Metropolitan Ambulance Service v Victoria Police

5. I am informed this morning by Mr Moshinsky QC, who appears for the plaintiff, that the plaintiff no longer persists with its application and in effect abandons the proceeding. It is conceded, it seems, by Mr Moshinsky on behalf of his client that it is appropriate that the injunction presently standing be dissolved and costs follow the event.

8. As a result of these circumstances, an application is made on behalf of the second and third defendants for costs on an indemnity basis. Costs are sought by the first defendant on the usual basis of party/party costs.

11. For the purposes of determining the costs application, it is necessary to visit briefly the events that transpired last Friday. However, those events are described in greater detail in my reasons of 17 September 1999.

14. In the middle of the day of 17 September at approximately 1.50 p.m. I granted the injunction ex parte I have already referred to. That injunction was granted without notice to any party except the first defendant. On that occasion I was informed that oral notice had been provided to counsel for the first defendant. I was not informed of the identity of those parties who are now the second and third defendants in the present proceeding and who were in fact applicants in a relevant proceeding brought before the Victorian Civil and Administrative Tribunal under the Freedom of Information Act ("the FOI Act"). I was not informed other than in the most sketchy or vague terms as to the proceedings that were on foot before the Victorian Civil and Administrative Tribunal ("The Tribunal"). I was informed on 17 September, that the injunction was sought on two bases. Firstly, the belief of the plaintiff that certain documents were about to be released that contained matters that were the subject of legal professional privilege. Secondly, the belief of the plaintiff that such documents may also contain matters that were the subject of confidentiality. It was said that the belief was based upon matters that had apparently been read out at the Tribunal from documents that the Victorian Police were about to release and that as a result of the hearing of those matters at the Tribunal it was believed by the plaintiff that the documents were subject to the privilege and confidentiality sought. I was not informed at that time as to who was the source of the information of proceedings before the Tribunal, that is as to who told the plaintiff as to what had been read out at the Tribunal. It would appear that I can reasonably now infer that the source of that information was one Mr Brendan Reilly, a solicitor of Mallesons Stephens Jacques, who was appearing on behalf of a group of unidentified public servants and who were seeking to intervene in the Tribunal proceedings. I am informed on the evening of 17 September 1999 by counsel for the second and third defendants, and it is apparent from affidavit material before me, that Mr Reilly of Mallesons has acted on many occasions for the plaintiff and it would appear that Mr Reilly was substantially aware of the proceedings in so far as they would have affected the plaintiff. I will return to this matter in due course.

17. In essence, it was said by Mr Tracey QC who appeared on behalf of the plaintiff on the ex parte application that all that the plaintiff needed was the weekend of 18-19 September 1999 in order to consider the documents and that arrangements would be made with Victoria Police for that to be done and then the matter could come back before the court on the earliest opportunity. It was said that if it transpired that there was not privilege or confidentiality claimed for the documents then that would be the end of the matter. I was also informed during the application for the ex parte injunction that the plaintiff was substantially handicapped by the absence of one of its solicitor, another member of the firm of Mallesons, one Mr Kyrou, who was then said to be in New Zealand and said to be the province of all knowledge as to whether the documents were in fact subject to legal professional privilege and/or confidentiality.

20. It was said that Mr Kyrou had engaged in discussions on behalf of the plaintiff with the Victoria Police in relation to a police inquiry concerning "ambulance services and other matters". It was said that the plaintiff believed Mr Kyrou had divulged certain matters to the police on the basis that privilege and/or confidentiality were claimed and would continue to be claimed over the information. For the reasons described in my reasons delivered on 17 September 1999 the interim injunction was granted ex parte.

23. On the evening of 17 September at 5 p.m. Until approximately 7.15 p.m. This court heard an urgent application to set aside the ex parte injunction that had been granted earlier in the day. The application was brought on urgently at the behest of those parties, now the second and third defendants. As a result of matters that were disclosed to the court from the Bar table on the evening of 17 September I formed the view that there had been substantial non-disclosure of important matters in the course of the application for the ex parte injunction earlier in the day. Those matters included the fact of the applications by other parties to intervene at the Tribunal hearing including an application on behalf of the Attorney-General and an application by a group of unidentified public servants for whom Mallesons acted and the fact that Mallesons were solicitors who had acted extensively for the plaintiff in relation to a number of proceedings, in particular applications presently running before the tribunal under the FOI Act. Further, I was not told during the ex parte application but told by the second and third defendants on Friday evening of the role of Mr Reilly. I was not told, and it is now apparent as I have indicated, that in all likelihood Mr Reilly was the source of information to the plaintiff. It was suggested by the second and third defendants that Mr Reilly was keeping the plaintiff informed as to how matters were proceeding before the tribunal. This allegation has never been rebutted. I was also not told during the ex parte application but was told by the second and third defendants on Friday evening of the fact of the knowledge of the plaintiff of the existence of the proceedings before the tribunal since June 1999 at the very latest by virtue of correspondence from the Victorian Police to the plaintiff. Also it was apparent I was not told in dealing with the ex parte application of matters put to the Tribunal by Mr S. O'Bryan appearing as counsel on behalf of the Attorney-General concerning the limited confidential nature of the documents. In any event, notwithstanding these serious matters of non-disclosure on the ex parte application, I determined on balance on the evening of 17 September that there remained a serious question to be tried and also that the balance of convenience fell entirely in favour of the plaintiff. Accordingly, the order granting the injunction made earlier in the day was allowed to stand.

