Zmak v TCB Trans Pty Ltd
[2013] VSC 310
•17 June 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW & APPEALS LIST
No. S CI 2012 01775
| STEVEN ZMAK | Plaintiff |
| v | |
| MAGISTRATES’ COURT OF VICTORIA TCB TRANS PTY LTD | First Defendant Second Defendant |
No. S CI 2012 01776
| DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| MAGISTRATES’ COURT OF VICTORIA TCB TRANS PTY LTD STEVEN ZMAK | First Defendant Second Defendant Third Defendant |
No. S CI 2012 2495
| THE TRUSTEES (TCB TRANS PTY LTD) | Plaintiff |
| v | |
| MAGISTRATES’ COURT OF VICTORIA DIRECTOR OF PUBLIC PROSECUTIONS | First Defendant Second Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 June 2013 | |
DATE OF JUDGMENT: | 17 June 2013 | |
CASE MAY BE CITED AS: | Zmak v TCB Trans Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 310 | |
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ADMINISTRATIVE LAW – Judicial review – Occupational Health and Safety prosecution – Committal proceedings – Witness summons – Summons to produce documents – Legitimate forensic purpose – Legal professional privilege – Certiorari – Whether decision in course of committal proceeding amenable to certiorari – Occupational Health and Safety Act 2004, ss 21 and 132.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr O.P. Holdenson QC with Mr C. Young | Solicitor for Public Prosecutions |
| For Mr Zmak | Mr P.J. Hanks QC with Ms R.J. Sharp | Victorian Workcover Authority. |
| For the Magistrates’ Court | No appearance | |
| For TCB Trans Pty Ltd | Mr B.E. Walters SC with Mr C.S. Smale | Russo Pellicano Carlei |
HIS HONOUR:
Introduction
On 17 November 2010, Steven Zmak, an inspector appointed under the Occupational Health and Safety Act 2004 (“the Act”), commenced a criminal proceeding against TCB Trans Pty Ltd,[1] charging it with two offences under s 21 of the Act as follows:
(1) On or about 8 October 2008 at Northcote pursuant to s 21(1) and s 21(4) of the Act you were guilty of an offence in that as an employer you failed so far as was reasonably practicable, to provide for your employees a working environment that was safe and without risks to health when in contravention of s 21(2)(a) you failed to provide and maintain plant and systems of work that were, so far as was reasonably practicable, safe and without risks to health.
(2) On or about 8 October 2008 at Northcote pursuant to s 21(1) and s 21(4) of the Act you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to provide for your employees a working environment that was safe and without risks to health when in contravention of s 21(2)(e) you failed to provide such information, instruction, training and supervision to your employees as was necessary to enable them to perform their work in a way that was safe and without risks to health.
[1]Described in some of the documents as The Trustee (TCB Trans Pty Ltd) or TCB Trans Trust trading as TCB Trans Pty Ltd or The Trustee (TCB Trans Pty Ltd) for TCB Trans Trust trading as TCB Trans Pty Ltd ATFTCB Trans Trust. Further, on some of the documents an ACN number of the TCB Trans entity is given. In each case, the ACN number is the same (ACN 096 762 908). In any event, there was no issue concerning the name of the relevant entity before me.
Section 132 of the Act deals with the time within which proceedings for an indictable offence under the Act may be brought. Section 132 provides:
Proceedings for an indictable offence against this Act may be brought-
(a)within 2 years after the offence is committed or the Authority[2] becomes aware the offence was committed; or
(b)at any time with the written authorisation of the Director of Public Prosecutions.
[2]“Authority” is defined in s 5(1) of the Act to mean the Victorian WorkCover Authority established under s 18 of the Accident Compensation Act 1985.
Prior to the commencement of the criminal proceeding against TCB Trans, on 20 October 2010 (some two years and twelve days after the alleged offences), the Acting Director of Public Prosecutions gave written authorisation for the commencement of the prosecution against TCB Trans.[3]
[3]As to the effect of a written authorisation by an Acting Director of Public Prosecutions, see s 40(b) of the Interpretation of Legislation Act 1984.
On 15 March 2011, there was a filing hearing and the committal proceeding in this case commenced.[4] There was then a committal mention[5] on 10 May 2011 at which TCB Trans foreshadowed it would “challenge” the charges and issue a witness summons to the DPP.
[4]See s 98 of the Criminal Procedure Act 2009.
[5]See ss 100 and 101 of the Criminal Procedure Act 2009.
On 6 October 2011, the solicitor for TCB Trans issued a witness summons addressed to the Director of Public Prosecutions requiring production of:
All documents relating to consulted or referred to for the purpose of making the decision dated 20 October 2010 to authorise the commencement of the prosecution against the accused pursuant to s 132 of … [the Act].
The witness summons required production of the documents sought at 10.00am on 18 October 2011. On that day, the matter came on by way of a special mention hearing[6] before Mealy M. At the hearing before Mealy M, TCB Trans applied for access to the documents produced in response to the witness summons. After hearing argument, his Honour reserved his decision on the matter.
[6]See s 100(1)(b) of the Criminal Procedure Act 2009.
On 24 February 2012, Mealy M ruled that TCB Trans was entitled to access some of the subpoenaed material. His Honour then provided a list of the material to which access would be granted. On the same day, his Honour made an order for costs in favour of TCB Trans against the prosecution.
