asked EFG if Victoria Police had contacted EFG, or anyone else to his knowledge, about Mr Villan’s allegations, and that EFG told Mr Roberts that they had not.

8. Mr Roberts also gave evidence that EFG had told Mr Roberts of EFG’s assets and income and his resulting inability to afford legal advice.

9. On 19 April 2021, the proceeding came on for trial before the trial judge. It is apparent that EFG had not obtained independent legal advice prior to the commencement of the trial. A jury was empanelled on the afternoon of day one and the trial proceeded over two further days.

10. On the third day of trial, 21 April 2021, the jury asked a series of questions. Relevantly for present purposes, they asked: ‘Has there been a criminal case against the principal? Can we know about that?’ The judge stated that, in relation to the first part of the question, ‘the answer is no’; and then told the jury that the second part of the question ‘falls away’.

11. The jury’s questions occurred while Mr Villan was in the process of giving evidence in chief. Following the jury’s questions and the judge’s answers to them, Mr Villan’s senior counsel asked him whether he had made a complaint to the police, and he said that he had not. Senior counsel then asked him why that was. Mr Villan said that he had made an application to Centrelink for redress under the National Redress Scheme, hoping

    they could investigate and verify my complaint, and that it would be dealt with that way. I thought that would be the easiest way. There’s no point going through – a criminal trial would be horrific. Obviously when I was younger I went through enough criminal trials to know what – how that’s run.

12. He then said as follows:

    So I thought it was the best way to do it. However, the paperwork for the application for the redress scheme wasn’t clear to me. So I contacted Maurice Blackburn and asked if they could help me with that. They asked me a bit about the circumstance of my complaint, and they advised me that it wasn’t the best way for me to deal with the matter, that I should instead allow them to put together a civil action, which is the one that we’re dealing with now. At that time I did discuss with them going to the police and how that worked out, whether I needed to do that first before pursuing a civil action, and they advised me that I did not, that I could go to the police at any stage.[2]

    [2]Emphasis added.

13. He was then asked whether he had made a decision to make a complaint to police, in response to which he said:

    My decision was made – made at the – depending on how the redress scheme worked, I didn’t understand it, whether I could make one or not at that point, but since being told by Maurice Blackburn I can make one at any point my decision from then on is that I will make a complaint to the police. So – and I have taken this up with my lawyers throughout the last two years of this, whether – do I wait or do I go or ---[3]

    [3]Emphasis added.

14. The following morning an application was made by the State to discharge the jury. Senior counsel for the State told the Court that EFG had been told about Mr Villan’s evidence concerning his intention to go to the police, and that EFG had indicated that, in those circumstances, he wished to obtain legal advice as to whether to give evidence in the trial. In the course of discussion, the following exchange occurred:

    HIS HONOUR: It was my intention this morning to discuss with you that I intended to make a referral to the pro bono scheme - - -

    MS BRITBART: Yes.

    HIS HONOUR: To allow for the principal to receive some advice. Now, whether he needs advice by the pro bono scheme or whether he wants to do that privately is a matter for him.

    MS BRITBART: Yes.

    HIS HONOUR: But, subject to hearing from the parties, it’s clear to me that he can’t receive advice from the defendant.

    MS BRITBART: No.

    HIS HONOUR: Your interests are not entirely aligned with his.

    MS BRITBART: That’s right.

    HIS HONOUR: Particularly in respect of this issue of him giving evidence. So, he’ll need some advice.

    MS BRITBART: Yes.

    HIS HONOUR: And then he can adopt whatever course he chooses - - -

    MS BRITBART: Correct.

    HIS HONOUR: Subject to that advice.

    MS BRITBART: Yes.

    HIS HONOUR: Who knows what that will be in terms of whether or not he agrees to give evidence with an appropriate certificate.

    MS BRITBART: Yes. 

15. Also in the course of discussion, senior counsel for the State observed that the case had been commenced without any complaint to the police, or indication that that was on Mr Villan’s mind; and that the fact that he had now given evidence that he would be making a complaint was a ‘substantial change’. In response, senior counsel for Mr Villan sought to deflect any suggestion of fault on the part of his client, and then went on to observe that

    the very first thing that ought to occur, if the State’s representing someone who is accused of a very serious offence, is ‘You don’t have to even speak to us; before you do anything you should get some advice from a legal practitioner experienced in crime.’

