Revealed - Slater and Gordon's confidential legal advice from Geoff Masel of Philips Fox on $67,000 cheque from slush fund
Slater and Gordon - you missed one, you'll find it published here in Part Two of this post.
First the background and context.
11 October 2012 - Ralph Blewitt, publicly disclosed serious indictable offence re power of attorney - transcript here
12 October 2012 - PM Gillard asked for her side of the story, she did not respond.
Over the next few months extensive discussions with police and potential witnesses.
23 November 2012 - Ralph Blewitt made 3 statements to Victoria Police under the penalties of perjury and without any immunity from prosecution.
16 January 2013 - Victoria Police detective attended at Kawana Waters police station in Queensland and interviewed Olivia Palmer (nee Brosnahan, the paralegal executive from Slater and Gordon)
January 2013 Victoria Police command approved Operation Tendement and allocated about 8 detectives to it. Detective Sergeant Ross Mitchell was appointed to head the team and to investigate the offences disclosed in the AWU Scandal.
May 2013 Ross and his team had tracked down most of the witnesses, taken dozens of new statements and collected a heap of evidence.
15 May 2013 Magistrate Martin directed police pursuant to this warrant:
5 Jun 2013 police were satisfied that Slater and Gordon had complied to the extent possible with the terms of the warrant.
This is the Result of Search report for return to the Magistrate who issued the warrant.
5 June 2013, the Wilson box and the Slater and Gordon envelope were sitting in the Magistrates' Court chambers pending resolution of the claim of client legal privilege.
19 June 2013 Ralph Blewitt formally waived any privilege he may have been able to claim.
July 2013 Bruce Wilson engaged the Public Interest Legal Clearing House to fund expensive legal representation for himself.
July 2013 the PILCH referred and funded Wilson to engage the firm of Lewenberg and Lewenberg to pursue a claim of privilege for Wilson as Slater and Gordon's client.
6 August 2013 Slater and Gordon served a Writ in the Supreme Court seeking orders for the return of all the Slater and Gordon documents over which it had made a claim of client (itself, the partnership) legal professional privilege.
On 26 August 2013 the Supreme Court heard Slater and Gordon's application. It was not contested by police. Here are the orders.
28 August 2013 Ross Mitchell applied to the Melbourne Magistrates' Court for this order in relation to the Wilson material:
September 2013 Federal Labor Attorney General Mark Dreyfus QC announced $4M in extra funding for the PILCH.
9 December 2013 Chief Magistrate Peter Lauritsen handed down this written judgement:
He said any claim of privilege over any of the hundreds of documents in the Wilson file was extinguished
Ross Mitchell should have been quicker off the mark. He had the right to take the box then and there, but he's a lovely bloke and a gentleman.
19 December 2013 Wilson and his legal team lodged an appeal in the Supreme Court using other people's money.
On 14 June 2014 that same day the Supreme Court ruled against Wilson in relation to the suppression of Mitchell and others affidavits.
Police affidavits build fraud, conspiracy case against Bruce Wilson et al
VICTORIAN detectives believe former AWU boss Bruce Wilson was involved in fraud and conspiracy when he created a secret slush fund with legal assistance provided by his then girlfriend, Julia Gillard.
On 8 July 2014 Wilson got up on his appeal. The matter was sent back to the Magistrate to be re-heard.
Wilson v Mitchell (No 2)  VSC 332 (8 July 2014)
Last Updated: 14 July 2014
No. 6594 of 2013
|JUDGE:||T. FORREST J|
|DATE OF HEARING:||13 June 2014|
|DATE OF RULING:||8 July 2014|
|CASE MAY BE CITED AS:||Wilson v Mitchell (No 2)|
|MEDIUM NEUTRAL CITATION:|| VSC 332|
EVIDENCE – Appeal from Magistrates’ Court decision to release documents – Client legal privilege – Exceptions for documents produced in the furtherance of a fraud – Hearsay – Whether open to conclude that it would result in undue expense or delay to call author of hearsay evidence on bar table assertion that author lived in Malaysia – Admissions - Evidence Act 2008 ss, 64, 75, 118 and 125.
|For the Appellant||Mr D. Aghion with
Ms A. Haban-Beer
|Lewenberg & Lewenberg|
|For the Respondent||Mr R. Gipp||Victorian Government Solicitor’s Office|
1 In May 2013, a search warrant was issued by a Magistrate which authorised police to search and obtain documents at the offices of Slater & Gordon solicitors (‘S & G’). A file known as the Bruce Wilson file was produced under the warrant, sealed and placed in the custody of the Court Registrar.