No party was satisfied with his Honour’s ruling and orders. Each of them has commenced judicial review proceedings in relation to the matter: Mr Zmak against the Magistrates’ Court and TCB Trans (“the Zmak proceeding”); the DPP against the Magistrates’ Court, TCB Trans and Mr Zmak (“the DPP proceeding”); and TCB Trans against the Magistrates’ Court and the DPP (“the TCB Trans proceeding”). This is the hearing of these three proceedings.
The hearing below and his Honour’s reasons for decision
The application for access to documents was heard at the same time as an application for documents on the same topic subpoenaed from the Victorian WorkCover Authority (“the VWA”). This second summons was issued to the Executive Director Health and Safety of the VWA in a prosecution commenced against Buildcorp Commercial Pty Ltd (“the Buildcorp Commercial matter”). In the Buildcorp Commercial matter, Buildcorp Commercial sought the production from the Executive Director Health and Safety of the VWA, and inspection, of documents relating to any application by the VWA under s 132 of the Act that requested the DPP to authorise the commencement of a proceeding against it outside the two year period referred to in the section.
While a number of different arguments were put before Mealy M, in essence there were two relevant issues so far as the present proceeding is concerned: first, whether there was a legitimate forensic purpose for the summons issued by TCB Trans;[7] and secondly, whether inspection of any of the documents produced should be denied because of legal professional privilege (or client legal privilege).[8]
[7]While no application to set aside the witness summons was made before the magistrate, no issue was taken below, or in these proceedings, in respect of this issue.
[8]See ss 118 and 119 of the Evidence Act 2008. See further, s 131A of the Evidence Act 2008.
On 24 February 2012, his Honour delivered short oral reasons for permitting access to some of the subpoenaed materials. On the same day, his Honour delivered written reasons. His Honour’s written reasons deal with the applications by TCB Trans in the present matter, and Buildcorp Commercial in the Buildcorp Commercial matter. Specifically, his Honour’s written reasons[9] for granting access to the subpoenaed documents were as follows:
The Applicants sought access to documents subpoenaed from the Director of Public Prosecution (DPP) and Victorian Workcover Authority (VWA). The applications relate to the authorization by the DPP, pursuant to s 132(b) of the OccupationalHealthandSafetyAct 2004, to bring proceedings for an indictable offence, the time for bringing proceedings under s 132(a) having expired. The Applicants were required to show a legitimate forensic purpose for obtaining documents related to the exercise by the DPP of its power, and those of the VWA in seeking the exercise of that power.
I have had the opportunity of considering the judgment of Robson J in PatrickStevedoresHoldingsPtyLtdvTheDirectorofPublicProsecutionsandTheVictorianWorkcoverAuthority [2012] VSC 31. That decision deals with the same issues that arise in respect of the authorization, in the present case, by the DPP under s 132(b) to extend the time for the taking of proceedings by the Informant.
In the Patrick Stevedores case there was a finding that procedural fairness must be accorded by the DPP to a party whose accrued limitation right is liable to be deprived of an accrued limitation defence. That finding is squarely relevant to the applications before me.
The result that must be reached is that the Applicants are entitled to access to material subpoenaed from the Respondents, a legitimate forensic purpose having been established.
[9]Which were not in substance different from what his Honour pronounced orally.
In respect of access to specific documents, his Honour then provided a list of DPP documents and VWA documents to which access was granted as follows:
DPP documents:
OPP notes 15/10/2010 of meetings;
Memorandum dated 18/10/2010 of Nonie McGregor, OPP setting out request for exercise of the power under s 132(b), with attachments;
- 30/9/2010 email VWA to OPP
- 6/10/2010 email OPP to VWA and attachment
- 7/10/2010 email VWA to OPP
- 15/10/2010 letter VWA to DPP
- Advice of Ruth Shann of Counsel 14/10/2010
paragraphs 3 to 3.12;
25 to 27.1;
28 to 32.1;
35 to 35.4;
36 to 37.1;
Memorandum dated 18/10/2010 of Gavin Silbert setting out considerations in the exercise of power;
Authorization of DPP 20/10/2010 (Buildcorp);Letter 22/10/2010 OPP to VWA with attachment (authorization TCB).
VWA documents:
30/9/2010 email VWA to OPP;
6/10/2010 email OPP to VWA and attachment;
7/10/2010 email OPP to VWA;
8/10/2010 emails between OPP and VWA;
Advice of Ruth Shann of Counsel 14/10/2010
paragraphs 3 to 3.12;
25 to 27.1;
28 to 32.1;
35 to 35.4;
36 to 37.1;
11/10/2010 emails between OPP and VWA;Authorization of DPP 20/10/2010 (TCB and Buildcorp);
While his Honour’s written reasons dealt with the legitimate forensic purpose argument, they did not deal with the relevant claims for privilege. During the course of discussion on 24 February 2012, his Honour said with respect to privilege:
Therefore it is appropriate that there be accorded privilege in respect of that part of the advice that does not deal with the matters relevant to a consideration of the extension of time.[10]
[10]T2.11 – T2.14 of the transcript of 24 February 2012.
In summary, it appears that his Honour dealt with the privilege question by reference to whether a document produced was, or was not, relevant to the Acting DPP’s decision to give, or withhold, written authorisation under s 132 of the Act.
