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[2015] VSC 9
Supreme Court of Victoria
2015-01-30
DERHAM AsJ
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Application to examine a non-party before trial under r 40.12 and r 41.01 of the Supreme Court (General Civil Procedure) Rules 2005 - Examination for the purposes of discovery of documents - Application not valid use of the Rules.
SUBPOENA - Objections by defendant and Legal Services Commissioner to plaintiffs inspecting documents produced under subpoena issued pursuant to Order 42A by former inspector authorised under the Legal Practice Act 1996 and Legal Profession Act 2004 - Objections based on public interest immunity, client legal privilege and relevance - Objections upheld.
PUBLIC INTEREST IMMUNITY - Principles applicable to documents relating to or arising out of investigations by an inspector/investigator appointed under the Legal Practice Act 1996 and Legal Profession Act 2004 - Whether a class claim or a contents clam - Contents claim only - Balancing the public interest in the confidentiality of the documents against the relevance of the documents to the issues in the proceeding - Whether the documents contain 'material evidence' - Documents insufficiently relevant to warrant disclosure to plaintiffs.
1 There were two applications before the Court, both referred by the Judge in Charge of the Professional Liability List. They were:
(a) An application pursuant to Rule 40.12 and/or 41.01 of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules') for Mr Ronald Hall, formerly an investigator engaged by the Legal Services Commissioner ('Commissioner'), to give evidence before the trial of the proceeding for the purpose of discovery; and
(b) Objections to the inspection of documents produced by Mr Ronald Hall pursuant to a subpoena issued by the plaintiffs filed 2 August 2013.
2 The application to examine Mr Hall was made by letter in accordance with a direction given by the Judge in Charge of the Professional Liability List.[1] Another application was also made by that letter, namely that the defendant ('Board'), by its proper officer make, file and serve a further and better affidavit of documents. That matter was dealt with by Mukhtar AsJ in short reasons delivered on 30 August 2013.
(a) The application to examine Mr Hall before trial under r 40.12 and r 41.01 of the Rules, being an examination for the purposes of the discovery of documents, is not a valid use of the Rules and that, accordingly, the application is refused; and
(b) The objections by the Board and the Commissioner to the plaintiffs inspecting certain documents produced under subpoena on the grounds of public interest immunity, client legal privilege and relevance are upheld.
4 This proceeding is an application under s 3.6.23 of the Legal Profession Act 2004 ('the 2004 Act'), to set aside the decision of the Board disallowing the plaintiffs' claim against the Fidelity Fund.[2] The plaintiffs' claim relates to alleged trust account deficiencies by two practitioners, Mr Michael Richard Brereton ('Brereton') and Mr Roderick Lyle ('Lyle') in the period from February 2000 until October 2004.
5 The corporate plaintiffs are all related entities. The first plaintiff (Mr De Simone) is the managing director of the third plaintiff and the sole director of the fourth, fifth and sixth plaintiffs. Mr De Simone is the brother of the second plaintiff.
6 The Board is a corporate body established under the 2004 Act (see s 6.2.1) and maintains a Fidelity Fund as required by s 6.7.15 of that Act. It has joined (as third parties) Brereton and one David McLeod (as to whom see below). It had also joined Lyle, but that claim has been resolved and the proceeding against him was dismissed by consent.
7 Brereton was subject to disciplinary charges brought by the Commissioner in the Victorian Civil and Administrative Tribunal ('Tribunal' or 'VCAT').[3] In that proceeding Brereton was found to have committed breaches of the 2004 Act, including, relevantly, trust account deficiencies relating to monies he held as stakeholder under a contract of sale.
8 An account of some of the background facts to the proceeding can be found in the decision of the Court of Appeal in Legal Services Commissioner v Brereton.[4] A shortened version of the facts giving rise to the claims on the Fidelity Fund, using some of the facts recounted by the Court of Appeal in that case, and a short account of the claims and defences in this proceeding, are as follows.
The Collendina Project and the Disciplinary Proceedings
9 In early 2000, Brereton and David McLeod ('McLeod') produced an information report relating to the development of a retirement village at Bonnyvale Road, Collendina, Victoria ('Land'), sometimes referred to as the Collendina Project. That information report was apparently produced for the purpose of attracting investors in the project, which it seems to have done.
10 The Land was sold under a contract of sale dated 16 February 2000 to the fourth plaintiff ('Seachange Management'), for $1,000,000 ('First Contract'). Seachange Management was at that time owned by Mr Brereton (through a company he controlled called Young Turks Pty Ltd) and GDK Financial Services Pty Ltd ('GDK'), a company controlled by McLeod and two associates. As the only two directors of Seachange Management, Brereton and McLeod controlled that company at that time.
11 The Land was very shortly thereafter sold by Seachange Management to the sixth plaintiff ('Seachange Village') by contract of sale dated 10 March 2000 ('Second Contract'). The purchase price was $31,370,000. The difference in price is reflected by the consideration to be paid to Seachange Management for developing a retirement village on the Land.
12 The funding for the Collendina Project was to come from private investors. As contractually required by the investment arrangements, in late March 2000 and the following months investors paid approximately $5.8 million in various amounts to Brereton as solicitor for Seachange Management, the vendor.[5]
13 In disciplinary proceedings against Brereton before the Tribunal, from which ultimately the appeal to the Court of Appeal came, it was observed that the benefit of the retirement village project appeared to be twofold to the individual investors, 'an ultimate return on the development, and an immediate upfront tax deduction of the entire estimated cost in excess of $31 million'.[6]
14 In the Tribunal decision the members proceeded on the footing that the deposit was intended to fund the purchase of the Land and the initial stage of development, and subsequent stages were to be funded with the proceeds of the sale of earlier stages or by borrowing via a vendor's mortgage.[7]
15 The monies paid by the investors were paid directly into Brereton's trust account and were described variously as 'Settlement Monies' or 'Deposit Monies' beside the name of the investor. The Tribunal found, and the Commissioner conceded, however, that although the monies were paid directly by investors into Brereton's trust account, the payments were made on behalf of Seachange Village as purchaser. That company was the bare nominee for the Seachange village partnership, which comprised seven entities at least five of which were companies as bare nominees for partnership syndicates each comprising between nine and twenty investors.
16 The contract for the purchase of the Land by Seachange Management was settled on or about 23 May 2000. The contract for the purchase of the land by Seachange Village from Seachange Management was never settled. At the time the disciplinary proceedings were heard by the Tribunal in July 2008 the development had not gone ahead and the investors had received no return.
17 Of the $5.8 million paid by investors to Brereton, some $4,436,010.52 was paid by Brereton to various persons for purposes associated with the development, including payments to Brereton (or to a company controlled by him) of $1,150,000.00 by way of retainer and payments to McLeod or GDK of the same amount also by way of retainer.
18 The Second Contract shows Brereton as the vendor's solicitor and a Mr Bruno Alderuccio as the purchaser's solicitor. The deposit payable under the Second Contract on the day of sale was $6,274,000.00. Under the Second Contract Brereton, as the vendor's solicitor, was to hold the deposit in a special purpose account for the benefit of both vendor and purchaser under the Sale of Land Act 1962 until authorised for release. That is, the monies in the special purpose account were to be held by Brereton for the benefit of both Seachange Management and Seachange Village.
19 Section 27 of the Sale of Land Act 1962 sets out the basis upon which a vendor can obtain a release of deposit monies upon the purchaser accepting title and providing written authorisation. Unless released in accordance with s 27, the general rule is that the deposit is not released until settlement.
20 By letter dated 5 May 2000 Mr Alderuccio requested confirmation from Mr Brereton that the amount held in trust was the full deposit of $6,274,000.00. Brereton did not respond, and it seems that either it was not all held in his trust account, or that it had not all been received. The Tribunal found that there was no record of the full amount of deposit ever having been held in Brereton's trust account.
21 After several requests, Mr Alderuccio provided to Brereton a s 27 statement on 25 May 2000, prior to which date, the Tribunal found, Brereton was not entitled to release any of the deposit monies. The Tribunal also found that despite this lack of authorisation Brereton in fact made several payments from the deposit monies before 25 May 2000. These transactions amounted to $2.4 million and included part of the retainers paid to Brereton (or his company) and GDK.
22 Brereton made further payments to himself and GDK after the release of the deposit was authorised on 25 May 2000.
23 Mr De Simone did not give evidence in the disciplinary proceeding against Brereton in the Tribunal and neither he nor his then companies were involved in the proceeding. As will be related, the control Mr De Simone now has over Seachange Management and Seachange Village was acquired in 2010.
24 In this proceeding the plaintiffs make large claims for compensation from the Fidelity Fund under Part 3.6 of the 2004 Act alleging that Brereton dishonestly misappropriated or paid away monies to which the plaintiffs were entitled, namely $4,436,010.52. The plaintiffs also claim that when proceedings brought by other investors to recover investment monies were settled, Lyle dishonestly and fraudulently represented that the fifth plaintiff, then called Galambos Pty Ltd,[8] would receive valuable consideration in return for a payment of $4 million when Lyle knew that there was no consideration being provided by the Disputing Partners[9] as their entitlement in the Head Partnership[10] had been misappropriated by Brereton.
25 On 18 August 2004,[11] a deed was executed between the corporate nominees for the Disputing Partners and Galambos, Brereton, McLeod and Giuseppe De Simone and other parties, under which the disputing partners purported to transfer partnership entitlements held by them to Galambos on the payment of $4 million. Although there is no evidence as to this directly before the Court, it seems to be common ground that it is under the Deed that Mr De Simone, directly or indirectly, gained control of the companies formerly controlled by Brereton and McLeod, in particular Seachange Management and Seachange Village.
