Wilson v Harrison
[2012] VSC 404
•7 September 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. SCI 2012 00849
| RICHARD WILSON & JENNINE WILSON | Plaintiffs |
| v | |
| ALAN HARRISON | First Defendant |
| and | |
| MAGISTRATES' COURT OF VICTORIA AT HEIDELBERG | Second Defendant |
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JUDGE: | MACAULAY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 August 2012 | |
DATE OF JUDGMENT: | 7 September 2012 | |
CASE MAY BE CITED AS: | Wilson v Harrison & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 404 | |
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JUDICIAL REVIEW – Review of ruling of magistrate holding that notes made between lawyers for a party and a witness were subject to legal professional privilege – Notes produced before hearing for judicial review – Issue in question moot – Relief sought in respect of magistrate’s ruling not granted – Further application to amend originating motion to seek order prohibiting the hearing of the Magistrates’ Court prosecution until assurances made by prosecutor of compliance with duty of disclosure – Relief sought not within Court’s supervisory jurisdiction – Application to amend dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr D Neal SC with Mr S Stafford | Hoeys Lawyers |
| For the First Defendant | Mr A Woods | Goddard Elliott |
| For the Second Defendant | No appearance |
HIS HONOUR:
Introduction
On 9 December 2009, Mr and Mrs Wilson (the plaintiffs) were charged by the Shire of Yarra Ranges with offences including five counts of carrying out building work on their residential property in Upwey, without a building permit. Since then, they have embarked upon a lengthy, litigious campaign to pursue further information from the prosecuting authority concerning the case brought against them. Last December, a magistrate refused the Wilsons’ application for further and better particulars of the charges, and also refused to order production to the Wilsons of notes made by the Shire’s lawyers of conversations they had with a principal witness to be called, the Wilsons’ next door neighbour (Lee Holmes).
By this proceeding the Wilsons ask this court to review the magistrate’s decision, in the exercise of its supervisory jurisdiction, on grounds that the decision was infected by various legal errors. Since this proceeding was commenced, as detailed below, sufficient particulars have been provided, a witness statement detailing Mr Holmes’ evidence has been delivered and, recently, any surviving notes of the conversations with Mr Holmes have been also provided. Still the Wilsons say that is not enough.
As well as an order quashing the magistrate’s decision, the Wilsons also want an another order for which they will first need leave to amend their originating motion. If amendment is permitted, they seek an order prohibiting the proceeding from going ahead without an ’assurance to the court that the Statement of Lee Holmes comprises full disclosure of the anticipated evidence‘ of that witness, or advice ’whether the prosecution has other information from Mr Holmes‘, detailing such further information in a document. The question is whether the Wilsons should have that relief, and where the costs of this whole saga should lie.
The case is otherwise due to be heard on 12 September 2012, less than one week from now.
Should the Wilsons get the relief now sought
As presently formulated, the originating motion seeks, in the first three paragraphs, relief relating to the orders made by the magistrate with respect to further and better particulars. The remaining orders sought are: an order in the nature of certiorari quashing the ruling that the notes are covered by legal professional privilege; a declaration that his Honour’s ruling on the notes contained errors of law; and an order in the nature of prohibition restraining the Shire and the court from proceeding with the prosecution until the Wilsons’ claim to legal professional privilege is heard and determined.
To understand the relief the Wilsons now seek, it is necessary to explain the background in short compass.
Further and better particulars
Before 2 December 2011, the Shire had provided to the Wilsons certain particulars of the allegations contained in the charges. In response to an application for yet further particulars, the magistrate ruled that the informant had particularised the factual basis of the prosecution in sufficient detail to enable the Wilsons to prepare their defence, and refused their application. As explained briefly below, some further clarification of the particulars, satisfying the Wilsons, was provided shortly after this proceeding was commenced, so the relief sought in relation to the magistrate’s ruling on that issue has not been pursued. Other than for the purpose of costs, it is not necessary to consider further the claim that the magistrate erred in not ordering further and better particulars.
