State of Victoria v Davies [2003] VSCA 65

State of Victoria v Davies [2003] VSCA 65 - VSCA 2003 case summary — Zoe

[27]

His Honour set out and dealt with the several submissions made to him for the appellant. It was contended for the appellant that, irrespective of the rules of court and the orders of Judge Harbison, the appellant had a substantive right to adduce the evidence, that it was entitled to claim privilege and that privilege was not waived until the material was shown. In any event, it was submitted, the appellant was not specifically precluded by the Rules or her Honour's order from using the surveillance material. Alternatively, if the appellant required leave to use the material notwithstanding any failure to comply with the Rules or the order of the Court, it was appropriate for it to be granted. In elaboration, counsel for the appellant submitted to his Honour that Rule 34A.29, which provides the sanction of forbidding the tender of a document where a party fails to include it in its court book, applied in ordinary proceedings but not proceedings to which Rule 35 applied as the latter required the court book to contain only a list of documents. Whilst appreciating the force of the submission, his Honour was of the view that a failure to comply with Rule 35 would necessarily carry with it similar consequences and that the court might require the party to comply on such terms as the court considered just "as a condition of that party's further participation in the proceeding". Counsel for the appellant next submitted that paragraph 3 of the order of Judge Harbison, which required the appellant to file and serve an affidavit "exhibiting medical and other material upon which [it] intends to rely" was, so far as it related to surveillance evidence, beyond power, in the absence of a specific statutory provision authorising the court to inhibit, prior to trial, the appellant's right to legal professional privilege. Alternatively, counsel submitted that the matter was governed by Part 9 of the Practice Note of the Chief Judge, set out earlier in these reasons, though counsel's broadest submission did go to the extent of contending that even the Practice Note was an unwarranted restriction on a party's right to present its case. His Honour did not deal with counsel's submission as to paragraph 3 of Judge Harbison's order but simply pointed out that the portion of the Practice Note was limited to orders for the service of affidavits exhibiting medical and expert reports on which a party seeks to rely and was not, by its terms, directly relevant to a document required to be listed in a court book. With regard to whether there had been an implied waiver of legal professional privilege his Honour stated the test as being whether the conduct of the party claiming the privilege was inconsistent with the continued assertion of it. He said that the inclusion of the particular surveillance videos in the appellant's court book index as documents it "intends to tender in evidence or ... otherwise intends to use at the trial" was a use or reference to that material which was inconsistent with the continued maintenance of the privilege and that it would be unfair to allow the appellant in those circumstances to refuse inspection. It was the appellant's conduct in categorising the documents as the subject of such intended tender or use, and not simply the listing of the documents, which, in his Honour's view, was inconsistent with the continuation of the privilege. But his Honour immediately said:

[33]

There are essentially two grounds in the notice of contention: first, that the appellant by consenting to the order of Judge Harbison (and not subsequently seeking variation or amendment of it) agreed to give notice of and disclose to the respondent all documents it intended to tender or otherwise use at trial, and, secondly, that the attempted use by the appellant of video surveillance material was a breach of that order and irrelevant to considerations of waiver and privilege. In my opinion, a retrospective extension of time for the filing and service of the notice of contention should be refused for a number of reasons. The argument as to consent was not put below, though Mr. Forrest for the appellant conceded before us the fact that the order was by consent. Moreover, the ground as to consent is without merit; for, the substantial aspect of consent being consent to disclosure, the only paragraphs of Judge Harbison's order that are relevant are paragraphs 3 and 4, which, as will appear much later, I consider do not and in any event could not refer to material the subject of legal professional privilege. The second ground is far from clear. It seems to allege in part that the attempted use of the video surveillance material was in breach of paragraph 4 of her Honour's order (paragraph 10 already being raised by the appeal), but the prohibition in that order did not apply, for the reason just stated, to material the subject of the privilege. I would add that if and in so far as the notice of contention seeks to rely on non-compliance with paragraph 6 of her Honour's order, which relates to discovery, the better view, as explained later, is that such a non-compliance does not preclude the tender of the documents. In any event, the service of the amended court book index gave the respondent a specification of the surveillance documents relied on and an indication that privilege was claimed for them. Finally, the appellant's affidavit of documents is not in the Appeal Book.

[34]

