4.02: " IN. DHE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISTON BETWEEN : CORAM: Evatt J PLACE: Sydney DATE : 17 September 1986 MINUTE OF ORDER worn ceammanecenr «THF COURTYORBERS~ THAT - ) No. G114 to G157 of 1986 RONALD EDWARD ADAMS Prosecutor ANTHONY BRYANT & CO PTY LIMITED, VENN CHARLES WILLIAMS, CRAIG FRANCIS WILLIAMS, and BRIAN AHEARNE Defendants ae pe i 1. The motion filed on 27 August 1986 herein is dismissed. 2. The Defendants are to pay the Prosecutor's costs of the motion. Note: Settlement and entry of orders is dealt with of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G1l14 of 1986 GENERAL DIVISION to G157 of 1986 BETWEEN: RONALD EDWARD ADAMS Prosecutor AND: ANTHONY BRYANT & CO PTY LIMITED, VENN CHARLES WILLIAMS CRAIG FRANCIS WILLIAMS, and BRIAN AHEARNE Defendants CORAM Evatt J. PLACE Sydney DATE 17 September 1986 ee mare RERUEE EN cme reereneten—senmie eR a a cnn ae on RN YR carne = Aa REASONS FOR JUDGMENT On 6 August 1986 Wilcox J made certain interlocutory orders in matters G114/86 through to G157/86, following the hearing on 15 July 1986 of a Notice of Motion filed by various defendants wherein they sought against the abovenamed prosecutor the interlocutory orders set out at p 2 of His Honour's Reasons for Judgment. The orders sought were: i. That the prosecutor provide statements of witnesses to be relied upon at the hearing; tJ ae In the alternative to 1 above, that the prosecutor identify the names of the witnesses intended to be called and relied upon at the hearing; lo That the prosecutor provide copies of documents intended to be relied upon at the hearing; 4. That the prosecutor in addition to order 3 above, provide inspection of original documents intended to be relied upon at the hearing; 5. That the prosecutor provide particulars as requested in the letters of the solicitors for the Defendants dated 20 May, 1986 and 4 June, 1986. His Honour's reasons then reads: The prosecutor consents to the making of orders in accordance with paras 3 and 4 of the Notice of Motion. The matter of particulars, raised by para 5, was dealt with during argument upon the motion and I need say nothing more about it. The substantial issue on the motion relates to para 1 of the Notice of Motion. At the hearing before Wilcox Jon 15 July 1986 the prosecutor had filed an affidavit sworn by him that day. Paragraphs 9, 10 and 11 of that affidavit referred to three bundles of documents SOS ee A TS RMON eee ST mmanweermmrns =p 5 = marked respectively REA 1, REA 2 and REA 3 being proofs of evidence of various witnesses delivered by the prosecutor ina Brief to Advise to the Sydney office of the Director of Public Prosecutions in respect of the present proceedings. His Honour found that the documents in each of the three bundies were subject to legal privilege and in the circumstances, namely that there was "no likelihood of unfairness", stated that he was "not prepared to take a course which would require the prosecutor or the Commission in effect to waive his or its legal professional privilege". His Honour went on to make further orders dealing with the supply by the prosecutor to the Solicitor for the defendants in each of the informations a list containing the full names of witnesses intended to be called on behalf of the prosecution not less than one month before the day appointed for the commencement of the trial of the various informations or any of them and within that time for the supply by the prosecutor to the Solicitor for the defendants in each matter copies of all documents intended to be relied upon by the prosecutor at the hearing and further granted inspection by the defendants and their legal representatives of all original documents intended to be relied upon by the prosecutor. On 27 August 1986 by Notice of Motion filed that day pursuant to 3.24(1A) of the Federal Court Act 1976 the defendants moved the Court for orders "that leave to appeal be granted from that part of the Reasons for Judgment of Wilcox J declining to order the Se np ee a ee ra Acura a RATT - ae —_ —- - prosecutor to produce the bundle of documents being Exhibit REA 3 to the affidavit of the prosecutor sworn 15 July 1986". Paragraph 11 of the prosecutor's affidavit of 15 July 1986 reads: Exhibited before me and marked REA3 is a bundle of documents being three statements made by persons who at the time of making the statements were employees of or officers of Scottish Amicable Life Assurance Society ("the Society") CScottish Amicable] which were provided to the Commission prior to 4 April 1986 for inclusion in the Brief on Evidence. I am anformed and verily believe that those statements were made in relation to proceedings between the Society and Anthony Bryant & Co Pty Limited. The affidavit filed in support of the present motion was that of Julie Terese Kalfas sworn 27 August 1986. As to paragraph 3 thereof, Mr Hutley, who appeared for the defendants, did not read that paragraph in view of what was said by Counsel for the prosecutor on 15 July 1986 at pp 3 and 4 of the transcript before Wilcox J which reads: I have received those instructions now. Scottish CScottish AmicableJ wish to claim