TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

HEARING DATES: 6 November 2001, 14 March, 11 November 2002

Magistrates - Jurisdiction and procedure generally - Jurisdiction, powers and duties - Constitution of Court and generally - Tasmania - Prohibition of appearance by named legal practitioners - Protection of confidential information.

Justices Act 1959 (Tas), s38(3).

O'Toole v Scott (1965) 39 ALJR 15; Cory v Forbes (Sydney Morning Herald, 21 April 1859, Milford J); Ex parte Cory (1864) 3 SCR (NSW) (CL) 304; Australian Securities Commission v Bell [1991] FCA 565; (1991) 104 ALR 125; Prince Jefri Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222, referred to.

Respondent: Director of Public Prosecutions (Commonwealth)

Judgment Number: [2002] TASSC 100

and DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

and DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

1 This appeal relates to an order made by a magistrate prohibiting certain legal practitioners from appearing for the complainant in committal proceedings before him. Those proceedings reached a conclusion at a time when this appeal was part heard. However the parties to the appeal have been unable to reach agreement as to who should bear the costs of the appeal. The appellant wishes us to allow the appeal and order that the respondents pay his costs of the appeal. The respondents contend that the appeal should be dismissed, but do not seek any order as to costs.

2 The history of the matter is as follows. In October 1999, after a lovers' quarrel, the appellant burnt down the rented house in which he had been living. He was charged with arson. He instructed a legal practitioner to act for him - a Ms Harris, who then worked for the Legal Aid Commission of Tasmania. His instructions to her were, of course, confidential. In February 2000 he was sentenced to 18 months' imprisonment on the arson charge.

3 The first respondent is a federal agent, ie, an officer of the Australian Federal Police. In May 2000 he commenced proceedings against the appellant by a complaint containing two charges of defrauding the Commonwealth contrary to the Crimes Act 1914 (Cth), s29D, and a third charge of being knowingly concerned in the commission of an offence against s29D. The complaint alleges that he submitted false forms in relation to unemployment benefits, sickness benefits and rental assistance between 1989 and 2000; that he induced the Commonwealth to pay benefits to him under a false name during that period; and that between 1994 and 2000 he was knowingly concerned in the defrauding of the Commonwealth by another man by submitting false claim forms. The appellant saw Ms Harris again and instructed her, and thus the Legal Aid Commission, to act for him in relation to those charges. She appeared for him on 24 May 2000, and obtained an adjournment without plea. She took instructions from him in relation to the charges. Obviously his instructions were confidential. During August 2000 she resigned from her employment with the Legal Aid Commission to take up a new position in the Hobart office of the second respondent, the Director of Public Prosecutions of the Commonwealth ("the DPP"). Her change of role from a defence lawyer to a prosecutor triggered a series of events over the following two years that this judgment should bring to a conclusion.

4 On the day she started work in the Hobart office of the DPP, Ms Harris advised lawyers and support staff working there that she had a conflict of interests with respect to the appellant's matter, and could not discuss it. On one occasion in October 2000 she was asked if she could appear in the Magistrates Court that morning, but she replied that she could not because the appellant's matter was listed.

5 In February 2001, in the course of the proceedings on the first respondent's complaint, counsel for the appellant asked the learned magistrate to make an order prohibiting legal practitioners employed in the Hobart office of the DPP from appearing in the proceedings. The learned magistrate received affidavit evidence and heard submissions from counsel. There was unchallenged evidence that Ms Harris had advised lawyers and support staff in the DPP's Hobart office of her conflict of interests, had said that she could not discuss the appellant's matter, and had not disclosed to any person the nature of his instructions, her advice to him, or anything discussed or communicated between them. In an affidavit, she gave an undertaking to maintain confidentiality in relation to the appellant's instructions. Her affidavit was unchallenged. Her integrity was unquestioned. On 23 February 2001 the learned magistrate discussed the authorities and indicated that he thought it appropriate to make an order of the kind sought if the DPP did not make arrangements for the prosecution to be undertaken without using any of the legal practitioners employed in his Hobart office as counsel. However the learned magistrate adjourned the matter without making any order so that his views could be considered. On 26 March 2001 the DPP personally appeared before the learned magistrate, submitted that the proposed order was beyond the learned magistrate's jurisdiction, and declined to give any undertaking to brief outside counsel. By that stage Ms Harris had left his Hobart office. She had been engaged for only six months. The learned magistrate ordered that, save for formal appearances, certain persons mentioned in a list were not to appear before him on the prosecution of the appellant. The list contained the names of all the legal practitioners employed in the Hobart office of the DPP from 4 September 2000 to 23 March 2001.