The orders sought in the present proceedings
In the Zmak proceeding, the plaintiff seeks:
(a)an order in the nature of certiorari quashing the decision made by Mealy M granting TCB Trans access to certain identified documents claimed to be privileged;
(b)a declaration that there was no legitimate forensic purpose for the summons to produce documents because the DPP was not obliged to accord procedural fairness to TCB Trans before giving a written authorisation under s 132 of the Act;
(c)a declaration that the documents claimed to be legally professionally privileged were subject to client legal privilege pursuant to ss 118 and 119 of the Evidence Act 2008; and
(d)an order in the nature of certiorari quashing the costs order made by Mealy M.
In the DPP proceeding, the plaintiff in that proceeding seeks:
(a)a declaration that the DPP was not obliged to accord procedural fairness to TCB Trans in relation to the decision made by the Acting DPP pursuant to s 132 of the Act;
(b)a declaration that various of the documents produced are protected by legal professional privilege;
(c)an order in the nature of certiorari quashing the decision of Mealy M granting TCB Trans access to the documents that are claimed to be privileged; and
(d)an order in the nature of certiorari quashing the costs order made by Mealy M.
In the TCB Trans proceeding, the plaintiff in that proceeding (TCB Trans) seeks:
(a)a declaration that Mealy M erred in refusing to grant TCB Trans access to some of the documents produced in answer to the summons the subject of the proceeding;
(b)an order in the nature of certiorari quashing so much of the decision of Mealy M as has the effect of denying TCB Trans access to all of the documents produced; and
(c)an order granting TCB Trans access to all of the documents produced.
In the Zmak proceeding, the documents in respect of which the plaintiff seeks a declaration that they were subject to client legal privilege are an advice from Ruth Shann of counsel dated 14 October 2010 and a letter from the VWA to the DPP dated 15 October 2010. In the DPP proceeding, the documents in respect of which a declaration is sought that the same contain communications protected by legal professional privilege are:
(a)the advice of Ms Shann referred to above and its annexures;
(b)draft minutes of an OPP meeting held on 15 October 2010;
(c)a memorandum of Nonie McGregor of the Office of Public Prosecutions to the Acting DPP dated 18 October 2010 and its attachments; and
(d)a memorandum of the Acting DPP to Nonie McGregor dated 18 October 2010.
The order made below
The actual terms of the order made on 24 February 2012 are set out in a certified extract dated 5 March 2012. Specifically, the Magistrates’ Court’s order is recorded as follows:
Adjourned to 9.30am on 29/03/2012 at Melbourne Magistrates’ Court
order applicant’s costs be paid by the respondents,
quantum to be agreed between the parties, in default liberty to apply;
liberty to apply relative to inspection of subpoenaed material;
committal date vacated.
There was debate before me as to who the “applicant” was and who the “respondents” were in the court order. Mealy M’s written reasons for decision are headed with the names of two applicants and two respondents. The two applicants are TCB Trans and Buildcorp Commercial. The two respondents are the VWA and the DPP. On a fair construction of the order set out in the certified extract, it appears that TCB Trans’s costs of the application for inspection were to be paid by the VWA and the DPP.
TCB Trans submitted before me that no order was made in the Magistrates’ Court that was capable of being the subject of judicial review. TCB Trans argued that all that had occurred was that the court had ordered that TCB Trans have liberty to apply in relation to the inspection of subpoenaed material. Further, it was submitted that the order did not foreclose the possibility of any such application to inspect the subpoenaed material by TCB Trans being able to be resisted by the DPP or Mr Zmak on privilege or other grounds.
I reject these submissions. When one examines closely the transcript of the hearing of 24 February 2012, it is clear that Mealy M determined the application for inspection of subpoenaed material in favour of TCB Trans – at least in relation to the documents to which I have already referred. During the course of the hearing on 24 February 2012, it became apparent that one or other of Mr Zmak and the DPP might seek to review Mealy M’s decision. It was in those circumstances that his Honour reserved liberty to apply.[11] That is, a fair reading of the transcript reveals that his Honour contemplated that if there was no judicial review proceeding instituted by Mr Zmak, the VWA or the DPP, then TCB Trans (consistently with his Honour’s reasons for decision) could come to the Court and apply (seek) to inspect the documents in respect of which it had already received a favourable ruling.[12]
[11]See generally, Abigroup Limited v Abignano (1992) 39 FCR 74, 88 where the Full Federal Court said:
“The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court’s orders. They include cases where a court may need to supervise the enforcement of orders, after they have been made.”
See further, Maritime Union of Australia v Geraldton Port Authority [2000] FCA 1342 [6]-[11] and the authorities cited therein.
[12]See T8 to T12 of the hearing on 24 February 2012 (and in particular T9.23 – T10.1).
I turn now to consider whether there was a legitimate forensic purpose for the issuing of the witness summons.
Was there a legitimate forensic purpose for the issuing of the summons?
In his reasons for ruling in favour of TCB Trans, Mealy M concluded that there was a legitimate forensic purpose for the issuing of the witness summons. In ruling that there was a legitimate forensic purpose, his Honour relied upon and followed the decision of Robson J in Patrick Stevedores Holdings Pty Ltd v DPP & Anor.[13] In that case, Robson J held that procedural fairness was required to be accorded by the DPP in relation to an application by the VWA to authorise proceedings against Patrick Stevedores Holdings for indictable offences against the Act outside the two year time limit referred to in s 132 of the Act.[14]
[13][2012] VSC 31.
