Garde-Wilson v Corrs Chambers Westgarth & Anor [2007] VSC 235

Supreme Court of Victoria|2007-07-03|Before: BELL J

THE APPLICATION TO RESTRAIN CORRS CHAMBERS WESTGARTH

7 Under federal-state legislation,[1] Victoria has a scheme for conducting coercive examinations. An examiner[2] can question a person for the purpose of special operations or investigations concerning serious organised crime.[3] The examiner can summon a person to give evidence.[4] It is an offence for a person to fail to attend at an examination in answer to a summons or to refuse to answer questions that the person is required to answer by the examiner.[5] Evidence is given on oath[6] and it is an offence for a person to give false or misleading evidence.[7]

9 The Act limits the use that can be made of answers given on an examination. The answers are not admissible in evidence against a person in a criminal proceeding or a proceeding for the imposition of a penalty.[14] One of the limited exceptions is a proceeding in respect of the falsity of the answer.[15]

10 The plaintiff testified before the examiner on 22, 23 and 24 June 2004. On 22 and 24 June the examiner made a direction prohibiting publication of her evidence and any documents produced in the examination.[16]

11 After considering the plaintiff's evidence, the ACC asked the OPP to consider prosecuting her for giving false evidence at the examination, and four charges were brought. On 4 April 2005, the CEO varied the examiner's direction to allow the evidence obtained in the examination to be published to Victoria Police for the purpose of that prosecution.[17] I will refer to the direction and the variation simply as the direction.

12 As at April 2005, the direction relevantly prohibited the publication of the plaintiff's evidence other than to Victoria Police for the purpose of the false evidence prosecution. No exception was made permitting a magistrate to release the evidence to the media, the media to release it to the public, the DPP or the OPP to release it to Corrs or that firm to release it to the Board, its counsel or the plaintiff.

13 The committal for the false evidence charges was held in the Magistrates' Court at Melbourne on 5 and 6 March 2007. The magistrate committed the plaintiff for trial on the charges. With the consent of counsel for the prosecution and the defence, and the agreement of the legal representative of the ACC, who was also present, and without anybody adverting to the direction, the magistrate allowed the media to have access to four pages of the transcript of the plaintiff's evidence to the examiner, being the pages relevant to the charges.

14 It is clear that the media accessed the transcript because shortly afterwards there were newspaper reports of this aspect of the plaintiff's evidence to the examiner.[18]

The plaintiff's application for renewal of her certificate

15 The plaintiff is a lawyer holding a practising certificate under the Legal Profession Act 2004 and its statutory predecessor, the Legal Practice Act 1998. As she was obliged to do, in early April 2006 she applied for renewal of her certificate for 2006/2007.[19]

16 On 7 December 2006 the Board refused the application, partly because of the circumstances giving rise to and surrounding the plaintiff being charged with giving false evidence and possessing a firearm and partly because of the circumstances giving rise to and surrounding her being convicted for contempt of court.[20] The firearm charge and the conviction are not relevant to this case.

17 The plaintiff responded by applying to the Victorian Civil and Administrative Tribunal for review of the decision. She also applied to this Court for judicial review, but I recently dismissed that application because the plaintiff had an adequate alternative remedy in the Tribunal.[21]

18 Corrs are the solicitors for the Board in the proceedings in the Tribunal, which have not yet been heard.

19 As I said, the circumstances giving rise to and surrounding the charging of the plaintiff with giving false evidence were a ground of the Board's refusal to renew the plaintiff's certificate. Therefore the proceedings in the Tribunal would necessarily involve that subject. Corrs, on behalf of the Board, wanted to obtain evidence of the charging and the circumstances and took various steps to do so.

20 It first asked the OPP for a copy of the material presented against the plaintiff at the committal, which was assembled in a hand up brief. Corrs did not know, but the full transcript of the plaintiff's evidence before the examiner was in that brief. The solicitor at the OPP refused Corrs' request because the plaintiff was contesting the allegations and the presumption of innocence applied to her. If I may say so, this is important advice that everybody should keep firmly in mind.

21 When that approach failed, senior counsel for the Board raised the matter directly with the DPP, who authorised the OPP to release the hand up brief to Corrs, subject to an understanding that anything not in the public domain would be kept restricted if its publication would jeopardise the plaintiff's criminal trial.