6 The first respondent appealed by filing and serving a notice to review. The DPP was added as an applicant in those proceedings, having taken over the proceedings before the learned magistrate pursuant to the Director of Public Prosecutions Act 1983 (Cth), s9(5). The motion to review was heard and determined by Cox CJ. Before him, the present respondents contended that the learned magistrate had had no jurisdiction to make his order. His Honour found it unnecessary to decide that point, and concluded that, assuming that the learned magistrate had had jurisdiction, he had erred in making the order, which he set aside.

7 The appellant appealed to the Full Court. The appeal came on for hearing on 6 November 2001. Counsel for the appellant, Mr Tree, made a number of submissions as to the reasoning of Cox CJ. He proposed that, in the event of his submissions being accepted by us, we should remit the matter to Cox CJ for him to determine the question of the learned magistrate's jurisdiction. We indicated a reluctance to do that, and a preference for determining the question of jurisdiction and bringing the appellate proceedings to an end. We also raised a question as to futility: whether it would be appropriate to restore the learned magistrate's order, assuming that he had jurisdiction and that Cox CJ had erred in his reasoning, since an order prohibiting certain lawyers from appearing as counsel was insufficient to achieve its sole purpose, namely the protection of the confidential information supplied by the appellant to Ms Harris. Counsel needed more time to consider these matters. At the end of the day on 6 November 2001, the appeal was adjourned to March 2002.

8 On 14 March 2002, the hearing of the appeal resumed. As a result of an enquiry from the bench, counsel for the respondents, Mr Arendt, told us that there had been staff changes in the Hobart office of the DPP since the learned magistrate made his order; that it had become possible for a legal practitioner in that office who had not worked with Ms Harris, and was not covered by the order, to appear in the matter before the learned magistrate; that the case could proceed before the learned magistrate accordingly; and there would be no need for us to determine this appeal. The appellant agreed to the appeal being adjourned sine die, but applied for his costs. We adjourned the appeal and that application sine die. We thought we should not proceed until the learned magistrate had committed the appellant for trial or otherwise disposed of the proceedings before him.

9 On 3 May 2002 the learned magistrate made an order committing the appellant for trial. The sole reason for this appeal was that the appellant sought the restoration of the order prohibiting named practitioners from appearing in the committal proceedings. As the restoration of that order could no longer have any practical effect, we think the only appropriate course is for us to dismiss the appeal. However, for the purpose of determining the application for costs, it is necessary for us to consider whether the appeal would have succeeded if it had been fully argued in the circumstances that existed at the time it was instituted.

10 The most fundamental issue raised by the appeal was that concerning jurisdiction. At common law justices had a power to determine who might or might not appear on behalf of the parties to the proceeding before them: Collier v Hicks [1831] EngR 686; (1831) 2 B & Ad 663, 109 ER 1290. Beginning with the Summary Jurisdiction Act 1848 (Imp), s12, statutory provisions were made giving prosecutors the right to be legally represented in summary proceedings. Such provision has been made in Tasmania by the Magistrates Criminal Procedure Act 1855, s13, the Justices Procedure Act 1919, s47, and now the Justices Act 1959, s38. The latter contains the following subsection:

"(3) The complainant, if a public officer, may, by himself, by any other public officer, or by his counsel, or attorney, conduct his case, and examine and cross-examine witnesses."

However there is authority that such a legislative provision does not destroy the power of a justice or magistrate to prohibit one person from representing another, but merely limits the discretion to the extent that a representative with a statutory right of audience does not need to seek permission to appear: O'Toole v Scott (1965) 39 ALJR 15. Thus, if a legal practitioner speaks improperly or impertinently to justices, they may refuse to hear him until he apologises: Cory v Forbes (Sydney Morning Herald, 21 April 1859, Milford J); Ex parte Cory (1864) 3 SCR (NSW) (CL) 304. If a person with a statutory right of audience is drunk or disorderly, a magistrate no doubt has the power to prohibit that person from appearing. In Australian Securities Commission v Bell [1991] FCA 565; (1991) 104 ALR 125 the Full Court of the Federal Court of Australia held that an inspector conducting an ASC investigation was entitled to decline to allow an examinee to be represented by a particular lawyer, despite a statutory provision entitling an examinee to legal representation, in order to prevent an abuse of the right to representation. It was not suggested that the inspector had the right to deprive the examinee of legal representation, but that a lawyer whose presence might prejudice the investigation, or who might have a conflict of interests or a conflict between duty and interest, could be prohibited from appearing. Sheppard J treated the prohibition by the inspector as an exercise of an implied power to regulate and control proceedings and to ensure that the inspector's statutory functions were properly discharged.

