Black Hill Residents Group Incorporated v Marist Youth Care Limited

Relevant legal principles

1. The relevant legal principles which I keep in mind in dealing with the respective submissions were succinctly stated by Ward CJ in Eq in Rinehart v Rinehart [2018] NSWSC 1102 at [43]-[48], [51]: [43] As to what is a legitimate forensic purpose for the issue of compulsory process of this kind (subpoenas or, as considered in some of the cases, notices to produce), the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose: … it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will. [44] Determining whether there is a legitimate forensic purpose requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist, as observed by Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [33]): … the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleadings or particulars, or the terms in which it has been expressed are obscure and imprecise. [45] In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, Brereton J described the relevant test (in considering whether to set aside the notice to produce that had there been issued) as being (see at [24]) whether the documents sought have "a sufficient apparent connection to justify their production or inspection" (citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696). His Honour said that the test of adjectival relevance (i.e., as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for "could possibly throw light on the issues in the main case" (at [24]), citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 21 FCR 306). [46] More recently, Gleeson JA, in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 described the permissible scope of a subpoena for production of documents as directing attention to the apparent relevance of the documents sought (see at [22]). [47] Whether the formulation of the test in civil proceedings is best expressed as an "on the cards" test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), or that the material could "possibly throw light on" an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2); or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that "it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]"), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439-440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA). [48] Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena then it may readily be seen to be a fishing expedition. As to what is meant by a "fishing expedition", in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, it was said: A "fishing expedition", in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere "fishing expedition". … [51] It is well recognised that a subpoena may be set aside as an abuse of process where it is used as a substitute for discovery or discovery against a third party (see Associated Dominions Assurance; Commissioner for Railways v Small (1938) 38 SR (NSW) 564; (1938) 55 WN (NSW) 215; National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 382 (Moffitt P, with whom Hutley and Glass JJA agreed)).