26. On Monday 20 September 1999 the matter came back before me. I was informed on that occasion by Mr Tracey for the plaintiff that because of the way in which the injunction had been framed, it prohibited the police from disclosing the relevant documents to any person at all and that the plaintiff had not seen the documents over the weekend. I note that there had been no attempt to seek to recall me to the Bench to reconvene the hearing on the evening of Friday 17 September to rectify this matter. This could have been done quite readily by contacting my associate on the after-hours telephone number for the Practice Court. I note that there was no attempt by the plaintiff over the weekend for the judge sitting in the Practice Court to be prevailed upon to vary the order to facilitate access to the subject documents. It is of course well-known (or ought to be) throughout the Bar that the judge sitting in the Practice Court is readily available to parties and will deal with matters as may be necessary after hours. Quite clearly, in my view, the framing of the injunction as made on Friday last, 17 September, involved a slip and quite properly the plaintiff ought to have returned to the court to have that slip rectified. As a result, the matter came back before me on the Monday morning of 20 September and I was informed that the plaintiff had not been able to see the document and therefore the matter could not proceed that day and that there needed to be an adjournment. In my view, that conduct of the plaintiff verged on being manipulative if not contemptuous of the court. The plaintiff, having the benefit of an interim injunction granted ex parte without notice was under an obligation to take all steps possible to act with the utmost candour and take all possible steps to expedite the matter before the court (see National Australia Bank Ltd v. Bond Brewing Holdings Ltd (1991) 1V.R.386). in my view the plaintiff, as events have transpired failed to fulfil the obligation to which it was strictly subject.

29. In any event, it was further raised on Monday 20 September by me with the plaintiff's counsel, Mr Tracey, that the plaintiff should be on notice as to my concerns as to why the plaintiff had not availed itself of the intervention and injunctive procedures under the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") (see ss.60 and 123). In any event, on the afternoon of Monday 20 September an oral application was pressed again before me to dissolve the injunction. The determination of the oral application was adjourned to today together with the plaintiff's summons for an interlocutory injunction.

32. I am not told, but I presume that the relevant documents were released by the police to the plaintiff during the course of Monday. I have had the opportunity to look at those documents this day and in the context of other matters deposed to on affidavit and on the basis of matters that I have been informed of by counsel, it ought in my view have been abundantly clear to the plaintiff, if it was not aware earlier, that as of Monday afternoon the documents were not subject to privilege or confidentiality. In any event, it has become clear this morning following submissions from counsel and the opportunity to consider the affidavits that a number of matters are apparent that impact on the discretion as to costs.

35. Firstly, there has been no application to the Tribunal to intervene and seek injunctive orders or any orders for relief from the Tribunal with respect to the subject documents. It has been submitted as of last Monday and indeed again today by Mr Moshinsky on behalf of the plaintiff that there is a doubt that there is power for the Tribunal to grant the relief the plaintiff seeks. It is said, accordingly, that this court is the appropriate forum for the plaintiff to resort to. In my view it is not sufficient for the plaintiff to say there is a doubt as to the power of the Tribunal. In my view, on the face of the relevant provisions of the FOI and VCAT Acts it is at least arguable that there is power vested in the Tribunal to grant relief to the plaintiff if it was satisfied that it was appropriate to do so. In my view, the plaintiff ought to have applied, at least as late as last Monday or during the balance of the week, to intervene in the proceedings before the Tribunal. It has not done so. Furthermore, given that the plaintiff had notice of the proceedings under the FOI Act as early as at least June 1999, it behoved the plaintiff to have made an application for joinder and restraining orders before the ex parte application was made in this court on 17 September 1999. This failing of itself might not be sufficient for me to criticize the plaintiff. However, combined with other factors, in particular the conduct of the plaintiff throughout this proceeding and proceedings surrounding the Tribunal, it is an important matter that affects the discretion as to costs.

38. Secondly, before me there is no affidavit by the critical party for the plaintiff, Mr Kyrou. In my view, an adverse inference can be drawn from the fact that Mr Kyrou has not sworn an affidavit. It is not an adverse inference against Mr Kyrou personally. It is an adverse inference drawn against the plaintiff. On the basis of the principles expressed in National Australia Bank v. Bond the plaintiff by Monday 20 September or at the latest by Wednesday 22 September ought to have filed an affidavit by Mr Kyrou or an affidavit explaining the inability of the plaintiff to do so. However, there was no such affidavit.

41. Thirdly, I observe that there is no affidavit filed for the plaintiff rebutting the knowledge of proceedings before the tribunal. Notwithstanding the extensive matters put before me in argument last Friday evening, 17 September, and again last Monday, 20 September, the plaintiff has never availed itself of the opportunity to demonstrate that at all times it was conducting itself bona fides and with clean hands.

