Appellant v Respondent

2 Detective Sergeant Mitchell, the respondent to this appeal, applied to the Magistrates' Court for the file to be released to police investigators. Mr Wilson, a client of S & G, maintained a claim of client legal privilege over the file. The Magistrate hearing the matter determined that, to the extent that the contents of the file were properly the subject of client legal privilege, the privilege was lost because the relevant documents had been prepared in furtherance of the commission of a fraud.[2] His Honour ordered that the file be provided to police. Mr Wilson seeks to appeal that order under s 109 of the Magistrates' Court Act 1989.

3 Section 109 provides that a party to a civil proceeding in the Magistrates' Court may appeal to this Court on a question of law if the order appealed from is a 'final order in that proceeding.' The appeal is not a rehearing - it is a stricto sensu appeal.[3] For the appeal to succeed, it will be necessary for the appellant 'to identify a relevant error of law made by the Magistrate before he is entitled to relief from this Court.'[4] The appeal must be determined on the basis of the materials before the Magistrate and the law as it existed at the time when the original order was made.[5]

4 It is not disputed that the original hearing was a 'civil proceeding' within the meaning of s 109. It is also clear that the Magistrate's order is a final order within the meaning of that section.[6]

(1) Whether the learned Magistrate erred in law by admitting into evidence three hearsay statements of Ralph Blewitt made 23 November 2012 ('the Blewitt statements'). There are three bases upon which error under this head is said to be made out -

(a) Failure to serve a hearsay notice under s 67 of the Evidence Act 2008 ('The Act');

(b) Failure to comply with s 64(2) of the Act. It was not open to his Honour to conclude that calling Mr Blewitt would cause undue expense, delay or be reasonably impracticable; and

(c) Failure to exclude the Blewitt statements under s 135 of the Act.

(2) Whether the learned Magistrate erred in law by admitting into evidence, or if not admitted, by relying upon in his reasons, transcript of an interview between the appellant and an ABC news reporter.

6 I shall set out a brief factual background to this appeal. In 1991, Bruce Wilson was the Secretary of the Western Australian branch of the Australian Workers Union ('AWU'). Ralph Blewitt was his assistant secretary. The police allege that Blewitt and Wilson engaged in a fraud practised upon the AWU and Thiess Contractors Pty Ltd ('Thiess'), a large engineering contractor. In short compass, it is alleged that Wilson and Blewitt, ostensibly acting on behalf of the AWU, negotiated a site agreement with Thiess over the life of the very large Dawesville Construction Project. Thiess agreed to pay and did pay for a 'Workplace Reform' adviser. This person was to be an AWU member paid $35.00 per hour for a maximum of 56 hours per week. Thiess also agreed to pay an additional $2.00 per hour to AWU workers in return for a 'no extra claims' agreement from the Union.

7 The allegation is that monies paid by Thiess for these purposes were appropriated by Wilson and Blewitt. It is alleged that a body known as the Australian Workers Union - Workplace Reform Association Inc (AWUWRA) was established by Wilson for the purpose of receiving the Thiess payments. The payments were kept secret from the AWU and the funds were ultimately appropriated by Wilson and, to a lesser extent, Blewitt.

8 The substance of these allegations was put before the Magistrate at the initial hearing of this application in September 2013. At that hearing, Mr Wilson maintained his claim of client legal privilege over the file. The applicant sought to prove that the relevant documents had been prepared in furtherance of the fraud by filing an affidavit sworn by Detective Sergeant Mitchell in which he outlined the progress of the investigation including representations said to have been made by various witnesses. This material was clearly hearsay, objected to by Mr Wilson, and ultimately not acted upon by his Honour.

9 The matter was adjourned to enable the applicant to assemble admissible evidence in support of its fraud allegation. On 2 December 2013, the hearing resumed. The applicant tendered affidavits from the following witnesses:

(a) Detective Sergeant James McDonald which exhibited three statements made by Ralph Blewitt on 23 November 2012;

(b) Detective Sergeant Mitchell exhibiting a transcript of an interview between Bruce Wilson and a reporter from the 7.30 Report;

(f) Mr Michael Smith, which exhibited a USB memory stick on which was a recording of a conversation between Ralph Blewitt and Mr Smith.

The exhibits to (a) and (b) above are the subject of the appeal grounds.