26 In substance the allegation is that Lyle, a member of the firm of Deacons, received over $4 million for the purpose of Galambos acquiring partnership entitlements that were known by Lyle and Brereton to be illusory, because the value of those entitlements had been misappropriated by Brereton (by paying away the $4,436,010.52).
27 There are a range of issues arising from the defence filed by the Board. Central to all of them is the defence that, for the purposes of the definition of default contained in s 3.6.2 of the 2004 Act:
(a) None of the plaintiffs was a client of the legal practice conducted by Brereton;
(b) None of the plaintiffs received any legal services from that practice;
(c) All payments made to Brereton by the plaintiffs as investors in the Collendina Project were paid to, and received by, Brereton in his capacity as a promoter of the Collendina Project and not in the course of his legal practice.
28 In relation to the payment out of funds totalling $4,436.010.52, said by the plaintiffs to have been misappropriated dishonestly out of Brereton's trust account, the Board says, consistently with the decision of the Tribunal in the proceedings from which the appeal to the Court of Appeal came, that the payment of those funds was authorised by Seachange Management on whose behalf they were then held.
29 Further, the Board says that if the disbursement of the $4,436,010.52 constituted a default for the purposes of s 3.2.2 of the 2004 Act (which it denies) then ss 3.6.6(1)(b) and/or 3.6.2(a) of the 2004 Act operate to disentitle any of the plaintiffs from making a claim on the Fidelity Fund because:
(a) The money was entrusted to Brereton or held by him for or in connection with a financial service, being the Collendina Project, being provided by Brereton on behalf of Seachange Management; or
(b) The money was entrusted to Brereton or held by him in connection with a managed investment scheme (unregistered) undertaken by him, namely the Collendina Project.
30 In addition the Board claims that under s 3.6.6(3) the plaintiffs are disentitled from making a claim on the Fidelity Fund because the money was entrusted to Brereton and held by him for investment purposes and not in the ordinary course of his legal practice nor in connection with the provision of legal services to or at the direction of any of the plaintiffs.
31 In relation to the claim involving Lyle, the Board says that none of the plaintiffs were a client of Deacons or Lyle in relation to the Deed or the payment of $4 million nor did they receive any legal services from Deacons in relation to either the Deed or the payment.
32 The Board also says that the conduct of Lyle did not involve any dishonesty and that the Deed was performed by all parties in accordance with its terms and in consequence the investors who had sued (the Disputing Partners, which the Board describes as the Initial Investors) became entitled absolutely to all payments under the Deed.
33 Mr Ronald Hall was employed by the Law Institute of Victoria ('LIV') as a Trust Account Inspector from 1996 to 2006, and after the introduction of the 2004 Act[12] was engaged by the Commissioner to assist in the prosecution of the charges brought by the Commissioner against Brereton in the Tribunal. Mr Hall's engagement as a consultant was from April 2008 until at least July 2008. After the conclusion of his consultancy, Mr Hall made a series of complaints to the Commissioner. Mr Hall prepared a witness statement and gave evidence in the disciplinary proceeding against Brereton.
(a) Before the commencement of the 2004 Act, by the LIV (an RPA) as an inspector and investigator under s 192 of the 1996 Act; and
(b) On 25 January 2006 by the Board (under s 3.3.29(b) of the 2004 Act) to conduct investigations under Division 3 of Part 3.3 of that Act.
35 He conducted routine investigations of the trust account of the legal practice of Brereton on 5 and 6 February 2004, and prepared an Inspection Report on 9 February 2004, which was supplemented during 2004 and 2005 with further information supplied by Brereton or on his behalf. In carrying out his investigation into the trust account of Brereton's firm, Mr Hall was exercising coercive powers given under the 1996 Act, in particular under s 194, which requires the legal practitioner of a firm to produce for inspection or copying any accounting or other records relating to the legal practice, and to give to the inspector any other information he or she reasonably requires. Failure to comply is an offence. Further, the practitioner or firm may not refuse to comply with the requirements to produce records or information on the grounds of legal professional privilege, any duty of confidence or the privilege against self-incrimination: s 194(2).
36 I note here that in a supplementary affidavit of documents sworn by Ned Roche, a legal practitioner working at the Board, on 11 October 2013, a report by Mr Hall into the trust account of Michael Brereton & Co dated 8 June 2005 is discovered and privilege against inspection of it is claimed on the ground of 'statutory secrecy pursuant to 198 of the 1996 Act'. There is no present indication of any challenge by the plaintiffs to this claim made by the Board.
37 In 2007 Mr De Simone instructed Brereton to give him all files relating to any matters concerning any of the plaintiffs. Brereton apparently agreed to do so but then refused. VCAT proceedings were then commenced (in April 2008) by Seachange Management to obtain orders requiring Brereton to provide the files. In that proceeding, the Tribunal made orders to that effect, but Brereton only complied partly with the orders. Because Brereton was living in California he determined that no further action be taken in that proceeding.[14]
38 After the adjournment of the VCAT proceedings against Mr Brereton, the solicitor for the plaintiffs was contacted by Mr Hall who advised that he was familiar with the Brereton deficiencies or defaults (as he was the investigator involved at the time), but that he could not give any details as he was subject to secrecy provisions contained in the 2004 Act and its predecessor the Legal Practice Act 1996 (Vic). He suggested that the plaintiffs' solicitors look at his evidence in the Brereton disciplinary matter and he advised that he would be prepared to assist in the preparation of a Fidelity Fund claim, but could only use information in the possession of the plaintiffs unless he was released from his secrecy obligations by the Law Institute of Victoria and the Commissioner.[15]
39 The plaintiffs' solicitors sought a release from the LIV and the Commissioner. The LIV responded,[16] as follows:
The situation however is that as a trust account inspector Mr Hall was bound to observe the secrecy provisions set out in s 198 of the Legal Practice Act 1996 (1996 Act) and since 5 December 2005 by s 3.3.49 of the Legal Profession Act 2004 (2004 Act). The Law Institute does not have the power to waive the obligation of secrecy. Mr Hall can however disclose information acquired in the course of an investigation to a Court or Tribunal pursuant to s 198(2)(e) of the 1996 Act and s 3.3.49(2)(h) of the 2004 Act.
In all the circumstances it may be more appropriate and efficacious to serve subpoenas on Mr Hall and the Legal Services Commissioner in order to obtain the information you seek.
40 By October 2009 the plaintiffs had exhausted the practical avenues for getting supporting information for their claim against the Fidelity Fund. Mr Giuseppe De Simone therefore determined that the Fidelity Fund claim should be lodged without waiting for the 'ideal information' to become available and that Mr Hall should be engaged to go through the files that had been obtained from Brereton, plus other material in the plaintiffs' possession in order to prepare the claim.[17]
41 Mr Hall reviewed the material and informed Mr De Simone and the plaintiffs' solicitor that there was much additional material he had seen during the Brereton investigation that was 'dynamite' and would assist with the claim against the Fidelity Fund.[18]
42 Mr De Simone does not know the kind of material referred to by Mr Hall nor by whom it is held. In the absence of Mr Hall providing information about the general nature of the documents and who holds them, the plaintiffs cannot get advice as to the potential value of the documents to the claim, nor give instructions to obtain the material from persons holding the material either by way of non-party discovery or by way of subpoena.[19]
43 In a directions hearing before the Judge in Charge of the Professional Liability List held on 26 July 2013, the plaintiffs raised for the first time its apparent need to examine Mr Hall and to subpoena documents from him. The judge in charge of the list ordered that, if leave be required, the plaintiffs have leave to issue subpoenas under O 42A and referred the hearing of the plaintiffs' application to examine Mr Hall to an Associate Judge.
44 The subpoena to Mr Hall was then issued on 2 August 2013 and sought a wide range of documents said to be relevant to the plaintiffs' claim in this proceeding.
45 By objection dated 7 August 2013 under r 42A.07 of the Rules, the Commissioner notified the Prothonotary of objection to production of all or any of the documents identified in the Hall subpoena and objected to production and inspection. Its objection was based primarily on the ground of public interest immunity arising out of the statutory secrecy provisions in the Legal Practice Act 1996 ('the 1996 Act') and the 2004 Act. It also objected to production and inspection on the basis of client legal privilege.
46 By objection dated 14 August 2013 under r 42A.08 of the Rules, the Board objected to the production and inspection of all or any of the documents identified in the Hall subpoena. It did so primarily on the basis of public interest immunity and/or statutory secrecy.
47 By Orders made by Mukhtar AsJ on 30 August 2013 the Board and the solicitors for the Commissioner were permitted to inspect the documents produced pursuant to the Hall subpoena, with directions as to the placing of documents to which objection is taken in a sealed envelope and the service of written notices to the plaintiffs identifying the documents to which objection is taken.
48 The plaintiffs relied on the affidavits of their solicitor, Peter Simon Lustig and of Mr De Simone.
49 The affidavit of Peter Simon Lustig (sworn 5 August 2013) produces a letter from Mr Hall in which he identifies the documentary material that he requires from the Board, the Commissioner and the Law Institute of Victoria in order that he may answer questions that may be put to him in relation to this proceeding. Mr Lustig gives evidence that the plaintiffs are at a considerable disadvantage in this proceeding as documents exist that could materially assist their case but they cannot call for the documents because they are precluded from asking their hired investigator how to identify them.