22 There is no evidence the OPP or the DPP told Corrs about the direction.

23 A copy of the hand up brief was collected from the OPP by a recently admitted solicitor in the Corrs litigation department. Subject to the direction of a partner at the firm, the solicitor had carriage of the Board's matter in the Tribunal. As you will see, he has had a baptism of fire.

24 The solicitor read the hand up brief, including the transcript. He saw the direction at the end of it. He did not think the direction was current. Nor did he appreciate its significance. Given his inexperience, this is not surprising. He copied the brief, including the transcript, and sent it to the Board and senior and junior counsel, who were not the counsel representing Corrs in the case before me.

25 Other than that solicitor, nobody at Corrs read the transcript, and he discussed its contents with nobody at that firm or the Board. It follows that he did not discuss it with his principal. There is no evidence he was required to do so, as might have been expected.

26 The copy of the hand up brief was retrieved from the Board before anybody there read it, in circumstances I will shortly relate.

27 The two counsel read the transcript. The solicitor also discussed its contents with them. I infer this was to determine how it might be used against the plaintiff in the proceedings in the Tribunal. There is no evidence of what counsel's reactions were, if any, to reading the direction, or of what advice, if any, they gave in relation to it.

28 Knowledge of the contents of the transcript is thus relevantly confined to the solicitor and the Board's two counsel.

29 To return to the proceedings in the Tribunal, the parties were required to exchange documents they might rely on at the hearing of the application for review. Corrs was due to file and serve the Board's documents, and wanted to include the hand up brief. The OPP wanted to ensure the plaintiff's trial would not be prejudiced by the publication, in the Tribunal, of documents in the brief. It wanted to be heard on the question of what orders should be made to protect the integrity of the plaintiff's criminal trial. In anticipation of that being a question to be considered, Corrs served the Board's documents, including the brief, on the plaintiff, but did not include the brief in the documents it filed with the Tribunal. Corrs advised the Tribunal it intended to seek orders confining access to the brief to the Tribunal and the parties.

30 When the plaintiff received the documents from Corrs, she saw the hand up brief with the transcript and contacted her senior counsel. He brought the direction to the attention of the Board's senior counsel and sought, from the Board and Corrs, an undertaking that the transcript would not be used or further published. The undertakings were given, and later extended in appropriate terms. Corrs also put appropriate measures in place for the safe keeping of the transcript.

The response of the Australian Crime Commission and its current investigation

31 When the ACC found out what had happened, it wrote a long letter to Corrs.[22] It makes interesting reading. It set out the full text of the direction and the variation. It expressed the view that publication of the transcript remained prohibited, even as part of the hand up brief. It said the transcript arguably could not be used in the proceedings in the Tribunal because they were for the imposition of a penalty.[23] It then said this:

The Commission is of the view that the non-publication direction(s) has been breached in the provision of the transcript and requests that all copies of the transcript of the examination of Ms Zarah Garde-Wilson before the Australian Crime Commission on 22, 23 and 24 June 2004 be returned to the Office of Public Prosecutions forthwith.

32 Corrs complied with that request. The solicitor collected all copies of the transcript that he had made, including those sent to the Board and its counsel, and returned them to the OPP.

33 It can be seen that the response of everybody at Corrs, and of the Board's senior and junior counsel, and of the Board, once the direction was brought to their attention, was faultless.

34 The ACC still has the matter under consideration. Its latest advice of 11 May 2007 to the plaintiff was that "advice is currently being sought from the Office of Public Prosecutions as to whether there has been a breach of the ACC examiner's non-publication direction and whether any further action ought to be taken in relation to this matter."[24] At the hearing of the plaintiff's application for the injunction, the ACC's legal representative told me non-publication orders were made "to protect the well-being of persons charged with criminal offences" and that she was present to signify the ACC's support for the statutory process of protecting transcripts of evidence given at examinations.

The jurisdiction of the Court to restrain lawyers from acting for a client

35 In my recent judgment in Main-Road Property Group v Pelligra & Sons,[25] I set out the Court's jurisdiction in these terms:

The court possesses jurisdiction to restrain a party from engaging lawyers, or to restrain lawyers from acting, whether they be solicitors or barristers, on any one of these three grounds: to prevent the possible disclosure or misuse of confidential information (broadly defined) obtained by them when acting for a former client, to prevent them from acting against a former client when this would be a breach of their fiduciary duty of loyalty and to protect the integrity of the judicial process.[26]

36 I think these same principles apply to proceedings in an administrative tribunal, such as the Victorian Civil and Administrative Tribunal.