10 Counsel for Mr Wilson objected to reception of the Smith, McDonald and further Mitchell affidavits on the basis that the representations contained within the exhibits to those affidavits were hearsay. Counsel for the police, Mr Gipp, did not dispute that the representations were hearsay, but contended that hearsay was permissible in this type of proceeding or that exceptions to the hearsay rule permitted the Court to receive the evidence.

Appeal Ground 1 - Did his Honour err in admitting into evidence the three statements of Ralph Blewitt?

11 Client legal privilege is a fundamental principle of the common law. It enhances the administration of justice by facilitating the representation of clients by their legal advisors.[7] Clients can only consult their lawyers with 'freedom and candour' within the protection afforded by the privilege.[8] The privilege ought not readily be set aside, and if it is to be set aside, then only on the basis of admissible evidence.[9]

12 If the Blewitt statements were properly admitted into evidence on the application, then on their face they prove the fraud and thus client legal privilege attaching to the relevant documents will be lost. Mr Gipp argued to his Honour that these hearsay statements were admissible in this type of proceeding and any weight to be given them was a matter for his Honour. No authority was advanced for this proposition and, in my view, his Honour correctly rejected it. The proceedings were not interlocutory in nature and s 75 of the Act was not engaged. As I have said, the removal of client legal privilege is a final determination of a fundamental legal right.

13 Mr Gipp's fall-back position was ultimately accepted by his Honour. He submitted that the Blewitt statements, whilst hearsay, were admissible under s 64(2) of the Act, that there were reasonable grounds for finding that a fraud had taken place, the relevant privileged documents were prepared in furtherance of that fraud and thus client legal privilege attaching to those documents had been lost.

(a) some of the documents within the file were properly the subject of client legal privilege;[10]

(b) the Blewitt statements were hearsay but admitted through the s 64(2) exception to the hearsay rule;

(c) there were reasonable grounds for finding that a fraud had taken place;

(d) the relevant documents were prepared in furtherance of the commission of that fraud; and

(e) any client legal privilege attaching to those documents is lost and the whole file should be released.

15 His Honour's reasons demonstrate that he relied heavily on the Blewitt statements in proof of the fraud. The statements proved the background to the fraud, the setting up of the AWUWRA its ostensible objects and its true purpose, Thiess payments to the AWUWRA and the appropriation of those funds by Wilson and Blewitt. His Honour concluded:

(t)he evidence of Blewitt establishes that Thiess was deceived. It believed it was paying for a particular service. The Association provided no such service. Wilson bought a home with some of the Thiess[11] payments. Only he knows what happened to the rest.

16 As I have said, his Honour admitted the three hearsay Blewitt statements through the evidentiary gateway of s 64(2) of the Act. It is common ground that the three statements contained previous representations about asserted facts made by Ralph Blewitt, who was available to give evidence about those facts.[12] Section 64(2) provides:

The hearsay rule does not apply to:

(a) ...

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation;

if it would cause undue expense or undue delay, or would not reasonably be practicable, to call the person who made the representation to give evidence. It ought be noted that the party seeking to adduce the hearsay evidence is required to give notice to other parties in accordance with s 67 of the Act.

17 The only evidence about Mr Blewitt's availability and whereabouts came from the first Mitchell affidavit:

Blewitt, who resides in Malaysia, wished to come forward and make a 'full and frank' statement ...[13]

Mr Gipp at both the Magistrates Court hearing and on this appeal contended that this was sufficient to engage s 64(2) of the Act. His Honour agreed with this submission and ruled as follows:

...it would seem to me to involve undue delay if such a (notice) requirement was made and secondly undue expense in the context of what we are dealing with.

His Honour ruled that he would admit the statements 'in the absence of the maker ... [and in] ... the absence of notice under s 67.'

18 Mr Aghion who appeared with Ms Haban-Beer for Mr Wilson submitted to this court that it was not open to his Honour to make these findings.

19 Any consideration of whether expense or delay is undue requires consideration of the significance of the impugned asserted facts said to be proved by the representations and the nature of the proceedings.[14] In Caterpillar Inc v John Deere Ltd (No 2), Heerey J, while considering 'undue expense', considered these matters relevant:

• the actual cost of securing the attendance of the witness;
• a comparison of that cost to the value of what is at stake in the litigation; and
• an assessment of the importance of the evidence the witness might give.

Whether a delay is undue will depend not just on the delay itself but also upon what is at stake in the litigation.

