The idea that offenders shouldn't be allowed to profit from their criminal behaviour isn't a new or a controversial one. Forcing an offender to forfeit gains derived from a criminal offence is accepted as part and parcel of criminal punishment, and all Australian governments have some form of legislation allowing them to confiscate the proceeds of crime from a convicted offender.
But while its common practice to confiscate property derived from offending, most states and territories (including Victoria) confine it to that. That is, the property the State can seize from the offender needs some sort of link with the offending. In Victoria, for example, the property must be 'tainted'. It has to have been used or intended for use by the offender in connection with the offence, or must have been derived and/or realised from the offence. Regardless of whether the property belongs to, or was used by, the offender or some other person, if it's found to be 'tainted', the State of Victoria can apply to confiscate it.
The Northern Territory however, took this one step further in relation to drug trafficking and enacted legislation that allows the Director of Public Prosecutions to apply to the NT Supreme Court to have a person officially declared a 'drug trafficker'. Once labelled a 'drug trafficker', section 94(1) of the Criminal Property Forfeiture Act (NT) mandates that all of that individual's property must be forfeited to the Territory. There is no requirement that the property be connected to or derived from a particular offence or criminal activity generally, it applies to all property owned or effectively controlled by that person, and all property they may have given away, whether acquired before or after the legislation was introduced. Once a person's been tarred with the drug trafficker brush, if the NT DPP makes a forfeiture application in accordance with s 94(1), everything they have goes to the Territory.
The law was bound to be tested, and sure enough, the High Court recently had the opportunity to consider an appeal brought by NT resident, Reginald William Emmerson. Between August 2007 and September 2011 Mr Emmerson was convicted of a range of drug-related offences, including supply of 18.6646kg of cannabis. In 2012, the NT DPP successfully had Mr Emmerson declared a drug trafficker under s 36A of the Misuse of Drugs Act (NT). He was therefore obliged to surrender not only the $70,050 he obtained from the sale of cannabis, but also in excess of $850,000 worth of assets acquired through legitimate means. Mr Emmerson appealed to the NT Court of Appeal, where they set aside the declaration as unconstitutional, saying that the law was not compatible with the sort of powers governments are able to give courts, which are part of the wider court hierarchy in Australia and have to be independent from other branches of government. Some of you may know this as the Kable doctrine, which preserves the institutional integrity of the courts of the States and Territories, preventing them from being used as a mere tool of the executive government.
Next, the NT Attorney-General appealed to the High Court. On 10 April 2014, the High Court handed down a 6:1 majority judgment giving the NT forfeiture laws their tick of approval. The High Court said that the NT is constitutionally permitted to give its Supreme Court the power to declare a convicted offender a 'drug trafficker' with the consequent loss of all his property: it's not incompatible with the Supreme Court's constitutional role, and in bad news for Mr Emmerson, it was not an acquisition of property otherwise than on just terms. As some of you will know, that is one of the few rights enshrined in our Constitution: s 51(xxxi).
To a modern eye, the NT law may seem harsh, but the High Court majority seemed to almost relish setting out its finding that there is nothing unconstitutional about the State seizing a convicted crim's worldly goods.
In a 'back to the future' approach, the High Court noted that forfeiture laws of this kind have a long history in English law (which, of course, provides the blueprint for Australia's legal system). Up until 1870, a convicted felon in England routinely forfeited all his property. The Court said at para [16], 'Blackstone noted the severe deterrent effect of [old English] forfeiture as a punishment for serious crime because it affected posterity as well as the individual offender.' In other words, the kids weren't inheriting dad's land and titles if he committed a serious crime. The history buffs among you will enjoy the short tour through the history of criminal forfeiture law contained in the majority judgment.
From a Victorian perspective the case is interesting because the High Court did not find that the NT law required the NT Supreme Court to act at the behest of the NT DPP or to give effect to government policy without following ordinary judicial processes. In other words, there is no 'Kable' limitation on the ability of Australian State governments to enact such laws.
If you are in the Victorian Government and would like advice on constitutional limitations regarding courts in State legislation, please contact
Sky Mykyta
sky.mykyta@vgso.vic.gov.au
8684 0220
Rachel Amamoo
rachel.amamoo@vgso.vic.gov.au
8684 0899
Updates on legal developments by the Victorian Government Solicitor's Office
Wednesday, 21 May 2014
Friday, 16 May 2014
eServices Contract released!
Victorian government purchasers are required to engage
suppliers of information and communication technology (ICT) products and
services using a cloud based procurement platform called the eServices
Register. The eServices Register provides a streamlined process for engaging
suppliers of eServices. It is mandatory
to use for inner budget agencies and administrative offices as defined in the Public Administration Act 2004.
The eServices Contract was released on 8 April 2014, it replaces an interim eServices Contract
that was previously in place. The
contract was finalised after extensive consultation with various government and
industry stakeholders. The release of the
contract means that government purchasers are able to approach suppliers for
each procurement using a known set of terms.
The contract is mandatory for use with all engagements under
the eServices Register for new
procurements. The interim contract can still
be used for projects that were 'in flight' at the date of the release of the final
contract.
What types of eServices
are covered by the contract?
There are various categories of eServices that are covered
by the eServices Contract. These
include:
- Professional Services - that is, ICT consultancy services;
- Cloud Services - including Software as a Service (SaaS) or Infrastructure as a Service (IaaS) and related services;
- Implementation Services - the implementation of new software applications. It does not cover the implementation of commercial off-the-shelf software;
- Development Services - the development of new software applications. This does not include customising commercial off-the-shelf software;
- Hosting Services - the hosting of an agency's software application or website on a supplier's server;
- Managed Services - the management by a supplier of an agency's software application or function;
- Maintenance and Support Services - maintenance and support services in relation to software; and
- Hardware Services - maintenance and support services in relation to ICT hardware.