legal privilege in respect of those statements. I cannot provide Your Honour with the relevant affidavit evidence at the moment. Perhaps that matter could be deferred. In respect of bundle REA 3 His Honour determined as follows: The three statements of officers of Scottish Amicable were, according to Mr Adams' affidavit. brought into existence for the purposes of-- proceedings between that Society and Anthony Bryant. The Anthony Bryant there referred to 1s the first named defendant te we eer her bn qos 7-5 -HONOUT——WEN TOF pte -erumr- cote ur a, mMENTOSTS em Although the affidavit 1s somewhat cryptic it appears that 1t was intended that they (that 1s the three statements) be used for the purposes of the conduct of those proceedings. Legal privilege, probably that of Scottish Amicable, would therefore attach to the statements. Mr Hutley argued before the Court as presently constituted that the only evidence before Wilcox J concerning the three statements was simply (i) that they had been delivered by Scottish Amicable to the Trade Practices Commission prior to 4 April 1986 for inclusion in the Brief on Evidence delivered by the Commission and/or Mr Adams to the Director of Public Prosecutions; (1i) that Scottish Amicable's action against Anthony Bryant was a totally different proceeding to the present proceeding and (111) that the delivery of the statements to the Commission in the circumstances as set out in paragraph 11 of the prosecutor's said affidavit permitted only one inference to be drawn, namely a waiver by Scottish Amicable of any legal privilege attaching to those documents. Accordingly, Mr Hutley submitted His Honour had erred in refusing the defendants access to these three statements. This anference of course cuts across what was said by Counsel for the prosecutor on 15 July 1986 before Wilcox J in the passage set out above. But the transcript shows that "that matter could be deferred". Yet a perusal of the transcript before Wilcox J shows that the matter was not again mentioned by Counsel nor was any affidavit evidence directed to Scottish Amicable's claim to legal privilege tendered. 7 Stamnes rasan Ol TREE ET A ANIM RY me ee RE ea = Accordingly, Mr Hutley submitted that in all the circumstances leave should be granted allowing the defendants to appeal in respect of this part of His Honour's judgment. Mr Katz, for the prosecutor, submitted that on a proper construction of sub-section 24(1A) of the Federal Court Act, leave to appeal from an interlocutory decision should not be granted simply because the decision appealed from may be in the opinion of the Court hearing the motion seeking leave, incorrect. He submitted that authority in respect of similar sections both in England and under the Supreme Court of Victoria, where leave provisions have been in force for many years, support the view that it 1s necessary that on any application seeking leave to appeal it 135 not sufficient to show merely that the decision at first instance 1s wrong or doubtful but the party seeking leave must demonstrate that substantial injustice would be done if the motion for leave 1s refused. In respect of his submissions Mr Katz referred the Court to Niemann v_ Electronic Industries Ltd (19783 VR 431 and the cases therein referred to. In that case Murphy J at p 441 stated: Likewise in Perry vi Smith (1901) 27 VLR 66 and the Darrel Lea Case £19693 VR 401, the Full Court held that leave should only be granted to appeal from an interlocutory judgment or order, in cases where substantial injustice 1s done by the judgment or order itself. If the order was correct then it -- follows that substantial injustice could not follow. If the order 1s seen to be clearly wrong, this 1s not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation. See also McInerney J at p 433. ne So em ere RR re [one me = etme aaa aad —— Here, Mr Katz submitted there was no evidence that a substantial injustice would be done by the operation of His dHonour's interlocutory orders in respect of the three statements making up bundle REA 3. There is a dearth of authority of this Court as to the principles to be applied in applications for leave to appeal from unterlocutory orders pursuant to sub-section 24(1A) of the Federal Court Act. The sub-section was inserted into the Act only two years ago by s.3, Sch of Act No 72 of 1984. I am of the view that this Court should follow the principles laid down in cases such as Niemann's case. I am not at all satisfied that His Honour did err in regard to the finding that legal privilege still attached to the three relevant statements after their delivery by Scottish Amicable to the Trade Practices Commission. But it is clear that there is no evidence before the Court as presently constituted to show that a substantial injustice to the defendants would follow if leave was refused. Accordingly, in all the circumstances leave to appeal from the relevant part of His Honour's Judgment given on 6 August 1986 is refused. The defendants are to pay the prosecutor's costs of the motion. I certify that this and the 6 preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Evatt a Associate Dated: 17 9-$6