20 In my view on the material before him, it was not open to his Honour to conclude that to call Blewitt as a witness would involve undue cost, delay or be reasonably impracticable. The issue at stake was far from trivial and the Blewitt evidence was central to the application. I consider that the mere assertion by a party that a witness resided in Malaysia is insufficient to establish this exception. Audio-visual links are a fact of modern litigation.[15] Had the police served a s 67 notice of its intention to rely on s 64(2), it may well have been a simple matter to secure Mr Blewitt's attendance for cross-examination via an audio-visual link.

21 It follows that I consider that s 64(2) was not engaged as an exception to the hearsay rule and thus the Blewitt statements, on the material before the Magistrates' Court, ought not to have been admitted into evidence on the application.

22 It is unnecessary to consider the failure to serve a s 67 notice as a separate ground. It is also unnecessary to determine the s 135 discretionary argument mounted by the appellant. It was not argued at all in the Magistrates' Court and pursued with little enthusiasm before me.

Appeal Ground 2 - Was the transcript of an interview between the appellant and an ABC news reporter wrongly admitted?

23 The short answer to this question is no. The appellant gave an interview to the ABC's 7.30 Report on 27 November 2012. It is clear that his Honour relied on certain aspects of this interview as providing admissions against the appellant's interests:

Then there is the remarkable interview ... (given) ... to the 7.30 Report. There Wilson admits the Association's purpose was to fund election campaigns. There is no mention of "Workplace reform". He even ponders whether he used the expression "slush fund" when speaking to solicitors. He then admits using its moneys to buy the property, justifying its use by saying it was not union money.

24 The term 'admission' is defined in the dictionary to the Act. Relevantly, an admission is a representation made by a party to the proceedings and adverse to the maker's interest in the outcome of the proceedings. Although his Honour did not explain the basis upon which he admitted the transcript of the interview, it is abundantly clear that it was admitted pursuant to s 81 of the Act. The hearsay rule does not apply to evidence of an admission. It did not apply to the transcript which was correctly admitted as an admission and thus as an exception to the general hearsay rule.

25 In discussion Mr Gipp urged upon me that even if I were to find the Blewitt statements ought not to have been admitted on the application, the balance of admissible evidence including the ABC interview was sufficient for a finding of fraud in the terms of s 125 of the Act.

26 Whilst there is a pragmatic attraction to this course, as I have observed earlier in these reasons, this is an appeal stricto sensu and not a rehearing. The Blewitt statements were inadmissible and I am unable to say whether, but for those statements, his Honour would have been satisfied as to the existence of the fraud.

27 In my view it is appropriate to remit the matter to the Magistrates Court for rehearing on the evidence that was properly before the Court on 2 December 2013. It is also appropriate that the matter be heard by the Magistrate who determined the matter originally as his Honour is well acquainted with the material and arguments. I can see nothing in either the transcripts of the hearing or in his reasons that ought preclude his Honour from rehearing the matter in this way.

28 I will hear the parties as to the proposed form of orders.

[1] Under s 465 Crimes Act 1958.

[3] Carter v Ried [1992] VicRp 22; (1992) 1 VR 351 at 363; Melbourne Cricket Club v Clohesy [2005] VSC 29; (2005) 14 VR 206 at 218.

[4] Fiorelli Properties Pty Ltd v Professional Fencemakers Pty Ltd [2011] VSC 661 at [43].

[6] Although a practical result of the order might have been further proceedings, its legal effect was to finally determine the rights of the parties in respect of the release of the Bruce Wilson file: see, Kinex Exploration Pty Ltd v Tasco Pty Ltd [1995] VicRp 58; [1995] 2 VR 318 at 320.

[7] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 685.

[8] Baker v Campbell (1983) 153 CLR 52, 66.

[9] Kang v Kwan [2001] NSWSC 697 at [37](5) per Santow J. Overturned on appeal but not on this issue. See Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545 at 587.

[10] His Honour did not identify which documents were so privileged.

[11] R v Derby Magistrates' Court, Ex parte B [1995] UKHL 18; [1995] 4 All ER 526 at 541.

[12] Thus satisfying s 64(1) of the Act.

[13] Affidavit of Detective Sergeant Ross Mitchell sworn 6 September 2013, para 16(L).

[14] Australian Competition and Consumer Commission v CC (New South Wales) Pty Ltd (1998) ATPR 41 - 650 per Lindgren J.

[15] Evidence (Miscellaneous Provisions) Act 1958, Part IIA, Division 2.