50 Mr De Simone's affidavit (sworn 12 May 2014) gives evidence as to the VCAT proceedings brought against Brereton to obtain Seachange Managements' files, the approach made by Mr Hall, the approach made to the Law Institute of Victoria and its response, and the decision that the claim on the Fidelity Fund, with the assistance of Mr Hall, should be made without waiting for further information, as referred to above.[20]
51 The Board relied on the affidavit of Ned Roche sworn 16 May 2014. Mr Roche is the solicitor to the Board. He deposes that he received the plaintiffs' claim on the Fidelity Fund on 14 May 2010 under cover of a letter advising that Mr Hall had assisted in relation to making the claim. The claim had attached to it a supporting report which referred to the witness statement of Mr Hall made for the purposes of the disciplinary hearing against Brereton before the Tribunal.
52 The Commissioner and the Board relied on the affidavit of Cara Louise O'Shanassy sworn 22 April 2014 ('O'Shanassy Affidavit'), and the Commissioner also relied on the affidavits of Jayne Danielle McCubbin sworn 7 May 2014 and Lindsay John Hogan sworn 15 May 2014.
53 Cara Louise O'Shanassy is the Assistant Manager of Complaints and Investigations at the office of the Commissioner. She is a legal practitioner and was the instructing solicitor in the proceedings commenced by the Commissioner against Brereton in VCAT. She deposes to the background to the objections made by the Commissioner and to the identification by the Commissioner of 35 documents it objects to the plaintiffs inspecting. She produced a schedule of these 'protected documents' identifying the confidential information obtained by Mr Hall in the performance of his duties as a trust account investigator and as a consultant to the Commissioner (confidential Exhibit CLO-6). She also refers to the fact that the documents produced by Mr Hall include a number of communications between Mr Hall and the plaintiffs' representatives from October 2009. Naturally enough, the latter documents are not the subject of any claim by the Commissioner or the Board.
54 Ms O'Shanassy included in her affidavit a table of the 'protected documents' which contains a brief description of each document. The confidential exhibit, as I have said, identifies the confidential parts of each document. In addition, she exhibits a letter from the Board's solicitors setting out the grounds of objection and, in effect, incorporates those grounds by reference in her affidavit.[21] Having regard to her position in the Office of the Commissioner, and her role as instructing solicitor in the VCAT proceeding against Mr Brereton, it is apparent that her evidence verifies the basis of the claim to public interest immunity in terms of the class of the documents and their contents. That claim is based upon the role of Mr Hall as a former employee of the LIV and a former consultant engaged by the Commissioner, and the fact that the documents she describes, both briefly in the table in her affidavit and at length in the confidential exhibit, were produced or acquired in the performance by Mr Hall of his roles as employee or consultant. They are subject to the confidentiality provisions in the 1996 and the 2004 Acts and may therefore be subject to a valid claim to public interest immunity.
55 In her affidavit sworn on 7 May 2014, Jayne Danielle McCubbin deposes that she is a lawyer and an investigations officer employed by the Commissioner. She produced-
(a) A Confidentiality Deed between the Commissioner and Mr Hall dated 18 April 2008;
(b) An agreement for Professional Services between the Commissioner and Mr Hall dated 7 May 2008; and
(c) An agreement for Professional Services between the Commissioner and Mr Hall dated 4 July 2008.
56 Each of these documents contains confidentiality provisions restricting the use of the material, to which Mr Hall had access in the course of performing work for the Commissioner, to the purposes of the work to be performed. The Confidentiality Deed includes covenants by Mr Hall to treat that material as secret and confidential and only to use the material for the purpose of performing the functions described in the Deed, which do not include assisting a claimant on the Fidelity Fund.
57 Lindsay John Hogan affirmed his affidavit on 15 May 2014. He is employed by Corrs Chambers Westgarth, the solicitors for the Commissioner. In it:
(a) He refers to offering the plaintiffs the opportunity for Mr Lustig to inspect the documents produced by Mr Hall, subject to Mr Lustig providing a confidentiality undertaking by which he agreed not to reveal the contents of the documents to the plaintiffs;
(b) He refers to a response from Mr Lustig refusing the offer on the basis that, although he (Mr Lustig) is familiar with the subject matter of the dispute, he is not aware of all the aspects of the relationships between the various persons and potential connections that might be involved in certain of the allegations made by Mr Hall in his complaints about practitioners or persons who failed to follow up complaints about such practitioners. He was instructed that he would only accept the offer it was amended to allow Giuseppe De Simone to accompany him at the inspection and on the basis that Mr De Simone provide the same undertakings as he was asked to provide;
(c) He produces a copy of an email from Mr Roche, the solicitor for the Board, to Mr Lustig in which Mr Roche repeated the offer to Mr Lustig to inspect the documents; and
(d) He gives evidence about a further offer to Mr Lustig to inspect the documents subject to confidentiality undertakings in which it was re-emphasised that the purpose of the offer was to enable him to decide whether or not to proceed with the application.
58 The plaintiffs submitted in relation to the application to have Mr Hall give evidence before trial that:
(a) Because Mr Hall will only give details about the documents he has said he knows exist if one of the exceptions under s 3.4.49(2) of the 2004 Act is applicable, the interests of justice require that leave be given for an order under Rule 40.12 and/or 41.01 for him to give evidence as to the documents he knows once existed and where to his knowledge they were last held and what they broadly disclosed;
(b) It is only by this means that the plaintiffs will be able to obtain a fair hearing of this claim in this proceeding because it is only by that means that he will be able to obtain all relevant material to put before the Court, regardless of who holds it and where it is held;
(c) Once the examination of Mr Hall has been undertaken, the evidence given will enable the plaintiffs to issue either the necessary subpoenas or to make applications for non-party discovery so as to obtain the information in sufficient time before the trial, indeed, before the mediation;
(d) The Board is bound by the model litigant rules and because of the nature of its role as custodian of the Fidelity Fund it has a public interest and duty to ensure its decision is well founded and based upon all the relevant material; and
(e) Rules 40.12 and/or 41.01 provide ample power to the Court to make an appropriate order to ensure that all relevant documents are available to all parties at a time that will facilitate the effective, prompt and economical determination of the proceeding.
59 It was submitted on behalf of the plaintiffs that the resistance of the Board to the examination of Mr Hall is not founded on the statutory secrecy obligation but upon an analogy with the position of a witness who, for his or her own reasons, will not tell a party what evidence he or she will give. That contention, according to the plaintiffs, is misconceived as Mr Hall is willing and able to provide the evidence necessary to ensure effective and complete discovery is provided in a timely way in this proceeding. It is the secrecy provisions and the Board's refusal to permit Mr Hall to provide information sought that stand in the plaintiffs' way. But for the refusal of the Board to permit Mr Hall to give the information that he says he has, the plaintiffs would be able to rely on that information to make application under r 29.08 to require the Board to make particular discovery of documents identified by Hall.
(a) The effective, prompt and economical determination of this proceeding would be jeopardised by failure to adduce the relevant evidence from Mr Hall before further interlocutory steps are taken;
(b) The administration of justice would be frustrated or impaired if documents which Mr Hall would identify were withheld;
(c) The centrality of proper discovery to the effective determination of a proceeding is demonstrated by many authorities, such as Commonwealth Bank of Australia v Quade,[22] which hold that non-disclosure of documents that ought to have been disclosed may afford grounds for a new trial;
(d) The Board's contention that the availability of non-party discovery against the Commissioner is a sufficient reason not to order Mr Hall to give the relevant evidence to the Court is not sound, as the efficacy of that remedy is limited by the Board withholding the information Mr Hall maintains it has;
(e) The alternative to an examination of Mr Hall now is to call, or subpoena, Mr Hall to give evidence at trial. Once the existence of documents is revealed in the evidence at trial by Mr Hall, the plaintiffs would be entitled to seek an adjournment while the documents were brought into Court by the appropriate means to enable Mr Hall to be questioned in relation to those documents or for other persons to be subpoenaed to give evidence at trial. This would involve the inconvenience and delay that the Prothonotary procedure provided for in Order 42A is designed to avoid; and
(f) It is therefore in the interest of all parties that the documents Mr Hall says he can identify be identified now and that the Board or the Commissioner, or both, be obliged to take the requisite steps to produce those documents well before the trial of the claim.
(a) The plaintiffs do not identify any case law in support of their application for Mr Hall to be compelled to give evidence in advance of the trial. They merely baldly assert that such an order is required to facilitate the effective, prompt and economical determination of the proceeding;
(b) It is not relevant that the Court has power to make such an order. The issue for the Court is whether the plaintiffs have established that appropriate circumstances exist to justify the Court exercising the power;
(c) The ordering of a witness to give viva voce evidence before the trial of a proceeding is rare. It is made in special circumstances, such as a de bene esse application, where a proposed witness is seriously ill;
(d) Such an order is not warranted where the only basis put forward by the plaintiffs is that the witness in question will not or cannot cooperate with the party. That is a common enough occurrence;
(e) It is irrelevant that the reason why Mr Hall will not cooperate with the plaintiffs is that he is bound by statutory secrecy obligations. The effect is no different to the situation where a witness, for his or her own reasons, will not tell a party what evidence he or she will give at trial;
(f) The fact that the Board is bound by the model litigant guidelines is irrelevant as is the fact that it is the custodian of the Fidelity Fund; and
(g) In support of the application the plaintiffs assert that they need Mr Hall to identify relevant documents held by the Commissioner and that those documents are needed to prosecute the plaintiffs' claim. This is not a sufficient basis to justify the making of the order sought because the plaintiffs can readily obtain access to those documents by seeking non-party discovery against the Commissioner pursuant to r 32.07 of the Rules. On such an application a party is not required to identify precisely the documents sought as would be the case where the subpoena was being issued.