37 The first ground relates to a possible misuse of confidential information. The principles were stated by Nettle J in Sent v John Fairfax Publication Pty Ltd[27] as follows:

Authority establishes that the court will restrain a legal practitioner continuing to act for a party to litigation if a reasonable person informed of the facts might reasonably anticipate a danger of misuse of confidential information of a former client and that there is a real and sensible possibility that the interest of the practitioner in advancing the case in the litigation might conflict with the practitioner's duty to keep the information confidential, and to refrain from using that information to the detriment of the former client.[28]

38 In some cases the lawyer who obtained the information has no immediate recollection of it and may even be determined not to use it. The lawyer may still be restrained if, applying the objective test, there is a real and sensible possibility that he or she may subconsciously or inadvertently do so.[29]

39 The second ground relates to a possible breach of the fiduciary duty of loyalty that a lawyer owes to their present or former client.[30] This ground does not apply in this case.

40 The third ground relates to ensuring the due administration of justice and the protection of the integrity of the judicial process.[31] This jurisdiction extends to restraining a lawyer from acting for a party in litigation before a court in order to ensure that justice is not only done but manifestly and undoubtedly seen to be done.[32] I think it logically extends to restraining a lawyer from acting in proceedings in a tribunal.

41 The test is objective and whether a fair-minded reasonably informed member of the public would reasonably conclude that the proper administration of justice required the lawyer to be restrained from acting.[33]

42 Proper weight must be given to the fundamental principle that, in the public interest, a party to litigation in a court and, I would add, proceedings in an administrative tribunal, should not be deprived of the lawyer of their choice without good cause. [34]

43 One aspect of this principle is that, quite apart from clients, the courts and, again I would add, tribunals, are entitled to receive the assistance of solicitors and counsel who are observably independent.[35]

44 Corrs, supported by the Board, submitted an injunction should not be granted for these reasons:

• The non-publication offence is penal and therefore requires guilty knowledge as an element. There is no evidence anybody intentionally breached the direction.

• Corrs' request of the OPP and the DPP was for the hand up brief and only for documents already in the public domain. The transcript was in the brief and Corrs was not told the direction applied to it.

• Corrs reacted promptly and properly by giving the undertakings and collecting and returning the transcript once the problem was identified.

• Only the solicitor and the Board's two counsel read and discussed the transcript.

• The undertakings, given on behalf of Corrs and the Board, would prevent the solicitor and the Board's two counsel from discussing with or divulging the contents of the transcript to anybody, including the Board. They could not further discuss the transcript with each other. The undertakings could be improved if necessary.

• The plaintiff already knew the contents of the transcript and would appreciate immediately if the Board's lawyers misused their knowledge in the proceedings in the Tribunal.

• Like a judge or a prosecutor, the Board's lawyers could be trusted to put the transcript out of their mind and conduct the Board's case in the Tribunal only on the basis of the admissible evidence.

• The parts of the transcript that will be most relevant in the proceedings in the Tribunal will be the four pages relating to the false evidence charges. These were released to the media and published. The remaining parts, which the Board's lawyers have also seen, did not relate to the those charges and so could not be relevant in those proceedings.

• Alternative solicitors or counsel may well have read, or read, the media reports of the four pages that the Magistrate released to the media.

• That the ACC is investigating the release of the transcript to and by Corrs is no barrier to Corrs continuing to act as the solicitor is the only person involved and he has already made full admissions. Therefore Corrs' duty of loyalty to the Board does not conflict with its interest in avoiding prosecution if the firm continues to act, or its independent duty to the Tribunal. Further, the ACC has not interviewed anybody or said it will bring charges, and may never do so.

• The Board has the right to use lawyers of its choosing and the circumstances do not justify interfering with that right.

45 These forceful submissions, made by counsel who have mastered the art of defensive advocacy, perhaps deserve better than the rejection I am about to announce, but reject them I must.

46 The critical consideration in this case is the maintenance of the integrity of examinations. The transcript of the plaintiff's evidence was covered by the publication prohibition in the direction, which was relevantly limited only by a specified exception that did not apply. Examinations are coercive. Certain protections have been built in to provide some safeguard for the civil liberties of those who are examined. One of those protections is the power to make an order prohibiting the publication of evidence given by a person at an examination. This protection is regarded so seriously that the legislation makes it a crime to contravene a direction. The integrity of examinations will be undermined, as will public confidence in the examination system, if a publication prohibition is not seen to be a very serious direction or if something the ACC believes is a contravention is condoned by the courts.