The notes
In September 2010, counsel for the prosecuting authority (Mr Woods) telephoned counsel for the Wilsons (Mr Forrest) to explain that the neighbour, Mr Lee Holmes, was unwilling to provide a witness statement. Nevertheless, Mr Woods informed Mr Forrest that the substance of Mr Holmes’ evidence was that Mr Holmes observed both Mr and Mrs Wilson carrying out each of the building works with which they had been charged, on the occasions that they carried out those works.
In August 2011, Magistrate Parsons ordered the prosecution to inform the Wilsons of the existence of any notes in respect of Mr Holmes’ evidence, to which the Shire’s then solicitor, Heather Masters, replied by enumerating: (1) ‘notes of conversation between counsel and Mr Holmes – August 2010’, and (2) ‘notes of conversations between myself and Mr Holmes – May 2010’. Legal professional privilege was claimed in respect of those notes. It was those notes that the Wilsons sought to be produced in their application to the magistrate on 2 December 2011.
His Honour upheld the claim for legal professional privilege ruling that the notes:
•recorded communications that were confidential, and
•were prepared for the dominant purpose of providing legal advice to the Shire or to provide legal services to the Shire relating to the prosecution proceeding.[1]
[1]The requirements under ss 118 and 119 of the Evidence Act 2008 (Vic).
The Wilsons seek an injunction, and the particulars issue is resolved
His Honour’s reasons for decision on both applications were not delivered to the Wilsons until 13 February 2012. Shortly after receipt of them, the Wilsons filed the originating motion commencing this proceeding and, on 23 February 2012, the Wilsons made application to the Supreme Court to restrain the hearing of the prosecution, then due to commence 27 February 2012, until the proceeding in this court had been heard and determined.
Whelan J dismissed the Wilsons’ application. On the day of that hearing the prosecution offered, without conceding any deficiency in the existing particulars, to provide further clarification of them. Since then, there has been no further issue about the adequacy of particulars. Argument before Whelan J was more focused on whether any need for the court to resolve the issue over the production of the notes justified the delay of the pending trial. His Honour ruled that although there was a serious issue to be tried whether the magistrate committed legal error – chiefly, whether the prosecutor’s duty of disclosure negated any confidentiality in the notes – nevertheless the balance of convenience favoured the trial going ahead. That was so because the prosecution had been on foot for over two years, two previous trials had already been fixed and abandoned, and the Wilsons were able to agitate any issue of non-disclosure of relevant facts, if that issue ever arose, in the trial or through either of the two avenues of appeal that would be available to them thereafter.[2]
[2]Wilson v Harrison [2012] VSC 64 [32].
As matters transpired, the Magistrates’ Court trial did not go ahead on 27 February 2012 because the Wilsons delivered an engineer’s report on the weekend before the hearing, and the Shire sought time to respond to it.
The notes are produced (or explained)
In mid-2012 the Wilsons’ neighbour, Mr Holmes, sold his house and left the district. This apparently relieved him of his reluctance to provide a statement of his evidence to be given in the prosecution proceeding. On 9 August 2012, the Shire was able to serve a signed witness statement of Mr Holmes’ evidence upon the Wilsons. When doing so, it proposed that the Wilsons desist in their proceeding before this court to review the magistrate’s decision over the notes (the issue of particulars having already been resolved).
To that proposal the Wilsons responded by saying that the notes were now necessary to explore an alleged inconsistency between the contents of Mr Holmes’ statement of evidence, and an earlier representation that his evidence would be to the effect that he observed both Mr and Mrs Wilson carrying out all of the works with which they had been charged. It was said that the witness statement only verified Mr and Mrs Wilson each carrying out some of the works with which they had been charged.
Finally, on 17 August 2012, the Shire relented and handed over a copy of the note made by Mr Woods. It said that it did so, not conceding any lack of merit in its previous resistance, but ‘solely in response to your allegation of an inconsistency between Mr Homes (sic) statement and previous explanations as to Mr Homes anticipated evidence’. The Shire’s (new) solicitors explained that they had been unsuccessful in obtaining the note of the former solicitor, Helen Masters (who had become ill), but that the Shire would not object to the production of her note to court if obtained on subpoena.
