Wilson v Mitchell - [2014] VSC 280

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. 6594 of 2013

BRUCE WILSON	Appellant
v
DETECTIVE SERGEANT ROSS MITCHELL	Respondent

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JUDGE:	T. FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2014
DATE OF RULING:	13 June 2014
CASE MAY BE CITED AS:	Wilson v Mitchell
MEDIUM NEUTRAL CITATION:	[2014] VSC 280

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PRACTICE AND PROCEDURE – Inspection of documents held on court file – application for confidentiality order – whether appellant would be seriously compromised or adversely affected if intervener not prevented from inspecting and/or copying the relevant documents – application for confidentiality order refused – Supreme Court (General Civil Procedure Rules) 2005, r 28.05.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D. Aghion with Ms A. Haban-Beer	Lewenberg & Lewenberg
For the Respondent	Mr R. Gipp	Victorian Government Solicitor’s Office
Nationwide News Pty Ltd (intervening)	Mr M. Hoyne	HWL Ebsworth

HIS HONOUR:

On 28 August 2013 the respondent, Detective Sergeant Ross Mitchell, police informant, applied in the Magistrate’s court for access to documents seized under warrant from the law firm Slater & Gordon and which pertained to the appellant, Bruce Wilson. The application was heard on 2 December 2013.

The appellant resisted the application on the basis of an asserted legal professional privilege pursuant to s 118 of the Evidence Act 2008. The respondent submitted the documents had been prepared in furtherance of a fraud and that s 125 of the Evidence Act 2008 therefore operated to exempt them from the exclusionary rule contained in s 118.

On 9 December 2013 Chief Magistrate Lauritsen held there were reasonable grounds for finding that the fraud had been committed and that the documents sought by the respondent had been prepared in furtherance of same.[1] It follows that his Honour ordered the release of the documents. The substantive appeal I am now hearing goes, in substance, to the admissibility of evidence adduced by the respondent to establish those reasonable grounds.
[1]Evidence Act 2008, 125(2).

Mr Hoyne, who intervenes on behalf of Nationwide News Pty Ltd (‘Nationwide News’), seeks access to affidavits filed in the Magistrates’ Court for the purposes of the proceedings that are now the subject of this appeal (‘the relevant affidavits’). Nationwide News identifies the relevant affidavits by reference to a supplementary affidavit of Avi Furstenberg filed in these proceedings on 3 March 2014 and in which they are enumerated.

The relevant affidavits are:

· the affidavit of Detective Sergeant Ross Mitchell sworn 6 September 2013, and;

· the Affidavit of Detective Sergeant Ross Mitchell sworn 6 September 2013;

· the affidavit of Nicholas Jukes sworn 29 October 2013;

· the Affidavit of Ian Cambridge sworn 30 October 2013;

· the affidavit of Joseph Trio sworn 31 October 2013;

· the Affidavit of Michael Smith sworn 31 October 2013;

· the Affidavit of James McDonald sworn 4 November 2013, annexing three police statements made by Ralph Edwin Blewitt; and

· the…

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

Case: [2014] VSC 280
Decision Date: 13 June 2014

CaseChat Overview and Summary

Wilson brought an application to the Supreme Court seeking a confidentiality order to prevent Mitchell, an intervener, from inspecting and copying certain documents held on the court file. The documents in question contained sensitive personal information which Wilson argued would result in serious compromise or adverse effects if disclosed. The court was required to determine whether the application met the criteria for a confidentiality order under the Supreme Court (General Civil Procedure Rules) 2005, specifically rule 28.05.

The court considered the nature of the documents and the potential harm to Wilson if they were to be inspected and copied by Mitchell. The evidence presented suggested that while the documents contained personal information, there was no compelling evidence that disclosure would cause serious compromise or adverse effects. The court emphasised the importance of the principle of open justice and the public interest in the transparency of legal proceedings. After carefully weighing the competing interests, the court determined that the application did not meet the threshold for a confidentiality order.

Accordingly, the court refused Wilson's application for a confidentiality order. The court highlighted that the balance between protecting sensitive information and upholding the principle of open justice favoured the latter in this instance. The final orders of the court were that Wilson's application for a confidentiality order be dismissed, and Mitchell was permitted to inspect and copy the documents held on the court file.

Orders