2 Detective Sergeant Mitchell, the respondent to this appeal, applied to the Magistrates’ Court for the file to be released to police investigators. Mr Wilson, a client of S & G, maintained a claim of client legal privilege over the file. The Magistrate hearing the matter determined that, to the extent that the contents of the file were properly the subject of client legal privilege, the privilege was lost because the relevant documents had been prepared in furtherance of the commission of a fraud. His Honour ordered that the file be provided to police. Mr Wilson seeks to appeal that order under s 109 of the Magistrates’ Court Act 1989.
3 Section 109 provides that a party to a civil proceeding in the Magistrates’ Court may appeal to this Court on a question of law if the order appealed from is a ‘final order in that proceeding.’ The appeal is not a rehearing – it is a stricto sensu appeal. For the appeal to succeed, it will be necessary for the appellant ‘to identify a relevant error of law made by the Magistrate before he is entitled to relief from this Court.’ The appeal must be determined on the basis of the materials before the Magistrate and the law as it existed at the time when the original order was made.
4 It is not disputed that the original hearing was a ‘civil proceeding’ within the meaning of s 109. It is also clear that the Magistrate’s order is a final order within the meaning of that section.
5 The appellant raises two questions of law:
(1) Whether the learned Magistrate erred in law by admitting into evidence three hearsay statements of Ralph Blewitt made 23 November 2012 (‘the Blewitt statements’). There are three bases upon which error under this head is said to be made out –
(b) Failure to comply with s 64(2) of the Act. It was not open to his Honour to conclude that calling Mr Blewitt would cause undue expense, delay or be reasonably impracticable; and
(c) Failure to exclude the Blewitt statements under s 135 of the Act.
(2) Whether the learned Magistrate erred in law by admitting into evidence, or if not admitted, by relying upon in his reasons, transcript of an interview between the appellant and an ABC news reporter.
6 I shall set out a brief factual background to this appeal. In 1991, Bruce Wilson was the Secretary of the Western Australian branch of the Australian Workers Union (‘AWU’). Ralph Blewitt was his assistant secretary. The police allege that Blewitt and Wilson engaged in a fraud practised upon the AWU and Thiess Contractors Pty Ltd (‘Thiess’), a large engineering contractor. In short compass, it is alleged that Wilson and Blewitt, ostensibly acting on behalf of the AWU, negotiated a site agreement with Thiess over the life of the very large Dawesville Construction Project. Thiess agreed to pay and did pay for a ‘Workplace Reform’ adviser. This person was to be an AWU member paid $35.00 per hour for a maximum of 56 hours per week. Thiess also agreed to pay an additional $2.00 per hour to AWU workers in return for a ‘no extra claims’ agreement from the Union.
7 The allegation is that monies paid by Thiess for these purposes were appropriated by Wilson and Blewitt. It is alleged that a body known as the Australian Workers Union – Workplace Reform Association Inc (AWUWRA) was established by Wilson for the purpose of receiving the Thiess payments. The payments were kept secret from the AWU and the funds were ultimately appropriated by Wilson and, to a lesser extent, Blewitt.
8 The substance of these allegations was put before the Magistrate at the initial hearing of this application in September 2013. At that hearing, Mr Wilson maintained his claim of client legal privilege over the file. The applicant sought to prove that the relevant documents had been prepared in furtherance of the fraud by filing an affidavit sworn by Detective Sergeant Mitchell in which he outlined the progress of the investigation including representations said to have been made by various witnesses. This material was clearly hearsay, objected to by Mr Wilson, and ultimately not acted upon by his Honour.
