Wilson and Wilson v Harrison
[2012] VSC 64
•24 February 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2012 00849
| RICHARD WILSON and JENNINE WILSON | Plaintiffs |
| v | |
| ALAN HARRISON (SHIRE OF YARRA RANGES) | First Defendant |
| and | |
| MAGISTRATES’ COURT OF VICTORIA AT HEIDELBERG | Second Defendant |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2012 | |
DATE OF JUDGMENT: | 24 February 2012 | |
CASE MAY BE CITED AS: | Wilson & Wilson v Harrison & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 64 | Amended 6 March 2012. |
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INTERIM OR INTERLOCUTORY INJUNCTION – Judicial review of Magistrate’s decisions – Application to restrain further hearing – balance of convenience – application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr D J Neal SC with Mr S M Stafford | Hoeys Lawyers |
| For the First Defendant | Mr A Woods | Goddard Elliott |
| For the Second Defendant | No appearance. |
HIS HONOUR:
The plaintiffs, Mr and Mrs Wilson, are the defendants in proceedings before the Magistrates’ Court of Victoria at Heidelberg. They are being prosecuted by the first defendant. They face 11 charges relating to building work at their home. I will refer to the first defendant and his legal advisers as the prosecution.
The charges were filed on 19 December 2009. The first trial date fixed, after two mentions, was Monday 13 September 2010. The matter did not proceed on that day for reasons which are not presently relevant.
A further trial was fixed for three days in May 2011. That trial was adjourned at the request of Mr and Mrs Wilson.
In August 2011, a contested trial was booked in for hearing on 27, 28 and 29 February 2012.
On 2 December 2011, the magistrate with the conduct of the matter heard an application on behalf of Mr and Mrs Wilson for further and better particulars of two of the charges which they face and an application to compel production of notes taken by prosecuting counsel and the prosecution’s former solicitor. The notes are of discussions they had with a witness who refuses to make a formal statement.
After those discussions, counsel for the prosecution disclosed to the legal representatives of Mr and Mrs Wilson what was said to be the relevant substance of the evidence which it was thought that that witness would give.
The prosecution has refused, however, to give to the legal representatives of Mr and Mrs Wilson the notes of those discussions claiming that they are the subject of legal professional privilege.
On 2 December 2011 the magistrate ruled against Mr and Mrs Wilson on both of their applications. On 13 February 2012 the magistrate gave written reasons for that ruling.
On 20 February 2012 this proceeding was issued seeking relief in the nature of certiori and/or prohibition in relation to those two decisions.
Interlocutory relief was sought in the nature of prohibition or an injunction restraining the Magistrates’ Court from continuing to deal with the matter until this proceeding had been determined.
The summons in this proceeding is returnable on 5 March 2012. Mr and Mrs Wilson’s legal representatives sought an adjournment of the Magistrates’ Court trial by consent from the prosecution and, when that was not forthcoming, applied to the magistrate on the afternoon of 22 February. They sought a stay of the matter pending the outcome of this judicial review proceeding.
The magistrate refused to adjourn the matter and indicated that the trial would proceed on Monday 27 February 2012. In those circumstances, counsel on behalf of Mr and Mrs Wilson, made an oral application in the Practice Court late yesterday afternoon seeking urgent interim or interlocutory relief in the terms set out in the originating motion and the summons in this proceeding.
In relation to the substantive complaints, senior counsel for Mr and Mrs Wilson submitted in substance that the magistrate’s decision concerning the notes of counsel and the solicitor was erroneous on two grounds. First, because there had been no evidence before the magistrate as to the circumstances in which the notes had been prepared and their purpose. Secondly, because the magistrate erred in finding that the notes were privileged in circumstances where there was a duty to disclose their contents in the manner explained by Martin J in R v Bunting & Ors.[1]
[1](2002) 136 A Crim R 539 (‘Bunting & Ors’).
On the question of the particulars, senior counsel took me to the relevant requests and responses. One of the responses concluded with what I would describe as a ‘catch all’ clause which potentially expanded the character of the conduct alleged to constitute the offence as particularised earlier.
On the other charge in relation which complaint is made, the prosecution will be required to prove that certain stumps which were said to be unstable had not been removed. Senior counsel for Mr and Mrs Wilson submitted that there had been a refusal to specify which were the stumps which it is said should have been removed.
On the question of particulars, senior counsel for Mr and Mrs Wilson relied upon Kirk v Industrial Relations Commission of New South Wales,[2] R v ACR Roofing Pty Ltd[3] and Willis v McColl.[4]
[2](2010) 239 CLR 531.
[3](2004) 11 VR 187.
[4]Unreported, Supreme Court of Victoria, Beach J, 17 January 1994.
In relation to the particulars, the prosecution submitted that, without conceding that there was any deficiency in the particulars, a letter would be written clarifying the suggested uncertainty. A letter was written which was handed up to me this morning. It does clarify the position in relation the stumps. It does not address the ‘catch all’ clause to which I have referred, but the prosecutor has said in open court on more than one occasion that that clause will not be relied upon to extend the character of the conduct otherwise covered by what goes before it.