47 The facts reveal that, at the request of senior counsel, as instructed by Corrs, the DPP authorised the OPP to give a copy of the hand up brief with the transcript to Corrs for use in the proceedings in the Tribunal. Corrs then gave copies to its client and to senior and junior counsel. The ACC considers these events constitute a contravention of the direction, and is considering prosecutorial action. Whether a criminal offence was committed in these circumstances, and by whom, is not for me to decide, and it is not desirable for me to speculate about the legal or factual issues that may be involved. But I will not condone this unsatisfactory course of events by allowing the lawyers who obtained and passed on the transcript to continue to act for their client. Viewed objectively, doing so would bring the due administration of justice and the integrity of the judicial process into question.

48 I give great weight to the lawyer of choice principle, but in this case the other considerations weigh much more heavily.

49 As I said, the ACC, with the advice of the OPP, is considering whether prosecutorial action should be taken. That places Corrs in the position that the solicitor who has the carriage of the matter may be charged with a criminal offence. The appearance of this concerns me, but in the end I do not think it is relevant.

50 My reason is that the offence, if it was committed at all, was committed because of the past actions of the person or persons who are subject to potential criminal liability. From a strictly legal point of view, nothing that Corrs can do in its own interests in the proceeding can affect the criminal liability of any person potentially liable, including the solicitor. If I thought that an independent consideration of what, if any, action should be taken would be affected by my decision, one way or the other, in the injunction application, I would take this into account. I do not think my decision is relevant to the consideration or would affect it in any way, so I will not do so.

51 The plaintiff's evidence in the examination was private and is subject to the publication prohibition. For the purposes of the injunction proceedings before me, I think the transcript is tantamount to confidential information. The principles governing the possible misuse of confidential information therefore apply by analogy. The plaintiff is not a former client of Corrs, but she is a party to a proceeding in which that firm acts for the opposite party. Corrs has confidential information about the plaintiff that its client does not have. Corrs has to advance the Board's case in the proceeding, but cannot use the transcript in doing so. I think this places Corrs in a very difficult position. A reasonable person informed of the facts might justifiably see a real and sensible possibility of misuse of the information, albeit unintentional or subconscious, in these circumstances. And this is an added reason why it is objectively necessary to grant the injunction to ensure the due administration of justice and the integrity of the judicial process.

52 The course proposed by the Board would create the strong appearance of injustice, one that threatens the integrity of the proceedings in the Tribunal. The proposal is that the only three people who read and discussed the transcript, namely the Corrs solicitor and the senior and junior counsel, should continue to represent the Board, subject to an undertaking not to use or discuss it.

53 I picture in my mind these three lawyers, bound to silence on the contents of the transcript, bound also to put it out of their minds, sitting alone, or just them sitting together, thinking about or discussing a range of matters, including what witnesses or other evidence the Board should call, proofing its witnesses on the evidence they should give, preparing to cross-examine the plaintiff and her witnesses, deciding what documents or facts should be put to her or them, deciding what summonses to issue to witnesses or for the production of documents and, lastly, preparing final submissions on matters of fact and law. Remembering that the circumstances surrounding the plaintiff being charged with giving false evidence is an important issue in the proceedings, and that the transcript is directly relevant to that issue, I ask myself whether what I picture can form part of a fair and just civil procedure, and I must answer no.

54 A lawyer's undertaking is their bond, has a high value[36] and is enforceable as an injunction. With respect, that is no answer to the important issues raised by the circumstances of this case. Undertakings do not meet the need to ensure the due administration of justice and the integrity of the judicial process that I regard as the critical consideration. Moreover, the information that the lawyers have - both the solicitor and the two counsel - is about a central issue in the case. It is adverse to the interests of the party to whom they are opposed. Their client does not have the information. Objectively there is a real and sensible possibility of unintentional or subconscious misuse of the information. The nature of the issue and the undertaking is such that I think it is unrealistic and undesirable for the lawyers to represent the Board subject to undertaking.

55 The media have had access to some four pages of the transcript and published some of the contents of those pages, which were the pages relevant to the committal concerning the plaintiff's false evidence charges. The solicitor and the two counsel have read and discussed the entire transcript. Of course I have read none of it. I am not in a position to know how much of the transcript released by the magistrate was published. I think it was the main substance. What was published at least encapsulated what the false evidence charges were about.