The eServices Contract should not be used to purchase software licences
(where there will be no associated eServices) or hardware.
Structure of Contract
The eServices Contract consists of the following documents
(in descending order of priority):
- the eServices Terms;
- the Contract Variables;
- the Purchaser's Request; and
- the Supplier's Response.
Each of these documents is explained below:
The eServices Terms
The eServices Terms are the standard terms and conditions
for the eServices Contract. The parties
will not be able to negotiate or amend these terms.
The
eServices Terms states that the Contract Variables, the Purchaser's Request and
the Supplier's Response all form part of the contract.
The Contract
Variables
The Contract Variables is the only document that can be negotiated
by the parties. It has been structured
to enable the parties to specify:
- the particular categories of sServices that apply under the contract; and
- the specific arrangements that apply under the contract.
If the Contract Variables specify that specific categories
of eServices apply, corresponding clauses in the eServices terms are adopted.
The Purchaser's
Request
The Purchaser's Request is the document that invites
suppliers to submit a bid for the services.
It is made available to suppliers via the eServices Register.
It should specify, amongst other things, the scope of the
services to be provided and the criteria that will be used to evaluate bids by
the supplier.
Common examples of a Purchaser's Request include:
- Request for Tender (RFT);
- Request for Quotation (RFQ); and
- Request for Proposal (RFP).
The Supplier's
Response
The Supplier's Response is the document that comprises the bid
that has been submitted by the preferred supplier on the eServices Register in
response to the Purchaser's Request.
This document would normally provide a description of the approach that
has been proposed by the supplier in delivering the project.
Further Information
If you would like to access the eServices Contract, it can
be found on the eServices Register Gateway.
To discuss the eServices Contract or the
eServices Register generally, please contact:
9947 1405
9947 1407
9947 1426
9947 1402
Thursday, 8 May 2014
New procedure for seeking suppression orders in the Coroners Court
Introduction
You might remember an earlier blog regarding The Open Courts Act 2013 (the Act) which came into operation on 1 December 2013. To refresh your memory, the purpose of the Act is to consolidate and reform statutory powers of Victorian courts and tribunals in relation to granting suppression orders and closed-court orders. These new measures aim to strengthen and promote the principles of open justice and free communication of information by creating a presumption in favour of disclosure of information. This blog aims to help you understand exactly what this means for the Coroners Court which must now have regard to this presumption of disclosure in determining whether to make a suppression order.
Powers of Coroners Court to grant suppression
The Act sets out the test for the Coroners Court to grant a proceeding suppression order, which is an order prohibiting or restricting the disclosure of a report of the whole or any part of a proceeding or any information derived from a proceeding.
The Act preserves the power of the Coroners Court to make a proceeding suppression order in an investigation or inquest if a Coroner reasonably believes that a suppression order is necessary because disclosure would be likely to prejudice the fair trial of a person or be contrary to the public interest.
However, the Act now provides that the Coroners Court cannot grant a suppression order, unless satisfied by evidence, or sufficiently credible information, that the grounds for making the suppression order are established. The Coroners Court may also make interim proceeding suppression orders. However, a Coroner is required to address the substantive application for a suppression order 'as a matter of urgency'. An interim suppression order may be made without the Coroner determining the merit of the grounds of the application.
Procedure
The Coroners Court can make a proceeding suppression order on its own motion or by application by an interested party, or any other person considered by the Coroners Court to have sufficient interest in the order being made. An interested party seeking a suppression order over evidence must file a Form 46 - Notice of Application for Suppression Order (the Notice). The Notice can be accessed on the Coroners Court website (http://www.coronerscourt.vic.gov.au/). The Notice must specify the details of documents, materials, names or other information and the extent to which suppression is sought, and outline the factual and legal basis to support grounds for the application. The applicant must give three business days' notice to the Coroners Court and to other interested parties of the making of the application.
On receiving a Notice, the Coroners Court must take reasonable steps to ensure that any relevant news media organisations are notified of the application for suppression. The information contained in the Notice itself is not subject to suppression and the Coroners Court will provide a copy of the Notice to news media organisations and interested parties. Various persons, including news media organisations and other interested parties, may appear and make submissions at the hearing of the application for suppression. This process is intended to promote the principles of open justice, in that news media organisations may adopt the role of contradictor and in turn, provide the Coroners Court with the benefit of submissions in favour of the principle of open justice and disclosure of information.
These notice requirements do not apply to a proceeding suppression order on a Coroner's own motion.
At times, circumstances may dictate that an interested party is not aware of the need for a suppression order with sufficient time to satisfy the notice requirements. For example, this may occur where particular documents are requested during the course of an inquest, or in the course of oral evidence given by a witness. In such circumstances, the Coroners Court may still hear the application, but only if it is satisfied that there was a good reason for the notice requirements not being met, or it is in the interests of justice that the Coroners Court hear the application without notice.
Duration of suppression orders
The Act imposes an obligation on the Coroners Court to ensure that a suppression order operates no longer than is reasonably necessary to achieve the purpose for which it is made. A Coroner must determine the period for which the suppression order will operate and specify that period in the order itself. The order may be made for a fixed period, or until the occurrence of a specified future event. For example, in the case of a suppression order which prohibits disclosure of an individual's personal information, a specified future event
may be that person's death.