It now appears that
•Mr Woods’ note, made August 2010 and recording a 65 minute telephone conference with Mr Holmes, merely states ‘watched work take place’; and
•Ms Masters has lost her note, made May 2010, but the substance of it recorded a conversation only about the reason why Mr Holmes was to be served with a subpoena, and nothing to do with the evidence he would give.[3]
[3]An affidavit from Ms Masters was provided to the Wilsons setting out those facts, and they have accepted them as the position.
Again the Shire invited the Wilsons, in the light of this further information, to agree to the dismissal of the proceeding upon a particular costs outcome to which I will refer later. In response, the Wilsons demanded certain assurances from the prosecution; those assurances were not given, and the matter has proceeded with the Wilsons now applying to amend the originating motion to seek an order prohibiting the prosecution going ahead unless the Shire gives the assurances I mentioned above.[4]
[4]See [3] above.
The relief now sought
Although the Wilsons still formally seek an order quashing the magistrate’s decision not to order the production of the notes, they conceded that the chief purpose of doing so was to aid an argument on costs. Even if it was appropriate to hear arguments on that issue for that purpose alone,[5] it would not be necessary for that purpose to actually make the order. I will leave the consideration of costs until later, but it is trite to say that the grant of certiorari (or prohibition) is discretionary. One consideration in the exercise of the discretion is the utility of the relief.[6] The quashing of the decision of the magistrate, the effect of which has been reversed by subsequent events, lacks any utility at all. It serves no forensic or adjudicative purpose.
[5]See [37] below.
[6]Mann v Medical Practitioners Board of Victoria [2004] VSCA 148 [17].
An additional purpose, albeit put with less fervour, was that it is a matter of public interest that I should proceed to consider certain arguments of principle raised in respect of the legal privilege issue. I do not agree. The issue of principle centred upon the tension between the prosecutorial duty to make disclosure to an accused, on the one hand, and the element of confidentiality underpinning the basis for legal professional privilege, on the other.
The Wilsons drew attention to R v Bunting,[7] a decision of Martin J in the Supreme Court of South Australia. In that case, his Honour expressed the view that if information is received by a prosecuting authority at a time when a duty exists to disclose that information to the accused, no confidentiality can arise to support the existence of legal professional privilege.[8] The Wilsons fairly pointed out in submissions that Martin J’s view is not universally adopted; elsewhere the courts have treated the duty of disclosure, and confidentiality, as competing obligations to be balanced.[9] The question of whether either approach precluded the magistrate from assigning legal professional privilege to the notes does not need to be decided as a matter of practicality. And this is not the occasion for examining the merits of each approach or expressing any views upon them.
[7]R v Bunting (2002) 84 SASR 378.
[8]Ibid 395 [61].
[9]Eg R v Petroulias (No 22) (2007) 213 FLR 293, 307-8 [58]-[62].
Given that it is not appropriate for me to proceed to decide the existing claim for relief in the nature of certiorari (and its related declaratory relief), and that the Wilsons do not press for the prohibitory relief as currently sought in the originating motion, I am then left with the question whether to grant the Wilsons’ application to amend the relief they seek.
Initially, the prohibition sought was to be conditioned upon the hearing and determination of the Shire’s claim to legal professional privilege ‘according to law’. Instead, the Wilsons now wish to seek:
An order in the nature of prohibition restraining the first and second defendants from proceeding with the prosecution until the first defendant through his legal representative:
(a)provides an assurance to the Court that the statement of Lee Holmes dated 8 August 2012 comprises full disclosure of the anticipated evidence to be led from that witness by the prosecution; or
(b)advises the plaintiffs whether the prosecution has other information from Mr Holmes and, if so, serves a document which sets out in detail what that information is in accordance with its obligation on disclosure.
Should I give leave to amend?