I turn now to the challenge to the order of 15 October 2002. In making that order his Honour was exercising the discretionary power conferred by Rule 3.02(1). Further, in so doing, he was authorised by Rule 1.14(1)(b) to impose any term or condition he thought fit. That does not, of course, mean that the judge had an unlimited and unreviewable discretion to impose any condition he liked, even one having nothing to do with the matter in hand. In my opinion, it is plain that his Honour's discretion miscarried, for the condition he imposed on the grant of the extension was entirely irrelevant to - that is, had no logical link with - the extension of time sought and the issues raised by the application for it. The condition was imposed for an extraneous purpose, namely to force the appellant to take a step which his Honour considered conducive to the fair trial of the proceeding but which was quite unrelated to the appellant's being three days late in complying with paragraph 10 of Judge Harbison's order. The purpose would not, and could not, have been achieved if the appellant had not been out of time. That the consideration of the application went amiss is confirmed by his Honour's early statement of what was "the essential issue" and his later reference to "the primary issue" as being whether, in the circumstances of the non-compliance with the previous order, it was appropriate for the appellant to refuse[11] to make the surveillance videos available for inspection by the respondent. With respect, that was not an issue at all. Rather, factors requiring consideration on an application for an extension of time include matters such as the length of the extension sought, the reason for needing it, any prejudice that granting it will cause to the other party, the effect of granting it upon the proceeding and, possibly, other cases in the list, and ways of mitigating any such prejudice or any adverse effect. Here, the extension sought was of three days at most and did not extend to the date of trial, and, although his Honour seems not to have regarded the reason for non-compliance with paragraph 10 of Judge Harbison's order as very satisfactory, there was most significantly, as he found, a lack of any real prejudice to the respondent.

[48]

It was accepted for the appellant that there are provisions within the County Court Rules which, by the clarity of their language, impliedly override the right to maintain legal professional privilege in certain circumstances, that is, impliedly require the parties to waive the privilege. The appellant instanced Order 33, relating to medical reports, and Rule 34A.19.1 and Order 44, relating to expert witnesses.[30] None of those provisions is applicable here. Nor, although dealing with defaults concerning court books, does Rule 34A.29 apply in relation to an application under s.135A(4)(b). This is because, even if Rule 35 should not be taken to be an exhaustive statement of the rules for court books in the proceedings to which it applies, Rule 29 is concerned with a failure to include a document in a court book, which is not something that the appellant was required to do either by paragraph 10 of Judge Harbison's order or by Rule 35(4)(d).[31] His Honour seemed to consider that Rule 29 would apply by analogy, but its sanction is far too stern to be applied by analogy. Express provision would be required. In any event there would have been no failure to comply with Rule 35(4)(d) or paragraph 10 or her Honour's order had it not been for the miscarriage of the discretion on the application for an extension of time. Seemingly in support of a wide operation for paragraph 10[32], and perhaps paragraphs 3 and 4, of Judge Harbison's order, the respondent referred to Rule 34A.19, found in Part 5, which is headed "Directions Hearing". That rule provides that at a directions hearing the court may "give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination". The respondent referred also to the fact that in Palmer Tube Mills (Aust.) Pty. Ltd. v. Semi[33] Brooking, J.A. (with whom Tadgell, J.A. and Buchanan, J.A. agreed) stated that it was arguable that a power conferred by Rule 34A.19 was wide enough to authorise the giving of directions which prevail over other provisions of the rules. But, significantly, his Honour added that he thought that a direction excluding the operation of Rule 40.04 (which permitted cross-examination of deponents of affidavits) could not be given. Likewise, in my view, a direction having the effect of overriding legal professional privilege could not be given having regard to the fundamental importance of the privilege at common law as discussed earlier, nor could a direction precluding the tendering of admissible evidence having regard to the nature of a trial and fundamental principles of the law of evidence.[34] But, as Callaway, J.A. indicates in paragraph [2] of his reasons, there may be exceptions to that latter statement. No other rule was relied on for the respondent as authorising the overriding of the privilege or his Honour's refusal on 16 October 2002. Rule 49.01, mentioned by appellant's counsel, does not do so on its true construction. I cannot part from this part of his Honour's reasons without stating emphatically that I do not accept that, in the event of a true failure to list documents, compliance could be required upon such terms as the court considered just "as a condition of [the defaulting] party's further participation in the proceeding". That is altogether too Draconian[35].

[53]

"The directions at least indirectly imposed an obligation on [the defendants] to waive that secrecy by otherwise subjecting the conduct of their defence to a restriction unless the trial judge later lifted that restriction. In doing so, the directions derogated from the appellants' legal professional privilege with respect to the engineer's report. The prevailing theory with respect to the proper performance of the judicial function in modern society encourages active case management to reduce issues, avoid surprise and embarrassment, minimise cost and delay, and provide expeditious and efficient justice. However, the adversarial system is not wholly without advantage, and public or private interests will not always necessarily be best served by full disclosure of all evidence, or all evidence in a particular category, prior to trial. More particularly, justice will not necessarily be served by compelling a waiver of all or part of a litigant's legal professional privilege with respect to evidence, or possible evidence, pre-trial. The respondent submitted that legal professional privilege does not exist to confer or preserve tactical advantages at a trial. Irrespective of whether that is an accurate statement with respect to a purpose of the privilege, advantages with respect to the conduct of trial are undoubtedly one of the benefits which routinely result from its existence. The important public interest served by legal professional privilege has been consistently affirmed by the High Court. At least since Baker v. Campbell, generally expressed statutory powers which are literally wide enough to deny or derogate from legal professional privilege have been construed so as to leave the privilege intact. Legislation which would adversely affect legal professional privilege if given its literal effect is read down so as to avoid that result unless the language used clearly reveals an intention to do so. Obviously, a similar approach must be adopted to the construction of subordinate legislation."

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