If you are in the Victorian Government and would like more information on this topic please contact:
Belinda Trevean
Managing Principal Solicitor
t 03 8684 0415
belinda.trevean@vgso.vic.gov.au
Paula Cumbo
Principal Solicitor
t 8684 0465
paula.cumbo@vgso.vic.gov.au
Jessica Tribe
Solicitor
t 03 8684 0279
jessica.tribe@vgso.vic.gov.au
Rose Singleton
Solicitor
t 8684 0428
rose.singleton@vgso.vic.gov.au
You might remember an earlier blog regarding The Open Courts Act 2013 (the Act) which came into operation on 1 December 2013. To refresh your memory, the purpose of the Act is to consolidate and reform statutory powers of Victorian courts and tribunals in relation to granting suppression orders and closed-court orders. These new measures aim to strengthen and promote the principles of open justice and free communication of information by creating a presumption in favour of disclosure of information. This blog aims to help you understand exactly what this means for the Coroners Court which must now have regard to this presumption of disclosure in determining whether to make a suppression order.
Powers of Coroners Court to grant suppression
The Act sets out the test for the Coroners Court to grant a proceeding suppression order, which is an order prohibiting or restricting the disclosure of a report of the whole or any part of a proceeding or any information derived from a proceeding.
The Act preserves the power of the Coroners Court to make a proceeding suppression order in an investigation or inquest if a Coroner reasonably believes that a suppression order is necessary because disclosure would be likely to prejudice the fair trial of a person or be contrary to the public interest.
However, the Act now provides that the Coroners Court cannot grant a suppression order, unless satisfied by evidence, or sufficiently credible information, that the grounds for making the suppression order are established. The Coroners Court may also make interim proceeding suppression orders. However, a Coroner is required to address the substantive application for a suppression order 'as a matter of urgency'. An interim suppression order may be made without the Coroner determining the merit of the grounds of the application.
Procedure
The Coroners Court can make a proceeding suppression order on its own motion or by application by an interested party, or any other person considered by the Coroners Court to have sufficient interest in the order being made. An interested party seeking a suppression order over evidence must file a Form 46 - Notice of Application for Suppression Order (the Notice). The Notice can be accessed on the Coroners Court website (http://www.coronerscourt.vic.gov.au/). The Notice must specify the details of documents, materials, names or other information and the extent to which suppression is sought, and outline the factual and legal basis to support grounds for the application. The applicant must give three business days' notice to the Coroners Court and to other interested parties of the making of the application.
On receiving a Notice, the Coroners Court must take reasonable steps to ensure that any relevant news media organisations are notified of the application for suppression. The information contained in the Notice itself is not subject to suppression and the Coroners Court will provide a copy of the Notice to news media organisations and interested parties. Various persons, including news media organisations and other interested parties, may appear and make submissions at the hearing of the application for suppression. This process is intended to promote the principles of open justice, in that news media organisations may adopt the role of contradictor and in turn, provide the Coroners Court with the benefit of submissions in favour of the principle of open justice and disclosure of information.
These notice requirements do not apply to a proceeding suppression order on a Coroner's own motion.
At times, circumstances may dictate that an interested party is not aware of the need for a suppression order with sufficient time to satisfy the notice requirements. For example, this may occur where particular documents are requested during the course of an inquest, or in the course of oral evidence given by a witness. In such circumstances, the Coroners Court may still hear the application, but only if it is satisfied that there was a good reason for the notice requirements not being met, or it is in the interests of justice that the Coroners Court hear the application without notice.
Duration of suppression orders
The Act imposes an obligation on the Coroners Court to ensure that a suppression order operates no longer than is reasonably necessary to achieve the purpose for which it is made. A Coroner must determine the period for which the suppression order will operate and specify that period in the order itself. The order may be made for a fixed period, or until the occurrence of a specified future event. For example, in the case of a suppression order which prohibits disclosure of an individual's personal information, a specified future event
may be that person's death.
If you are in the Victorian Government and would like more information on this topic please contact:
Belinda Trevean
Managing Principal Solicitor
t 03 8684 0415
belinda.trevean@vgso.vic.gov.au
Paula Cumbo
Principal Solicitor
t 8684 0465
paula.cumbo@vgso.vic.gov.au
Jessica Tribe
Solicitor
t 03 8684 0279
jessica.tribe@vgso.vic.gov.au
Rose Singleton
Solicitor
t 8684 0428
rose.singleton@vgso.vic.gov.au
Monday, 28 April 2014
'Double or nothing' - The rule against duplicity in charging criminal offences
In Victoria, the rule against duplicity is a common law rule concerning the way criminal charges are drafted. The rule provides that the prosecution must not allege the commission of two or more offences in a single charge in a charge-sheet.[1] Such a charge is sometimes said to be 'duplex' or 'duplicitous'.
While the rule is well established in criminal law, prosecuting agencies sometimes find it difficult to apply in practice. It is often stated that there is no 'technical verbal formula of precise application' that provides an easy guide to applying the rule.[2]
However, like other common law and statutory rules [3] for drafting criminal charges, the rule stems from two important principles:
- First, as a matter of fairness, a person charged with a criminal offence is entitled to know the crime that they are alleged to have committed, so they can either prepare and present a defence or decide to plead guilty.
- Second, the court hearing the charge must also know what is alleged so that it can determine the admissibility of evidence, focus on the relevant fact-finding task, consider any possible defences which might be available, and determine the appropriate punishment in the event of a conviction.
When does a charge contravene the rule against duplicity?
There are generally considered to be two ways in which a charge might offend the rule against duplicity: These are:
Patent duplicity, where a single charge alleges the commission of two separate offences.
Latent duplicity (also called 'latent ambiguity' or 'latent uncertainty'), where a single charge alleges the commission of only one offence, but the evidence led by the prosecution in relation to the charge discloses a number of separate offences, all of which could fit the allegation described in the charge.