True it is that there are cases in which the court has received, or even required, assurances from prosecuting authorities that their duty of disclosure will be observed when the court was resolving questions of whether notes of communications between lawyers and witnesses should be produced. In Bunting, Martin J took into account, when declining to inspect certain notes, that an undertaking was given by the Director of Public Prosecutions that he had complied, and would continue to comply, with his duty of disclosure by waiving privilege in respect of any privileged communication to which the duty applied.[10] A similar course was taken by Nyland J in R v Tracey (No 2)[11] after an assurance was given by counsel for the Director that he was well aware of his duty, and that there was nothing that came within the duty that had not been disclosed. Finally, in Petroulias, in the face of alleged deficiencies in timely disclosure by the Commonwealth Department of Public Prosecution of matters requiring disclosure, Johnson J decided that it was appropriate for the Crown, through prosecuting counsel, to examine certain notes and give the court an assurance there was nothing further requiring disclosure.[12]
[10]R v Bunting (2002) 84 SASR 378, 401-2.
[11]R v Tracey (No 2) [2005] SASC 356 [28]-[31].
[12]R v Petroulias (No 22) (2007) 213 FLR 293, 313 [78].
But each case turns on its own facts. There is certainly no automatic requirement or expectation that such an assurance be given. Of course, the prosecutorial duty of disclosure exists independently of any such assurance. An assurance may be proffered to short circuit an argument or, as seemed to occur in Petroulias, an assurance might be thought desirable against a background of conduct which gives rise to grounds for doubt on the part of the court.
If I were required to decide this matter, I would not be prepared to order any such assurance in this case or, more accurately, prohibit the continuance of this prosecution unless such assurance was given. During the course of argument, Mr Woods, who appeared for the Shire, informed me that he was the prosecutor in the matter, was well aware of his duty of disclosure, had complied with it and intended to continue to do so. Notwithstanding the Wilsons’ submissions about past conduct, I was not persuaded there was any conduct of a nature that would move me to require an assurance of the kind proposed.
Nor, as a matter of sensible practicality, could I see any need for the Wilsons to be assured of a negative proposition to be able to prepare their case. If they face any surprises in the magistrate’s court, there are a range of potential remedies open to them, some of which were referred to by Whelan J when dismissing their earlier injunction application.[13]
[13]Referred to above at [12].
But there is a more fundamental problem than that.
By this judicial review procedure, the Wilsons invoke the Supreme Court’s jurisdiction to supervise the decision-making of the Magistrates’ Court by ensuring that its decisions are made within its jurisdiction, and according to law. The relief initially sought in the nature of certiorari and prohibition was properly sought in aid of this Court’s jurisdiction – that is, to quash a decision already made, on the grounds that the magistrate exceeded jurisdiction, and to prohibit the Shire continuing along an allegedly illegal course, in reliance upon the impugned decision (namely, prosecuting the Wilsons without disclosing the contents of the notes).
What is now sought to be achieved is, in substance, a fresh restraining order to prevent the prosecution going ahead until something new is done; something that was not sought, and is not being sought, before the Magistrates’ Court, and upon which that court did not rule, nor is being asked to rule. Seen in this way, what the Wilsons are now seeking is in effect a fresh injunction from this Court, a remedy which has no connection with this Court’s jurisdiction to supervise the Magistrates’ Court’s decisions.
The Wilsons argued that the amended prohibitory relief can still be seen to be in aid of that supervisory jurisdiction because what they were always seeking was adequate disclosure from the Magistrates’ Court, and the assurances they now seek are simply different manifestations of the same thing sought from, but refused by, the magistrate.
I disagree. The magistrate was asked to rule upon a specific legal and factual issue, that is: were specified notes protected by legal professional privilege? It was not a decision upon a general question whether information should be disclosed to the Wilsons, or whether the prosecutor had made adequate disclosure in conformity with his duty: albeit that the prosecutorial duty was prayed in aid of the argument that confidentiality, and therefore privilege, did not attach to the notes.
I refuse the application to amend the originating motion in the form proposed. Accordingly, I will dismiss the proceeding. That then brings me to the question of costs.