[14]Ibid [69]-[70].
However, the decision of Robson J (which was delivered three and a half months after the conclusion of the argument before Mealy M) was appealed to the Court of Appeal. On 14 December 2012 (nine months after Mealy M delivered his decision in the present case), the Court of Appeal allowed an appeal from Robson J and set aside the declaration that the DPP was obliged to accord procedural fairness in relation to the application to authorise proceedings outside the two year time limit.[15]
[15]DPP v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300 (Maxwell P, Weinberg JA and Ferguson AJA).
In DPP v Patrick Stevedores Holdings Pty Ltd,[16] the Court of Appeal noted that under s 159(2) of the Criminal Procedure Act 2009, the DPP had the power, in any event, to file an indictment at any time.[17] After analysing the matter further, the Court of Appeal went on to “reach the conclusion that the Director was not required to afford Patrick Stevedores the hearing to which it claim[ed] to be entitled”.[18] Their Honours went on to give their reasons as follows:
[16]Ibid.
[17]Ibid [85].
[18]Ibid [130].
First, we consider that any decision pursuant to s 132(b) of the OHS Act has many of the hallmarks of a decision by the Director to consent to the institution of a prosecution. In each case, if a proceeding were brought without the requisite authorisation or consent, the defendant would be entitled to have the proceeding struck out or stayed. We can see no distinction between a precondition that must be satisfied before a proceeding is commenced, and one that must be satisfied only after a particular period has passed. In neither case can it truly be said that any substantive right on the part of a defendant is affected by the Director’s decision to permit the prosecution to go forward. At most, each decision exposes the putative defendant to a risk of conviction. That risk is the same, in both cases, as the risk that inheres in any situation where there is no anterior requirement of authorisation or consent.
Secondly, as we have noted, the Director’s role under the OHS Act is in key respects supervisory. He is responsible for the prosecution in this State of all serious indictable offences. When the Authority is unwilling to prosecute, but a request is made by another that a prosecution be brought, the Director’s statutory responsibility is to step in and advise. His right to bring prosecutions for indictable offences against the OHS Act is expressly preserved by the legislation.
Against that background, it would be incongruous if the Director were not obliged to consider the likely prospects of a conviction when determining whether to authorise a prosecution outside the two year period. While there might be some sympathy for Ministers and their staff in respect of the burden of assessing the strength of a proposed case in other areas, no such considerations apply in respect of the Director. Assessing the strength of potential prosecutions is, after all, a core element of the Director’s broader powers and functions.
One might ask rhetorically why, under the OHS Act, Parliament has chosen to make the Director, and not some other person, the decision-maker for authorising prosecutions brought after two years. The answer must be that it was intended that he would not only consider the reasons for the delay, but would also apply his expertise to assess the likelihood of the prosecution succeeding, and whether, in his opinion, the public interest requires it to be instituted. It seems clear to us that the Director must have regard to each and every one of these matters. It follows, almost inexorably, that his decision is not susceptible to judicial review. To the extent that the judge below arrived at a different conclusion, he was, with respect, in error.
…
Finally, we are fortified in our view (that the Director is not required to afford Patrick Stevedores a hearing before deciding whether to grant the authorisation sought) because a decision to that effect would invite extremely deleterious consequences. If the Director is required to accord procedural fairness, it must follow that any decision that he takes on this point is subject to judicial review. In many instances, this can only lead to unwarranted fragmentation of the criminal justice process, with attendant lengthy delay.
Once the possibility of judicial review of the Director’s decision is accepted, the door is opened to challenge as to the adequacy of any hearing afforded to Patrick Stevedores. The starting point might be a challenge to the adequacy of the disclosure of the documents provided to the Director concerning this matter, followed by a challenge to the procedures followed on review. This can lead to a litany of legal proceedings, at significant cost to the public, but, more importantly, involving lengthy delay.[19]
[19]Ibid [131]-[134] and [137]-[138] (citations omitted).
In reaching its conclusion that the DPP was not required to accord procedural fairness when giving a written authorisation under s 132 of the Act, the Court of Appeal held that “the authorisation decision is not, and should not be, susceptible to judicial review”.[20]
[20]Ibid [95].
In argument before me, senior counsel for TCB Trans conceded that I am bound by the Court of Appeal’s decision in DPP v Patrick Stevedores Holdings Pty Ltd.[21] However, in TCB Trans’s written submissions, TCB Trans sought to reserve the capacity to argue that the Court of Appeal decision was wrongly decided and that it was, in any event, distinguishable because:
(a) it concerned a prosecution sought to be commenced immediately after it was realized that the earlier prosecution, brought within time, had been commenced by a person not authorised to do so, whereas this prosecution was issued beyond the two year period, with no explanation for the delay, and without the DPP authorisation being served with the charge-sheet and summons;
(b) the proceeding involved an application to enjoin the process of considering whether to extend time, whereas this proceeding concerns a summons directed to ascertaining the basis upon which time was extended.[22]
[21][2012] VSCA 300.
