AMPOLEX LIMITED v PERPETUAL TRUSTEE COMPANY (CANBERRA) LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY P, MEAGHER JA and COLE JA 20 May 1996 [1996] NSWCA 14 PRACTICE AND PROCEDURE — Leave to appeal from ruling on admissibility of evidence — Whether an order or judgment — Supreme Court Act 1970, s 101 COURTS AND JUDGES — Court of Appeal — Leave applications — Whether duty to give reasons for refusing leave — Usual practice not to give reasons — Discretion in refusing leave. Application for leave to appeal - Long hearing in Commercial Division of Supreme Court - Tender of documents pursuant to notice to produce - Objection to access to documents on grounds of legal professional privilege - Ruling by trial judge that documents admissible because privilege, if it existed, waived - Application to Court of Appeal for leave to appeal from ruling on admissibility of evidence - Whether ruling constitutes an order or judgment pursuant to Supreme Court Act 1970, s 101. Nature of material sought to be disclosed - Whether prejudicial to relevant party - Discretion. National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1988) 17 NSWLR 223; Smith v Tabain (1987) 10 NSWLR 562; Commonwealth v Mullane (1961) 106 CLR 166; Hall v Braybrook (1956) 95 CLR 620; R v Rogers (1994) 181 CLR 251; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; considered. Court of Appeal practice and procedure in leave applications - Giving of reasons for refusing leave - Usual practice. Mahoney P. The present application comes before the Court in circumstances to which reference has been made in my judgment of 16 May 1996 and I shall not repeat them. Stated very briefly, the matter from which this arises is presently being heard by Rolfe J. It is in the course of a long hearing. In the course of the hearing a question arose as to the tender of certain documents. Documents were produced pursuant to a notice to produce. Counsel sought access to them and to use them. Objection was taken to the access and/or the use of them and the objection was placed upon the ground of legal professional privilege. Rolfe J ruled that the privilege if it existed had been waived. Counsel cross-examining, Mr Gyles QC, then tendered the notice to produce and the envelope in which the documents were contained. Objection was taken to the tender on behalf of Ampolex and the judge admitted the documents into evidence. It is from what happened at that time that application has been made on behalf of Ampolex for leave to appeal to this Court. When the matter came before the Court this morning, it came before the Court in principle as an application for leave to appeal. That was the formal application brought to the Court. However, if I may say so, counsel sensibly agreed that if the Court saw fit to do so they were prepared to have the matter argued as a full appeal. However, the matter has been to this point argued as an application for leave to appeal. 2 UNREPORTED JUDGMENTS Upon the application affidavit evidence was tendered this morning and the Court will receive the whole of that evidence upon the basis that it has some relevance to the application before it. It is necessary in order to deal with the application to determine first what it was that the judge did. It has been submitted by Mr Goldberg QC, and I put his submissions very briefly, that the trial judge on 15 May 1996, when he did what is here in question, made a combination of three orders or an order consisting of three things. First, he ruled that the evidence in the envelope should be admitted into evidence. Second, he gave a direction that the material in the envelope should be accessible to counsel. And third, he made an order that pending Mr Goldberg's application to this Court in relation to the matter access be not given to the parties. As I have said I have stated these matters very briefly and without the qualifications and exceptions which would be necessary to a full statement of them. Mr Goldberg has submitted that the order in respect of which leave to appeal is sought is as I understand his submissions the combination of these three matters, or at least the first two of them. In my opinion the proper characterisation of what took place on 15 May is that the judge, having considered the evidence tendered in the unusual way to which Ihave referred, determined that the evidence was admissible and not covered by legal professional privilege. His Honour then indicated that the evidence would be admitted as evidence before him. That I think was the basic ruling. It would have followed in my opinion from the admission of the material in evidence that the material wouldhave been available for inspection by the parties to the proceeding, or at least the relevant parties. I note in this regard that the evidence was tendered only against one of the parties, and it may be arguable that the other parties did not have a right to inspect the documents, or have only a restricted right. I put that matter aside. However, his Honour, no doubt with a view to ensuring that there was no confusion in relation to the matter, then indicated that the material would be accessible to the parties in question. I do not think that that constituted another order or order which, coupled with the original order admitting the evidence into the trial before him, alters the nature of what was done. In the end the order that was made was essentially an order admitting evidence into the trial before him as evidence to be considered by him in due course. The third matter to which reference has been made, namely, the order that no access be had pending application to this Court, was in my opinion a separate matter and not a matter within the complex of what was done on 15 May 1996. Ihave dealt with these matters in deference to the submissions that have been made by Mr Goldberg, but in the end I do not think that it matters how these matters are characterised. Even if the order in question and what was done consists of the first and the second, or the first, second and third of these matters, I think the result in the present case would be the same. I come now to the next question, namely, whether what was done constituted an order from which leave to appeal and an appeal can be brought to this Court. The meaning of the term 'order' in the relevant sense has been the subject of consideration in various contexts. Counsel have been good enough in their detailed written submissions, prepared since Thursday last, to refer the Court to some of the authorities in which the term has been considered: see National Employers Mutual General Insurance Association Limited v Manufacturers Mutual Insurance Limited (1988) 17 NSWLR 223 at 231; Smith v Tabain (1987) 10 NSWLR 562 at 566; Commonwealthv Mullane (1961) 106 CLR 166 at 169. URRIPOLEX LIMITED v PERPETUAL TRUSTEE COMPANY (CANBERRA) LIMITEB (Mahoney P) Reference may also be made to cases such as Hall v Braybrook (1956) 95 CLR 620 at 635 , 647 and Regina v Rogers (1994) 181 CLR 251 at 278 , 279. I think the thrust of authority is that a ruling that evidence is admissible, that is, evidence should be received into a trial, given in the course of a trial, is not an order for the purposes of leave to appeal or appeal. This, I think, reflects what has been said in cases such as Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR at 126. However, Mr