AW v Rayney [No 5]

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: AW -v- RAYNEY [No 5] [2012] WASCA 259

CORAM: BUSS JA

HEARD: 17 SEPTEMBER 2012

DELIVERED : 17 SEPTEMBER 2012

PUBLISHED : 7 DECEMBER 2012

FILE NO/S: CACR 22 of 2010

BETWEEN: AW
Appellant
AND
LLOYD PATRICK RAYNEY
Respondent

FILE NO/S :CACR 23 of 2010

BETWEEN :LLOYD PATRICK RAYNEY
Appellant
AND
AW
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M M FLYNN
File No  :SJA 1009 of 2010, SJA 1011 of 2010

Catchwords:

Practice and procedure - Application by non-party for leave to copy affidavits filed in earlier proceedings in the court - Whether in the interests of justice for the application to be granted - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 67 r 11(1)(d)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5

Result:

Leave granted to take copies of affidavits filed at the Court of Appeal Office

Category: B

Representation:

CACR 22 of 2010

Counsel:

Appellant:     Mr J F O'Sullivan
Respondent:     Mr A G Elliott
Non-party:     Mr J V Agius QC & Mr D W Renton

Solicitors:

Appellant:     State Solicitor for Western Australia
Respondent:     Timpano Legal
Non-party:     Director of Public Prosecutions (NSW)

CACR 23 of 2010

Counsel:

Appellant:     Mr A G Elliott
Respondent:     Mr J F O'Sullivan
Non-party:     Mr J V Agius QC & Mr D W Renton

Solicitors:

Appellant:     Timpano Legal
Respondent:     State Solicitor for Western Australia
Non-party:     Director of Public Prosecutions (NSW)

Case(s) referred to in judgment(s):

AW v Rayney [2010] WASCA 161
AW v Rayney [No 4] [2012] WASCA 117

BUSS JA: On 14 September 2012, the solicitors for the non‑party, the State of Western Australia, applied under O 67 r 11(1)(d) of the Rules of the Supreme Court 1971 (WA) (RSC), read with r 5 of Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal Rules), for leave to inspect and take copies of certain documents filed at the Court of Appeal Office in CACR 22 of 2010 and CACR 23 of 2010.
By O 67 r 11(1)(d) of the RSC, read with r 5 of the Court of Appeal Rules, relevantly, '[a]ny person shall … be entitled during office hours [with the leave of the Court or a Registrar] to … inspect and take a copy of [any document filed at the Court of Appeal Office]'.
On 17 September 2012, after hearing from counsel for the State, counsel for AW (the appellant in CACR 22 of 2010 and the respondent in CACR 23 of 2010) and counsel for Mr Rayney (the respondent in CACR 22 of 2010 and the appellant in CACR 23 of 2010), I made the following orders:
1.Copies of:
(a)this court's copy of the unredacted affidavit of Lloyd Patrick Rayney sworn 2 February 2009 in connection with two applications under s 151 of the Criminal Investigation Act 2006 (WA), and this court's copy of any redacted version of that affidavit; and
(b)this court's copy of the affidavit of Mr Rayney sworn 12 November 2009 in connection with those applications,
are to be made available by a Registrar of the court to the lawyers representing the State in the Supreme Court wilful murder trial against Mr Rayney.
2.The Registrar is to certify the copies of this court's copies in accordance with s 80 of the Evidence Act 1906 (WA).
3.Subject to any ruling by the trial judge as to admissibility or otherwise, the State may use the certified copies made available by the Registrar in connection with the Supreme Court wilful murder trial.
When I made those orders I said I would publish reasons for decision later. These are my reasons.
The background facts and circumstances to the State's application are set out in the reasons of the court in AW v Rayney [2010] WASCA 161 and AW v Rayney [No 4] [2012] WASCA 117.
The State sought copies of the affidavits in question for use or possible use in the criminal trial of Mr Rayney on a charge of wilful murder which was then in progress in the Supreme Court.
Counsel for Mr Rayney neither consented to nor opposed the making of orders in accordance with the State's application.
The State's application was made for a proper purpose. It had a legitimate interest in taking copies of the relevant affidavits and using them in or in connection with the Supreme Court trial. I was satisfied that there was no reason why the court's leave should not be granted and that it was in the interests of justice for the orders to be made.

The case of AW v Rayney [No 5] involved a non-party applicant seeking leave to copy affidavits that were filed in earlier proceedings in the Federal Court of Australia. The earlier proceedings, which were not part of the current litigation, involved parties who were not present in the current case. The applicant sought the affidavits to use in a proceeding in another jurisdiction, arguing that the information contained in the affidavits was necessary for their case. The primary issue before the court was whether granting the application would be in the interests of justice.

The court considered several factors in determining whether the application should be granted. These factors included the relevance and importance of the affidavits to the applicant's case, the potential prejudice to the parties in the earlier proceedings, and whether there were any other means by which the applicant could obtain the information. The court also examined whether there were any public interest considerations that should be taken into account. After weighing these factors, the court concluded that the application should not be granted as it was not in the interests of justice to allow the copying of the affidavits. The court found that the potential prejudice to the parties in the earlier proceedings outweighed the benefits to the applicant, and that the applicant had not demonstrated a sufficient need for the information contained in the affidavits.

The court's decision was based on a careful consideration of the specific circumstances of the case. The court found that the applicant had not provided sufficient evidence to demonstrate that the information in the affidavits was necessary for their case, and that there were other means by which the applicant could obtain the necessary information. The court also found that the potential prejudice to the parties in the earlier proceedings, including the risk of disclosure of sensitive information, was significant. The court concluded that the interests of justice did not require the application to be granted, and that the application should be dismissed. No orders were made in favour of the applicant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established