In either case, the accused may be prejudiced in a number of ways by a duplex charge. A concise summary of the prejudice that may flow in such cases can be found here in the judgement of Redlich JA in the Victorian Court of Appeal decision of PPP v The Queen.[4]
An excellent summary of the history and development of the rule can be found in the judgement of Leeming JA in the NSW Court of Criminal Appeals' decision of Environment Protection Authority v Truegain Pty Ltd.[5]
Distinction between a duplex charge and a charge alleging an offence 'in the alternative'
Sometimes a statutory provision will state that an offence can be committed in alternative ways (for example, intentionally or recklessly causing injury). Under the Criminal Procedure Act 2009 (Vic), the prosecution may generally plead that an offence was committed 'in the alternative' in the one charge.[6]
However, it can sometimes be difficult to apply this exception in practice. One problem is that a single statutory provision sometimes creates separate offences.[7] Whether a statutory provision creates separate offences or a single offence that can be committed in alternative ways can only be identified by process of statutory interpretation. VGSO's lawyers are experts in statutory interpretation and are pleased to provide assistance in this regard.
Exception for offences that are part of a 'single transaction' or are 'continuing offences'
An exception to the rule against duplicity is where an accused is alleged to have engaged in a course of conduct consisting of a series of acts, each which might constitute a separate offence, but which are so closely related that they can be considered one act or a 'single transaction'.[8]
Whether such allegations are considered a 'single transaction' depends on the period of time over which the acts occurred, the similarity of the acts, the physical proximity of the place where the acts happened, and the intention of the accused throughout those acts.[9] However, even where such a connection exists, it may still be necessary to charge one or more of the acts separately. For example, an accused might have a specific defence to one or more of the alleged acts, or the evidence available to prove some acts may be substantially weaker than for others.[10] Fairness dictates that these acts are set out in separate charges.
There are also offences which require proof of a number of acts in order to establish an offence, even where the individual acts may themselves constitute distinct offences. These are sometimes called 'continuing offences'. Examples include allegations of stalking[11] or persistent sexual abuse of a child.[12]
Exception for 'rolled-up' charges
Another important exception to this rule applies where an accused waives the right to object to a charge that is affected by duplicity by pleading guilty to a 'rolled-up' charge.
A rolled-up charge can comprise a number of separate offences against the same statutory provision, even where they do not amount to a 'single transaction' (eg where the acts occurred on different occasions). This is usually done in negotiating a plea of guilty to create an administrative convenience rather than to reduce the culpability of the accused.
It is important for prosecutors to ensure that the summary of facts presented to the Court at sentencing explains that a rolled-up charge encompasses a number of distinct offences, so that the accused is sentenced accordingly.
Overcoming duplicity in a charge
Duplex charges are not automatically struck out by a court. Instead, the court will usually require the prosecution to 'elect' which of the separate offences it wishes to proceed with (where there is patent duplicity) or to provide sufficient particulars of the charge to identify the precise instance of offending (where there is latent duplicity). If the prosecution fails to make an election or identify the precise instance of offending, the Court may act to strike out or 'stay' the charge.
Whatever the case, it is always important that proper particulars are given, so that the accused knows all of the relevant facts, matters and circumstances alleged against them. A failure to provide such particulars can still result in a charge being struck out.
Conclusion
If you require advice or assistance in drafting charges or criminal prosecutions generally, contact:
Greg Elms
greg.elms@vgso.vic.gov.au
8684 0414
Michael Stagg
michael.stagg@vgso.vic.gov.au
9247 6496
Matthew Carrazzo
matthew.carrazzo@vgso.vic.gov.au
8684 0497
[1] The
rule applies equally to the drafting of counts in an indictment, where a matter
is prosecuted by the Director of Public Prosecutions in the County Court or
Supreme Court.
[2] Stanton v Abernathy (No 2) (1990) 19
NSWLR 656 at 666 per Gleeson CJ.
[3] See Schedule
1 of the Criminal Procedure Act 2009
(Vic).
[4] [2010]
VSCA 110 at para [43].
[5] [2013]
NSWCCA 204 at paras [31] to [53].
[6] Clause
3(3) of Schedule 1 to the CP Act.
[7] For
example, section 52 of the Summary
Offences Act 1966 (Vic) provides: "Any person who assaults resists
obstructs hinders or delays … any member of the police force or a protective
services officer in the execution of his duty under this Act or otherwise…
shall be guilty of an offence".
This provision arguably creates a number of distinct offences, rather
than a single offence which can be committed in different ways.
[8] Such
conduct is sometimes referred to as a 'composite activity'.
[9] Walsh v Tattersall (1996) 188 CLR 77 per
Kirby J; R v Khouzame & Saliba [1999]
NSWCCA 173; (1999) 108 A Crim R 170; R v
Heaney [2009] VSCA 74; Rixon v
Thompson [2009] VSCA 84. It is
useful to look at cases of the higher courts to get a flavour for what fits
within this exception. The decision of
Ashley JA in R v Heaney and the decision
of the Court of Appeal in Rixon v
Thompson are good starting points.
[10] See: Rixon v Thompson [2009] VSCA 84 per
Maxwell P, Weinberg JA and Kyrou AJA at paras [73]-[77], [89]-[90].
[11] Section 21A of the Crimes Act 1958.
[12] Section 47A of the Crimes Act 1958.Monday, 14 April 2014
Planning enters the fast lane at VCAT
The new Victorian Civil & Administrative Tribunal Amendment Act 2014 (the Amendment Act) will come into operation on or before 1 February 2015. The purpose of the Amendment Act is to enhance the Tribunal's powers and efficiency, and both formalise existing practices and expand the regime for management of expert evidence at VCAT. These new measures aim to ensure the Tribunal can efficiently manage and resolve cases brought before it, particularly in its planning jurisdiction.
These substantial reforms introduced in the Amendment Act will empower the Tribunal to:
1. Invite original decision-makers to reconsider a decision at any time in a proceeding (s 51A);
2. Order a person to cease to be a party to a proceeding if they are not an affected, proper, or necessary party (s 60A);
3. Order the reimbursement of VCAT fees from one party to another (s 115B). This entitlement will be presumed in certain matters where a party substantially succeeds (s 115C) and is distinct and separate from the Tribunal's power to make an order for costs (s 115D);
4. Delegate certain functions of the Tribunal to its registrars (s 157A); and
5. Actively manage expert evidence used in proceedings (Schedule 3).
This note discusses the first and last points in particular.