44. The fourth matter before me is that there is no evidence on the affidavits to demonstrate on any basis or that at any time the material that was the subject of the orders granted both last Friday 17 September and Monday 20 September satisfied the tests laid down by the High Court in Grant v. Downes [1976] HCA 63; [1976] 135 C.L.R. 674; Commissioner of Australian Federal Police & Anor v. Propend Finance Pty Ltd & Anor [1997] 188 C.L.R. 501; Johns v. Australian Securities Commission [1993] HCA 56; [1993] 178 C.L.R. 408.

47. The fifth matter that is of concern to me this morning is that to which I have already referred, namely the delay of the plaintiff in not obtaining the documents until Monday last 20 September. That of itself as an isolated fact would not be sufficient for me to take an adverse view of the plaintiff's position; however, combined with all the other circumstances of this matter and the overall conduct of the plaintiff it is a relevant matter in the exercise of the discretion.

50. The sixth matter that I take into account this morning is the delay of the plaintiff in determining to abandon its case, that delay culminating yesterday when on the eve of the further hearing of the application before me the plaintiff has apparently indicated to the other parties that it did not wish to proceed. I am informed that the second and third defendants were provided with the subject documents during the course of yesterday afternoon, 23 September.

53. The seventh matter that has become apparent this morning and is a matter of concern is the knowledge of the plaintiff of the FOI Act proceedings (that are pivotal to the matter before me) since June 1999 at the very latest.

56. On the basis of these seven factors I consider that the discretion for full costs ought be exercised as sought. I will turn to the authorities but before doing so there were a number of matters that were put on the instructions to counsel and I have received those matters because the application before me was a costs application and no more.

59. These instructions were reflected in unsworn affidavits of Kevin Thomas Sheridan (the relevant investigating officer of the Victorian Police) and John Thwaites (the third defendant). I was informed by counsel for the first and third defendants that the affidavits accurately recorded instructions and that the affidavits were not sworn because the plaintiff, at the eleventh hour resolved to abandon the proceeding. Nevertheless, counsel for the third defendant Mr S. Morris QC sought to rely on the instructions in the application for costs. I received those instructions under objection from Mr Moshinsky. It must be said that this case has on each occasion proceeded largely on the basis of oral assertions by counsel on instructions from the Bar table. This circumstance has come about because of the way in which the plaintiff applied for interim injunctive relief without notice to relevant parties.

62. The matters raised are, firstly, that the plaintiff appears to have been given advice as early as February 1999 that the subject documents ought be released. It follows if that arguably the matter could be made out that the plaintiff has been aware that the documents should have been released from that date. In any event, combined with the fact that on the evidence before me the plaintiff had knowledge since June 1999 of the Tribunal proceedings, it is highly arguable that the plaintiff ought not to have proceeded to apply for the ex parte injunction that it did before me.

65. The second matter put on the basis of instructions by counsel for the third defendant is that the police officer in charge, Mr Sheridan, rebuts the assertion of the information having been provided to the police on a confidential or privileged basis.

68. The third matter as already indicated is that Mr Kyrou, a critical witness for the plaintiff, has never gone on affidavit and clarified the position. These matters of themselves again could not be taken into account by the court.

71. In all the circumstances and the overall conduct of the plaintiff, I have formed an unfavourable view of that conduct. The matters put by the counsel for the third defendant on instructions this morning are not determinative of my resolve to exercise the discretion on costs. I am satisfied in any event that the application by the plaintiff as of last Friday made ex parte was tainted and improperly sought.

74. Considering all these matters and having special regard to the inappropriate conduct of the plaintiff, I regard its conduct in the proceeding before this court as "high-handed" as described by Tadgell, J. in the AGC Limited v. De Jager [1984] VicRp 40; (1984) V.R. 483. Indeed, bearing in mind all these circumstances together, it is difficult to contemplate a worse case of abuse of process. The plaintiff came to the court for help, took no steps of self-help, engaged in forum shopping, concealed important matters and misled the court. In making this finding I cast no aspersion against Mr Tracey who I can reasonably assume only put to the court his instructions. Clearly, those instructions were part of a course of concealment. The court is entitled to, on the basis of the authorities, in particular, Colgate Palmolive Company & Anor v. Cousins Pty Ltd [1993] FCA 536; (1993) 46 F.C.R. 225 to make orders as sought by the second and third defendants. Indeed, I express the view that in light of the conduct of the plaintiff the court must impose the strongest sanction available to it. Accordingly, the orders I will make in this matter are:

1. The injunction ordered on 17 September 1999 and as extended and varied on 20 September 1999 is dissolved.

3. The costs of the defendants of 17 September 1999 are reserved.

4. The plaintiff pay the costs of the second and third defendants of the proceeding on an indemnity basis.

5. The plaintiff pay the costs of the first defendant of the proceeding.

I certify that this and the 8 preceding pages are a true copy of the reasons for judgment of Warren J of the Supreme Court of Victoria delivered on 24 September 1999.