16. Ultimately, on 22 April 2021, the trial judge discharged the jury and the proceeding was adjourned.

17. The proceeding was listed on 3 May 2021 for argument on whether EFG would give evidence in the trial. Having by this time obtained legal advice and representation, EFG’s position was that he was unwilling to give evidence and that he opposed an order compelling him to do so.[4] As noted above, the trial judge held that it was not in the interests of justice that EFG be required to give evidence at a trial in the proceeding, when it was likely that the allegations made against him by Mr Villan would be the subject of a criminal investigation.[5] In consequence of that conclusion, the trial judge stayed the proceeding until the determination of any pending criminal investigation and/or criminal proceedings against EFG arising out of a complaint by Mr Villan.

    [4]Reasons, [10].

    [5]Reasons, [31].

The trial judge’s costs decision

1. On 29 June 2021, the trial judge heard oral argument concerning the costs thrown away by reason of the adjournment. His Honour then held as follows, in an ex tempore judgment:

   The circumstances leading to indefinite adjournment of this proceeding are set out in my ruling Villan v State  of Victoria [2021] VSC 354. I won’t repeat them here. The defendant sought to defend the case brought by the plaintiff by denial that the abuse alleged by the plaintiff occurred and communicated at least from February this year the intention to call EFG as the critical witness in support of that defence.

   The materials provided today, in particular the affidavit of the defendant’s solicitor Mr Roberts sworn 25 June 2021, show that there was contact between the defendant’s solicitors and EFG on at least May 2020 and that repeatedly in the course of that contact EFG was advised that he should get independent legal advice, and the defendant’s solicitors did not represent him. However, the correspondence does not indicate and Mr Roberts does not say in his affidavit that EFG was advised of the risk of exposure to criminal prosecution on the basis of the allegations made by the plaintiff or the impact giving evidence in the proceeding might have on such a prosecution.

   Inevitably, before he gave evidence EFG was, in my view, going to require independent legal advice as to those matters. In my view, in the process of obtaining that advice the issues which have ultimately led to the indefinite stay of the proceeding would’ve come to light. I accept the plaintiff’s submission that in the circumstances it is appropriate that the defendant pay the plaintiff’s costs thrown away by reason of adjournment of the trial. So I will make that order.[6]

   [6]Emphasis added.

The applications to adduce new evidence on the appeal

1. Both the State and Mr Villan sought to rely on new evidence on the appeal. Each also opposed the other’s application.

2. Mr Villan applied to rely on an affidavit from Mr Rule, a senior associate at Maurice Blackburn. That affidavit sought to respond to the State’s submission that Maurice Blackburn had been aware of the Respondent’s intention to go to the police since the firm had been instructed, and that Maurice Blackburn and Mr Villan had maintained a ‘plan’ to finalise the civil proceeding before Mr Villan made a complaint to police. We will address Mr Rule’s evidence in greater detail below.

3. Although Mr Villan could have adduced Mr Rule’s new evidence before the trial judge, we accept that he was not on notice regarding the submissions that the State would make as to Maurice Blackburn’s knowledge of Mr Villan’s intention to make a complaint. That explains why Mr Rule’s evidence was not adduced below. Further, the serious nature of the State’s submission that Mr Villan and his solicitors had a ‘plan’ to finalise the civil proceeding and then for Mr Villan to make a complaint to police requires that Maurice Blackburn have an opportunity to put on evidence concerning its knowledge and the advice it gave to Mr Villan. Thus we consider that it is in the interests of justice to permit Mr Villan to rely on Mr Rule’s further affidavit.

4. The State sought to rely on a further affidavit from Mr Roberts concerning the contents of his conversations with EFG, principally to demonstrate that it had, through its solicitors, drawn attention to the fact that EFG could in the future be the subject of a criminal prosecution. In summary, Mr Roberts deposed that on 24 July 2020 he had a telephone conversation with EFG, in which he told EFG, amongst other things, that:

   (a)he believed the allegations against EFG were serious, and that EFG could face criminal charges;

   (b)again, he ought to obtain legal representation; and

   (c)he may be able to obtain pro-bono legal assistance, and told him the organisation to contact in relation to such assistance.

5. Mr Roberts deposed that, at that stage of the proceeding, he was uncertain whether the State would instruct him to apply to join EFG as a third party to the proceeding, and was unsure whether Mr Villan would join EFG as a defendant. Mr Roberts also stated that around 24 November 2020 he again told EFG of the possibility that he could face criminal charges as a result of Mr Villan’s allegations.