Council to reconsider its decision
New s 51A allows the Tribunal to invite the original decision-maker (eg, a council) to remake the decision under review during the course of a proceeding. This may enable faster resolution of planning review proceedings. This new provision gives a local council 'the opportunity to consider a proposed resolution to the dispute' rather than requiring a local council to find or make specific delegations or authorisations to give effect to a settlement.
Expert Evidence Directions
The Amendment Act also elaborates on existing powers and formalises current Tribunal practice in relation to expert witnesses and expert evidence.
The Tribunal accomplishes this by including in the Amendment Act the power to:
1. Call for the preparation of an expert report;
2. Limit expert evidence to specified issues;
3. Limit the number of expert witnesses called;
4. Provide for the appointment of a single joint expert or Tribunal appointed expert; and
5. Give any other direction that may assist expert witness functions in a proceeding.
Expert Witness Conferences & Joint Expert Reports
The Amendment Act formalises VCAT practice in relation to expert conferences and the preparation of joint expert reports. The Amendment Act formalises the Tribunal's practice of ordering experts to enter a 'hot-tub'. This is aimed at identifying areas of agreement between multiple experts and, therefore, narrow the issues in dispute.
A conference of experts can be held without the presence of the parties to a proceeding, the practitioners, or an independent facilitator. Joint expert conferences may also lead to a joint expert report setting out areas of agreement and disagreement between experts.
Anything said or done during a conference of experts is confidential. What occurs during the conference must not be referred to during a related hearing or proceeding without the agreement of the parties or by order of the Tribunal.
Single Joint Experts
The Amendment Act preserves VCAT's power to appoint an expert to assist VCAT in the proceeding or, alternatively, order an expert to be engaged jointly by the parties.
In making such a decision, the Tribunal must consider:
• the proceeding's complexity;
• the amount in dispute;
• whether the issue falls in a substantially established area of knowledge;
• the necessity of a range of opinions;
• the likelihood of expediting or delaying the proceedings; and
• any other relevant considerations.
Formalising Expert Evidence Provisions?
The Amendment Act suggests a move towards formalising the approach to expert evidence at VCAT and a departure from a previously more informal process. This is reiterated by the adoption of a definition of expert witness and a regime consistent with the Civil Procedure Act 2010, which does not currently apply to VCAT.
That said, the VCAT Practice Note PNVCAT2 - Expert Evidence remains unchanged and we understand that there are no plans to update it at this time. It is worth also noting that the Practice Note adopts a definition of 'expert witness' which is more detailed than the definition in the Amendment Act.
Take home points
1. The Tribunal will have new powers to improve the efficiency of managing cases brought before it.
2. In particular, in review proceedings, the Tribunal will be able to invite original decisions makers to
directly reassess their decision at any time during a proceeding.
3. The Tribunal's power to invite decision makers directly to reassess decisions will be particularly relevant to the planning jurisdiction. Importantly, it may provide more options for developers and those engaged in major planning matters to seek faster resolution of their disputes.
4. The expert evidence provisions, for the most part, formalise current VCAT practices.
5. Although the extent to which the reforms will improve Tribunal functioning has yet to be seen, it is anticipated that these provisions as a whole will generally save time and money if factored into your case
preparation and instructions to experts.
6. Get in contact with the VGSO to assist and prepare you for these new reforms!
For advice on this topic please contact:
Eliza Bergin
Principal Solicitor
t 03 8684 0267
eliza.bergin@vgso.vic.gov.au
Juliette Halliday
Principal Solicitor
t 9032 3034
juliette.halliday@vgso.vic.gov.au
These substantial reforms introduced in the Amendment Act will empower the Tribunal to:
1. Invite original decision-makers to reconsider a decision at any time in a proceeding (s 51A);
2. Order a person to cease to be a party to a proceeding if they are not an affected, proper, or necessary party (s 60A);
3. Order the reimbursement of VCAT fees from one party to another (s 115B). This entitlement will be presumed in certain matters where a party substantially succeeds (s 115C) and is distinct and separate from the Tribunal's power to make an order for costs (s 115D);
4. Delegate certain functions of the Tribunal to its registrars (s 157A); and
5. Actively manage expert evidence used in proceedings (Schedule 3).
This note discusses the first and last points in particular.
Council to reconsider its decision
New s 51A allows the Tribunal to invite the original decision-maker (eg, a council) to remake the decision under review during the course of a proceeding. This may enable faster resolution of planning review proceedings. This new provision gives a local council 'the opportunity to consider a proposed resolution to the dispute' rather than requiring a local council to find or make specific delegations or authorisations to give effect to a settlement.
Expert Evidence Directions
The Amendment Act also elaborates on existing powers and formalises current Tribunal practice in relation to expert witnesses and expert evidence.
The Tribunal accomplishes this by including in the Amendment Act the power to:
1. Call for the preparation of an expert report;
2. Limit expert evidence to specified issues;
3. Limit the number of expert witnesses called;
4. Provide for the appointment of a single joint expert or Tribunal appointed expert; and
5. Give any other direction that may assist expert witness functions in a proceeding.
Expert Witness Conferences & Joint Expert Reports
The Amendment Act formalises VCAT practice in relation to expert conferences and the preparation of joint expert reports. The Amendment Act formalises the Tribunal's practice of ordering experts to enter a 'hot-tub'. This is aimed at identifying areas of agreement between multiple experts and, therefore, narrow the issues in dispute.
A conference of experts can be held without the presence of the parties to a proceeding, the practitioners, or an independent facilitator. Joint expert conferences may also lead to a joint expert report setting out areas of agreement and disagreement between experts.