40.12 Attendance and production
(1) The Court may in any proceeding make an order for -
(a) the attendance of any person for the purpose of being examined;
(b) the attendance of any person and production by him or her of any document or thing specified or described in the order; or
(c) the production by any corporation of any document or thing specified or described in the order.
(2) An order under paragraph (1) may be made for attendance before or production to the Court or any officer of the Court, examiner, special referee, arbitrator or other person authorised to take evidence.
(3) An order under paragraph (1) shall not operate to require the person against whom the order is made to produce any document which the person could properly object to produce on the ground of privilege.
...
41.01 Order for witness examination
(1) The Court may, for the purpose of any proceeding, make an order for -
(a) the examination of any person before a Judge of the Court or an Associate Judge or such other person as the Court appoints as examiner at any place whether within or out of Victoria; or
(b) the sending of a letter of request to the judicial authorities of another country to take, or cause to be taken, the evidence of any person.
(2) An order under paragraph (1)(a) shall be in Form 41A or 41B as the case requires.
(3) An order under paragraph (1)(b) shall be in Form 41C.
63 There is no reported authority on the application of r 40.12, and there are none of the usually helpful notes to that rule in Williams, Civil Procedure Victoria.
64 Rule 40.12 is evidently based on Part 36 r 12 of the New South Wales Supreme Court Rules 1970, with some modifications. In Re BPTC Ltd (In Liq)[23] McLelland J of the Supreme Court of New South Wales, in considering the use of the powers in Part 36 r 12 (in aid of an examination under s 597 of the then Corporations Law), described the powers as 'clearly powers of an ancillary nature, conferred for the purpose of facilitating the exercise by the Court of its functions derived from other sources.' He referred to the necessity to ensure that demands made by the rule do not exceed the legitimate requirements of the particular occasion, particularly where the party required to produce the documents has a legitimate interest in maintaining their confidentiality.
65 Rule 40.12 had as its predecessor in the Victorian Rules of 1958, Order 37 Rule 7. That Rule empowered the Court or a judge in any cause or matter at any stage of the proceeding to order the attendance of any person for the purpose of producing any writings or other documents named in the order which the Court or judge may think fit to be produced. There was a proviso to the Rule that no person should be compelled to produce anything which he could not be compelled to produce at the hearing or trial.
66 The notes to Williams Supreme Court Practice (2nd Ed) in relation to Order 37 Rule 7 put the position thus:
This Rule is not made for the purpose of giving litigants any new right to discovery against persons not parties to the proceedings, but in order to remove the difficulties which previously existed in compelling the production of documents at any stage of the proceedings other than the hearing or trial. ...[Citations omitted]
In Nathan v MJF Constructions [1986] VicRp 8; [1986] VR 75 the Supreme Court of Victoria, Nicholson J, followed the authorities in holding that O 37 R 7 does not permit pre-trial discovery of a document from a person not a party to the proceedings.
(a) The decision of McLelland J in Re BPTC Ltd (In Liq);[24]
(b) The principle derived from the interpretation of its predecessor rule as referred to above;
(c) A consideration of the place of the rule in Order 40, which is generally concerned with the procedure for taking evidence, both at trial and on interlocutory applications; and
(d) The presence in other Orders in the Rules of a wide range of powers for the obtaining of discovery of documents before commencing proceedings (r 32.03 and 32.05) and after the commencement of proceedings against a non-party (r 32.06 and 32.07);
that the following considerations apply in the interpretation of the ambit of this rule, so far as this application is concerned-
(e) First, the power is ancillary to the exercise of another power, in that it is a power to be used to facilitate the exercise by the Court of its functions derived from other sources;
(f) Secondly, an application under the rule must be for a proper purpose; and
(g) Thirdly, it is not a proper purpose to use the rule to obtain discovery of documents or to obtain information to enable the discovery of documents.
68 There are, no doubt, other matters that will inform the use of the power arising in other cases and the three matters identified above are not intended to be exhaustive.
69 Rule 41.01 is the rule that establishes a procedure (ignoring for present purposes the letter of request procedure) to enable a witness to be examined out of court before trial, and a deposition of the examination taken can be used in evidence at the trial. The deposition of the evidence of the person given orally out of court takes the place of the testimony of that person as a witness at the trial. Rule 40.07 governs the admissibility of the deposition at trial.[25] It is not a part of the purpose of that rule, in my view, that it be used as a means of obtaining evidence for the purposes of discovery.
70 The material in support of the application shows that the purpose of seeking an order for the examination of Mr Hall is to break through, as it were, the secrecy provisions in both the 1996 and the 2004 Acts and enable Mr Hall to give the plaintiffs information about the nature of documents that exist or might exist that support the plaintiffs' claims and where those documents may be found.
71 Although the Board did not dispute the width of the power conferred by r 40.12 and r 41.01, it rightly pointed out that the question is whether the plaintiffs have established the appropriate circumstances to justify the Court exercising the power. Even if the powers under those Rules are not limited in the way I have described, the purpose for which the power is sought to be exercised in this case shows that it would not be a legitimate use of the Court's power to overcome the statutory prohibition on Mr Hall revealing what he knows. Contrary to the submissions of the Board (referred to above) it is relevant that the purpose of the exercise of the power is to circumvent the operation of the secrecy provisions. The fact that each of the secrecy provisions (that is s 194 of the 1996 Act and s 3.3.49 of the 2004 Act) has an exception that enables an inspector to disclose information acquired in the course of an investigation to a Court or a Tribunal does not give rise to an open ended invitation to a litigant to engage in an oral discovery process for the purposes of prosecuting a claim of the kind made in this case.
72 The provision that releases an inspector from his obligations under the secrecy provisions, by authorising the inspector to disclose the information to a Court or a Tribunal, must be read, in my view, as limited to circumstances where the information in the possession of the inspector is required for the purposes of a proceeding in a Court or Tribunal as a part of the evidence in that proceeding.
73 The plaintiffs' reliance on r 41.01 is misplaced. The purpose of that rule is to obtain the evidence of a person before trial and for the trial. It is not a part of the purpose of that rule, in my view, that it be used by way of a form of obtaining evidence for the purposes of discovery.
74 I disagree with the contention by the plaintiffs that it is only by the use of the power to examine Mr Hall that the plaintiffs will be able to obtain a fair hearing of their claims in this proceeding because it is only by that means that the plaintiffs will be able to obtain all relevant material to be put before the Court. I disagree because it is open to the plaintiffs to seek non-party discovery against the Commissioner.
75 It is not appropriate in this application to anticipate what might be the result of an application for non-party discovery yet to be made. Indeed, it is surprising that after the plaintiffs failed in their application for further and better discovery from the Board (which was based upon the proposition that documents in the possession, custody or power of the Commissioner were in the possession, custody or power of the Board) that there was no immediate application for non-party discovery against the Commissioner.
76 I might add, should it help, that from a review of the documents produced by Mr Hall pursuant to the subpoena, it seems unlikely that his evidence would point to any repository of documents other than the obvious, namely the Commissioner or the former RPA (under the 1996 Act), the LIV.
Objections to inspection of subpoenaed documents
(a) A document may only qualify for public interest immunity on the basis that the document is a member of a protected class if it is contrary to the public interest for any document of that class to be produced: Zarro v Australian Securities Commission;[26]
(b) The Board and the Commissioner are wrong in their contention that parliament has evinced an intention that the class of information identified in the secrecy provisions should be protected from disclosure by virtue of public interest immunity;
(c) In Deputy Commissioner of Taxation v Law Institute of Victoria,[27] the Court of Appeal held that documents received or generated in the course of the statutory task of regulating the legal profession may be protected by public interest immunity but this class of documents is not of such high significance or importance that it will be protected from disclosure irrespective of its contents;
(d) The Commissioner has given the plaintiffs copies of documents with redactions where objections are taken. The redactions appear on their face to withhold information that is not redacted in the index already provided, including the names of the complainant (Mr Hall) and the subjects of the complaints; although the identity of many of those persons is already apparent from the unredacted parts of the documents (with reference particularly to documents W, X, Y, FF and AAA);
(e) There is no evidence of the reasons why the contents of the documents for which the Board and the Commissioner claim immunity would, by their disclosure, interfere with or potentially damage the discharge of any statutory function. The interests advanced by the Commissioner in its supplementary submission (2 May 2014) are entirely speculation and are unsupported by evidence. Evidence is clearly necessary: see Deputy Commissioner of Taxation v Law Institute of Victoria.[28] Immunity is not lightly conferred and it should not lightly be claimed. It is never enough merely to assert that the disclosure of the information in question will harm some particular aspect of the public interest. The claim for immunity must be articulated with rigour and precision and supported by evidence demonstrating the currency and sensitivity of the information so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice;[29]
(f) Neither the Board nor the Commissioner has satisfied the evidentiary burden of establishing potential damage to the public interest should the disputed documents be revealed. Accordingly, there is no reason to undertake the balancing exercise;
(g) If, contrary to the plaintiffs' contention that the public interest in the protection of this material has not been established, and thus the balancing exercise needs to be undertaken, then the uncontradicted evidence of Giuseppe De Simone of the opinion of Mr Hall (that hitherto undisclosed documents are 'dynamite' and helpful to the plaintiffs' case) should be weighed in the balance and should tip that balance in favour of disclosure;
(h) There is no evidence to support any of the claims made by the Commissioner to legal professional privilege. Moreover, the unredacted portions of the documents do not indicate that any of them were created in circumstances which would attract such privilege. Mr Hall is not a legal practitioner. His professional opinion as an accountant, where repeated in circumstances where no litigation privilege applies, cannot be subject to any legal professional privilege as the occasion for the communication is not one to which the privilege applies;
(i) The occasion for litigation privilege to apply to any communication has long passed before the dates of the communications for which the Commissioner now claims the privilege. The hearing of the proceedings in the Tribunal concluded on 22 July 2008 and the decision was handed down on 13 August 2008;[30] and
(j) An examination of the redactions shows that at least some portions have been excessively redacted. For example, document 15(FF) is a complaint lodged on 22 October 2009 against David Brown, Nathan Kuperholz, David Weinberger and Kliger Partners. The whole of the substantive complaint is redacted. There is also an attachment which appears to be minutes of consent orders in the Supreme Court proceeding 7394 of 2003 (which is referred to in the amended statement of claim in the particulars to paragraph B13), where the name of the plaintiff and the name of the solicitor signing consent orders have both been obscured.