6. We accept that the issues raised by the trial judge at the hearing, and the manner in which his Honour resolved the costs application — in particular his conclusion that Thomson Geer ought to have informed EFG of the consequence of him giving evidence in the civil proceeding — were not drawn to the State’s attention prior to the costs hearing. Thus, although the State adduced some evidence concerning its correspondence with EFG, it was not in a position to understand, prior to the commencement of the costs hearing, that further evidence concerning Mr Roberts’ conversations with EFG might be required. In light of the significance of the issue concerning the steps that the State and Thomson Geer ought to have taken in relation to EFG, we consider that it is in the interests of justice to permit the State to rely on Mr Robert’s further affidavit.

7. Thus we would grant each party leave to rely on the new evidence filed.   

Consideration of the grounds of appeal

1. The State seeks leave to appeal on four grounds. Each ground raises several different issues. Ultimately, it is apparent that the State’s case can be divided, conceptually, into two key aspects.

   (a)First, the State contends that it and its solicitors were not at fault in relation to the matters that led to the stay of the proceedings. They were not required to do more than recommend to EFG that he seek legal advice (which they did). In particular, they were not required to advise him of the effect of giving evidence in the proceeding, namely that he was at risk of exposure to criminal prosecution, and the impact that his giving evidence might have on such a prosecution. Thus, the State contends, there was nothing that it did, or omitted to do, that led to the indefinite stay of the trial. This aspect of the State’s case is reflected in grounds 1(e), and 2(b) and (c).

   (b)Secondly, the State contends that, rather than its conduct necessitating the indefinite stay of the trial, it was the respondent’s and his solicitors’ conduct that necessitated that course. That is, it was the respondent’s evidence on day four of the trial that he intended to report the alleged abuse to the police, together with the fact that his solicitors had been aware of that intention for some time, and yet continued the civil proceeding, which led to the indefinite stay. This aspect of the State’s case is reflected in grounds 1(a), (b), (c) and (d), and 2(a).

1. The State also alleges that the trial judge erred in concluding that it was inevitable that EFG would require independent legal advice before giving evidence, through which the issues that ultimately led to the stay would have come to light. This aspect of the State’s case is reflected in ground 3.

2. In oral argument both parties approached the appeal on the basis of this conceptual division.

3. In addition to joining issue with the substantive grounds of appeal, Mr Villan contends that appeals as to costs are exceptional, and that the State has not demonstrated any special circumstances that would warrant this Court’s consideration of the costs order. Additionally, he submits, no point of principle is raised, no manifest error is present and no substantial injustice will be caused if the costs order remains in place. For those reasons, he submits that leave to appeal should be refused.

4. It is convenient to explain first why we have concluded that this is an exceptional case so as to warrant a grant of leave to appeal. We will then deal with the issues raised by the application according to the conceptual division set out above, rather than by each ground of appeal individually. 

An exceptional case?

1. As Mr Villan correctly submitted, it is well-established that appeals as to costs are exceptional.[7] Further, as Mr Villan also submitted, ‘a strong presumption arises in favour of the correctness of an exercise of discretion on costs’.[8] To those propositions may be added the need to keep a ‘tight rein’ upon interference with interlocutory decisions at first instance.[9] The State did not cavil with those statements of principle.

   [7]See, eg, PCCEF Pty Ltd v Geelong Football Club Ltd (No 2) [2019] VSCA 148, [38]–[41] (Whelan, McLeish and Emerton JJA); Etna v Arif [1999] 2 VR 353, 378 [67] (Batt JA); [1999] VSCA 99.

   [8]Li v So [2021] VSCA 32, [75] (Tate, Emerton and Sifris JJA).

   [9]Bodycorp Repairers Pty Ltd v GDG Legal Pty Ltd [2018] VSCA 32, [19] (Ferguson CJ, Whelan and McLeish JJA).

2. Bearing those authorities and principles in mind, the question that arises in the present context is whether this is an exceptional case. The State submits that it is, because it raises an important point of principle, namely ‘the extent to which a defendant is required to provide advice, or otherwise notify a witness, whom it does not act for, of the implications of giving evidence’ in a proceeding.