Anything said or done during a conference of experts is confidential. What occurs during the conference must not be referred to during a related hearing or proceeding without the agreement of the parties or by order of the Tribunal.
Single Joint Experts
The Amendment Act preserves VCAT's power to appoint an expert to assist VCAT in the proceeding or, alternatively, order an expert to be engaged jointly by the parties.
In making such a decision, the Tribunal must consider:
• the proceeding's complexity;
• the amount in dispute;
• whether the issue falls in a substantially established area of knowledge;
• the necessity of a range of opinions;
• the likelihood of expediting or delaying the proceedings; and
• any other relevant considerations.
Formalising Expert Evidence Provisions?
The Amendment Act suggests a move towards formalising the approach to expert evidence at VCAT and a departure from a previously more informal process. This is reiterated by the adoption of a definition of expert witness and a regime consistent with the Civil Procedure Act 2010, which does not currently apply to VCAT.
That said, the VCAT Practice Note PNVCAT2 - Expert Evidence remains unchanged and we understand that there are no plans to update it at this time. It is worth also noting that the Practice Note adopts a definition of 'expert witness' which is more detailed than the definition in the Amendment Act.
Take home points
1. The Tribunal will have new powers to improve the efficiency of managing cases brought before it.
2. In particular, in review proceedings, the Tribunal will be able to invite original decisions makers to
directly reassess their decision at any time during a proceeding.
3. The Tribunal's power to invite decision makers directly to reassess decisions will be particularly relevant to the planning jurisdiction. Importantly, it may provide more options for developers and those engaged in major planning matters to seek faster resolution of their disputes.
4. The expert evidence provisions, for the most part, formalise current VCAT practices.
5. Although the extent to which the reforms will improve Tribunal functioning has yet to be seen, it is anticipated that these provisions as a whole will generally save time and money if factored into your case
preparation and instructions to experts.
6. Get in contact with the VGSO to assist and prepare you for these new reforms!
For advice on this topic please contact:
Eliza Bergin
Principal Solicitor
t 03 8684 0267
eliza.bergin@vgso.vic.gov.au
Juliette Halliday
Principal Solicitor
t 9032 3034
juliette.halliday@vgso.vic.gov.au
Thursday, 3 April 2014
ACCC v Coles Supermarkets Australia Pty Ltd - Implied waiver of legal professional privilege
Introduction
Legal professional privilege (LPP) is a common law right [1] which protects the confidentiality of communications between a client and their legal adviser. LPP generally prevents the compulsory disclosure of a confidential communication, whether ordered by a court (for example subpoenas or discovery) or by a person or body with similar compulsive powers. [2]
Where a client waives the confidentiality of a communication, any LPP attaching to that communication is lost. Disputes sometimes arise as to whether, despite a client wanting to claim that a communication is still confidential, they have impliedly waived confidentiality by saying or doing something inconsistent with that position. [3]
So in what circumstances might a person say or do something inconsistent with maintaining the confidentiality of a privileged communication?
The recent case of ACCC v Coles Supermarkets Australia Pty Ltd (ACCC v Coles) [4] considered this question in the context of a dispute about baked bread.
The facts of ACCC v Coles
In mid-2012, Coles began selling bread products through its in-store bakeries which had been ‘par baked’ by certain suppliers. The ACCC commenced proceedings in the Federal Court seeking various forms of relief and penalties, alleging that Coles’ advertising of these bread products using slogans such as “Freshly Baked In-Store” and “Baked Today, Sold Today” was misleading and deceptive. Coles denies this allegation.
To narrow the issues in dispute, the parties sought to formulate an agreed statement of facts (ASOFs). [5] In the course of negotiating the contents of the ASOFs, Coles’ lawyers sent a letter to the ACCC’s lawyers (the November Letter) describing information about the baking processes used by the suppliers. This information was summarised from confidential correspondence sent to Coles’ lawyers by its suppliers. [6]
The ACCC sought the issue of subpoenas to Coles' suppliers requiring production of copies of this confidential correspondence. While the ACCC accepted that LPP attached to these documents, it argued that Coles had waived confidentiality in these documents because it had disclosed the 'gist' of them in the November Letter.
The decision
The Federal Court held that while the November Letter disclosed the gist of the communications, this was not inconsistent with a maintenance of confidentiality in the documents. It noted that legal representatives in litigation regularly exchange correspondence summarising their clients' instructions or other confidential communications, and that it may have a 'chilling effect' on such exchanges (which are helpful in negotiating agreed facts) to find that they result in an implied waiver.
Another factor which was considered important by the Court was that the ACCC could still adduce evidence about Coles' suppliers' baking processes in the usual way (ie by way of evidence in the case, rather than in an ASOFs), regardless of whether the correspondence from the suppliers was available for inspection by the ACCC.
For these reasons, the Federal Court decided that Coles had not impliedly waived LPP in the documents by sending the November Letter.
What does this mean for the Public Sector?
ACCC v Coles Supermarkets highlights the importance of the relevant context in assessing whether the voluntary disclosure of the gist of a confidential communication constitutes an implied waiver. Courts tend to look at the practical effect of deeming that confidentiality has been waived, and will consider what is fair in all of the circumstances.
However, there can be any number of situations where disclosing the 'gist' of a privileged communication could be enough to result in a loss of LPP. The context will be different in each case and may involve complex policy considerations, making it difficult to predict what effect such disclosure will have.
For this reason, it is never wise to reveal the contents of communications with your legal advisers, or documents prepared in relation to legal matters without first obtaining advice. One can't always, after all, eat one's cake and still have it.