Costs
What the parties seek
The Wilsons seek an order that the Shire pay their costs of the whole proceeding, together with the reserved costs of the injunction proceeding before Whelan J. The Shire resists that claim and seeks an order for costs substantially in its favour. It claims the Wilsons should pay the Shire’s costs of the injunction proceeding, and all costs of this proceeding from 10 August 2012 (the day after the statement of Mr Holmes was provided to the Wilsons), each party bearing their own costs of the proceeding before that date.
Principles
The court has a very wide discretion with respect to ordering costs. It is a discretion which must be exercised judicially, taking into account all relevant matters and making a decision which is fair and just to the parties. Although principles have been laid down to guide the exercise of that discretion, they are merely guidelines and do not fetter the court's discretion.[14]
[14]Peet Ltd v Richmond (No 2) [2009] VSC 585 [93] (Hollingworth J).
Different considerations apply when a case is compromised, parties do not wish to pursue a matter or doing so becomes futile, compared to when a case has been heard upon its merits.[15] For reasons I have explained, it is not necessary in this case to decide the relief sought in the originating motion. Although the Wilsons did not agree it was unnecessary to pursue the relief claimed – the Shire’s position – I have decided that it is no longer necessary to determine the issues raised.
[15]Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194, 201 (Hill J); One.Tel Ltd & Ors v Commissioner of Taxation (2000) 101 FCR 548, 552-554 (Burchett J); Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 187 CLR 622, 624 (McHugh J).
Reference to relevant authority[16] supplies guidance for the exercise of my discretion in this case. Having regard to that guidance I do not consider it appropriate that I endeavour to determine the merits of the Wilsons’ claim for relief in order to determine the question of costs. Rather, I should consider whether the Wilsons acted reasonably in commencing, and continuing, the proceeding, and whether the Shire acted reasonably in defending, and continuing to defend, the proceeding.
[16]See cases referred to in the previous footnote.
Adopting those principles, each party has accused the other of acting unreasonably in adopting the stance that they took.
Where should costs fall?
I would not be prepared to hold that the Wilsons necessarily acted unreasonably in commencing this proceeding to review the magistrate’s decision. I do, however, have some disquiet about the practical utility of the lengths the Wilsons have taken to pursue discovery of the content of the notes made by Mr Woods and Ms Masters. Having commenced the proceeding, it was then reasonable, in that context, for the Wilsons to seek to restrain the hearing of the prosecution until this proceeding was determined. Whelan J reserved the costs of the injunction proceeding, presumably because his Honour felt that the merits of the substantive argument would bear upon the merit of the injunction application even though, for reasons of balance of convenience, the injunction was refused. Those merits still have not been determined, and will not be determined.
After the particulars were supplied (or clarified) during the hearing of the injunction proceeding, the Wilsons continued to press for the review of the magistrate’s decision on the question of the production of the notes. Any substantial practical merit of doing so expired, in my view, after the statement of Mr Holmes was supplied to the Wilsons on 9 August 2012. Thereafter, the stance taken by the Wilsons that they needed the notes to explore and exploit any potential difference between the version given by Mr Holmes to the lawyers, the version contained in the statement, and any version given at trial, became an exercise that lacked reasonable perspective on the issue.
In my view, the Wilsons’ continued insistence upon being provided the notes at that point became unreasonable. They say, in defence of their action, that it was unreasonable for the Shire not to have disabused them of the lack of any real forensic value in the notes – as has since been revealed. Given the history of the matter, I am far from satisfied that the Shire should reasonably have believed that any assurance it gave, short of handing over the notes, would have placated the Wilsons. Nor do I consider that the Shire adopted any unreasonable approach by resisting production of the notes and seeking to uphold the magistrates’ decision.
Even more so did the Wilsons’ position become unreasonable once the notes were handed over, or their absence explained. The stance then adopted by the Wilsons, insisting upon various assurances from the prosecution, bordered on the absurd.
Conclusion
In all the circumstances, I will order that each party bear their own costs of the proceeding, including the costs of the injunction application, up to and including 9 August 2012, but that the Wilsons pay the Shire’s costs of the proceeding thereafter.
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