3. We accept that submission. The trial judge’s decision was squarely based on his conclusion that the State’s solicitors should have done more than they did in relation to the need for EFG to obtain independent legal advice. The State’s application for leave to appeal raises questions concerning the scope of a solicitor’s legal and ethical obligations to a witness in a context such as the present. Those are important questions of principle, quite distinct from the question of costs. 

4. Further, although in his written case Mr Villan submitted that the trial judge’s ruling has no precedential value, and is confined to its particular facts, we consider that the trial judge’s ruling will have a practical impact on the conduct of solicitors in other proceedings where a similar issue arises. That is, it would be difficult — and indeed inappropriate — for a solicitor to disregard the ruling in determining what they ought to say to a potential witness in a trial in which allegations of criminal conduct are made against the witness. And, as Mr Villan accepted in oral argument, if the trial judge’s ruling involved error in relation to the duties of solicitors in such a case, then such error ought to be corrected. 

5. Further, while the issue has arisen in a particular factual context, it is not a rare factual context. There will be many cases in which a defendant to a civil proceeding wishes to call a witness whose interests do not entirely align with the defendant’s interests, and who might be at risk of criminal prosecution. 

6. In these exceptional and unusual circumstances, we consider it is appropriate to grant leave to appeal.

Consideration

1. We commence by observing that, as the parties accepted, the trial judge’s decision involved the exercise of a discretionary power and thus the standard of review on an appeal is the House v The King standard:

   The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.[10]

   [10](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40 (emphasis added).

2. Thus it is not sufficient that we might have made a different costs order than that made by the trial judge. Rather, it is necessary that we identify an error of the kind described in House v The King.

Were the State and its solicitors required to do more than recommend that EFG obtain independent legal advice?

The State’s submissions on its obligations, and those of its solicitors

1. The State submitted that there was nothing which was done, or omitted to be done, by it which had led to the indefinite stay of the trial. Until the respondent gave evidence that he would be making a complaint to the police, it said, there was no basis on which a stay of the civil proceeding could be anticipated. It pointed out that EFG had been told by its solicitors on numerous occasions that they did not act for EFG and that he ought to obtain independent legal advice, and that they gave EFG the details of the Law Institute of Victoria. EFG chose not to do so.

2. The State also submitted that EFG was asked on repeated occasions whether he had been contacted by the police in respect of the respondent’s allegations, and that, until Mr Villan’s statement of his intention to report the alleged conduct to the police, EFG had made an election not to obtain legal advice or representation. His Honour’s conclusion that EFG was not aware of the risk of exposure to criminal prosecution, the State submitted, was inconsistent with the affidavit evidence confirming that the State’s solicitors had asked EFG whether he had been contacted by Victoria Police.

3. The State submitted that neither it nor its solicitors had any power to compel EFG to seek legal advice earlier. The State further submitted that its solicitors had acted in accordance with the Law Institute of Victoria’s Ethics Guidelines.[11] Those Guidelines deal with the interview of a prospective defendant as follows:

   A solicitor should act fairly and honestly in interviewing persons who are prospective defendants and, in particular, should:

   (a) inform the person on whose behalf he or she acts;

   (b) inform the person about the matter in which he or she is acting;

   (c) ensure the person is aware that the solicitor is not acting or giving advice on the person’s behalf;

   (d) advise the person he or she may decline to discuss the matter if he or she chooses to do so;

   (e) ensure that there is no attempt to manipulate the person’s evidence.[12]

   We observe that the LIV Guidelines do not make reference to a witness who may be subject to criminal proceedings. 

   [11]Law Institute of Victoria, ‘Interviewing and Conferring with Witnesses Guidelines’ (10 February 2017) (‘LIV Guidelines’).

   [12]LIV Guidelines, [2].

4. The State also submitted that the trial judge erred in finding that the applicant was required to advise EFG of his right to silence and the implications for EFG of agreeing to be a witness in the civil proceeding. It submitted that this finding was not open, having regard to the fact that, as his Honour had acknowledged, the State’s solicitors did not, and had never, acted for EFG. The State submitted that this aspect of the trial judge’s reasons was contradicted by his later comment that EFG required independent legal advice. By its very nature, any advice provided by the applicant’s solicitors would not have been independent.

5. The State submitted that the trial judge had placed an impossible burden on it, and its solicitors, to provide legal advice to a witness who was not a client, in circumstances where providing such advice would likely place the solicitors in conflict with their duties to the State.

6. The State submitted that the trial judge ought to have found that the State and its solicitors, having made clear and unambiguous recommendations to EFG to obtain independent legal advice, were not required to do anything further.