For advice on this issue, contact:
Legal professional privilege (LPP) is a common law right [1] which protects the confidentiality of communications between a client and their legal adviser. LPP generally prevents the compulsory disclosure of a confidential communication, whether ordered by a court (for example subpoenas or discovery) or by a person or body with similar compulsive powers. [2]
Where a client waives the confidentiality of a communication, any LPP attaching to that communication is lost. Disputes sometimes arise as to whether, despite a client wanting to claim that a communication is still confidential, they have impliedly waived confidentiality by saying or doing something inconsistent with that position. [3]
So in what circumstances might a person say or do something inconsistent with maintaining the confidentiality of a privileged communication?
The recent case of ACCC v Coles Supermarkets Australia Pty Ltd (ACCC v Coles) [4] considered this question in the context of a dispute about baked bread.
The facts of ACCC v Coles
In mid-2012, Coles began selling bread products through its in-store bakeries which had been ‘par baked’ by certain suppliers. The ACCC commenced proceedings in the Federal Court seeking various forms of relief and penalties, alleging that Coles’ advertising of these bread products using slogans such as “Freshly Baked In-Store” and “Baked Today, Sold Today” was misleading and deceptive. Coles denies this allegation.
To narrow the issues in dispute, the parties sought to formulate an agreed statement of facts (ASOFs). [5] In the course of negotiating the contents of the ASOFs, Coles’ lawyers sent a letter to the ACCC’s lawyers (the November Letter) describing information about the baking processes used by the suppliers. This information was summarised from confidential correspondence sent to Coles’ lawyers by its suppliers. [6]
The ACCC sought the issue of subpoenas to Coles' suppliers requiring production of copies of this confidential correspondence. While the ACCC accepted that LPP attached to these documents, it argued that Coles had waived confidentiality in these documents because it had disclosed the 'gist' of them in the November Letter.
The decision
The Federal Court held that while the November Letter disclosed the gist of the communications, this was not inconsistent with a maintenance of confidentiality in the documents. It noted that legal representatives in litigation regularly exchange correspondence summarising their clients' instructions or other confidential communications, and that it may have a 'chilling effect' on such exchanges (which are helpful in negotiating agreed facts) to find that they result in an implied waiver.
Another factor which was considered important by the Court was that the ACCC could still adduce evidence about Coles' suppliers' baking processes in the usual way (ie by way of evidence in the case, rather than in an ASOFs), regardless of whether the correspondence from the suppliers was available for inspection by the ACCC.
For these reasons, the Federal Court decided that Coles had not impliedly waived LPP in the documents by sending the November Letter.
What does this mean for the Public Sector?
ACCC v Coles Supermarkets highlights the importance of the relevant context in assessing whether the voluntary disclosure of the gist of a confidential communication constitutes an implied waiver. Courts tend to look at the practical effect of deeming that confidentiality has been waived, and will consider what is fair in all of the circumstances.
However, there can be any number of situations where disclosing the 'gist' of a privileged communication could be enough to result in a loss of LPP. The context will be different in each case and may involve complex policy considerations, making it difficult to predict what effect such disclosure will have.
For this reason, it is never wise to reveal the contents of communications with your legal advisers, or documents prepared in relation to legal matters without first obtaining advice. One can't always, after all, eat one's cake and still have it.
For advice on this issue, contact:
Managing Principal Solicitor
Principal Solicitor
Senior Solicitor
Note: Judgement was reserved in the substantive application in the proceeding by Allsop CJ on 21 February 2014.
[1] In Victoria, Division 1 of Part 3.10 of the EvidenceAct 2008 (Vic) has codified LPP for the purposes of court proceedings to which that Act applies, renaming it ‘client legal privilege’ (CLP). Some aspects of the privilege are different between the common law and the Evidence Act, none of which are directly relevant for the purposes of this blog post.
[6] At common law, LPP can also attach to confidential documents sent by a third party to a legal advisor so long as they are for the dominant purpose of providing the client with legal advice or for current or contemplated litigation. The situation is the same under the Evidence Act 2008 (Vic): see section 119(b).
Monday, 31 March 2014
'Watershed' moment in Victorian litigation culture?: Yara Australia Pty Ltd v Oswal [2013] VSCA 337
Introduction
The Victorian Court of Appeal has sent a strong message that the overarching obligation under section 24 of the Victorian Civil Procedure Act 2010 - to ensure that the costs of litigation are 'reasonable and proportionate' - is ignored by lawyers and litigants at their peril.
The decision
The proceedings followed the collapse of a fertiliser business, which had been placed into administration in 2010. Judicial commentary on the overarching obligations arose in an appeal against an earlier decision on security for costs.
An apparently straight-forward matter was attended by five senior counsel, six junior counsel, and five firms of solicitors, who filed over 2700 pages of evidence in support of the application. The Court sought an explanation from the parties as to whether any breaches of the overarching obligations under the Civil Procedure Act 2010 had occurred.
The Court determined that the parties were not 'overrepresented' - due to the complexity of the issues and the likely costs of future proceedings. As each of the applicants had separate and distinct interests, the Court found that each were entitled to separate representation. The Court was careful to emphasise that section 24 of the Civil Procedure Act concerning proportionate costs 'is not to be construed as requiring a party to forfeit that right'.
The Court determined that much of the 2700 pages of material filed was either duplicative or 'peripheral to the application or entirely unnecessary', such as:
• old statements of claim
• reams of email correspondence
• materials from related but immaterial proceedings in other states and jurisdictions.
It was found that the inclusion of the material violated section 24 on the basis that it increased costs for all parties and placed an unnecessary burden on the court.
What do the 'overarching obligations' require lawyers and litigants to do - or not do?
Section 24 of the Civil Procedure Act 2010 provides:
A person to whom the overarching obligations apply must use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to—
(a) the complexity or importance of the issues in dispute; and
(b) the amount in dispute.