[22]TCB Trans’s written submissions dated 8 March 2013 [52].
There is nothing in the differences between the Court of Appeal’s decision and the present case. In my view, the cases are relevantly indistinguishable so far as the proper construction, operation and application of s 132 of the Act is concerned.
It follows that the forensic purpose identified by Mealy M in his Honour’s reasons delivered on 24 February 2012 is not a legitimate forensic purpose. If that was the only forensic purpose identified by TCB Trans, then TCB Trans would not have been entitled to an order permitting inspection of the subpoenaed documents. However, in argument before Mealy M, TCB Trans identified a second forensic purpose which it contended was a legitimate forensic purpose. The second forensic purpose was described in TCB Trans’s outline of submissions below,[23] as follows:
[23]Dated 18 October 2011.
22. There is a distinct question in relation to the validity of the Acting Director’s decision. Section 132(b) provides no criteria for the exercise of the Director’s power. As Dixon CJ held:[24]
This Court has in many and diverse connexions dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative without defining the grounds on which the discretion is to be exercised … We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and what is its real object. If it appears that the dominating actuating purpose of the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion.
The documents sought in the Summons will necessarily throw light on the “dominating actuating purpose” pursued by the Acting DPP in this case when exercising the discretion to issue the purported written authority.
23. It follows that the documents sought in the subpoena relate to the question of whether the Director properly authorised the prosecution under s 132.
24. At the very least, it is “on the cards” that the documents sought would materially assist TCB in establishing the invalidity of the Director’s authorisation.[25]
[24]In Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473 McTiernan and Windeyer JJ concurring, cited with approval by Gleeson CJ in Jarratt v Commissioner of Police NSW (2005) 224 CLR 44, at 61.
[25]See also T48.13 – T49.9 and T77.26 – T82.26 of the hearing below on 18 October 2011.
In oral argument, senior counsel for TCB Trans developed this submission by reference to a passage in the Court of Appeal’s judgment in DPP v Patrick Stevedores Holdings Pty Ltd.[26] The Court of Appeal said:
It may be accepted that one purpose of the legislation is to ensure that, in general, prosecutions for indictable offences against … [the Act] are brought in a timely fashion, within two years of the offending, recognising, however, that there will be some cases where this will not be feasible. That that is so may be gleaned from the inclusion of s 132.[27]
[26][2012] VSCA 300.
[27]Ibid [72].
The argument was then sought to be made that there were reasonable grounds for thinking that prosecution in the present case may have been “feasible” within the two year period specified in s 132. From this it was submitted that the Acting DPP’s decision may be invalid if the commencement of the present prosecution was feasible before 8 October 2010. It was then said that if TCB Trans could establish these matters at committal, it would be entitled to be discharged at committal.[28]
[28]Cf s 141(4) of the Criminal Procedure Act 2009.
I reject these submissions. First, there is no warrant for reading into s 132 of the Act some requirement that the DPP is only permitted to give written authorisation in cases where the commencement of a prosecution was not feasible within the two year period: nothing said by the Court of Appeal in DPP v Patrick Stevedores Holdings Pty Ltd[29] supports any such approach. Indeed, as the Court of Appeal said:
The construction of the section “begins with the ordinary and grammatical sense of the words having regard to their context and legislative purpose”. And, as the High Court has said very recently, the task of statutory construction must likewise end with a consideration of the statutory text.[30]
[29][2012] VSCA 300.
[30]Ibid [71] (citations omitted).
Secondly, the decision to give a written authorisation under s 132 is, as the Court of Appeal said in DPP v Patrick Stevedores Holdings Pty Ltd,[31] not susceptible to judicial review. There is no reason to distinguish between a challenge that might be made by way of judicial review and a challenge of the kind that might be mounted relying upon the second forensic purpose contended for by TCB Trans.
[31]Ibid [95], [131]-[134] and [137]-[138].
Thirdly, the submissions of TCB Trans on this issue overlook the ability of the DPP to file an indictment at any time as discussed by the Court of Appeal in DPP v Patrick Stevedores Holdings Pty Ltd.[32]
[32]Ibid. See further, ss 156 and 159(2) of the Criminal Procedure Act 2009.
Fourthly, it is to be remembered that a magistrate has no jurisdiction to stay committal proceedings on the ground of abuse of process.[33] A magistrate hearing a committal has only the powers given to the Magistrates’ Court by statute.[34]
[33]Grassby v R (1989) 168 CLR 1; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667, 683 where Hunt CJ at CL said:
“A magistrate does not have any jurisdiction to stay committal proceedings where they constitute an abuse of process … . It would be quite improper for the magistrate to require the production of documents subpoenaed for production in the committal proceedings where their only relevance was to found a later application to either the Supreme Court or the District Court for a stay of proceedings.”
See further, McKenzie and Baker v Magistrates’ Court of VictoriaandLeckenby [2013] VSCA 81 [41]-[49].
[34]McKenzie and Baker v Magistrates’ Court of VictoriaandLeckenby [2013] VSCA 81 [41].