Mr Villan’s submissions on the State’s and its solicitors’ obligations

1. Mr Villan submitted that the trial judge was correct to rule that EFG should have been told of the ‘ever-present risk of the plaintiff reporting him to Victoria Police, and [of] the State (in another emanation) thereafter deciding to prosecute him’. He submitted that it should not have been left to the time of trial, and immediately before EFG was called to give evidence, that EFG be given independent legal advice on his rights. Whether EFG was, with proper information as to the risk, truly willing to voluntarily give evidence should have been made clear well prior to the trial. Mr Villan submitted that EFG had not been made aware of the reasons for and importance of him obtaining advice; while independent legal advice was recommended, there was ‘no substance or context’ given to that recommendation. In short, he submitted, EFG had not had an opportunity to make an informed decision about whether he needed legal advice, and whether he should have agreed to be a witness for the State. As a result, the State was not truly in a position to call him as its critical witness at trial.

2. Mr Villan also submitted that the State’s submissions misconstrued the finding made by the judge in the costs ruling. His Honour did not hold that the State’s lawyers should have given legal advice to EFG about his right to silence and the implications of him giving evidence. He submitted that the trial judge’s finding was that EFG should have been told, not just to seek independent legal advice, but that a key reason for such advice was that the plaintiff might make a complaint to police. 

3. Mr Villan submitted that the judge had already acknowledged the conflict of interest point, and thus his Honour’s ruling cannot be read as accepting an obligation on the State to give legal advice to EFG. Rather, the vice was that EFG had not been told that the issues went beyond the civil claim, and extended to potential investigation of him by police or prosecution.

4. Mr Villan submitted that EFG’s right to object to giving evidence under s 128 of the Evidence Act 2008 was inevitably something EFG would have to be informed about before he gave evidence, due to s 132. The State knew that EFG had not obtained legal advice, due to his financial position, but had not raised the absence of such advice prior to the jury being empanelled and the trial commencing. He further submitted that the State could have sought a referral to the Victorian Bar’s pro bono scheme during the pre-trial management of the case.

Consideration of the State’s and its solicitors’ obligations

1. In the present case there is no dispute that the State and its solicitors were not required to provide EFG with legal advice, and that they could not do so. That was obvious, and the trial judge was plainly aware of this, given his comments in the course of the hearing (set out above). The first issue that arises, then, is whether the trial judge’s reasons are to be understood as based upon the State’s or its solicitors’ failure to give legal advice to EFG.

2. The trial judge’s remarks, made in an ex tempore ruling after a short hearing, can, in our opinion, be subject to differing interpretations. On the one hand, they could be understood as a conclusion that Thomson Geer ought to have advised EFG about the consequences of giving evidence on potential criminal proceedings, involving a degree of legal analysis directed to the interrelationship between the civil proceedings and the criminal proceedings, and the risks to EFG in giving evidence. On the other hand, they could be understood in a much more limited way — as only based on the State’s failure to inform EFG of the fact that, if he were to give evidence in the civil proceeding, that could impact on a future criminal proceeding.

3. The State contended that the first understanding of the trial judge’s reasons was to be preferred. In part the State supported that submission by reference to earlier exchanges between his Honour and senior counsel for the State at the hearing of the costs application. At one stage in the discussion, his Honour observed that Thomson Geer’s letter to EFG didn’t ‘draw to his attention his right to silence’ or the implications of him agreeing to be a witness. Later he said that the correspondence did not say that ‘giving evidence in this case may expose you in any criminal prosecution, that a criminal prosecution is always possible and giving evidence in this case means that you are not maintaining your right to silence and you may be exposed’. 

4. We do not accept that submission. In our opinion, the trial judge’s reasons should be understood in the more limited way identified above. That is, we consider that his Honour did not mean that the solicitors should have provided EFG with legal advice; rather, when the trial judge used the word ‘advised’, what he meant was ‘informed’, noting that in everyday language ‘advised’ can be used to mean ‘told’ or ‘informed’. That is, what the trial judge meant was that the State and its solicitors ought to have given EFG some greater indication of why he needed independent legal advice, without descending into actually providing that legal advice themselves. 

5. In this respect, the State, through its solicitors, could have simply added two matters to its correspondence or conversations with EFG:

   (a)first, it could have stated that the matters alleged against EFG could result in criminal charges being laid against him; and

   (b)second, it could have included a short sentence to the effect that, if EFG were to give evidence in the civil proceeding, that could have consequences for him if criminal charges were laid in the future. 