The judgment cites the second reading speech to the Act, in which the then Attorney-General Hulls stated:
At the core of these reforms is the concept of proportionality. Participants in litigation will be required to use reasonable endeavours to ensure that legal and other costs spent in the proceeding are reasonable and proportionate to the complexity or importance of the issues in dispute, and the amount in dispute […] These provisions are designed to cure unnecessary expenditure on litigation and the inappropriate use of the courts as a public resource.
The overarching obligations apply to litigants and legal practitioners alike. Importantly, legal practitioners are required to act in accordance with the overarching obligations even when this conflicts with client instructions.
What does this decision mean for litigation culture in Victoria?
Addressing a recent National Costs Lawyers conference at the Law Institute of Victoria, Justice Croft said that the judgment was a 'watershed' moment:
It is clear that practitioners can no longer hold the mistaken belief that the obligations under the Act are merely aspirational rather than obligatory.
Since late last year, the case has been raised in seven other proceedings, suggesting that Victoria's judiciary is willing to make use of case management tools to contain the costs of litigation.
But we're model litigants anyway, aren't we?
The State of Victoria is subject to the Model Litigant Guidelines which require government entities to abide by high standards of litigant conduct, including keeping costs to a minimum, and avoiding unnecessary delay.
While the decision in Yara may not alter the approach of model litigants, it provides important guidance from Victoria's highest court on the scope of the overarching obligations contained in the Civil Procedure Act 2010, by which all litigants - including model litigants - are bound.
The Court warned future litigants that they will effectively be under a positive obligation to demonstrate that materials are compliant with the overarching obligations:
Where a large volume of material is provided to a court that is unnecessary and excessive, there will be a prima facie case that the overriding obligation has been breached. [emphasis added]
We will be watching this space closely for future decisions in this area.
For more information about Yara Australia Pty Ltd v Oswal [2013] VSCA 337, please contact:
Andrew Suddick
General Counsel
t 8684 0458
andrew.suddick@vgso.vic.gov.au
Antonio Mazzone
Managing Principal Solicitor
t 8684 0418
antonio.mazzone@vgso.vic.gov.au
The Victorian Court of Appeal has sent a strong message that the overarching obligation under section 24 of the Victorian Civil Procedure Act 2010 - to ensure that the costs of litigation are 'reasonable and proportionate' - is ignored by lawyers and litigants at their peril.
The decision
The proceedings followed the collapse of a fertiliser business, which had been placed into administration in 2010. Judicial commentary on the overarching obligations arose in an appeal against an earlier decision on security for costs.
An apparently straight-forward matter was attended by five senior counsel, six junior counsel, and five firms of solicitors, who filed over 2700 pages of evidence in support of the application. The Court sought an explanation from the parties as to whether any breaches of the overarching obligations under the Civil Procedure Act 2010 had occurred.
The Court determined that the parties were not 'overrepresented' - due to the complexity of the issues and the likely costs of future proceedings. As each of the applicants had separate and distinct interests, the Court found that each were entitled to separate representation. The Court was careful to emphasise that section 24 of the Civil Procedure Act concerning proportionate costs 'is not to be construed as requiring a party to forfeit that right'.
The Court determined that much of the 2700 pages of material filed was either duplicative or 'peripheral to the application or entirely unnecessary', such as:
• old statements of claim
• reams of email correspondence
• materials from related but immaterial proceedings in other states and jurisdictions.
It was found that the inclusion of the material violated section 24 on the basis that it increased costs for all parties and placed an unnecessary burden on the court.
What do the 'overarching obligations' require lawyers and litigants to do - or not do?
Section 24 of the Civil Procedure Act 2010 provides:
A person to whom the overarching obligations apply must use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to—
(a) the complexity or importance of the issues in dispute; and
(b) the amount in dispute.
The judgment cites the second reading speech to the Act, in which the then Attorney-General Hulls stated:
At the core of these reforms is the concept of proportionality. Participants in litigation will be required to use reasonable endeavours to ensure that legal and other costs spent in the proceeding are reasonable and proportionate to the complexity or importance of the issues in dispute, and the amount in dispute […] These provisions are designed to cure unnecessary expenditure on litigation and the inappropriate use of the courts as a public resource.
The overarching obligations apply to litigants and legal practitioners alike. Importantly, legal practitioners are required to act in accordance with the overarching obligations even when this conflicts with client instructions.
What does this decision mean for litigation culture in Victoria?
Addressing a recent National Costs Lawyers conference at the Law Institute of Victoria, Justice Croft said that the judgment was a 'watershed' moment:
It is clear that practitioners can no longer hold the mistaken belief that the obligations under the Act are merely aspirational rather than obligatory.
Since late last year, the case has been raised in seven other proceedings, suggesting that Victoria's judiciary is willing to make use of case management tools to contain the costs of litigation.
But we're model litigants anyway, aren't we?
The State of Victoria is subject to the Model Litigant Guidelines which require government entities to abide by high standards of litigant conduct, including keeping costs to a minimum, and avoiding unnecessary delay.
While the decision in Yara may not alter the approach of model litigants, it provides important guidance from Victoria's highest court on the scope of the overarching obligations contained in the Civil Procedure Act 2010, by which all litigants - including model litigants - are bound.
The Court warned future litigants that they will effectively be under a positive obligation to demonstrate that materials are compliant with the overarching obligations:
Where a large volume of material is provided to a court that is unnecessary and excessive, there will be a prima facie case that the overriding obligation has been breached. [emphasis added]
We will be watching this space closely for future decisions in this area.
For more information about Yara Australia Pty Ltd v Oswal [2013] VSCA 337, please contact:
Andrew Suddick
General Counsel
t 8684 0458
andrew.suddick@vgso.vic.gov.au
Antonio Mazzone
Managing Principal Solicitor
t 8684 0418
antonio.mazzone@vgso.vic.gov.au
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