Section 141(4) of the Criminal Procedure Act 2009 provides:
At the conclusion of all of the evidence and submissions, if any, the Magistrates’ Court must –
(a)if in its opinion the evidence is not of sufficient weight to support a conviction for any indictable offence, discharge the accused; or
(b)if in its opinion the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged, commit the accused for trial in accordance with section 144; or
(c)if in its opinion the evidence is of sufficient weight to support a conviction for an indictable offence other than the offence with which the accused is charged, adjourn the committal proceeding to enable the informant to file a charge-sheet in respect of the other offence and if a charge-sheet is filed, must commit the accused for trial in accordance with section 144.
The magistrate is not given any other power to take any other step at the conclusion of a committal. He or she must take one of the three steps set out in s 141(4). Nothing in any other statutory provision[35] permits a magistrate to take a different step or to consider issues other than whether the evidence is of sufficient weight to support a conviction for a relevant indictable offence.
[35]And specifically, s 97 of the Criminal Procedure Act 2009 and s 25 of the Magistrates’ Court Act 1989. See further, McKenzie and Baker v Magistrates’ Court of Victoria and Leckenby [2013] VSCA 81 [54]-[58], and in particular at [58].
Fifthly, even if there was some permissible basis for challenging the Acting DPP’s decision before the magistrate, there was, in my view, no proper basis for issuing the witness summons. There is no material (and there was no material before the magistrate) capable of founding a reasonable basis for contending that the Acting DPP’s decision might be invalid. In this regard, the witness summons could fairly be described as no more than fishing.
It follows that there was no legitimate forensic purpose for the issuing of the witness summons. I turn now to consider the privilege issue.
Were any of the documents to which access was granted privileged?
Mealy M appears to have dealt with the parties’ submissions concerning legal professional privilege by reference to whether a document produced was or was not relevant to the Acting DPP’s decision to provide a written authorisation under s 132 of the Act.[36] The failure to deal with the privilege issues by reference to the relevant provisions of the Evidence Act 2008 (ss 118, 119 and 131A) constitutes jurisdictional error.
[36]See T2.11 – T2.14 of the transcript of 24 February 2012.
Subject to the submissions of TCB Trans that committal proceedings are not amenable to certiorari, and its further submission that the orders in this case are not amenable to judicial review, both sides accepted that if there was a relevant error entitling Mr Zmak and/or the DPP to relief, then this Court has jurisdiction to examine the documents[37] and give rulings with respect to privilege if the ruling to be given is the only ruling that is open on the material.[38]
[37]Cf AWB Ltd v Cole (No 5) (2006) 155 FCR 30, 47 [44(12)]. See also, s 133 of the Evidence Act 2008.
[38]See Osland v Secretary, Department of Justice (No2) (2010) 241 CLR 320, 331-333 [17]-[20] and in particular at 332-333 [20].
I was initially reluctant to embark on any exercise that involved examining the documents for the purpose of determining whether they were privileged. However, in the end I have been persuaded to do so in order to attempt to avoid what might otherwise be a multiplicity of applications and proceedings.[39] I turn now to consider the specific documents over which privilege is claimed.
[39]Cf s 29 of the Supreme Court Act 1986. Although, I should say for the sake of completeness, that in my view, the reliance that was placed by the DPP upon “subpoena cases” (specifically, Commissioner of Australian Federal Police v PropendFinance Pty Ltd (1997) 188 CLR 501, and at first instance Propend Finance Pty Ltd vCommissioner of Australian Federal Police (1994) 35 ALD 25) for the proposition that courts exercising judicial review jurisdiction regularly or frequently re-determine (or determine for themselves) privilege questions was misplaced. As the Propend decisions disclose, the judge at first instance in that case (Davies J) was required to consider privilege questions in the absence of any hearing before a tribunal where such matters had been ventilated. Those cases are very different from a case like the present where this Court is called upon to review a question that fell for determination before the tribunal or court below. Ordinarily, in such circumstances, this Court would not embark upon any such examination where questions of fact, or questions properly to be determined by the court or tribunal below, fall for determination. It is only where there is only one finding that is open that this Court could have jurisdiction to engage in such an exercise.
I have examined the advice of Ms Shann (including its annexures). The advice is a confidential communication between a client and its lawyer. The only conclusion open on the material is that the advice is privileged pursuant to s 118 of the Evidence Act 2008.[40] The disclosure of the advice to the DPP does not destroy the privilege. Again, the only conclusion open is that there is a relevant common interest pursuant to s 122(5)(c).
[40]In respect of this document, the VWA (Mr Zmak) is also entitled to rely on the privilege referred to in s 119 of the Evidence Act 2008.
The draft minutes of the OPP meeting held on 15 October 2010 are, on their face, privileged pursuant to s 118 of the Evidence Act 2008. The same is also clear in respect of the memorandum of Nonie McGregor to the Acting DPP and its attachments[41] and the memorandum of the Acting DPP to Ms McGregor.
[41]As to attachments, copy documents and the like, see generally Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.
The letter dated 15 October 2010 from the VWA to the DPP was not produced separately in this proceeding. It was produced as an annexure to the memorandum of 18 October 2010 from Nonie McGregor to the Acting DPP. In such circumstances, it (together with the other annexures to that memorandum) is privileged as forming part of the same communication made by the memorandum. While I can find no standalone version of the 15 October 2010 letter, I should say for the sake of completeness that a standalone copy of this letter produced by the DPP would also be privileged under s 118 of the Evidence Act 2008.[42]
[42]See further s 122(5)(c) of the Evidence Act 2008 – there being a relevant common interest between the VWA and the DPP.