Goldberg has submitted that the present case is special in the sense that the ruling upon the admissibility of the evidence, in the sense to which I have referred, is a ruling which affects not merely practice and procedure, but a propriety or substantive right of his client. He has referred the Court to the decisions in the High Court which deal with the nature of legal professional privilege and of the right which is the subject of that privilege: see Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475. That is no doubt so. It may well be that at the present time the categorisation of legal professional privilege has moved from the field of evidence to the field of substantive law, but I do not think that that alters the nature of the ruling in the present case. I think that what is in question is a decision by the judge as to the admissibility of the documents in the envelope and an order or ruling, however it be described, that those documents may be received in evidence. I do not think that as such they constitute an order from which leave to appeal properly can be given. However, having regard to the importance of the matter to Mr Goldberg and the potential importance of such a view in relation to other matters which may come before the Court, I would prefer not to place my decision squarely upon that particular matter, but formally to leave that matter open for consideration in the Court, should the Court desire to reconsider it subsequently. I come then to the third question, namely, whether if the orders be as Mr Goldberg has submitted and that this be an order from which a leave to appeal appeal can be brought, leave to appeal should be granted. A factor which is of importance in the present case is that this is a matter which arises in the course of a long and complex trial. The Court has been informed that the trial has been going for over twenty days and on the last occasion (I think I may refer to this) the court was informed the trial, if it goes its full length, is apt to go another four or five months. Assuming that to be a reasonable estimate, it is proper to have in mind that this ruling occurs in the course of such a trial. The Court is traditionally very loath to intervene by interlocutory orders in the course of a trial. Rulings given in the course of a trial may well, of course, form the substance of points on appeal subsequently when the trial is concluded and orders made as the result of it. Matters such as that are preserved for purposes of appeal in due course. I appreciate the point that has been made by Mr Goldberg in the present case, namely, that if the trial is to proceed upon the basis that these documents are admitted into evidence, then of course his right to confidentiality in respect of them is lost irretrievably, notwithstanding that in the end a court on final appeal may consider that the judge was wrong in giving such a ruling. These matters are relevant in relation to the exercise of the Court's discretion in this matter and I would take them into account. The Court has been concerned to ascertain what prejudice or other prejudice could result from the grant or refusal of leave to appeal at the present time. For this purpose it has enquired of Mr Goldberg what the position is in this regard and 4 UNREPORTED JUDGMENTS what are the allegations or claims of his client. He has submitted as I have indicated in substance that the prejudice to be suffered by him if the trial proceeds in its present state will be that the confidentiality of the documents in question will be lost. No other prejudice has been alleged and the Court may, I think, therefore deal with the matter upon that basis. Ihave considered the significance of the disclosure of the material in question and the effect which refusal of leave to appeal at the present time may have. It is proper to point out that the documents which have been produced have been produced in an envelope, the subject of a notice to produce. The notice to produce went, if I may state the matter compendiously, merely to the opinions as to the question at issue, namely, whether the company was liable to exchange one share for one note or deal with the matter on another basis. The material does not go to, as I may describe it, the briefs that were submitted to counsel in order to obtain the opinions in question. What is in the documents is essentially the opinions. No doubt the reasons for the opinions are stated in the documents or at least they may be, but in the end it is the opinions which are in question. I appreciate also the circumstances in which the documents have been produced. They have been kept in an envelope which to date has been sealed, but the contents and nature of them has been apparently sufficiently described. Mr Gyles QC, in tendering the notice to produce, no doubt intended, inter alia, to ensure that there was an adequate description of the documents before the Court for the purposes of the tender and that description is one to which I have referred, namely, a description of them as the opinions rather than the material going into the obtaining of the opinions in question. Taking into account all of the circumstances, I am of opinion that this is not an appropriate case in which leave to appeal should be granted. In my opinion the Court should refuse leave to appeal. The Court normally does not give reasons for the grant or refusal of leave to appeal. Ordinarily, the reasons of the Court and its reasoning are sufficiently indicated in the dialogue which takes place on an application between the Court and counsel or otherwise. However, in the circumstances in order to prevent misunderstanding and in order, hopefully, to ensure that the matter will not be the subject of further argument at the trial, I have indicated the main matters to which Iwould have reference in proposing that the leave to appeal be not granted and I would so propose. Meagher JA. I agree. Cole JA. In my opinion this is not an appropriate matter in which to grant leave to appeal. As the President has said, it is not the usual practice of this Court to give reasons when leave is not granted. For my part I see no reason in this case to depart from that practice. I agree with the orders proposed. Mahoney P. The orders of the Court are therefore that leave to appeal is refused and I think, Mr Goldberg, it must be refused with costs. GOLDBERG: I can't advance anything against that, your Honour. I do wish to be heard in relation to a further stay at the appropriate time. MAHONEY P: Cole J has pointed out to me that I was careful enough on the last occasion to reserve the costs of that day for myself today. The Court would, I think, take the view that the costs of last Thursday are costs in the present application, which you must pay. URRIPOLEX LIMITED v PERPETUAL TRUSTEE COMPANY (CANBERRA) LIMITEB (Mahoney P) The Court by a majority is of opinion that there ought to be a stay of two days to enable an application to be made. The Court is not minded to delay the trial and it feels that the trial ought to proceed. It may be the judge will work out some appropriate method of proceeding with the trial to allow you tomorrow and Wednesday morning to make your application, but this Court would not grant a further stay beyond that. We would say until 4 o'clock on Wednesday. Leave to appeal refused with costs.