Marist Youth's position

1. Marist Youth provided written and oral submissions. I do not detail all submissions made except to note the following: 1. The Notice to Produce is a fishing expedition because the documents are not relevant to the issues in dispute and will not materially assist Black Hill's case. To the extent that the alternative characterisations of the use are proffered by Black Hill, Marist Youth has not adduced any evidence to show that the premises are being used for the purposes of health services or administrative services. While any information about time spent by various staff members at the premises combined with their qualifications and experience may be relevant to the characterisation of the premises on a "broad view", most of that information has already been provided in response to an earlier notice to produce. This includes information relating to the type of professionals attending the premises and the times of attendance. Even if the documents had some relevance, they would not disclose anything other than the attendance at the premises by professionals of the kind that would normally be associated with a transitional group home. Further, if the Court found that the documents sought were relevant, the potential for the documents to assist Black Hill's case is so slight that it does not warrant the burden that would be imposed on Marist Youth by requiring it to comply. 2. Pursuant to r 34.1 of the Uniform Civil Procedure Rules 2005 (NSW), a party may issue a notice to produce requiring another party to produce a "specified document or thing". Such items are "specified" if they are "described" or "identified". The Notice to Produce inappropriately seeks to obtain discovery of documents because categories (2) to (4) require a certain class of documents to be produced depending upon their relationship to "any Staff Member who entered the Premises during the Period." These descriptors cannot be easily applied and require Marist Youth to ascertain which specific documents fall within those terms. Category (3) is particularly problematic as it would require Marist Youth to first determine which staff members entered the premises during the period, and then to search through all of its records to find all documents containing the names and/or addresses of those staff members. 3. These proceedings have been brought on quickly and to avoid an interlocutory hearing, the matter was set down promptly with a truncated timetable. Further, Black Hill has already issued a "raft" of notices to produce (detailed in the affidavit of Ms Edwards) seeking documents relating to matters such as the relationship between Marist Youth and the Minister, various consents relating to the premises, actions of the Minister in considering the development, actual use of the property (date of operation, number of persons on the property and the like), physical development carried out by Marist Youth, employment of persons performing activities on the property, other intensive therapeutic transitional care homes, other types of intensive therapeutic care homes and services provided from the property. Despite Marist Youth providing documents under notices to produce dated 22 and 23 May 2019, it has taken a further two months for Black Hill to seek further documents at a time when Marist Youth is preparing its evidence for the substantive proceedings. 4. In relation to concerns regarding matters of confidentiality and privacy, pursuant to earlier notices to produce issued by Black Hill, Marist Youth produced employment contracts and retainers which had personal information relating to individuals providing care to young people redacted. The request to now provide resumes identifying the qualifications and experience of staff is oppressive. These documents are bound to contain personal information including employment history of staff members. Marist Youth objects to providing the names and addresses of staff because (as deposed to by Ms Edwards): first, production of those documents would involve disclosure of the details of at least 45 employees, 9 agency staff and 20 contractors, as well as volunteers; second, Marist Youth collects personal information for the purpose of assessing the suitability of people for particular employment and staff members have a reasonable expectation that this information will not be disclosed without their consent; third, Marist Youth is not aware of the personal circumstances of its staff in the sense that there is a real risk that personal information may be divulged to persons who should not have that information (for example, if they are involved in domestic violence situations or have child protection arrangements); fourth, as Black Hill has over 60 members, the number of people to whom this information may be disclosed is large and despite Marist Youth issuing a notice to produce to identify the membership of Black Hill, that information has not been provided; and fifth, Black Hill has indicated an intention to contact staff members of Marist Youth for the purpose of giving evidence. 5. Given that hostility has been expressed by some members of the community towards the opening of the transitional group home, if Marist Youth advised its staff that their names and addresses were being released to opponents of the development, this may lead to resignations. Further, there is evidence that Black Hill (or its members or associates) has previously published material online "against" Marist Youth and as such there is a real risk that the names and addresses of staff will be misused. 6. In relation to Category (3), Ms Edwards deposes, as noted above, that the disclosure of the documents would involve disclosure of the details of at least 45 employees, 9 agency staff and 20 contractors as well as visitors and volunteers including personal information of tradesmen, gardeners, IT persons, trainers and security staff. Such information is collected for the purposes of assessing the suitability of persons for employment and contains personal information of the employees (and as applicants, their referees). To obtain this information, Marist Youth would need to consult with over 70 individuals who may take issue with the release of their personal information. 7. In relation to Category (4), compliance with the Notice to Produce would require searching a "number of systems" operated by Marist Youth and, as noted above, Marist Youth holds a genuine concern about the safety of its staff if this information were to be disclosed to Black Hill.