On the material before Mealy M, his Honour, upon examination of each of the documents to which I have referred, was bound to conclude that each was the subject of a valid claim for client legal privilege.
Is certiorari available?
In permitting TCB Trans to inspect the documents produced by the DPP on summons without there being any legitimate forensic purpose, and in failing to rule that such documents were the subject of client legal privilege, the magistrate committed jurisdictional error.[43] However, TCB Trans submits that the magistrate’s decision, having been made in the course of committal proceedings, is not amenable to certiorari. In support of this submission, TCB Trans relies upon the Court of Appeal’s decision in Potter v Tural.[44]
[43]Kirk v Industrial Court of New South Wales & Anor (2010) 239 CLR 531. See further, note 58 below.
[44](2000) 2 VR 612.
As the learned authors of Aronson and Groves note, there is a long running debate as to the amenability to certiorari of a magistrate’s decision whether to commit a defendant for trial on an indictable offence.[45] The argument that certiorari does not run is that a committal decision “determines nothing”. And, as such a decision does not affect rights, it does not afford a subject matter to quash. That said, Aronson and Groves go on to note:
The High Court has not decided whether certiorari lies to committal decisions, although some judgments seem to be more consistent with the view that it does.[46]
[45]M. Aronson & M. Groves, Judicial Review of Administrative Action (Thompson Reuters, 5th ed, 2013) [12.170].
[46]See Amman v Wegener (1972) 129 CLR 415, 435-6; Sankey v Whitlam (1978) 142 CLR 1, 22-23 and 83-84.
In Potter v Tural,[47] Batt JA[48] dealt with the issue as follows:
It is established by a long line of authority in Victoria that a magistrate's order committing for trial or refusing to commit is ministerial and not judicial and also is not amenable either to certiorari (as I shall for convenience call relief in the nature of certiorari to quash) or to appeal under statutory appeal procedures replacing certiorari. The better view as to the ground of the latter proposition is now considered to be, not the ministerial nature of the order, but the fact that it determines nothing save the sufficiency, in the magistrate's opinion, of the evidence to put the defendant upon trial for an indictable offence. Although the law in some States, in the Federal Court and in England, Wales and Northern Ireland may be different in some cases at least as a result of legislation, neither respondent sought to challenge the Victorian authorities (assuming that a challenge would have been possible before the Court as presently constituted). Now, the principal purpose of a committal hearing is to determine whether in substance, however the precise test may be phrased, the evidence is sufficient to warrant the defendant's being put on trial for an indictable offence. If a decision or order effectuating that purpose is not amenable to certiorari, it seems to me impossible for a preliminary decision or ruling made on the way to effectuating that purpose, even if denominated an order, to be amenable to certiorari: the greater comprehends the lesser. The judgment of Smith J in Phelan v Allen makes this clear. Neither respondent could have waited until the conclusion of the committal proceeding and, if he was committed for trial, have then obtained certiorari to quash that decision on the basis that cross-examination of the alleged victim or victims had been refused erroneously, for, as stated, the decision to commit would not have been amenable to certiorari. I cannot accept that by moving earlier but on the same basis the respondent could obtain certiorari.[49]
[47](2000) 2 VR 612.
[48]With whom Tadgell JA agreed.
[49](2000) 2 VR 612, 617-8 [20] (footnotes omitted).
In the same case, Callaway JA dealt with the issue as follows:
It is well established in this State that an order in the nature of certiorari will not lie to quash the decision of a magistrate to commit, or not to commit, an accused person for trial. The whole of the committal proceeding is directed to that ultimate, non-reviewable decision, even if the proceeding also fulfils the important incidental function of informing the accused of the case against him or her. If the ultimate decision does not affect rights, and therefore does not afford a subject matter to quash, a decision in running can be in no better case from the point of view of an applicant. That is my reason for deciding the first question as I do, but I think there is much to be said for the view that a refusal of leave to cross-examine a witness is in any event not a “decision affecting rights” in the sense in which that expression is used in the law relating to certiorari.[50]
[50]Ibid [3] (citations omitted).
In Potter v Tural,[51] the decision in respect of which certiorari was sought was a decision by the magistrate hearing the committal to refuse leave to cross-examine a witness. The reasoning of the Court of Appeal was that a decision to commit or not commit for trial is not amenable to certiorari in Victoria. Therefore, any decision along the way which might affect the decision whether to commit or not commit, is similarly not amenable to certiorari.
[51](2000) 2 VR 612.
However, the present case is different. The decision made by Mealy M was not merely a decision along the way to a determination as to whether TCB Trans should be committed for trial. The decision was one which affected fundamental common law rights possessed by the DPP and Mr Zmak (as the person authorised by the VWA to prosecute the proceeding against TCB Trans).[52] Legal professional privilege is a fundamental common law right. As was said by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission:
Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity.[53]
[52]Cf s 130 of the Act and the written authorisation dated 5 November 2010 signed by the Deputy Chief Executive and Executive Director, Health & Safety, Victorian WorkCover Authority.
[53](2002) 213 CLR 543, 553 [11].