6. As to the first of those matters, the State did not contend that informing EFG that future criminal prosecution was possible would have been to provide legal advice or otherwise bring the solicitors into a position of conflict of interest. In fact Mr Roberts’ new evidence demonstrates that he did inform EFG that it was possible that he could face criminal charges. The State accepted that, when Mr Roberts did so, he was not providing EFG with legal advice, and he did not place Thomson Geer in a position of conflict. Thus the trial judge did not err in concluding that the State ought to have taken that step. His Honour was simply not alerted to the fact that the step had been taken, because the State had not adduced that evidence before his Honour. That does not bespeak error on the part of the trial judge.

7. As to the second of these matters, concerning the fact that, if EFG were to give evidence, that could have consequences for him if criminal charges were laid in the future, it is plain that no statement of that kind was made by the State or Thomson Geer to EFG. In our opinion a statement of that kind does not involve the provision of legal advice; nor does it appear to us that it would place the solicitors for the State in a position of conflict. It is a relatively simple factual statement that would have provided EFG with a greater understanding of why he ought to obtain independent legal advice, and thus might have prompted him to do so.

8. We wish to emphasise that we do not consider that in their correspondence or conversations with EFG the State or its solicitors ought to have drawn EFG’s attention to his right to silence, or included any statement to the effect that ‘giving evidence in this case means that you are not maintaining your right to silence and you may be exposed’ (as his Honour had suggested in the course of the oral argument). To descend into detail of that kind, we accept, might properly be described as the giving of legal advice. Thus, merely informing EFG that there could be consequences does not mean that he should be advised as to what those consequences would actually be.

9. However, we do not accept the State’s submission that the trial judge’s remarks in the course of the hearing properly inform an understanding of his Honour’s ultimate ruling. In particular, we do not accept that the judge had in mind something more significant than simply a sentence to the effect of ‘if you give evidence in this proceeding, that might have consequences for a future criminal prosecution’. As this Court has previously observed, judges quite properly ask questions and make remarks in the course of submissions in order to test their reasoning process or to obtain assistance from counsel on particular issues.[13] Those remarks or questions might not reflect the judge’s ultimate reasons, which find their expression in the written reasons for judgment (which are usually handed down after the hearing). We accept that, in the context of an ex tempore ruling, some greater weight might be given to remarks the trial judge made in the course of oral argument. But where those remarks are not clearly reflected in the ultimate reasons, we think great caution is required before concluding that the trial judge intended such remarks to form part of their reasons. Of course there will be cases where something a judge has said in the course of a hearing is indicative of error, but those cases will be relatively rare. Ultimately, in our opinion, this case is not one of them. 

   [13]Rankine v The Queen [2022] VSCA 27, [28] (Forrest and Walker JJA).

10. For these reasons, the more limited understanding of his Honour’s reasons is to be preferred. That is, his Honour did not consider that Thomson Geer ought to have done any more than inform EFG that criminal proceedings could be initiated in the future (which, as Mr Roberts deposed, he did), and include a short statement to the effect that giving evidence could have consequences for EFG in any future criminal proceeding. In that regard, it is particularly significant that the trial judge had previously observed that Thomson Geer could not provide EFG with legal advice. Thus it is highly unlikely that his Honour considered that they ought to have provided EFG with such advice. Rather, it is likely that his Honour intended that something much more limited ought to have been done.

11. It is important to take account of the fact that his Honour’s ruling was given ex tempore. By their nature, such rulings may on occasion lack the depth and clarity of those which a judge has had time to revise and refine. Hence, such reasons may sometimes have features that are unclear or uncertain, but which may readily be explained or clarified.[14] Bearing that in mind, and that an appeal court ought to be especially deferential to a trial judge’s decision on costs (especially at an interlocutory stage), we consider that, because two interpretations of his Honour’s remarks are open, it is appropriate to prefer the interpretation that does not involve error.

    [14]Makeham v Sheppard [2020] VSCA 242, [53] (Priest JA, Kyrou JA agreeing at [70], Weinberg JA agreeing at [71]).

12. Once that understanding of the trial’s reasons is adopted, no error is demonstrated, and certainly no error within House vThe King. It follows that rounds 1(e), 2(b) and 2(c) cannot succeed.