On the question of legal professional privilege, the submission that there was no evidence is one which may be technically well founded but which, on the material as I presently understand it, otherwise lacks substance. There is little doubt as to the character of the documents, and if the matter were to be remitted to the magistrate in order for him to deal with it upon evidence, I am unpersuaded that the position would be any different to that which constituted the basis upon which he has already dealt with the issue.
The matter which is of substance concerns Bunting & Ors. It was held in that case that the prosecution's duty of disclosure may rob an otherwise privileged communication of its confidentiality and that the information conveyed in that communication could then be ‘beyond the reach of legal professional privilege’.[5]
[5]Bunting & Ors (2002) 136 A Crim R 539, 557 [60].
The relevant aspect of the reasoning in Bunting & Ors is that the prosecution’s duty of disclosure overrides legal professional privilege.
It is important to note, however, that even in that case, the judge made it clear that that would not necessarily mean that documents prepared by legal practitioners of the discussions with witnesses would thereby have to be handed to the defence.
Martin J:
In some circumstances, disclosure of relevant information will require production of the document in which that information is recorded. However, it will not always be necessary to produce such a document in order to comply with the duty of disclosure. For example, if relevant information is received orally by an investigator who reports on a privileged written communication to the director seeking advice, the duty is likely to be discharged by disclosure of the relevant information to the accused without production of the report. Similarly, it may not be necessary to produce notes made by DPP practitioners recording the receipt of relevant information in privileged communication in order to comply with the duty.[6]
[6]Bunting & Ors (2002) 136 A Crim R 539, 561 [75] (emphasis added).
The matter which is of critical significance is compliance with the duty of disclosure. Legal professional privilege cannot compromise that duty.
I cannot, on this hearing, assess the adequacy of the disclosure which has been made and, fundamentally, that is a matter for the prosecutor. In this matter, given the position of the witness, the prosecutor must be most mindful of his duty in that regard.
In relation to the balance of convenience, it was submitted on behalf of Mr and Mrs Wilson that they should not have to face a trial of prosecutions which would necessarily be unfair because they do not have proper particulars of two of the charges they face and because they do not have important documents which the duty of disclosure requires that they be provided with.
The prosecution submitted that they had complied with their duty of disclosure and that otherwise the notes taken were the subject of legal professional privilege. The prosecutor submitted that there was no inadequacy in the particulars that had been provided but that insofar as there had been any uncertainty, that had been clarified by the submissions he had made and by the letter that was sent last night.
The submissions made on behalf of counsel for the prosecution focused on the balance of convenience. It was submitted that this matter has been fixed for trial with days set aside and booked in on two prior occasions and that the trial is now ready to proceed on Monday 27 February 2012. The interim or interlocutory orders now sought would necessarily fragment the proceeding. It was also submitted that Mr and Mrs Wilson have alternative remedies if their complaints are well founded, and if they are subsequently convicted, under s 254 of the Criminal Procedure Act 2009 (Vic), whereby they have a right of appeal by way of rehearing to the County Court, and under s 272 of that Act whereby they have a right of appeal on a question of law to this Court.
It seems to me that there is a serious question to be tried as to the issues raised in this proceeding but, on the limited argument I have heard, I do not consider that the plaintiffs have demonstrated that they have a strong case. Relief of the kind sought is discretionary. If the only point eventually established was that the magistrate reached a conclusion about privilege without having sworn evidence before him, and if it was demonstrated that there was in fact no real issue as to the circumstances and purpose of the notes, then I would not expect relief to be granted.
The issue concerning the effect of the duty of disclosure upon legal professional privilege and Bunting & Ors is one I cannot determine on a hearing of this kind but it is significant that that case itself recognised that the extent to which privilege is lost is co‑extensive with the duty of disclosure and that as a result it may not be necessary for notes of this kind to be produced.
Finally, whilst argument in relation to the particulars has necessarily been brief before me, it does seem to me that Mr and Mrs Wilson do know the case they will have to meet.
The factors on the balance of convenience relied upon by the prosecution are significant, in my view. This prosecution has been on foot for over two years. There have been two prior trials fixed. A further adjournment at this stage would be most unfortunate. Of more importance is the second factor relied upon, namely that Mr and Mrs Wilson, or either of them, if convicted, will have a right of appeal by way of re-hearing to the County Court and a right of appeal on questions of law to this Court. The matters of which they complain, if they remain relevant, can be determined on such appeals, together with any other issues which might subsequently arise.
I recognised, as was submitted by senior counsel for Mr and Mrs Wilson, that refusing interim or interlocutory relief at this stage does, in a sense, render the relief sought in the proceeding nugatory. It does not, however, leave them without a remedy for the matters of which they complain. They have two avenues of appeal and insofar as the issues which are the subject of this proceeding remain relevant, they can be agitated in those contexts.
In the circumstances, the oral application made to me yesterday afternoon is dismissed.
(Discussion re costs)
The application made yesterday afternoon is dismissed. I will reserve the costs.
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