78 The Board objects to the plaintiffs inspecting some of the documents produced pursuant to the Hall subpoena. It does so on the basis of statutory secrecy, or public interest immunity, because Mr Hall obtained the information in those documents in the course of investigations and inspections conducted under the 1996 Act or the 2004 Act as a Trust Account Inspector or Investigator.[31]
(a) In substance the secrecy provisions provide that a Trust Account Inspector or an Investigator must not disclose information acquired in the course of an investigation except for the purposes of the investigation or to other identified regulatory or independent authorities. It is a serious prohibition, the contravention of which is a serious offence;
(b) The parliament has by these provisions, evinced an intention that the class of information (and the documents containing that information) identified in the secrecy provisions should be protected from disclosure. Those documents or information should be treated in the same way as a 'class' qualifying for public interest immunity;
(c) Sections 198 of the 1996 Act and 3.3.49 of the 2004 Act also allow disclosure to be made to a Court or Tribunal. This Court therefore has the power to receive the information or documents. It is, however, a separate and distinct question as to what use a Court may properly permit the information or documents to be used for, including whether or not to allow other persons to have access or to examine the documents containing the information;
(d) Neither of the exceptions to the secrecy provisions expressly set out the purposes for which a Court or Tribunal may exercise its discretion to allow the information or documents to be used. Guidance can, however, be gained from a study of the other types of purposes that are identified in both provisions where disclosure may be made by the inspector. Given the description of those purposes, it would be perverse to conclude that parliament intended a party could obtain disclosure for any purpose by simply requiring the inspector to disclose the information to a Court or Tribunal;
(e) In essence, the Court should be engaged in the weighing exercise by balancing the two public interests, being the harm that may be caused by disclosure on the one hand, and the interest in ensuring justice is effectively administered on the other;
(f) Consequently, the first issue is whether the plaintiffs have established the existence of circumstances warranting the exercise of the Court's discretion in favour of disclosure to the plaintiffs. They must show the public interest in the plaintiffs having access to the information because that access is in the interest of the fair administration of justice;[32]
(g) The Hall subpoena cannot be used to seek or ascertain if other documents exist or to otherwise fish for other documents. That is because the subpoena is a subpoena to produce documents 'for evidence'; and
(h) If the plaintiffs are able to establish that some or all of the documents produced pursuant to the Hall subpoena will be adduced into evidence in relation to an issue in dispute in the proceeding, then the Court should engage on a document by document basis in the balancing exercise in comparing the harm that may be caused by such disclosure with the interest of ensuring that evidence relevant to the proceeding is adduced.
80 I was provided with the documents to which production for inspection was opposed by the Board in two forms. First, in unredacted form in a sealed envelope marked in accordance with orders of Mukhtar AsJ made on 30 August 2013. Secondly, the same documents, but redacted to conceal the parts that are said to be protected either by client legal privilege, public interest immunity or simply because the material is irrelevant. The Board made extensive written submission, which I will not repeat, concerning each document. The Commissioner adopted these submissions and made further submissions about each document. The submissions about the documents broadly rely on public interest immunity and submit that, in the balancing process to be applied, disclosure of the information to the plaintiffs is unwarranted, and as such, not required for the fair administration of justice because:
(a) The documents contain information that is irrelevant to any issue in dispute in this proceeding;
(b) The documents merely contain the opinion/conclusion of Mr Hall on matters alleged in the Amended Statement of Claim; and
(c) The documents contain information which relates to practitioners who are not the subject of the allegations made by the plaintiffs in this proceeding.
81 The Commissioner objected to the plaintiffs inspecting some of the documents produced pursuant to the subpoena addressed to Mr Hall dated 2 August 2013. The documents to which objection was taken are referred to in the confidential exhibit to the O'Shanassy Affidavit. This exhibit sets out in tabula form the documents to which objection is taken together with the substance of the content of each document. For that reason it has not been served on the plaintiffs and the Commissioner seeks an order that it not be made available to the plaintiffs for inspection.
82 The Commissioner's objection to production for inspection is based upon the public interest immunity exception in some cases, and upon client legal privilege in others. The Commissioner objects to all the documents described in that exhibit other than 5(O), 11(Y), 12(BB), 28(III) and 33 (OOO). A table of the documents is set out in the Schedule to these reasons.
83 The Commissioner adopts the submissions of the Board in relation to the contents of the documents and the reasons why they attract public interest immunity, and should not therefore be inspected by the plaintiffs for the purposes of this proceeding. In addition, the Commissioner made particular submissions about the documents which fall into the following categories:
(a) The document reveals matters which relate to Mr Hall's consultancy with the Commissioner and to investigations being conducted by the Commissioner and is protected by public interest immunity;
(b) The document is a complaint, or correspondence relating to a complaint, made by Mr Hall to the Commissioner and is protected by public interest immunity; and
(c) The document discloses communications made by Mr Hall in the course of his consultancy and which were made for the dominant purpose of the VCAT proceedings, and are therefore the subject of client legal privilege under s 119 of the Evidence Act 2008.
84 The Commissioner made particular reference to the precise public interest sought to be protected by the objections raised. The Commissioner sought to protect the public interest in receiving complaints. An aspect of this public interest encompasses encouraging practitioners, members of the public and others to make complaints where a legal practitioner's conduct warrants a complaint being made. The Commissioner was concerned that future complaints may be discouraged for fear that the identity of the complainant will be revealed. Disclosure of complaints made by Mr Hall himself, notwithstanding his apparent desire to reveal those complaints to the plaintiffs and potentially the public, may, submitted the Commissioner, have a deterrent effect upon future complaints.
85 Reference was made to the decision in Finch v Grieve,[33] where Wood J held that there is a substantial public interest in the New South Wales Bar Council receiving complaints about the misconduct of barristers. This led to the identity of the complainant being concealed, or not revealed. The reasoning in Finch v Grieve is consistent with the decision in Middendorp Electric Co Pty Ltd v Law Institute of Victoria.[34]
86 The Commissioner contended that on occasion the public interest in maintaining the confidentiality of complaints may extend to prohibiting disclosure of the details of the complaint in the hands of the complainant, particularly where that complaint has been dismissed by the Commissioner. If the publication of a dismissed complaint were permitted that may defeat the public interest recognised by s 6.4.5 of the 2004 Act in maintaining the confidentiality of the complaint process. That confidentiality is all the more important where the complaint has been dismissed.
87 The Commissioner also submitted, correctly in my view, that the fact that the documents revealing complaints are in the possession of Mr Hall does not affect the importance of the public interest in the confidentiality attaching to them. Whether the doctrine of public interest immunity can be invoked does not depend upon the identity of the person in possession of the documents or information. It depends upon identification of the public interest in maintaining the confidentiality of the documents weighed against the interests of the administration of justice in the documents being revealed for the purposes of the proceeding.[35]
88 The relevant provision in the 1996 Act is s 198, which provides:
(1) An inspector must not disclose information acquired in the course of an investigation under this Division except -
(a) as is necessary for the purpose of conducting the investigation and making the report of the investigation; or
(b) as is permitted by sub-section (2); or
(c) with the consent of the person to whom the information relates.
(2) An inspector may disclose information acquired in the course of an investigation -
(a) to a member of the police force, if the inspector reasonably suspects that an offence has been committed;
(b) to the RPA, Board or Legal Ombudsman that appointed the inspector, in connection with any proceedings arising out of the investigation or concerning the practitioner, firm or approved clerk the subject of the investigation;
(c) to a receiver of the property, or a manager of the legal practice, of the practitioner or firm the subject of the investigation;
(d) to the Australian Society of Certified Practising Accountants, the National Institute of Accountants or the Institute of Chartered Accountants Australia, if the information relates to the conduct of a member of that body who audited the trust account the subject of the investigation;
(3) In addition to any penalty and any civil liability to the legal practitioner, firm or approved clerk, an inspector who contravenes sub-section (1) is liable -
(a) to a client of the legal practitioner or firm to the same extent (if any) that the legal practitioner or firm would have been liable had they disclosed the information;
(b) to a legal practitioner who has employed or engaged the clerk, or to a client of that practitioner, to the same extent (if any) that the clerk would have been liable to the practitioner, or the practitioner would have been liable to the client, had they disclosed the information.
89 The relevant provisions of the 2004 Act is s 3.3.49, which provides:
(1) An inspector must not disclose information acquired in the course of an investigation under this Division except -
(a) as is necessary for the purpose of conducting the investigation and making the report of the investigation; or
(b) as is permitted by subsection (2); or
(c) with the consent of the person to whom the information relates.
