A Pty Ltd v Z

A Pty Ltd v Z - [2007] NSWSC 999 - NSWSC 2007 case summary — Zoe

[14]

7 For A, Ms Ghabrial submitted that the otherwise restricted material in the H brief had been disclosed in an exempt proceeding for the purposes of s 75A. For the Commissioner, Ms England, while not conceding that that material had been tendered in evidence, adduced no contrary evidence. I am satisfied on the probabilities that this material - relevantly, transcripts of intercepted telephone conversations - was given in evidence in the H trial, an exempt proceeding. Accordingly, pursuant to s 75A, that information "may later be given in evidence in any proceeding", so that the prohibition on any person giving it in evidence in the present proceeding (including by way of producing it on subpoena), otherwise imposed by TIA Act, s 63, does not apply to it. 8 Ms Ghabrial further submitted that the exception under s 75A for "information" given in evidence in an exempt proceeding was not limited to the actual material given in evidence in the exempt proceeding (here, the transcripts of the intercepted conversations), but extended to other material containing the same information, such as the audio tapes of the conversations from which the written transcripts were prepared. 9 Section 63 imposes a prohibition on giving in evidence information obtained by a lawful interception of a communication passing over a telecommunications system. Section 75A creates an exception in the case of information that has already been given in evidence in an exempt proceeding. The exception is created in respect of "that information, or any part of that information" which has been given in evidence in the exempt proceeding. Thus what is given in evidence in the exempt proceeding describes the limit of the exemption. 10 I therefore do not accept that where a written transcript of an intercepted communication is given in evidence in an exempt proceeding, anything more than that written transcript falls within the exception created by s 75A. In particular, I do not accept that the audio tapes from which the written transcript is prepared fall within the exception. Such audio tapes contain different "information" - recordings of sounds - than the written transcript, which contained written words. It is not the same information. Although the distinction might appear artificial, there is no notion of "associated information" in s 75A. The words of the section are plain. Accordingly, insofar as an exception under s 75A is available, it is limited to the material in the H brief. This has the additional practical consequence that as the plaintiff already has access to that material, it does not need it a second time from the Commissioner, and for that matter does not press for production of documents which would duplicate what it already has. 11 That said, the plaintiff obtained that material only in the course of the argument on the subpoena, after the Commissioner had raised the s 63 objection, which if sustained would have resulted in the relevant parts of the subpoena being set aside. Because in fact much of the intercepted material had been given in evidence in the H prosecution, the Commissioner was in large part not entitled to succeed on his s 63 objection, although he was entitled to succeed on it in respect of the audio tapes.

[17]

14 During its investigation, the joint task force became aware of and began an investigation into the fire at S's rural property. The Crime Commission provided certain information to the joint task force during those investigations, and certain of that information is caught by the subpoena. Certain documents, such as COPS event entries, were created by members of the joint task force in the course of and for its purposes, and came into the Commissioner's custody and control on a confidential basis by reason of the exercise of functions under the CC Act by members of the joint task force. Others were Crime Commission documents provided to the members of the joint task force on a confidential basis to assist it with its investigations. Others were expert reports requested by members of the joint task force in the course of and for its purposes. I am satisfied that documents in any of those three classes are documents that came into the Commissioner's custody or control in the course of or by reason of the exercise of functions under the CC ACT, and in respect of such documents I would uphold the Commissioner's claim for statutory privilege under s 29(3). 15 I indicated as much on 7 August, but on close examination of Mr Walsh's evidence it became apparent that the claim for statutory privilege did not extend to all the documents caught by the subpoena. As it appeared that there would be some documents not caught by the statutory privilege, but no affidavit or other material had been prepared to show which documents caught by the subpoena were or were not within s 29, it was impossible to resolve the question in the absence of any evidence as to what was and was not within the claim, and I therefore directed that by 21 August the Commissioner serve and lodge an affidavit, specifying in respect of the documents referred to in each of the paragraphs of the subpoena (as circumscribed by the plaintiff's solicitor's letter dated 6 August 2007, which further limited the scope of the call), those documents which were in his possession, custody or power and not the subject of a claim for privilege under s 29, and those documents which were in his possession, custody or power and subject to a claim for privilege under s 29 together with a description of the circumstances in which they came into the possession, custody or power of the Commissioner.