56 It does not follow that the Corrs solicitor and the two counsel are in the same position as any other lawyer who may have read, or may hereafter read, the published material. They have read the entire transcript, being the four pages in total as well as the rest. Other lawyers will not know exactly how much of the contents of the four pages was published, even if they know it was the main substance. Reading the articles will not have the same mental impact on them as reading the four pages as a transcript, especially in the context of reading it as a whole. The rest of the transcript contains the remainder of the examination of the plaintiff on other subjects. There is at least a real possibility that it contains material adverse to the plaintiff and which the legal representatives for the Board could use against her, albeit unintentionally or subconsciously, in the proceeding in the Tribunal. The prior publication of the transcript is therefore not a sufficient reason to allow Corrs to continue to act.

57 The remaining issue concerns the width of the injunction. Should it be directed to the solicitor or to Corrs? If I direct it to the solicitor, Corrs can continue to act. That firm is the Board's preferred solicitor. Within Corrs, only the solicitor has knowledge of the transcript. I could obtain an undertaking that he not discuss the transcript with anybody at the firm or the Board and thereby quarantine the information within the firm.

58 However, I think it would be wrong to make an order directed to the solicitor. It was Corrs that was acting on behalf of the Board. The solicitor's principal made the original request for the hand up brief, and pressed the request when it was rejected. As to the solicitor, he was not acting personally. He was acting in his capacity as a solicitor with Corrs. He was acting subject to the supervision of his partner principal. When senior counsel for the Board spoke to the DPP, he was instructed to do so by Corrs. Senior counsel's request was that brief be released to Corrs, which is what happened. Within Corrs, only the solicitor read the transcript in the brief. But, I infer, he was not required to discuss its contents with someone experienced in dealing with sensitive issues of criminal law before going further, which is unfortunate. I have said the critical consideration in this case is that a transcript covered by a publication prohibition was obtained and passed on by Corrs for a purpose not specified in an exception to the prohibition. To objectively ensure the due administration of justice and the integrity of the judicial process, I think it is Corrs the institution, not just its recently admitted employee solicitor, that must not further act.

59 I will therefore grant an injunction restraining Corrs from continuing to act for the Board in the proceedings in the Tribunal.

60 I was informed that, if Corrs were restrained from acting, the Board's senior and junior counsel would also cease acting. I have proceeded on that basis.

61 The plaintiff submits the Board has exhibited ostensible bias against her. She fears the Board will not bring an impartial mind to its consideration of her application for renewal of her practising certificate for 2007/2008. She seeks an injunction restraining the Board from dealing with that application and an order requiring that function to be delegated to the Law Institute of Victoria.

62 The plaintiff's objective is to bring about, by court order or otherwise, a situation whereby the Institute deals with her renewal application. The Board has delegated that power to the Institute in respect of other solicitors, but not the plaintiff.

63 To repeat, the plaintiff's application for renewal of her certificate for 2006/2007 was refused by the Board. She applied to the Tribunal for review of that decision. In the meantime, she holds a deemed certificate under s 2.4.5(3) of the Legal Profession Act. The Board and the plaintiff consider that certificate will expire on 30 June 2007, which is why, on 14 May, she applied for it to be renewed. That application has not been determined, and the same statutory deeming will protect her entitlement to practice until it finally is.

64 The plaintiff contends the Board's ostensible bias is established on these bases:

• The negative findings made by the Board when it refused the plaintiff's application for renewal in respect of the 2006/2007 year.

• The Board being a respondent to the plaintiff's application for review in the Tribunal.[37]

• The Board's failure to produce any documents in response to a freedom of information request made by the plaintiff.

• The Board's allegedly improper conduct of the proceedings in the Tribunal, including its obtaining and use of the transcript, through the action of Corrs.

66 As to the negative findings, when it decided the plaintiff's renewal application for 2006/2007, the Board applied the "fit and proper person" test in s 2.4.7(2) of the Legal Profession Act. It decided it was satisfied the plaintiff was not a fit and proper person to continue to hold her practising certificate. These are the reasons it gave:

The reasons on which the Board's decision is based include the Applicant's conviction for contempt of the Supreme Court, the circumstances giving rise to and surrounding that contempt and the charging of the Applicant with the indictable offences referred to above and the nature of those charges.[38]