Penalty: 60 penalty units.
(2) An inspector may disclose information acquired in the course of an investigation -
(a) to a member of the police force, if the inspector reasonably suspects that an offence has been committed;
(b) to the Board, in connection with any proceedings arising out of the investigation or concerning the law practice that, or approved clerk who, was the subject of the investigation;
(c) to the Commissioner, in connection with any function of the Commissioner arising out of the investigation or concerning the law practice that, or approved clerk who, was the subject of the investigation;
(d) to an external intervener of the legal practice of the law practice that was the subject of the investigation;
(e) to a trustee in bankruptcy or other administrator of the estate of the approved clerk who was the subject of the investigation;
(f) to any officer, employee, agent or delegate of a person referred to in paragraph (b), (c), (d) or (e);
(g) to CPA Australia, the Institute of Public Accountants or the Institute of Chartered Accountants in Australia, if the information relates to the conduct of a member of that body who examined the trust account the subject of the investigation;
(h) to a court or tribunal;
(i) to the Australian Securities and Investments Commission;
(j) to an external examiner of the law practice or approved clerk, in connection with the performance of any function of the external examiner under Division 4.
(3) In addition to any penalty and any civil liability to the law practice or approved clerk, an inspector who contravenes subsection (1) is liable -
(a) to a client of the law practice to the same extent (if any) that the law practice would have been liable had it disclosed the information;
(b) to a law practice that has employed or engaged the clerk, or to a client of that law practice, to the same extent (if any) that the clerk would have been liable to the law practice, or the law practice would have been liable to the client, had the clerk disclosed the information.
90 In addition, s 6.4.5 is relevant. That section applies to a consultant engaged by the Commissioner, and to the Commissioner and his or her employees: see s 6.4.5(1)(b), (c) and (d).
(2) A person to whom this section applies must not, directly or indirectly, make a record of, disclose or communicate to any person any information relating to the affairs of any person or law practice acquired in the performance of functions under this Act, unless -
(a) it is necessary to do so for the purpose of, or in connection with, the performance of a function under this Act; or
(b) the person to whom the information relates gives written consent to the making of the record, disclosure or communication.
Penalty: 120 penalty units.
(3) Subsection (2) does not prevent a person (other than a mediator) -
(a) producing a document or giving evidence to a court or tribunal in the course of criminal proceedings or proceedings under this Act; or
(b) reporting a suspected offence to the police or assisting them in their investigations.
92 The Commissioner's objection to Hall's documents being produced for inspection depends on the application of s 130 of the Evidence Act 2008 (Vic), which is applicable to a call for production by virtue of s 131A of that Act.
If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
94 Section 130(4) sets out a non-exclusive list of circumstances in which the information or document will be taken to relate to 'matters of state' for the purposes of s 130(1), including (relevantly) sub-section 130(4)(c) and (e), which states that information or a document will be taken to relate to matters of state where adducing the evidence would:
(a) Prejudice the prevention, investigation or prosecution of an offence;
(b) Disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of the law of the Commonwealth or of a State.
95 Section 130(5) sets out a non-exhaustive list of the matters that the court may take into account for the purposes of s 130(1), as follows:
(a) The importance of the information or the document in the proceeding;
(b) If the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the information or document is [a defendant/an accused] or the prosecutor;
(c) The nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d) The likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e) Whether the substance of the information or document has already been published; and
(f) If the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is [a defendant/an accused] - whether the direction is to be made subject to the condition that the prosecution be stayed.
96 It is clear from s 130(5) that the matters there set out do not limit the matters the Court may take into account for the purposes of s 130(1). As Dixon J noted in Murdesk Investments Pty Ltd v The Secretary to the Department of Business & Innovation ('Murdesk'),[36] other relevant considerations in balancing competing interests of state can be drawn from the cases decided under the common law doctrine, as follows:[37]
(a) Whether the objection to disclosure is a class claim or a content claim;
(b) Whether a representative of government has supported non-disclosure of the information or document;
(c) Whether the information or document relates to Cabinet deliberations or lower levels of government;
(d) Whether the information or document has contemporary importance or is only of historical interest; and
(e) Whether the information or document was acquired on the basis that it would be kept confidential.
97 This case is concerned with immunity in respect of information obtained in the course of a statutorily authorised investigation of a solicitor's trust account and related matters arising in the solicitor's practice, and as well to the complaint procedure under the Legal Profession Act. There are many authorities on the matters more usually described as 'matters of state' that are not directly relevant, particularly those concerning cabinet documents, documents produced for submission to cabinet and documents produced for the proper working of government, where ministers and other senior servants of the Crown need to be able to engage in policy development and decision-making on the basis that their deliberations are kept confidential. Although these authorities are not directly relevant, they do establish some principles relevant to the present matter, as follows:
(a) The content and operation of s 130 of the Evidence Act is informed by the common law;[38]
(b) The common law recognises a 'rough, but acceptable' division of public interest immunity claims into 'class' and 'contents' claims;[39]
(c) Documents can be immune from disclosure on the basis of their class because their disclosure would injure the public interest, irrespective of the actual contents of the documents;[40]
(d) Documents that do not belong to such a class may still be immune from disclosure, on the basis that their contents, if disclosed, would injure the public interest;[41]
(e) A claim in respect of a class of documents is, by its nature, general and that claim will normally be upheld if the class is one that is recognised as being, prima facie, subject to public interest immunity;[42]
(f) A claim for public interest immunity requires the claimant to demonstrate that production of the documents for inspection would be contrary to the public interest;[43]
(g) Immunity from disclosure is not automatically accorded to documents falling within a class claim. There is no absolute immunity from production and inspection of, for example, Cabinet documents.[44] The court must still weigh the public interest in the proper functioning of government with the public interest in the proper administration of justice whereby all relevant documents are available to a party seeking to litigate a claim;[45]
(h) In weighing the competing public interests under s 130 of the Evidence Act, the Court is required to give weight to the assertion of a responsible representative of the government or other body concerned that there is a public interest, which would be placed in jeopardy by the production of the document;[46]
(i) In order for the public interest in the administration of justice to arise in the balancing process, the documents must contain 'material evidence'.[47] Relevance to the proceedings is of itself insufficient. The documents must have an important bearing upon the ultimate decision on the relevant questions;[48]
(j) Documents relating to a topic that is current or controversial will attract a high level of confidentiality;[49] and
(k) Public interest immunity cannot be waived by individuals or by the Crown.[50]
98 In the particular context of this case, the following further matters are relevant:
(a) It has been recognised that there is a necessity in the public interest of maintaining the confidentiality of communications with persons upon whose information a statutory authority or other body relies for the effective discharge of duties that exist for the benefit of the public, including the investigation of legal practitioners under legislation regulating their conduct;[51]
(b) What justifies the claim to withhold information is the public interest in the due performance of the functions entrusted to the body in question, and the danger that unless the communication by which the information is imparted is kept confidential, the quality of performance of those functions will suffer, with consequent detriment to the public;[52]
(c) Documents received or generated in the course of the statutory task of regulating the legal profession may be protected by public interest immunity but this class of documents is not of such high significance or importance that it will ever be protected from disclosure by public interest immunity irrespective of the contents;[53]
(d) It will not always be in the public interest for documents relating to investigations by bodies such as the Law Institute of Victoria or the Legal Services Commissioner to be withheld from disclosure in litigation in respect of which the documents are relevant.[54] All will depend upon the circumstances and the importance of the documents to the proceeding weighed against the importance of nondisclosure in the public interest; and
(e) Disclosure of the information might be permitted if it is possible to conceal the identity of the informants.[55]
99 There is a three-step process involved in the consideration of a claim for public interest immunity:[56]
(a) The first step is to decide whether there is a risk that production and inspection of the documents in issue would be injurious to the public interest;
(b) The second step is to determine whether there is a public interest in a party having access to those documents because such access is in the interests of the fair administration of justice; and
(c) The third step is to determine whether the public interest in the fair administration of justice outweighs the desirability that the information not be disclosed.
100 Reliance was placed by the Commissioner and the Board upon the litigation privilege established by s 119 of the Evidence Act 2008 (Vic). That privilege undoubtedly encompasses communications between a client's lawyers and a consultant retained by the client and made for the dominant purpose of actual litigation, whether the consultant is regarded as a third party,[57] or as an employee.[58] Communications made by Mr Hall for the dominant purpose of the Tribunal proceedings are therefore protected from disclosure by reason of client legal privilege.
101 In my recent decision in HRF Nominees Pty Ltd (In Liq) & Others v Man Civil Constructions Pty Ltd & Others (No.2)[59] I considered the 'for evidence' requirement of Order 42A of the Rules. That is, the rule is expressed to apply where a party who has a solicitor in the proceeding seeks to require a person not a party to produce any document for evidence before the hearing of an interlocutory or other application in the proceeding or the trial of the proceeding. I will adopt the reasoning from that decision and apply it here. In particular the following propositions are relevant to the present matter:
(a) The procedure under Order 42A should not be used as a substitute for discovery or non-party discovery;
(b) The subpoena must not be used as a 'fishing expedition';
(c) There must be a legitimate forensic purpose for the use of the documents in evidence. If that is established, then it is likely that the requirement 'for evidence' will be established;
(d) 'For evidence' means that a document may potentially be required for evidence, either in-chief or in cross examination, and that means it must have at least some potential relevance to the issues in the proceeding;
(e) A useful test to determine whether a subpoena to produce documents is 'for evidence' is whether the subpoena would have been objectionable if it was made returnable at trial;[60] and
(f) At trial, the relevant test to be applied in determining whether documents may be subject of a subpoena to produce documents is whether, having regard to the issues as defined in the pleadings, the documents are either directly relevant to matters in issue or might come within the second leg of the test in Peruvian Guano,[61] as documents that could lead the plaintiffs upon a path of inquiry either to advance his own case or to impeach the case which is made against him.[62]
102 There are 35 documents produced by Mr Hall that have been inspected by the Commissioner and produced to the Court in a sealed envelope pursuant to the orders of Mukhtar AsJ made on 30 August 2013. A list of the documents is in the Schedule to these reasons. A folder of these documents redacted to remove allegedly protected material has been given to Mr De Simone and his advisors. The Commissioner claims they are to be protected from full disclosure because:
(a) They are irrelevant to the claims in this proceeding because they concern investigations undertaken by Mr Hall of other practitioners;
(b) They contain communications that are protected by client legal privilege; or
(c) They contain communications protected by public interest immunity.