[18]

The current status of the subpoena 16 Mr Walsh swore a further affidavit on 22 August 2007. He deposed that there was nothing to produce in relation to paragraphs 1(a), (b), (i), (l) and (m), 6(c), and 7. It will be necessary to return to paragraph 7. He said that there was nothing further to produce for paragraphs 2, 3 and 4 that was not covered by paragraph 1. He said that the Commissioner did not claim privilege over the documents caught by paragraph 6(f), but that in relation to the remainder of the documents caught by paragraphs 1 and 6, privilege was claimed pursuant to CC Act, s 29, and TIA Act, s 63. 17 Of course, the response that there is "nothing to produce" under a particular paragraph of the subpoena is an answer to the subpoena and not a reason to set the subpoena aside. The current position therefore maybe summarised, in respect of the various paragraphs of the schedule (as limited by the letter of 3 April 2007, RX03). 18 The Commissioner has no documents to produce within paragraphs 1(a), (b), (i), (l), and (m). 19 In respect of paragraph 1(c), the Commissioner has ERISP tapes in relation to investigations concerning the fire at S's rural property. These were created by members of the joint task force in the course of its investigations. By CC Act, s29(3), the Commissioner cannot be required to produce them. 20 In respect of paragraph 1(d), the Commissioner has ERISP transcripts in relation to the investigations into the fire. They were created by members of the joint task force in the course of its investigations. By CC Act, s29(3), the Commissioner cannot be required to produce them. Copies of the same transcripts are in the H brief and the plaintiff has access to them by that means, although production from the Commissioner cannot be required. 21 Paragraph 1(e) calls for telephone intercept tapes in relation to investigations into the fire. Any such tapes would be "lawfully intercepted information", which could not be given in evidence because of TIA Act, s 63. The circumstance that transcripts from those tapes have been given in evidence in the H proceedings, so as to fall within the exception under s 75A, does not, as I have explained, mean that the tapes themselves fall within the exception. Moreover, the tapes were prepared in the course of the joint task force operation, and the Commissioner cannot be required to produce them, by reason of CC Act, s 29. 22 Paragraph 1(f) calls for telephone intercept transcripts in relation to investigations concerning the fire. Such transcripts are in the H brief and were given in evidence in the H proceedings. To the extent that they were otherwise caught by s 63, they are now within the s 75A exception, and the plaintiff may access them via the District Court brief. However, they were obtained by members of the joint task force in the course of its operations, and the Commissioner cannot be compelled to produce them, by reason of CC Act, s 29(3). 23 Paragraph 1(g) calls for "COPS events" in relation to investigations concerning the fire. The Commissioner has such documents in his possession. Some, but not all, of them were created by members of the joint task force in the course of its operations. The Commissioner cannot be compelled to produce those that were, by reason of s 29(3). The others must be produced. 24 In respect of paragraph 1(h), the Commissioner has Eagle.1 or TIMS investigation management system entries in relation to the investigation into the fire. They were created by the members of the joint task force in the course of its operations, or received by members of the joint task force from the Crime Commission in the course of its operations. The Commissioner cannot be compelled to produce them, by reason of s 29(3). 25 As to paragraph 1(j), the Commissioner has note book and duty book entries in relation to the fire investigation. They were created by members of the joint task force in the course of its operations. The Commissioner cannot be required to produce them, because of s 29(3). 26 As to paragraph 1(k), the Commissioner has statements in relation to the fire investigation. Some were created by members of the joint task force in the course of its operations, and others by police officers under the supervision of the joint task force in the course of its operations and in confidence. The Commissioner cannot be required to produce them, because of s 29(3). 27 As to paragraph 1(n), the Commissioner has expert reports relating to the fire investigations. They were requested and obtained by members of the joint task force in the course of its operations. The Commissioner cannot be required to produce them, because of s 29(3). However they were included in the H brief and the plaintiff is able to access them via that means, thought not from the Commissioner. 28 The Commissioner has no further documents, not already caught by paragraph 1, that fall within paragraphs 2, 3 and 4 of the schedule. 29 The plaintiff has previously indicated that paragraph 5 of the subpoena would not be pressed. 30 As to paragraph 6(a), the Commissioner has COPS event entries in relation to allegations against Z concerning the alleged stalking of S. One such entry was created by members of the joint task force in the course of its operations and the Commissioner cannot be required to produce it because of s 29(3). The others must be produced. 31 As to paragraph 6(b), the Commissioner has Eagle.1 or TIMS entries in relation to the stalking allegations. One of these was created by the Crime Commission and given to members of the joint task force on a confidential basis in the course of its operations, and the others were created by the members of the joint task force. The Commissioner cannot be required to produce them, because of s 29(3). Some of these documents were included in the H brief and can be accessed by the plaintiff via that means, but not from the Commissioner. 32 The Commissioner has nothing to produce under paragraph 6(c). 33 In respect of paragraph 6(d), the Commissioner has note book and duty book entries in relation to the stalking allegations. They were created by members of the joint task force in the course of its operations, and the Commissioner cannot be required to produce them, because of s 29(3). 34 In relation to paragraph 6(e), the Commissioner has statements in relation to the stalking allegations, some of which were created by members of the joint task force in the course of its operations and others by police officers under the supervision of the joint task force and in confidence. The Commissioner cannot be required to produce them, because of s 29(3). 35 Although in Mr Walsh's affidavit it was said that no claim for privilege was made in respect of the documents in paragraph 6(f), it subsequently transpired that one document was a Crime Commission report provided to the joint task force in the course of its operations, which the Commissioner cannot be required to produce them, because of s 29(3). Any other documents caught by paragraph 6(f) must be produced. 36 Paragraph 7 calls for documents relating to Z's conviction "dated 15 December 2003" for malicious damage to property by fire, relating to a different fire. The Commissioner says that he has no documents caught by this paragraph. While the technical reason advanced is that the subpoena is mistaken in referring to 15 December 2003, because the relevant conviction was on 15 December 1993, the Commissioner has in any event indicated by his counsel that a search has been carried out for such documents relating to the 1993 conviction and nothing has been found. Although it is surprising that the Commissioner would have no records of documents relating to a conviction for arson in 1993, it is conceivable that documents relating to an investigation 15 years ago might have been mislaid.