9 The matter was adjourned to enable the applicant to assemble admissible evidence in support of its fraud allegation. On 2 December 2013, the hearing resumed. The applicant tendered affidavits from the following witnesses:
(b) Detective Sergeant Mitchell exhibiting a transcript of an interview between Bruce Wilson and a reporter from the 7.30 Report;
(c) Mr Nicholas Jukes;
(d) Mr Joseph Trio;
(e) Mr Ian Cambridge; and
(f) Mr Michael Smith, which exhibited a USB memory stick on which was a recording of a conversation between Ralph Blewitt and Mr Smith.
The exhibits to (a) and (b) above are the subject of the appeal grounds.
10 Counsel for Mr Wilson objected to reception of the Smith, McDonald and further Mitchell affidavits on the basis that the representations contained within the exhibits to those affidavits were hearsay. Counsel for the police, Mr Gipp, did not dispute that the representations were hearsay, but contended that hearsay was permissible in this type of proceeding or that exceptions to the hearsay rule permitted the Court to receive the evidence.
11 Client legal privilege is a fundamental principle of the common law. It enhances the administration of justice by facilitating the representation of clients by their legal advisors. Clients can only consult their lawyers with ‘freedom and candour’ within the protection afforded by the privilege. The privilege ought not readily be set aside, and if it is to be set aside, then only on the basis of admissible evidence.
12 If the Blewitt statements were properly admitted into evidence on the application, then on their face they prove the fraud and thus client legal privilege attaching to the relevant documents will be lost. Mr Gipp argued to his Honour that these hearsay statements were admissible in this type of proceeding and any weight to be given them was a matter for his Honour. No authority was advanced for this proposition and, in my view, his Honour correctly rejected it. The proceedings were not interlocutory in nature and s 75 of the Act was not engaged. As I have said, the removal of client legal privilege is a final determination of a fundamental legal right.
13 Mr Gipp’s fall-back position was ultimately accepted by his Honour. He submitted that the Blewitt statements, whilst hearsay, were admissible under s 64(2) of the Act, that there were reasonable grounds for finding that a fraud had taken place, the relevant privileged documents were prepared in furtherance of that fraud and thus client legal privilege attaching to those documents had been lost.
14 His Honour reasoned as follows:
(a) some of the documents within the file were properly the subject of client legal privilege;
(b) the Blewitt statements were hearsay but admitted through the s 64(2) exception to the hearsay rule;
(c) there were reasonable grounds for finding that a fraud had taken place;
(d) the relevant documents were prepared in furtherance of the commission of that fraud; and
(e) any client legal privilege attaching to those documents is lost and the whole file should be released.
15 His Honour’s reasons demonstrate that he relied heavily on the Blewitt statements in proof of the fraud. The statements proved the background to the fraud, the setting up of the AWUWRA its ostensible objects and its true purpose, Thiess payments to the AWUWRA and the appropriation of those funds by Wilson and Blewitt. His Honour concluded:
(t)he evidence of Blewitt establishes that Thiess was deceived. It believed it was paying for a particular service. The Association provided no such service. Wilson bought a home with some of the Thiess payments. Only he knows what happened to the rest.
16 As I have said, his Honour admitted the three hearsay Blewitt statements through the evidentiary gateway of s 64(2) of the Act. It is common ground that the three statements contained previous representations about asserted facts made by Ralph Blewitt, who was available to give evidence about those facts. Section 64(2) provides:
The hearsay rule does not apply to:
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation;
if it would cause undue expense or undue delay, or would not reasonably be practicable, to call the person who made the representation to give evidence. It ought be noted that the party seeking to adduce the hearsay evidence is required to give notice to other parties in accordance with s 67 of the Act.
17 The only evidence about Mr Blewitt’s availability and whereabouts came from the first Mitchell affidavit:
Blewitt, who resides in Malaysia, wished to come forward and make a ‘full and frank’ statement ...
Mr Gipp at both the Magistrates Court hearing and on this appeal contended that this was sufficient to engage s 64(2) of the Act. His Honour agreed with this submission and ruled as follows:
...it would seem to me to involve undue delay if such a (notice) requirement was made and secondly undue expense in the context of what we are dealing with.
His Honour ruled that he would admit the statements ‘in the absence of the maker ... [and in] ... the absence of notice under s 67.’