Black Hill's position

1. Black Hill also provided written and oral submissions. As stated above, I do not detail all submissions made except to note the following: 1. There is specific evidence before the Court that for four days from 27 May 2019, there were 174 vehicle movements in and out of the premises with a total of 22 vehicles parked thereon. The evidence of Marist Youth (through Mr Monaghan's affidavit) provides, inter alia, that its Intensive Therapeutic Care ('ITC') homes (of which the premises is one) offer "a highly skilled team of allied health care professionals…" and that the premises need to be large enough to comfortably accommodate "staff offices and rooms for our allied health care professionals...to work in". In these circumstances, Black Hill is entitled to see the documents sought to test these and other factual propositions in Mr Monaghan's evidence. Seen in this light, the documents sought in the Notice to Produce address the issues of: precisely who has been allowed onto the premises during the period 1 January to 31 May 2019 by Marist Youth; what activities they were engaged in; and, the frequency and length of stay. Black Hill submits that the documents sought are likely to materially assist the Court in determining the proper characterisation of the use of the premises and notes that whether a particular use of land constitutes an independent use is a question of "fact and degree in all circumstances of the case": Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409. 2. With those facts in mind, the Category (2) material, including the resumes, will assist in determining what activities have been engaged in by Marist Youth at the premises. In response to Ms Edwards' evidence, Black Hill submits that the previous provision of contracts does not enable the Court to determine who has entered upon the land. To the extent that there was a concern raised by Marist Youth (through Ms Edwards) as to "personal information", the appropriate course is for such information to be made the subject of confidentiality undertakings. 3. In relation to Category (3), the documents sought will assist in answering the questions noted above as to who has been allowed onto the premises during the period, what activities they engaged in and the frequency and length of stay. Black Hill accepts that such information would allow it to contact the persons for the purpose of giving evidence at the substantive hearing. 4. In response to the evidence of Ms Edwards that there is a "real risk" that personal information will be divulged to persons who should not have that information, there is no evidence that such a risk exists and confidentiality undertakings would address any such concern. Further, Ms Edwards' evidence does not assist the Court in determining why confidentiality undertakings would not be sufficient to address confidentiality concerns. 5. Ms Edwards' concern that some employees "may" resign is not a legitimate reason for setting aside a notice to produce. 6. In relation to Ms Edwards' evidence as to the extent of inquiry that would be required to produce the requested documentation, her evidence (such that it could relate to up to 45 employees, 9 agency staff and 20 other persons as noted above) is itself a matter that weighs in favour of production of the documents on the basis that the more persons who entered the land, the more likely it is that the premises have been used for purposes other than a transitional group home. 7. Further, in response to Ms Edwards' evidence, it is not clear what the nature of the "confidential personal information" she refers to is. The figure of "over 70 individuals" needing to be consulted appears to proceed on the assumption that confidential personal information relating to all of those individuals will necessarily be revealed, an assumption which (if it is information other than their name and address) is not made out. In any event, confidentiality concerns can be sufficiently addressed by appropriate confidentiality undertakings. 8. In relation to Category (4), these documents are again relevant to determining when and for how long individuals attended the premises. The evidence of Ms Edwards in relation to "searching a number of systems" is unpersuasive and the Court has no evidence that such a search would be oppressive. 9. Finally, there is no reasonable basis for the suggestion that members of Black Hill might seek to harm staff members of Marist Youth and it is unclear how information about the date and duration of a staff member's visit to the premises would endanger them.