67 That decision was made in the exercise of the Board's statutory function to determine whether the plaintiff's certificate should be renewed. Under the statute, whether the plaintiff is a fit and proper person depends on the Board's satisfaction about that question, as to which the Board is required to act objectively, fairly and impartially. The Board must take into account relevant considerations, as to which I have made certain observations.[39] The Board must also correctly understand and apply the statutory test, as was explained by the High Court in R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd[40] in an analogous context:

[The] board or its delegate must understand correctly the test provided or prescribed by s. 23(1) and actually apply it. It is only when the board or its delegate is satisfied of the existence of facts which do amount in point of law to what the section means by unfitness ... that the board or its delegate reaches a position where one or other of them may lawfully exercise the authority which s. 23(1) purports to bestow.[41]

68 It is not to be supposed from the mere fact that the Board made the first decision adversely to the plaintiff, even for the reasons it gave, that it should be seen to be ostensibly biased against the plaintiff in respect of the second application

69 The test of ostensible bias is whether a fair-minded lay observer might reasonably apprehend that the Board might not bring an impartial and unprejudiced mind to the determination of the plaintiff's second application for renewal.[42] The present submission of the plaintiff is that the Board is ostensibly biased because it can be seen to have prejudged the second application. The fact that a decision-maker has expressed a view about a matter in issue, or the issue, in an inquiry does not mean that their thinking will necessarily be unfair or prejudiced.[43] This is the test that applies in such a case:

The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.[44]

70 The Board is required to consider the second application properly, as it was on the first occasion. The first decision - that the Board was satisfied the plaintiff was not a fit and proper person - was based on the submissions and material then before it. I have set out the reasons it gave. When it determines the second application, the Board will have to decide whether it is so satisfied on the material before it on that occasion. The plaintiff is also entitled to put to the Board whatever additional material she wishes to try to persuade it to come to a different view, including any material she says was not properly considered on the previous occasion. She can make whatever additional submissions she wishes to try to persuade the Board that its previous decision was wrong, and challenge any aspect of the reasons she chooses. In respect of such additional material or submissions, if any,[45] the duty of the Board has been adequately explained in another decision of the High Court I think is analogous:

It is of course the duty of members of the Commission always to have and to display a willingness, indeed an anxiety, to give full and fair consideration to every relevant argument that may be addressed to them for a revision or even an abandonment of announced opinions.[46]

71 I have no reason to think the Board will fail to follow that approach. I am therefore of the view that a fair-minded observer would not reasonably think the Board might have prejudged the plaintiff's second application for renewal.

72 It is therefore unnecessary to consider the possible application of the doctrine of necessity or the implications of the adequate alternative remedy that the plaintiff has in the Tribunal.

73 As to the Board's conduct of the existing proceedings in the Tribunal, and putting aside the issue of the transcript, there is nothing irregular or improper in the Board's conduct of those proceedings. The Board is the proper respondent in the proceedings and all it is doing is fulfilling that responsibility. It is entitled, indeed obliged, to put relevant material to the Tribunal, including material that is adverse to the plaintiff and which might lead the Tribunal to confirm the decision under review. There is nothing to stop it seeking such material out.

74 As to the transcript, the Board's legal advisors are responsible for the problems that arose in that regard. This is not evidence of bias by the Board.

75 The plaintiff's freedom of information request is being dealt with according to the processes in the Freedom of Information Act 1982.

76 The plaintiff has not established on any of the bases, considered alone or together, that a fair-minded lay observer might reasonably apprehend that the Board might not bring an impartial and unprejudiced mind to the determination of her second application for renewal.

77 The plaintiff's application for an injunction restraining the Board from considering her application for renewal in respect of the 2007/2008 year is dismissed. So is her application for an order compelling the Board to delegate that function to the Institute.

78 Under federal-state legislation, Victoria has a scheme for conducting coercive examinations in operations or investigations concerning serious organised crime. A person cannot refuse to answer questions at an examination. Various protections have been built into the legislation to provide some protection for the civil liberties of persons examined. One of these is the power of the examiner to direct that publication of a person's evidence is prohibited. It is a crime to contravene such a direction.

79 When the plaintiff was examined, a transcript of her evidence was taken. The examiner directed her evidence not to be published. When she was charged with giving false evidence, the direction was varied, but only to allow the evidence to be used in that prosecution.

80 The plaintiff is a solicitor. She is involved in separate proceedings in the Victorian Civil and Administrative Tribunal because the Legal Services Board had refused to renew her practising certificate for 2006/2007. Corrs Chambers Westgarth act for the Board in those proceedings.