18 Mr Aghion who appeared with Ms Haban-Beer for Mr Wilson submitted to this court that it was not open to his Honour to make these findings.
19 Any consideration of whether expense or delay is undue requires consideration of the significance of the impugned asserted facts said to be proved by the representations and the nature of the proceedings. In Caterpillar Inc v John Deere Ltd (No 2), Heerey J, while considering ‘undue expense’, considered these matters relevant:
- the actual cost of securing the attendance of the witness;
- a comparison of that cost to the value of what is at stake in the litigation; and
- an assessment of the importance of the evidence the witness might give.
Whether a delay is undue will depend not just on the delay itself but also upon what is at stake in the litigation.
20 In my view on the material before him, it was not open to his Honour to conclude that to call Blewitt as a witness would involve undue cost, delay or be reasonably impracticable. The issue at stake was far from trivial and the Blewitt evidence was central to the application. I consider that the mere assertion by a party that a witness resided in Malaysia is insufficient to establish this exception. Audio-visual links are a fact of modern litigation. Had the police served a s 67 notice of its intention to rely on s 64(2), it may well have been a simple matter to secure Mr Blewitt’s attendance for cross-examination via an audio-visual link.
21 It follows that I consider that s 64(2) was not engaged as an exception to the hearsay rule and thus the Blewitt statements, on the material before the Magistrates’ Court, ought not to have been admitted into evidence on the application.
22 It is unnecessary to consider the failure to serve a s 67 notice as a separate ground. It is also unnecessary to determine the s 135 discretionary argument mounted by the appellant. It was not argued at all in the Magistrates’ Court and pursued with little enthusiasm before me.
23 The short answer to this question is no. The appellant gave an interview to the ABC’s 7.30 Report on 27 November 2012. It is clear that his Honour relied on certain aspects of this interview as providing admissions against the appellant’s interests:
Then there is the remarkable interview ... (given) ... to the 7.30 Report. There Wilson admits the Association’s purpose was to fund election campaigns. There is no mention of “Workplace reform”. He even ponders whether he used the expression “slush fund” when speaking to solicitors. He then admits using its moneys to buy the property, justifying its use by saying it was not union money.
24 The term ‘admission’ is defined in the dictionary to the Act. Relevantly, an admission is a representation made by a party to the proceedings and adverse to the maker’s interest in the outcome of the proceedings. Although his Honour did not explain the basis upon which he admitted the transcript of the interview, it is abundantly clear that it was admitted pursuant to s 81 of the Act. The hearsay rule does not apply to evidence of an admission. It did not apply to the transcript which was correctly admitted as an admission and thus as an exception to the general hearsay rule.
25 In discussion Mr Gipp urged upon me that even if I were to find the Blewitt statements ought not to have been admitted on the application, the balance of admissible evidence including the ABC interview was sufficient for a finding of fraud in the terms of s 125 of the Act.
26 Whilst there is a pragmatic attraction to this course, as I have observed earlier in these reasons, this is an appeal stricto sensu and not a rehearing. The Blewitt statements were inadmissible and I am unable to say whether, but for those statements, his Honour would have been satisfied as to the existence of the fraud.
27 In my view it is appropriate to remit the matter to the Magistrates Court for rehearing on the evidence that was properly before the Court on 2 December 2013. It is also appropriate that the matter be heard by the Magistrate who determined the matter originally as his Honour is well acquainted with the material and arguments. I can see nothing in either the transcripts of the hearing or in his reasons that ought preclude his Honour from rehearing the matter in this way.
28 I will hear the parties as to the proposed form of orders.
By this time all concerned were thoroughly pissed off with the whole process.
On 23 September 2014 Chief Magistrate Lauritsen reheard Mitchell's application
By consent, the police and Wilson's representatives agreed that orders should be entered so that 290 documents would be handed to police.
72 documents, which related to the interactions between Wilson and Slater and Gordon once he got sprung with his hand in the till in Jun/July 1995 were allowed to be marked as privileged and were given back to Slater and Gordon.
So now you know.
I have spent the past couple of days making diligent and I believe complete enquiries about the law in this matter.
In Part Two of this post I'll publish the document Slater and Gordon missed.