103 I have inspected these documents in their original and in their redacted state and have determined that the redactions are, broadly speaking, properly made (although in some cases they are not complete). In the table in the Schedule, I provide a legend of the shorthand description of my decision in relation to each document.
104 In carrying out this task I have proceeded on the following basis:
(a) The Hall subpoena cannot be used to seek or ascertain if other documents exist or to otherwise fish for other documents. That is because the subpoena is a subpoena to produce documents 'for evidence'. For the same reasons I later give in the context of public interest immunity, my analysis of the documents reveals that they are not relevant to the plaintiffs' claims in this proceeding and are not therefore capable of being for evidence in the proceeding, even in the widest sense;
(b) The documents are not within a 'class' claim for immunity from production. The class of documents in which these fall is not of such high significance or importance that it will ever be protected from disclosure by public interest immunity irrespective of the contents;[63]
(i) Is there a risk that production and inspection of the documents in issue would be injurious to the public interest;
(ii) Is there a public interest in a party having access to those documents because such access is in the interests of the fair administration of justice; and
(iii) Does the public interest in the fair administration of justice outweigh the desirability that the information not be disclosed.
(d) Thus, whether it is in the public interest for any of the documents to be withheld from disclosure depends upon the importance of the documents to the proceeding weighed against the importance of non-disclosure in the public interest.
105 In general, I have found that the submissions made on behalf of the Board and the Commissioner are well founded, in that the documents:
(a) Contain information that is irrelevant to any issue in dispute in this proceeding;
(b) Merely contain the opinion/conclusion of Mr Hall on matters alleged in the Amended Statement of Claim; and
(c) Contain information which relates to practitioners who are not the subject of the allegations made by the plaintiffs in this proceeding.
106 The plaintiffs complained that the evidence of the Board and Commissioner in support of the immunity claimed is insufficient. In my view, upon a proper analysis of the material to which I have referred, this complaint is not correct. It is an inevitable consequence of a claim of this kind that giving fulsome evidence in support will risk revealing the content of the material sought to be kept confidential. To avoid this result, the O'Shanassy Affidavit refers to the confidential exhibit, which includes an identification of the confidential material, and does establish with precision the information sought to be kept confidential. An examination of that material confirms that its content is properly the subject of a claim to immunity, or client legal privilege, or is merely irrelevant. The table included in the O'Shanassy Affidavit, which I have reproduced as a Schedule to these reasons, however, reveals the names of a number of the persons the subject of complaint by Mr Hall. Thus, to the extent that those names are revealed, the confidentiality is waived by the Commissioner. Indeed, it will be seen from my account of the plaintiffs' submissions[64] that the revealing of these names in the documents not the subject of objection is advanced as a reason against some of the redactions made to the 'protected documents'.
107 It is fair to say that the redactions made on behalf of the Commissioner to the 'protected documents' are not altogether consistent. It is also true that the O'Shanassy Affidavit reveals in the description of many documents the identity of those against whom Mr Hall has made complaints. This is unfortunate, but not fatal to the substance of the claims to confidentiality of the other material being maintained. So as to prevent public disclosure (as distinct from disclosure to the plaintiffs for the purpose of this proceeding alone) of the identity of the people against whom Mr Hall has complained, I have deleted from the Table in the Schedule the names of those people.
108 The damage to the public interest in revealing the information identified in the confidential exhibit lies significantly in maintaining the confidentiality of the complaints process and particularly where the complaints have been dismissed by the Commissioner. It is not, in my view, in the interests of the administration of the 2004 Act, and the complaints procedure established by it, that the detail of the complaints made, particularly by Mr Hall himself, and the treatment of those complaints by the Commissioner, should be revealed. This is not to say that this is the upholding of a class claim. It is because the revealing of the content will be likely to damage the due performance of the functions entrusted to the Commissioner and adversely affect the quality of the performance of those functions with consequential detriment to the public. Consistently with the decision of the Court of Appeal in Deputy Commissioner of Taxation v Law Institute of Victoria,[65] this is not the upholding of a class claim, because it is the content that drives the application of the public interest immunity.
109 In many cases, the decisive consideration flows from the balancing exercise. In order for the public interest in the administration of justice to arise in the balancing process, the documents must contain 'material evidence'.[66] Relevance to the proceedings is of itself insufficient. The documents must have an important bearing upon the ultimate decision on the relevant questions.[67] It is evident to me from reviewing the material identified in the confidential exhibit and, indeed, reading the protected documents in their entirety, that the documents are irrelevant to the claims made by the plaintiffs in this proceeding. It is not, therefore, in the public interest to permit the plaintiffs to have access to them. That is, the public interest in the fair administration of justice does not outweigh the desirability that the information contained in the documents not be disclosed.
110 I have concluded for the reasons set out above that:
(a) The application to examine Mr Hall before trial under rr 40.12 and 41.01 of the Rules, being an examination for the purposes of the discovery of documents is not a valid use of the Rules and that, accordingly, the application is refused; and
(b) The objections by the Board and the Commissioner to the plaintiffs inspecting certain documents produced under subpoena on the grounds of public interest immunity, client legal privilege, and relevance are upheld.
111 In consequence of these conclusions and the reasons for them, it will be necessary to make orders regarding the following matters:
(a) The plaintiffs' applications under rr 40.12 and 41.01;
(b) The objections to production and inspection of the protected documents; and
(c) The confidential exhibit to the O'Shanassy Affidavit, and, possibly the identification of the individuals against whom Mr Hall has complained as revealed in the Table in that Affidavit and in other documents not subject of an objection. As I have said, the revealing of these names to the plaintiffs, for the purposes of this proceeding only, is one thing, and revealing their identity publicly, is quite another.
112 I will, therefore, hear the parties as to the appropriate orders on a date to be fixed.
IRR = Irrelevant (including that it refers to other practitioners not included or referred to in the proceeding);
The documents were produced with identifying letters marked on them, but referred to in submissions by reference to number and letter.
Document entitled 'Ron Hall notes for Mike Brett Young re Meeting 23 May 2008'
Letter from Ronald Hall to Victoria Marles, Legal Services Commissioner, entitled 'Victoria Legal Profession Regulators - My Concerns'
Letter from Ronald Hall to Victoria Marles, Legal Services Commissioner regarding partners of [deleted] and [deleted] involvement with Michael Brereton
Letter from Ronald Hall to Victoria Marles, Legal Services Commissioner, regarding correspondence sent on 14 April 2009
Letter from Ronald Hall to Russell Day, Legal Officer, Legal Services Commissioner, entitled 'Investigation/Complaint of the Collendina Project in relation to the interests of Michael Richard Brereton & Co Lawyers, [deleted]
Letter from Ronald Hall to Victoria Marles, Legal Services Commissioner, entitled 'Investigation/Complaint of the Collendina Project in relation to the interests of Michael Richard Brereton & Co Lawyers, [deleted]
Letter from Ronald Hall to Victoria Marles, Legal Services Commissioner, entitled 'Investigation/Complaint of the Collendina Project in relation to the interests of Michael Richard Brereton & Co Lawyers, [deleted]
Letter from Ronald Hall to Victoria Marles, Legal Services Commissioner, entitled 'Investigation/Complaint of the Collendina Project in relation to the interests of Michael Richard Brereton & Co Lawyers, [deleted]
Legal Services Commissioner complaint form lodged by Ronald Hall regarding [deleted]
Legal Services Commissioner complaint form lodged by Ronald Hall regarding Rod Lyle
Legal Services Commissioner complaint form lodged by Ronald Hall regarding unknown from [deleted]
Letter from Victoria Marles to Ronald Hall entitled 'Complaint against Mr Rod Lyle of Deacons Lawyers'
Letter from Victoria Marles, Legal Services Commissioner, to Ronald Hall entitled 'Complaint against [deleted]
Letter from Ron Hall to Legal Services Commissioner entitled 'Re: My Complaint re [deleted] Brereton'
Legal Services Commissioner complaint form lodged by Ronald Hall regarding [deleted]
Letter from Michael McGarvie, Acting Legal Services Commissioner, to Ronald Hall entitled 'Complaint against [deleted]
Letter from Michael McGarvie, Acting Legal Services Commissioner, to Ronald Hall entitled 'Complaint against [deleted]
Letter from Michael McGarvie, Acting Legal Services Commissioner, to Ronald Hall entitled 'Complaint against [deleted]
Letter from Michael McGarvie, Acting Legal Services Commissioner, to Ronald Hall entitled 'Complaint against [deleted]
Letter from Michael McGarvie, Acting Legal Services Commissioner, to Ronald Hall entitled 'Complaint against [deleted]
Letter from Ronald Hall to Michael McGarvie, Acting Legal Services Commissioner, entitled 'Re: Complaint against [deleted]
Legal Services Commissioner complaint form lodged by Ronald Hall regarding [deleted]
Letter from Michael McGarvie, Acting Legal Services Commissioner, to Ronald Hall entitled 'Complaint against [deleted]
Letter from Michael McGarvie, Acting Legal Services Commissioner, to Ronald Hall entitled 'Complaint against [deleted]
Letter from Michael McGarvie, Acting Legal Services Commissioner, to Ronald Hall entitled 'Complaint against [deleted]
Letter from Michael McGarvie, Acting Legal Services Commissioner, to Ronald Hall entitled 'Complaint against [deleted]
Letter from Michael McGarvie, Acting Legal Services Commissioner, to Ronald Hall entitled 'Complaint against [deleted]
Letter from Michael McGarvie, Acting Legal Services Commissioner, to Ronald Hall entitled 'Complaint against Mr Roderick Lyle of Clayton Utz (formerly of Deacons Lawyers)
Letter from Michael McGarvie, Legal Services Commissioner, to Ronald Hall entitled 'Complaint against [deleted]
Letter from Michael McGarvie, Legal Services Commissioner, to Ronald Hall entitled 'Complaint against [deleted]
Letter from Michael McGarvie, Legal Services Commissioner, to Ronald Hall entitled 'Complaint against [deleted]
Letter from Ronald Hall to Michael McGarvie, Legal Services Commissioner, entitled 'Re: Complaint LSC/09/3668 Complaint against [deleted]
Letter from Ronald Hall to Michael McGarvie, Legal Services Commissioner, entitled 'Re: Complaint LSC/3667 Complaint against Mr Roderick Lyle of Clayton Utz (Formerly Deacons Lawyers)'
Letter from Ronald Hall to Michael McGarvie, Legal Services Commissioner, entitled 'Re: Complaint COM-2009-0719 Complaint against [deleted]
Letter from Ronald Hall to Michael McGarvie, Legal Services Commissioner, entitled 'Re: Complaint COM-2009-0721 Complaint against [deleted]
SEACHANGE PROJECT NOMNIEES PTY LTD (ACN 149 258 033)
SEACHANGE VILLAGE NOMINEES PTY LTD (ACN 091 526 215)
[2] The proceeding was commenced in the County Court of Victoria in July 2012 and transferred to this Court on 18 March 2013.