11 In the light of O'Toole and ASC v Bell, we are inclined to think that a magistrate retains a common law power to prohibit particular legal practitioners from appearing in a particular case, or at a particular time, or in particular circumstances. There is no logical reason why the exercise of such a power should be confined to cases concerning the behaviour of the legal practitioner in court. It would seem to follow that it would be proper for a magistrate to exercise this power whenever it would be improper for a particular legal practitioner to appear, eg, in cases of conflicts of interests, cases involving conflicts between duty and interest, and cases where a need arises for confidential information imparted by a client to a legal practitioner to be protected. However, as will become apparent, we see no need to reach a conclusion as to the jurisdictional question in the present context.

12 Injunctions restraining solicitors from representing particular clients are becoming common. The Family Court will grant such an injunction even if there is only a theoretical risk that a solicitor might disclose, even inadvertently, confidential information provided by a former client: In the Marriage of Thevenaz (1986) FLC 91-748; In the Marriage of Magro (1989) FLC 92-005; In the Marriage of McMillan [2000] FamCA 1046; (2000) FLC 93-048. In commercial cases, other superior courts have applied a less strict test, whereby an injunction will be granted for the purpose of protecting the disclosure of confidential information, but not if it is shown that there is no real risk of disclosure of that information. The decision of the House of Lords in Prince Jefri Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222 has generally been followed: Pradham v Eastside Day Surgery Pty Ltd [1999] SASC 256; Newman v Phillips Fox (1999) 21 WAR 309; World Medical Manufacturing Corporation v Phillips Ormonde & Fitzpatrick Lawyers [2000] VSC 196; A & B v Disciplinary Tribunal [2001] TASSC 55; cf Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248. Mr Tree submitted that the Family Court approach should be followed in criminal cases. He relied on R v Le 2001 ABQB 195, in which Binder J (of the Court of Queen's Bench of Alberta) made an order disqualifying five lawyers in the Criminal Prosecutions Section of the Justice Department in Edmonton from a particular prosecution because a legal assistant who had been privy to privileged lawyer/client communications between the accused and his counsel had gone to work in their office.

13 Mr Tree submitted that Cox CJ had not properly applied the test laid down by the House of Lords in Prince Jefri Bolkiah. After examining the evidence before the learned magistrate, his Honour concluded:

"In my opinion, there is no basis from which it could properly be said that there is any real or sensible possibility of the misuse of the confidential information in her possession [ie, the possession of Ms Harris]."

The Prince Jefri Bolkiah test requires an injunction to be granted unless the respondent shows that there is no real possibility of disclosure. But even if Mr Tree was correct in his submission, we think that, in the light of the evidence accepted by the learned magistrate, the possibility that Ms Harris disclosed any of the appellant's confidential information to any lawyers that she worked with in the DPP's Hobart office is so remote as to be fanciful. That is to say, we think the respondents established by the evidence before the learned magistrate that there was no real risk of disclosure of the appellant's confidential information.

14 The learned magistrate accepted the evidence of Ms Harris that there had been no actual discussion between her and any staff members of that office. His order was based on the possibility of inadvertent, unknowing communications. He referred to the following observation by Bryson J in D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 at 123:

"... wordless communication can take place inadvertently and without explicit expression, by attitudes, facial expressions or even by avoiding people one is accustomed to see, even by people who sincerely intend to conform to control."

The notion that any of the appellant's confidential information could have been imparted by Ms Harris during the six months she worked for the DPP as a result of her facial expressions, body language and the like seems absurd to us.

15 We think it important to bear in mind the limited effect that the learned magistrate's order could have had. At most, he was able to prevent particular legal practitioners from appearing before him, but not to take any other step to protect the appellant from any risk of disclosure of confidential information that had been given to Ms Harris. He had the power to control the proceedings before him, but was not exercising the jurisdiction that a court of equity has in relation to confidential information. He had no power to prevent the DPP or any legal practitioner in his Hobart office from continuing to act in the matter, nor to limit communication between them and counsel.

16 The nature of the proceedings before the learned magistrate is also significant. The appellant was charged with three indictable offences. As a result of the Justice Legislation (Miscellaneous Amendments) Act 2000, he had no right to dispute the making of an order for his committal for trial. He was required to plead, and to elect pursuant to the Justices Act, s56A(6), whether to require the depositions of any witnesses to be taken. The role of prosecuting counsel involved, at most, selecting the evidence to be adduced on the taking of depositions, leading of that evidence from prosecution witnesses, and submitting those witnesses for cross-examination. Preventing legal practitioners from the DPP's Hobart office from undertaking that role in the proceedings before the learned magistrate simply could not have prevented the inadvertent disclosure of confidential information by Ms Harris, nor the use of any such information that had been inadvertently disclosed.

17 Because the powers of the learned magistrate were limited at best, because any order made by him could not have prevented the disclosure or use of any confidential information, and because of the lack of any real risk of any confidential information being disclosed, we do not think this appeal would have succeeded. It follows that the appellant should not recover his costs of the appeal.

18 For these reasons, the appeal will be dismissed with no order as to costs.