R v P S48/2002 [2002] HCATrans 601 (15 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S48 of 2002

B e t w e e n -

R

Applicant

and

P

Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 2002, AT 10.53 AM

Copyright in the High Court of Australia

MR S.G. CAMPBELL, SC: May it please the Court, I appear for the applicant with my learned friend, MR C.P. TAYLOR. (instructed by Lee & Lyons)

MR W.C. TERRACINI, SC: May it please the Court, I appear with my learned friend, MR K.W. ANDREWS, for the respondent. (instructed by Neville Wyatt Lawyers)

GLEESON CJ: Yes, Mr Campbell.

MR CAMPBELL: Your Honours, in a series of cases going back nearly 20 years this Court has held that the rules relating to legal professional privilege are not merely exclusionary rules of evidence; indeed, most recently, that they are not even merely, if I can use that word in this context, rules of substantive law. This Court has held, as recently as last week, that the rules of legal professional privilege are an important common law immunity and elsewhere a common law right of fundamental importance. The fundamental nature of the rights involved in this application are at the forefront of the argument on behalf of the applicant, your Honours.

HAYNE J: Now, there was reference, was there not, in the papers to a date being fixed for the trial of the proceedings in the District Court? What has happened?

MR CAMPBELL: My understanding, your Honour, is that that date was adjourned. That was about 4 June this year.

HAYNE J: So the question is still live?

MR CAMPBELL: The question is still live, your Honour.

HAYNE J: Yes.

MR CAMPBELL: And, indeed, may I say, with respect, that there has been an arrangement made whereby no action will be taken contrary to, if I can put it this way, the wishes of the applicant until this matter is determined.

Your Honours, the Court of Appeal, with respect to their Honours, by reference to the leading authorities from this Court, seem to recognise the importance of the rights involved in the appeal to that court, but at the end of the day dealt with the matter as though it involved no more than questions of the admission or rejection of evidence and, in doing so, we respectfully submit, in any event, applied the wrong test to the question whether a substantial wrong or a miscarriage of justice had occurred at first instance.

The matter, as your Honours will know from the materials, came before the Supreme Court at first instance by way of an application for an interim order under the provisions of the Protected Estates Act limited to, as it were, the management of the District Court proceedings. That application was made at the suit of the solicitor retained by the applicant to conduct those proceedings.

When the matter was called on for hearing after one or two adjournments before the primary judge on 6 August 2001, a call was made on behalf of the present respondent for the production of a certain medical report in respect of which a claim for legal professional privilege was asserted. The primary judge, as it were, overruled the claim, holding, in terms set out commencing at page 1 of the application book, that a special rule applied in the protected list. That ruling was overruled by the Court of Appeal by reference to decisions of this Court.

Now, no objection was taken expressly to the balance of, in particular, the medical evidence that was read in the primary court. May I interpolate, it is obvious from the learned trial judge's ruling in relation to the report of Dr Dyball that had such an objection been taken he would have likewise overruled it on the same, with respect to him, erroneous basis. Leave was granted to appeal restricted essentially to three grounds, one of which is no longer pressed. The two grounds that are pressed here relate to the issue of legal professional privilege and what should have happened, at least on appeal, in relation to the absence of an objection and, secondly, in relation to the competence of the proceedings brought, as they were, at the suit of the applicant's solicitor. Both of those issues, we submit, involve matters of fundamental importance.

It is true enough, your Honours, that those questions in this particular case arise in the context of what was an interim or interlocutory application, but in the circumstances of this case one, with respect, needs to distinguish it from, say, an order merely made for the purpose of preserving the status quo or an order made of an interim nature to preserve the subject matter otherwise of the litigation.

GLEESON CJ: What do you say was the proper course for the solicitor to pursue?

MR CAMPBELL: Your Honour, the proper course for the solicitor to pursue, having regard to the apprehension he formed, was to, bearing in mind the nature of the rights of the applicant involved, seek out a suitable third party, either by way of relative or by way of one of the public trustee companies, to assess the matter and to bring the matter as plaintiff, and that course - - -

HAYNE J: To bring which matter as plaintiff? To bring the District Court proceeding as plaintiff or bring which matter?

MR CAMPBELL: Thank you, your Honour, I really meant the application in the Equity Division as plaintiff - bring this matter as plaintiff. That is the course, your Honours - - -

GLEESON CJ: So he should have solicited some other person to do what he did?

MR CAMPBELL: Well, your Honour - - -

HAYNE J: And to disclose to that other person the most intimate details of his client's position?

MR CAMPBELL: This is the course that was recommended or suggested in the case that was referred to, a decision of Mr Justice Powell of McD v McD, which is referred to in the list of authorities. In that case, where there was no contest, no controversy between the plaintiff and the solicitor, his Honour held that although there was no objection in principle to the solicitor bringing the action, he thought that it was undesirable or unseemly that that should occur and that the proper course in that case the person's father was substituted as plaintiff in the proceedings. He referred to the possibility of - with the use of, no doubt, the utmost discretion and caution - obtaining, if necessary, if there was no relative prepared or able to come forward, the assistance of one of the trustee companies.

I appreciate from the questions your Honours have asked me in relation to that, that that, of course, begs a certain question in relation to what I am submitting is the fundamental nature of the rights of the applicant involved here, but if one looks at it from the point of view of a person in the position of the applicant, let alone this applicant in particular, one can readily imagine how an application of this type, or an application of the type that was made at first instance, would be, to say the least, extremely unsettling and distressing, having regard to the nature of the confidential relationship subsisting between the parties, at least from the applicant's point of view.