1. It is appropriate at this point to observe that, in their dealings with EFG, Thomson Geer adhered to the LIV Guidelines. Thus, although we do not think the trial judge erred in the manner identified, we think it is, to an extent, understandable that Thomson Geer omitted to give EFG additional information as to why he should seek independent legal advice (beyond the possibility of the State pursing him for damages). Unfortunately, the  LIV Guidelines are silent in relation to the manner in which a solicitor should deal with a witness in a civil proceeding who might be subjected to future criminal proceedings in relation to the conduct in issue. We suggest that it would be appropriate for those professional bodies that provide guidance to lawyers who deal with witnesses, such as the Law Institute, to update that guidance so as to deal with the steps that practitioners should take in a proceeding in which a witness might be liable to criminal prosecution in relation to matters in issue in the civil proceeding.

Mr Villan’s and his solicitors’ conduct

1. We now turn to consider the grounds of review directed to the trial judge’s failure to consider Mr Villan’s intention in relation to whether he would or would not make a complaint to the police, namely grounds 1(a), (b), (c) and (d), and 2(a). As noted above, those grounds were directed to the State’s contention that, rather than its conduct necessitating the indefinite stay of the trial, it was the respondent’s and his solicitors’ conduct that necessitated that course. That is, it was the respondent’s evidence on day four of the trial that he intended to report the alleged abuse to the police, together with the fact that his solicitors had been aware of that intention for some time, and yet continued the civil proceeding, which led to the indefinite stay.

2. In the State’s written submissions in this Court it contended that:

   (a)Mr Villan had decided to make a complaint to the police ‘well prior to the commencement of the civil trial’;

   (b)Mr Villan’s solicitors were aware of Mr Villan’s intention to make a complaint to police ‘for some time, and before the proceedings were issued’; and

   (c)Mr Villan and his solicitors ‘maintained a plan to finalise the civil proceedings’ before Mr Villan made a complaint to police. 

3. In response to these submissions, Mr Rule gave evidence that, on 1 November 2019 he had told Mr Villan that he could go to the police at any stage (as Mr Villan had said in his evidence), but that if he was going to do so he should let Mr Rule know, because ‘we would need to put his civil case on hold’. Mr Rule also deposed that on other occasions Mr Villan had said he wanted to complain to police, but that he had reservations about doing so due to his earlier experiences with police and what he had read about the effects of criminal proceedings on victims. Mr Rule also deposed to the service on the State, on 20 April 2020, of a report of a psychiatrist, which recorded that Mr Villan had said that he was ‘prepared to go to police’. There was no challenge to the veracity of Mr Rule’s evidence on the appeal.

4. In light of the totality of the evidence, we are not prepared to find that Mr Villan had ‘always’ intended to go to the police, that Maurice Blackburn knew of that intention, or that Mr Villan and Maurice Blackburn together had a ‘plan’ to finalise the civil proceedings before Mr Villan went to the police. 

5. As to the first of those propositions, Mr Villan’s evidence at trial about his intention was ambiguous. The State relied upon his statement that ‘since being told by Maurice Blackburn I can make [a complaint] at any point, my decision from then on is that I will make a complaint to the police’. However, that could simply mean Mr Villan formed that intention after receiving advice, not necessarily that he formed his intention on the day he was given that advice. It is clear that Mr Villan had contemplated making a complaint to police well before the trial, as reflected in his statement to the psychiatrist in 2019 that he was ‘prepared to go to police’. However, in our opinion it is entirely plausible that Mr Villan’s definite intention only crystallised after the question from the jury. That is particularly so given what he had said to Mr Rule about his reasons for not going to the police prior to the institution of the civil proceedings. In light of these matters, we are not prepared to find that Mr Villan had a definite intention to complain to police prior to the commencement of the hearing.

6. However, even if Mr Villan had a definite intention prior to the commencement of the civil proceeding, Mr Rule’s evidence negates any suggestion that he or Maurice Blackburn knew that Mr Villan had such an intention. In our view there can be no suggestion that Mr Villan and his solicitors had a ‘plan’, as alleged by the State.

7. For these reasons we reject grounds 1(c) and 1(d). It also follows that we reject ground 2(a), which alleged that the trial judge failed to take into account ‘the conduct of the respondent and the respondent’s solicitors in continuing the civil proceeding in the knowledge that the respondent would be making a complaint to the police once the proceeding was finalised’.