The decision of the magistrate in this case affected important common law rights possessed by the DPP and Mr Zmak. To the extent that Potter v Tural,[54] might be capable of being read as having application to any decision made by a magistrate conducting committal proceedings, it needs to be read in the context of its own facts. As was said by the Earl of Halsbury LC in Quinn v Leathem:
Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of expressions which may be found there are not intended to be expressions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.[55]
[54](2000) 2 VR 612.
[55][1901] AC 495, 506. See further, Donellan v Watson (1990) 21 NSWLR 335, 343 (Handley JA).
The proposition that every decision made in committal proceedings is immune from certiorari is not supported by any of the authority I was taken to in the course of the hearing of these proceedings. That any such proposition is wrong, may be demonstrated by looking at the result and orders made in McKenzie and Baker v Magistrates’ Court of Victoria and Leckenby,[56] where the effect of the Court of Appeal’s orders was to quash a decision of the Magistrates’ Court refusing to set aside two witness summonses.
[56][2013] VSCA 81.
Further, the fallacy of the proposition advanced by TCB Trans may also be demonstrated by this Court’s decisions in respect of applications for judicial review of orders made by magistrates under s 126 of the Magistrates’ Court Act 1989 during the course of committal proceedings. Section 126 of the Magistrates’ Court Act 1989 is the section which gives a magistrate power to prohibit publication of the report of the whole or any part of a proceeding. Routinely in this court, orders made under this section are the subject of judicial review proceedings. In no case has this Court ever held that certiorari does not lie in respect of such a decision.[57]
[57]See generally, DPP v Dale (2010) 30 VR 282; The Age Company Limited v Magistrates’ Court of Victoria [2004] VSC 10 [8] (Kaye J); Herald and Weekly Times Limited v Johnston [2001] VSC 439. See further, Herald and Weekly Times Limited v Magistrates’ Court of Victoria (2000) 2 VR 346 (Tadgell, Charles and Chernov JJA); DPP v Theophanous (2009) 27 VR 295 (Osborn J (as his Honour then was)); and DPP (Commonwealth) v Magistrates’ Court of Victoria [2011] VSC 593 (T Forrest J).
The resolution of these proceedings
As I have said above, in permitting TCB Trans to inspect the documents produced by the DPP on summons without there being any legitimate forensic purpose, and in failing to rule that the documents the subject of these proceedings were the subject of client legal privilege, the magistrate committed jurisdictional error.[58]
[58]Albeit that in ruling that there was a legitimate forensic purpose, his Honour was following (as he was then bound to do) the first instance judgment in Patrick Stevedores Holdings Pty Ltd v DPP & Anor [2012] VSC 31.
The present case is not merely a case where judicial review is sought on a question of evidence or procedure. As I have already said, legal professional privilege is an important common law right. While an application for judicial review concerning a question of evidence or procedure might require the showing of circumstances which are exceptional before relief might be given,[59] that is not this case. If the magistrate’s orders were allowed to stand, important common law right would be adversely affected. In the circumstances, certiorari should be granted in respect of the impugned order permitting inspection of the relevant documents. This is not a case where considerations such as the undesirability of fragmenting the criminal process militates against the granting of judicial review.[60] Similarly, and for like reasons, there should be declarations that the relevant documents are subject to client legal privilege.[61]
[59]Cf Sankey v Whitlam (1978) 142 CLR 1, 25 (Gibbs ACJ).
[60]Cf Sankey v Whitlam (1978) 142 CLR 1, 80 (Stephen J) and 82 (Mason J (as his Honour then was)).
[61]Or legal professional privilege.
Subject to hearing argument about the appropriate form of order, I propose the following orders:
(a)In the DPP proceeding, an order:
(i)quashing the decision of the Magistrates’ Court given on 24 February 2012 in case number A13506601 giving TCB Trans access to:
(w)the memorandum of advice of Ruth Shann dated 14 October 2010 and its annexures;
(x)the draft minutes of the OPP meeting of 15 October 2010;
(y)the memorandum of Nonie McGregor to the Acting DPP dated 18 October 2010 and its attachments; and
(z)the memorandum of the Acting DPP to Nonie McGregor dated 18 October 2010;
(ii)declaring that the documents referred to in sub-paragraph (i) above contained communications protected by legal professional privilege; and
(iii)declaring that there was, and is, no legitimate forensic purpose for the issuing of the witness summons addressed to the DPP in proceeding number A13506601.
(b)In the Zmak proceeding, an order:
(i)quashing the decision of the Magistrates’ Court given on 24 February 2012 in case number A13506601 giving TCB Trans access to:
(y)the memorandum of advice of Ruth Shann dated 14 October 2010; and
(z)the letter from the VWA to the DPP dated 15 October 2010;
(ii)declaring that the documents referred to in sub-paragraph (i) above were subject to client legal privilege pursuant to s 118 of the Evidence Act 2008, as modified by s 131A of that Act; and
(iii)declaring that there was, and is, no legitimate forensic purpose for the issuing of the witness summons addressed to the DPP in proceeding number A13506601.
(c)In the TCB Trans proceeding, an order dismissing the plaintiff’s proceeding.
I will hear the parties in each proceeding on any question of costs.
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CERTIFICATE
I certify that this and the 20 preceding pages are a true copy of the reasons for Judgment of Justice Beach of the Supreme Court of Victoria delivered on 17 June 2013.
DATED this seventeenth day of June 2013.
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