So that we say, in any event, that the second point is only one point, even if the proceedings were competently constituted and able to be brought by the respondent. The first point is so fundamentally important that the Court of Appeal should have recognised that it did fall within the well-known exceptions to the rules of practice governing raising a fresh point on appeal.

HAYNE J: Can I just take you back to a fundamental aspect of this whole dispute. You have a legal adviser seeking an order for management of the estate of his client, management directed particularly - let us leave aside whether exclusively - to the conduct of litigation in her name and on her behalf, is that right?

MR CAMPBELL: Yes, your Honour.

HAYNE J: What breach of privilege is constituted by revelation in those proceedings of the reports that were obtained for the purposes of the litigation, because everybody is on the same side of that record?

MR CAMPBELL: Everybody is on the same side of the record in relation to the District Court proceedings, your Honour.

HAYNE J: Just so.

MR CAMPBELL: As soon as the roles changed and separate proceedings were issued between those persons, they became, as it were, adversaries in the context of the proceedings appealed from, your Honour.

HAYNE J: For the limited purpose of the management of the estate for the conduct of the litigation. What breach of privilege is there in letting those who are putatively all on the same side of the record having access to the material?

MR CAMPBELL: Your Honour, this Court has held that the privilege is sacrosanct, as it were, even in the face of the question of guilt or innocence of a citizen of this country in a criminal trial. The privilege belongs to the applicant. It does not belong to the solicitor or the legal adviser. In the context of the application that we appeal from here, may I use this language, the solicitor misappropriated which was not his, that is, the confidential material he had obtained on her instructions, and used it against her to constitute a radical change in her status in terms of, in particular, the conduct of the District Court proceedings, and it changed radically the nature of the relationship between them in relation to the conduct of those proceedings.

GLEESON CJ: Their solicitor's capacity to act on behalf of the client in the District Court proceedings arose from his status as an officer of the Supreme Court - - -

MR CAMPBELL: Yes, your Honour.

GLEESON CJ: - - - and he applied to the Supreme Court, in a matter relating to the conduct of the District Court proceedings.

MR CAMPBELL: Yes, your Honour, he did those things in that way, but his status as an officer of the court did not give him any right, in fulfilling his duties to the court, to breach the obligation that he owed the client in relation to those confidential communications. The fraud or crime exception aside - - -

HAYNE J: Put it into the analogous case of a trustee going to court saying, "Listen, I need help. I need the advice and protection of the court about what I am to do." The trustee would be bound to put before the court everything that the trustee had. Where does the analogy break?

MR CAMPBELL: Well, the analogy breaks from the fact that we are not dealing with the trustee. There are analogous aspects of the different relationships. The solicitor obviously owes duties of a fiduciary type in respect of certain matters - - -

HAYNE J: Let me assume that the medical report in question reached a particular conclusion. I know, because I am the solicitor, that the medical adviser reaches this view about her capacity to give instructions. The consequence you urge is, the solicitor may not, without her consent, reveal that to the court in the context of a proceeding directed to the issue of capacity to give the instruction.

MR CAMPBELL: Yes, your Honour, that is so, and that is the fundamental principle that this case illustrates or gives rise to a question in respect of. May I say this, with respect, your Honour, that at the end of the day the Court of Appeal had no difficulty with the idea that there was no special rule in relation to matters of this type; that the right involved was so fundamental that it rode across the interests of the parties, even in that type of jurisdiction, just as it did in the criminal jurisdiction. So that the concerns, however well intentioned, that the solicitor had, leading him to take action of this type, could not be made good in court by reference to the privileged material, because the applicant enjoyed that common law immunity, even in that context, and it was a common law immunity which knew of no exception peculiar to that type of jurisdiction.

Your Honours, this comes to, in a sense, to the very heart of the matter. The fundamental rights of the applicant involved went beyond even the questions of legal professional privilege. They involved a real restraint upon her freedom of action and her freedom to make decisions in the context of the significant litigation pending in the District Court. Even a well-intentioned, a well-motivated restraint on her rights of that type involves fundamental questions, I submit, dear to every citizen in a free democracy such as ours. The rules of legal professional privilege, I submit, are one of the pillars in our society of the rule of law. She was entitled to the benefit of the rule of law, in these proceedings, just as she was in the District Court proceedings and just as she was in any extra curial dealings she may have had with other persons.

Your Honours, could I move on to this point, which is simply to illustrate, as we have tried to do in the summary of argument, that the Court of Appeal, in any event, in applying the principles on appeal in relation to the taking of a new point misapplied the principles laid down by this Court in relation to Stead v State Government Insurance Commission. The passages upon which we rely, your Honours, are set out at page 71 of the application book. The gravamen of Justice Hodgson's decision is at page 40, in this regard, paragraph 60 about line 25 and also page 42 paragraph 67.

The point is simply this, your Honours, that the question of substantial wrong and miscarriage fell to be determined by reference to what this Court said in Stead and the question was properly put as we have put it at page 71 about line 22. That is, all that the applicant needed to show was that the denial of natural justice - in this case, the denial of her fundamental rights - deprived her of the possibility of a successful outcome to the application before the primary judge. May it please the Court.

GLEESON CJ: We do not need to hear you, Mr Terracini.

The Court is of the view that the actual decision of the Court of Appeal in the present case is not attended by doubt. Some of the questions of principle which the applicant seeks to raise would not fall for decision if leave were granted. The application for special leave to appeal is refused with costs.

We will adjourn for a short time to reconstitute.

AT 11.13 AM THE MATTER WAS CONCLUDED