Samuel Savage as Executor of the Estate of John Thomas Savage (Deceased) v Gibbins Investments Pty Ltd

REASONS FOR JUDGMENT 1 On 21 June 2012, Marshall J made orders that certain communications were not protected from disclosure by s 131 of the Evidence Act 1995 (Cth). Before the Court is an application for leave to appeal against those orders by the respondent to the original proceeding, which will be referred to as Savage. The circumstances presented to Marshall J led him on 21 June 2012 to state his conclusions for making those orders but not to provide full reasons for his conclusions. 2 The interlocutory application before Marshall J was made in a case which was otherwise in the docket of Jessup J. As the interlocutory application involved a claim to confidentiality of certain communications it was regarded as appropriate for that application to be determined by a judge other than the docket judge. 3 The interlocutory application arose from an agreement between the parties that the issue of confidentiality should be determined as a preliminary issue. It is accepted by the parties that if the applicant in the original proceeding, who will be referred to as Gibbins, cannot rely on the communications then they will not have any basis for pursuing that proceeding. Hence, the determination of the preliminary issue had the potential for shortening the proceedings. 4 It is not clear from the transcript of the proceedings before Marshall J whether the parties or his Honour contemplated whether orders made by his Honour could be the subject of an interlocutory appeal. 5 The written submissions of Savage proposed that his Honour simply announce his ruling and make orders on the day, but withhold the provision of full reasons until after the trial conducted by Jessup J. On the face of it, that proposal suggests that Savage did not contemplate that there would be any interlocutory appeal against orders made by Marshall J until Jessup J had concluded the trial. It is implicit in the proposal that any appeal against the interlocutory determination of the confidentiality issue would be dealt with as part of any appeal against the final judgment. Gibbins agreed with Marshall J taking that approach. 6 Marshall J was therefore presented with an agreement between the parties about the way reasons were to be delivered. His Honour generally assented to that approach but indicated that he would provide short oral reasons for the orders on the day. 7 However, when the orders were made, Savage sought to appeal against them and, for that purpose, approached Marshall J for reasons which could then be the basis for argument on an appeal. His Honour produced a short set of reasons on 11 July 2012, in response to the request from Savage. His Honour explained in those reasons the background which is outlined above. The reasons which he produced were stated to be a public version, slightly edited, of the reasons given orally on 21 June 2012. His Honour explained that those reasons, having been promptly produced to allow Savage to exercise any rights it may have, were less comprehensive than what he would have preferred to produce at the conclusion of the substantive trial. 8 Those reasons for judgment briefly explain the background to the application, and then state the conclusions on the arguments essentially without any elaboration. In saying this, no criticism of his Honour is intended. Indeed, his Honour's cooperation with Savage, in the circumstances, was generous to say the least. It would have been quite open to him to have kept the parties to the agreement and delayed providing full reasons until Jessup J delivered judgment in the trial. 9 The difficulty which confronts this application for leave to appeal is that the reasons do not give the Full Court an appropriate basis upon which to make an assessment of whether his Honour fell into error. Further, they do not reflect the actual intention of Marshall J, namely, that reasons were to be explained at a greater length after the conclusion of the substantive trial. If leave to appeal is granted in these circumstances it would unduly burden the Full Court. 10 Additionally, counsel for Savage on this application for leave to appeal said that Savage's agreement to the proposal before Marshall J was intended only to protect against a disclosure of the confidential material rather than to make any concession that Savage would not bring an interlocutory appeal against the orders. 11 These considerations would be a basis for simply refusing leave to appeal immediately. However, there are considerations which suggest that Savage should have an opportunity to ask for full reasons for judgment from Marshall J. 12 When the original proceeding was commenced, Gibbins sought that the s 131 issue be treated as a preliminary issue, and all the parties agreed to orders which had that effect. The reason was that all the parties accepted that the issue of whether the communications could be adduced in evidence was critical to Gibins's case. It seems consistent with that intention that the preliminary issue should be allowed to take its course by giving Savage the opportunity to make an application for leave to appeal. 13 Although an appeal from the orders made by Marshall J could be dealt with in any final appeal from the judgment ultimately to be given by Jessup J that would be inconsistent with the way in which the parties conceived the case from the beginning. 14 Finally, the determination of the preliminary issue is, even at this stage, potentially capable of saving the parties time and costs as well as the time and resources of the Court. If it turns out that Marshall J was wrong, Gibbins concedes that they have no case. To reach finality on the preliminary issue is likely to be quicker than completing the trial. If leave to appeal is granted, the appeal would probably occupy less than a day whilst the length of the trial has been variously assessed at between two and five days. 15 Savage's primary position is to proceed with the application for leave today. However, in light of the view expressed by the Court that such leave would be refused in the present circumstances, counsel for Savage applied for an adjournment in order to allow Savage to approach Marshall J to inquire whether he would be inclined to provide full reasons in advance of the determination of the case by Jessup J. In the circumstances, it is appropriate that Savage have the adjournment even though it was opposed by Gibbins. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.