[24]

· However, the plaintiff ultimately succeeded on the TIA Act issue, because most of the relevant documents had been disclosed in an exempt proceeding for the purposes of s 75A. · The matter could not be resolved on the second hearing day, because the Commissioner had not identified and segregated those documents which were protected from production by s 29 and those that were not. 47 I agree with Ms Ghabrial's submission that, had s 29 been raised at the outset, it is likely that the time occupied and costs incurred would have been significantly less, and confined to part of a day. The costs have been substantially increased by the Commissioner's failure to raise s 29 at the outset, and his unsuccessful pursuit of the legitimate forensic purpose issue and the TIA Act issue. On the other hand, costs on that issue might well have been reduced, if not avoided, had the plaintiff been more forthcoming at an earlier stage. And the plaintiff has progressively narrowed the scope of the subpoena as the matter has proceeded. Having regard on the one hand to the Commissioner's ultimate success on the s 29 issue, but on the other to the additional costs inflicted on the plaintiff by the Commissioner's pursuit of issues on which he was or would have been unsuccessful, there should be no order as to costs of the motion. 48 The costs of compliance with the subpoena, however, are a different matter. A subpoena is an invasive process which puts third parties to costs and trouble for the benefit of the parties to litigation, and in particular the issuing party. The price that an issuing party pays for the privilege of being able to issue subpoenas more or less as of course is the liability to pay a recipient its reasonable costs of compliance. It was entirely reasonable for the Commissioner to seek and obtain legal advice as to issues of privilege. However, once he moved from obtaining legal advice as to whether or not documents should be produced, to agitating a motion to set aside the subpoena, that passed beyond the scope of compliance with the subpoena, to an application not to comply with it. 49 In my view the Commissioner is entitled to recompense for searching and assembling the documents called for, and obtaining advice as to the subpoena up to the time a decision was made to file a motion to set aside the subpoena; but not in respect of the motions. I appreciate that the distinction is not always clear, but in my view, the costs of legal advice between 18 May 2007 (when the motion was originally filed) and 6 September 2007 (when this judgment is delivered) should be regarded as costs of the motion. Legal costs related to the subpoena before the commencement and after the completion of that period, together with all costs of searching, assembling, copying and producing documents called for by the subpoena, should be regarded as costs of compliance.

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