[5] The fact that the moneys were paid to Brereton as solicitor for Seachange Management is based on the findings of the Tribunal, but is one of the issues in dispute in this proceeding, as De Simone claims that he and companies with which he was then associated at the time in 2000 were clients of Brereton and moneys paid to his firm were paid as clients of the firm.
[6] Legal Services Commissioner v Brereton [2011] VSCA 241, [8].
[8] Now named Seachange Project Nominees Pty Ltd.
[9] Defined in the Amended Statement of Claim as a large number of investors in the Villager Collendina Partnership represented by four nominee entities, Bodero & Associates Pty Ltd, Jones Financial Management Pty Ltd, Ergo Management Pty Ltd and Geramata Partnerships Pty Ltd: see particular (ii) to paragraph A1(e) of the Amended Statement of Claim dated 25 May 2012.
[10] The Seachange Village Partnership constituted by Deed of Partnership dated 10 March 2000, the bare nominee for which is the sixth plaintiff, Seachange Village Nominees Pty Ltd: see paragraph A1(h) of the Amended Statement of Claim dated 25 May 2012.
[11] The Amended Statement of Claim at paragraph B18 refers to a Deed dated 18 August 2010, but from other references in the pleading this would appear to be a mistake for 2004.
[12] The relevant provisions of the 2004 Act came into force on 12 December 2005.
[13] Witness Statement of Ronald William Hall dated 23 April 2008, exhibit NR-3 to the affidavit of Ned Roche sworn 16 May 2014, paragraphs [4] and [5].
[15] Affidavit of Giuseppe De Simone sworn 12 May 2014 at [3].
[16] Affidavit of Giuseppe De Simone sworn 12 May 2014 at [4] and Exhibit GDS-001.
[17] Affidavit of Giuseppe De Simone, 12 May 2014 para 6.
[18] Affidavit of Giuseppe De Simone, 12 May 2014 para 7.
[19] Affidavit of Giuseppe De Simone, 12 May 2014 para 9.
[23] (1993) 29 NSWLR 708, 709-10.
[25] See Neil J Williams, Supreme Court Civil Procedure, Butterworths, 1987, paragraph 17.14.
[26] (1992) 36 FCR 40, 45-6.
[27] [2010] VSCA 73 [50].
[28] [2010] VSCA 73 [20], [28]-[30].
[29] State of Victoria v Brazel [2008] VSCA 37.
[30] Legal Services Commissioner v Brereton (Legal Practice) [2008] VCAT 1723.
[31] Schedule 2, clause 8.13(b) of the 2004 Act includes a transitional provision pursuant to which the Board is the appropriate body to resist the inspection or disclosure of documents or information obtained in the course of such investigations or inspections.
[32] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1; Tatts Group Ltd v State of Victoria [2013] VSC 301 ('Tatts Group'); Matthews v SPI Electricity Pty Ltd (No. 11) [2014] VSC 65, [25](b).
[35] See for example Law Institute of Victoria v Commissioner of Taxation [2009] VSC 55 at [10] per Pagone J.
[36] [2011] VSC 436 [23].
[37] Stephen Odgers, Uniform Evidence Law in Victoria (Law Book Co, 9th ed, 2010) [1.3.13580].
[38] Eastman v The Queen (1997) 76 FCR 9, 63 (von Doussa, O'Loughlin and Cooper JJ); Tatts Group, at [26].
[39] Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 616 (Mason CJ, Brennan, Deane, Dawson, Gaudron, McHugh JJ) (Northern Land Council'); Tatts Group, at [26].
[40] Sankey at 43 (Gibbs ACJ), Tatts Group at [26].
[41] Northern Land Council at 616 (Mason CJ, Brennan, Deane, Dawson, Gaudron, McHugh JJ), Tatts Group, at [26].
[42] Spencer (No 3), at [43] (Emmett J); Tatts Group, at [27].
[43] Zarro v Australian Securities Commission (1992) 36 FCR 40 at 45 (Lockhart J), referring to Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1.
[44] Sankey at 43, 58-59, 95-96; Northern Land Council at 616; Murrumbidgee at [19].
[45] Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 616-620; Betfair v Racing NSW [2009] FCA 1140; (2009) 181 FCR 66, [24] ('Betfair').
[47] Alister v The Queen (1984) 154 CLR 404, 412 (Gibbs CJ); Tatts Group at [33].
[48] Krew v Federal Commissioner of Taxation, (1971) 2 ATR 230, 232; Tatts Group at [33].
[49] Northern Land Council at 617-618; Murrumbidgee at [19]; Tatts Group at [32].
[50] Middendorp Electric Co Pty Ltd v Law Institute of Victoria [1994] VicRp 64; [1994] 2 VR 313 at 324 ('Middendorp'); Rogers v Home Secretary [1973] AC 388 at 407.
[51] Law Institute of Victoria v Irving [1990] VicRp 37; [1990] VR 429; Deputy Commissioner of Taxation v Law Institute of Victoria Ltd, [2010] VSCA 73; (2010) 27 VR 51.
[52] Law Institute of Victoria v Irving [1990] VicRp 37; [1990] VR 429; Finch v Grieve (1991) 22 NSWLR 578; Medical Board (SA) v Fisher (2000) 76 SASR 242; [2000] SASC 92.
[53] Deputy Commissioner of Taxation v Law Institute of Victoria, (2010) 27 VR 51; [2010] VSCA 73 at [50].
[54] Law Institute of Victoria v Irving [1990] VicRp 37; [1990] VR 429 at 437.
[55] Law Institute of Victoria v Irving [1990] VicRp 37; [1990] VR 429 at 437.
[56] Sportsbet Pty Ltd v Harness Racing Victoria (No 4) [2011] FCA 196 Per Mansfield J at [4]; Spencer (No 3) Per Emmett J at [22].
[57] Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2014) 136 FCR 357.
[58] Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at 245-6.
[59] [2014] VSC 613 at [37]- [51].
[60] Burchell v Hill [2010] VSC 96 [20] (Mukhtar AsJ).
[61] Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 62, 63.
[62] Skrijel v Mengler, [2003] VSC 55, particularly at [5] and [14]; see Waind v Hill [1978] 1 NSWLR 372, 383.
[63] Deputy Commissioner of Taxation v Law Institute of Victoria, (2010) 27 VR 51; [2010] VSCA 73 at [50].
[66] Alister v The Queen (1984) 154 CLR 404, 412 (Gibbs CJ); Tatts Group at [33].
[67] Krew v Federal Commissioner of Taxation, (1971) 2 ATR 230, 232; Tatts Group at [33].
De Simone
Legal Services Board & Ors [2015] VSC 9
(1991) 178 CLR 134
(1993) 29 NSWLR 708
(1992) 36 FCR 40
(1978) 142 CLR 1
(1991) 22 NSWLR 578
(1997) 76 FCR 9
(1993) 176 CLR 604
(2009) 181 FCR 66
(1998) 101 LGERA 246
(1984) 154 CLR 404
(2010) 27 VR 51
(2000) 76 SASR 242
(2014) 136 FCR 357
(1979) 36 FLR 244