81 Committal proceedings were conducted in relation to the false evidence charges. On the basis of a hand up brief that included the transcript, the magistrate committed the plaintiff to stand trial on the charges.

82 In the circumstances more fully described in the judgment, the magistrate allowed the media to have access to four pages of the transcript, the substance of which was published. Then the Director of Public Prosecutions authorised the Office of Public Prosecutions to give a copy of the hand up brief, including the transcript, to Corrs. The firm gave a copy to the Board and its senior and junior counsel. No variation of the direction applied to any of these circumstances.

83 At the request of the Australian Crime Commission, the copies of the transcript passed on by Corrs have been returned to the OPP. The ACC thinks the direction has been breached and, with the OPP, is considering whether prosecutorial action should be taken.

84 The plaintiff sought from me an injunction restraining Corrs from continuing to act for the Board in the proceedings in the Tribunal. I have decided to grant that application.

85 The critical consideration is the maintenance of the integrity of examinations. I will not condone the unsatisfactory events I have described by allowing the lawyers who obtained and passed on the transcript to continue to act for their client. Viewed objectively, as the relevant test requires, doing so would bring the administration of justice and the integrity of the judicial process into question.

86 I have also taken into account the real and sensible possibility that the information in the transcript, which I think is confidential, might be misused, albeit subconsciously or inadvertently, against the plaintiff.

87 The plaintiff also sought an injunction restraining the Board from determining her application for renewal of her practising certificate for 2007/2008. I have decided to refuse that application because the Board has not been shown to be ostensibly biased against the plaintiff.

88 There will be an injunction restraining Corrs from acting for the Board in the proceedings in the Tribunal. There will not be an injunction restraining the Board from determining the plaintiff's application for renewal of her practising certificate for 2007/2008.

[2] Under s 4(2) of the Australian Crime Commission (State Provisions) Act 2003 (Vic), a term that is also in the Australian Crime Commission Act 2002 (Cth) has the same meaning unless the contrary intention appears. Under s 4 of the Commonwealth Act, an examiner is a person appointed as such under s 46B(1).

[16] The terms of the direction are set out in Exhibit BDD 20.

[17] The terms of the variation are also set out in Exhibit BDD 20.

[19] In May 2007, the plaintiff applied for renewal of her certificate for 2007/2008, which gives rise to the separate issues considered below under the heading of the bias application.

[20] Exhibit BDD 1. The circumstances of the refusal and the subsequent application for review in the Victorian Civil and Administrative Tribunal are fully set out in Garde-Wilson v Legal Services Board [2007] VSC 225.

[21] Garde-Wilson v Legal Services Board [2007] VSC 225.

[23] The transcript is not admissible in evidence against the plaintiff in such a proceeding: s 23(5) of the Australian Crime Commission (State Provisions) Act 2003.

[26] Ibid [65] citing Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; (2001) 4 VR 501 (I said I would follow Brooking JA on the continuation of the fiduciary obligation of loyalty); Sent v John Fairfax Publishing Pty Ltd [2002] VSC 429; Adam 12 Holdings Pty Ltd v Eat & Drink Holdings Pty Ltd [2006] VSC 152; Village Roadshow Ltd v Blake Dawson Waldron [2003] VSC 505; Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446.

[30] See Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; (2001) 4 VR 501, 522; Sent v John Fairfax Publishing Pty Ltd [2002] VSC 429, [104]; Main-Road Property Group v Pelligra & Sons [2007] VSC 43, [65].

[31] Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446, 452.

[34] Ibid; see also R v Khazaal [2006] NSWSC 1353, [90].

[35] Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446, 452 citing Kooky Garments Ltd v Charlton [1994] I NZLR 587, 590.

[36] See R v Khazaal [2006] NSWSC 1353, [92].

[37] The plaintiff also relied on the Board being a party to a judicial review application, but I dismissed it: Garde-Wilson v Legal Services Board [2007] VSC 225.

[38] Exhibit BBD 1, 3. I have criticised the adequacy of these reasons (Garde-Wilson v Legal Services Board [2007] VSC 225, [108]). The inadequacy of the reasons does not suggest the Board will be biased in considering the second application.

[39] Garde-Wilson v Legal Services Board [2007] VSC 225, [116].

[42] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492.

[43] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 100; R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100, 116.

[44] Minster for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 532.

[45] I say if any because the plaintiff may chose to put no additional submissions or material to the Board.

[46] R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546, 555.