Consideration

1. It is trite to state that before an order to produce documents is made, the applicant must identify a legitimate forensic purpose for which access is sought and establish that it is "on the cards" that the documents will materially assist its case: Regina v James Saleam [1999] NSWCCA 86 at [11] and Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 ('Chidgey') at [64].
2. To serve a notice to produce shortly before a trial (as has happened in this matter) which imposes a considerable burden and thus disruption on parties and practitioners already deeply immersed in trial preparation, may be unreasonable if not vexatious: Tony Azzi Automobiles Pty Ltd v Volvo Car Australia Pty Ltd [2006] NSWSC 283 ('Azzi') at [8]. I consider that the Notice to Produce, being served late in the matter and requiring some not insignificant inconvenience to Marist Youth, may fall within this category. The documents, even if relevant, are documents which may have been sought at an earlier stage in the proceedings. Despite this, I am of the view that subject to a constraint regarding the identity of staff members, the material sought in categories (2) and (4) may be of relevance (in the sense that it may materially assist Black Hill's case) such that it outweighs Marist Youth's concerns in relation to tardiness and inconvenience. I do not make that finding in relation to Category (3) for the reasons submitted by Marist Youth and accepting the evidence of Ms Edwards summarised above.
3. Accepting that the primary issue in the proceedings relates to the characterisation of that which is being undertaken at the premises, I am of the view that generally (subject to below), the documents sought in the Notice to Produce go to matters which relate to determining the proper characterisation of the use of the premises by Marist Youth and that a legitimate forensic purpose has been made out. As such, I am comfortably satisfied that the documents called for in categories (2) and (4) are relevant to the issue in dispute in the proceedings and that it is at least "on the cards" that the documents will materially assist the issuer's case: Chidgey at [64].
4. Despite the above, I accept that there is a legitimate concern in relation to matters of privacy and confidentiality residing with Marist Youth. The evidence to be relied upon by Marist Youth at the hearing (through Mr Monaghan) gives some detail in relation to the nature and frequency of attendances by carers and the like on the premises and while the activities during the four day period about which discrete concerns have been expressed may be able to be explained, in all the circumstances, I find that subject to certain amendments and a confidentiality agreement, Black Hill is entitled to have access to the material in categories (2) and (4).
5. While I note Marist Youth's concern that even if the relevance of the documents sought is established, the documents may not disclose anything other than attendances at the premises by professionals of the kind that would normally be associated with a transitional group home, I nonetheless consider that the documents will be relevant in the sense that they "may assist" Black Hill's case.
6. In finding that the Notice to Produce satisfies the test of legitimate forensic purpose, I have considered the degree of relevance of the documents sought. Balancing the degree of relevance with the burden which would be imposed upon Marist Youth, I do not consider the concerns raised by Ms Edwards, apart from matters in relation to Category (3), to be determinative.
7. Despite the above, I note that since the commencement of these proceedings on 22 May 2019, Black Hill has issued numerous notices to produce (seven or eight such notices and/or amended notices as per the affidavit of Ms Edwards at par (7)), a number of which have been responded to by Marist Youth. This, combined with the fact that the proceedings are set down for hearing in two and a half weeks' time in circumstances where Black Hill (as submitted by Marist Youth) has taken two months to press for further documents at a time when Marist Youth is preparing its evidence are persuasive arguments against Black Hill. I note the comments of Brereton J in Azzi at [8] referred to above and while I am conscious of the delay in issuing the Notice to Produce, as I consider the documents may be of relevance, balancing the degree of relevance with the burden imposed, I do not regard this as a sufficient ground to set aside the Notice to Produce although it is appropriate to amend (in the sense of contain) the breadth of the documents sought.
8. I accept the concerns expressed by Marist Youth in relation to confidentiality and privacy aspects associated with the provision of resumes identifying the qualifications and experience (and personal information) of any staff member who entered the premises during the identified period. I consider that staff members have a reasonable expectation that information provided by them will not be disclosed without their consent and I accept that there is a risk that personal information may be divulged to persons who should not be privy to that information. I am also conscious of the evidence that there remains a concern, albeit not of significant moment in my opinion, that there are unidentified persons who are vehemently opposed to the use of the premises by Marist Youth (assuming even for use as a transitional group home). Despite these matters, I consider that the concerns in relation to privacy may be addressed by an appropriate confidentiality undertaking of a type which is not uncommon in proceedings such as the present (as considered in Bengalla Mining Company Pty Ltd v MACH Energy Australia Pty Ltd [2017] NSWLEC 121).
9. Finally, I consider the concern of Marist Youth regarding the precise identification of documents sought is not determinative and is addressed by the amendments I make to the Notice to Produce.
10. Therefore, balancing the privacy and confidentiality concerns of Marist Youth, the relevance of the material sought and the timing of issuance of the Notice to Produce with the burden imposed, and accepting that Category (1) is no longer sought, I find that it is appropriate that Category (2) be narrowed by the deletion of certain words; Category (3) be deleted altogether; and material produced pursuant to the amended Category (2) and Category (4) be subject to a confidentiality undertaking acceptable to Marist Youth.

Conclusion

1. In all the circumstances and for the reasons stated above, I consider that justice between the parties will be achieved by the following: 1. The words "all", "including resumes" and "and experience" are to be deleted from Category (2). 2. Category (3) is struck out completely. 3. I allow Category (4), however to the extent that the documents in this category and Category (2) may disclose information of a personal nature, concerns about privacy and confidentiality are to be met by Black Hill's legal representatives entering into an appropriate confidentiality agreement with Marist Youth's legal representatives (likely involving a confidentiality undertaking which may be similar to that which has already been entered into by the parties in relation to other documentation provided by Marist Youth).

Orders

1. The Court orders: 1. The Notice to Produce issued by Black Hill Residents Group Incorporated - INC1900196 to Marist Youth Care Limited (Trading as MARIST180) dated 26 July 2019 is to be amended as follows: 1. Category (2) is to read "Records identifying the qualifications of any Staff Member who entered the Premises during the Period." 2. Category (3) is struck out. 3. Access to documents produced by Marist Youth under categories (2) and (4) will be restricted pursuant to a confidentiality undertaking to be agreed between the parties (and failing such agreement to be settled by the Court). 1. Confirm that the meaning of each of "Document", "Premises", "Staff Member" and "Period" remain as per the Notice to Produce. 2. Costs reserved.

Amendments 31 December 2019 - Anonymisation amendments to pars [2] and [6]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 December 2019