8. There remains the question of whether, putting Maurice Blackburn’s knowledge to one side, the stay of the civil proceeding was caused by Mr Villan’s evidence, on day four of the trial, that he was going to report the alleged abuse to the police, in circumstances where the State was previously unaware of that intention. These matters are raised by grounds 1(a) and (b) and 2(a).

9. Given that we have concluded that it is unclear precisely when Mr Villan formed a definite intention to go to police, we accept that the State was not aware of such a definite intention prior to Mr Villan giving evidence on day four of the trial. That is so even though it had received the psychiatrist’s report containing the statement that Mr Villan was ‘prepared to go to police’.

10. However, we do not consider that it can be said that the stay of the civil proceeding was ‘necessitated’ by Mr Villan’s evidence that he was going to report the alleged abuse to police. That is because, even if he had not given that evidence, we consider that the same events would almost certainly have transpired. The counterfactual is that Mr Villan’s intention remained unstated. Had that occurred, it is clear that, when EFG commenced giving evidence, the trial judge would, by reason of s 132 of the Evidence Act, have been required to satisfy himself that EFG was aware of the effect of s 128. That would have involved the trial judge, in effect, drawing EFG’s attention to s 128, and explaining to EFG that he could object to giving evidence on the grounds that his evidence may tend to prove that he had committed an offence. It is also likely that the judge would have offered EFG the opportunity to obtain legal advice before resolving whether to make such an objection.

11. In our opinion if, when EFG was in the witness box, the judge had drawn EFG’s attention to s 128, it is highly likely that EFG would have decided to obtain legal advice and objected to giving evidence. Those circumstances would have been quite different from the relatively bland statements made to him by Thomson Geer recommending that he obtain legal advice. Thus we consider that, even if Mr Villan had not given evidence of his intention, nonetheless at the point in time when EFG entered the witness box and was informed of s 128 by the trial judge, the events that in fact transpired would almost certainly have transpired in any event, and the trial would have been stayed.

12. For those reasons we reject ground 1(a) and 1(b). 

Ground 3

1. It also follows from our analysis above that we reject ground 3. 

2. While we accept that it might not have been literally ‘inevitable’ that EFG was going to need independent legal advice before he gave evidence at the trial, it was plainly highly likely, as a practical matter, that he would have sought such advice (and would have been permitted to receive it prior to giving evidence). The trial judge was correct to conclude that, in the process of receiving such advice, the issues that ultimately led to the stay of the proceedings would have come to light. The State and its solicitors understood that criminal proceedings were possible at some future time. Further, they must have understood the possibility — perhaps even the likelihood — that, if EFG were to obtain legal advice, he would not agree to give evidence, and that he might not be compelled to do so; and if that were to occur, a stay of the proceedings would be necessary. 

3. It is also apparent that, as Mr Villan submitted, the s 128 issue was capable of being ventilated and resolved prior to EFG entering the witness box and commencing his evidence — because that was what in fact occurred. Thus it was plainly possible, as a practical matter, to address the s 128 issue at an earlier point in time, and not necessary to wait until EFG commenced his evidence.

4. In those circumstances we consider that, contrary to what is alleged in ground 3, the State could have acted differently, by drawing to Mr Villan’s and the court’s attention the fact that EFG had not received independent legal advice, and the potential s 128 issue, at least prior to the empanelment of the jury. That was information within the State’s knowledge, and not within Mr Villan’s knowledge. Had the State shared that knowledge, it is likely that four days of evidence, involving the jury’s time and the parties’ costs, would not have occurred.

Conclusion

1. For the foregoing reasons, we will grant leave to appeal, but we will dismiss the appeal.

2. We wish to emphasise that we endorse the trial judge’s remarks in his judgment that it is tragic that, having commenced his evidence before a jury, the plaintiff will now be denied a trial for an indefinite period. However, as his Honour rightly observed, the integrity of the system of criminal justice must be preserved. And, as his Honour also observed, it is important for the administration of justice that, in other cases where issues of this kind arise, steps must be taken to identify and resolve such issues as early as possible prior to trial, or at least prior to the empanelment of a jury. We were informed from the bar table that one such step is already occurring, at least in some cases — namely that defendant solicitors are making inquiries of plaintiff solicitors as to whether the plaintiff intends to make a report to police. However, it appears to us that additional steps may be required to ensure that these issues are addressed at an early stage. 

---