Things haven’t been traveling too well for Melbourne criminal defence lawyer Zarah Garde-Wilson of late. She’s being prosecuted for giving false evidence to the Australian Crime Commission and the legal regulators in Victoria want to take away her right to practice.

But maybe her luck is turning with an intriguing judgment handed down yesterday by Victorian Supreme Court Justice Kevin Bell which prevents mega law firm Corrs and the barristers it has briefed from acting for the Legal Services Board in their quest to stop Ms Garde-Wilson renewing her practicing certificate.

The cause of the Legal Services Board’s lawyer grief is the way in which a transcript of evidence from the ACC was misused by them. Here’s what happened.

Ms Garde-Wilson was examined by the ACC, and the transcript of her examination was subject to a publication prohibition order. But when charges of giving false evidence to the ACC were laid, an exemption to the prohibition was made so that the brief given to the Magistrate earlier this year, hearing committal proceedings against Ms Garde-Wilson, contained the transcript.

This is where it got messy for Corrs and their barristers. When Ms Garde-Wilson applied to renew her ticket this year, the Legal Services Board told her they wouldn’t be doing so, so Ms Garde-Wilson has appealed that decision to the Victorian Civil and Administrative Tribunal.

Corrs and two barristers began acting for the Legal Services Board and they wanted to check the ACC transcript so that they could use it against Ms Garde-Wilson in the Tribunal. Joe Santamaria, the QC briefed by Corrs, asked the DPP to release the transcript, which he did. Corrs got a copy, so did Mr Santamaria and his junior barrister and so did the Board. The problem was that Corrs sent a junior lawyer to pick up the file from the DPP and he didn’t bring the non-publication direction to the attention of his superiors at Corrs.

But when the ACC found out that the Board, Corrs and Santamaria and his junior had access to the transcript it hit the roof. It sent Corrs a letter telling it that, in its view, the non-publication order had been breached, and told Corrs to get all copies of the transcript back into the hands of the DPP ASAP. Corrs did as it was told “faultlessly’, according to Justice Bell. But, as we shall see, the damage had been done.

The ACC still hasn’t decided what to do about the breach – it may still take further action, but one hopes that the poor junior lawyer at Corrs is not made the scapegoat.

Ms Garde-Wilson sought to have Corrs, Mr Santamaria and his junior disqualified from further acting for the Legal Services Board in her matter because they had seen the ACC transcript of her examination. Justice Bell agreed. He said yesterday in a 19-page judgment that he “will not condone this unsatisfactory course of events by allowing the lawyers who obtained and passed on the transcript to continue to act for their client. Viewed objectively, doing so would bring the due administration of justice and the integrity of the judicial process into question.” Justice Bell said.

As Justice Bell said, while it’s important litigants are able to access the lawyer of their choice “in this case the other considerations weigh much more heavily. “

The bottom line for Justice Bell is this: “Corrs has confidential information about [Ms Garde-Wilson] that its client does not have. Corrs has to advance the Board’s case in the proceeding, but cannot use the transcript in doing so. I think this places Corrs in a very difficult position. A reasonable person informed of the facts might justifiably see a real and sensible possibility of misuse of the information, albeit unintentional or subconscious, in these circumstances. And this is an added reason why it is objectively necessary to grant the injunction to ensure the due administration of justice and the integrity of the judicial process.”

And of a proposal by Corrs that only the people involved in the case will use the transcript and not tell anyone about it, Justice Bell was equally dismissive.

“I picture in my mind these three lawyers, bound to silence on the contents of the transcript, bound also to put it out of their minds, sitting alone, or just them sitting together, thinking about or discussing a range of matters, including what witnesses or other evidence the Board should call, proofing its witnesses on the evidence they should give, preparing to cross-examine the plaintiff and her witnesses, deciding what documents or facts should be put to her or them, deciding what summonses to issue to witnesses or for the production of documents and, lastly, preparing final submissions on matters of fact and law. Remembering that the circumstances surrounding the plaintiff being charged with giving false evidence is an important issue in the proceedings, and that the transcript is directly relevant to that issue, I ask myself whether what I picture can form part of a fair and just civil procedure, and I must answer no.”

It was a bad day for the Legal Services Board and its legal team yesterday, but what this case shows is that fairness and justice is paramount. Hear hear for Justice Kevin Bell.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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