Cassaniti v McEntee

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20494 OF 1998 SAM PETER CASSANITI v ALAN McENTEE JUDGMENT 1 These proceedings were commenced by Statement of Claim filed on 23 December 1998. The plaintiff brings a claim for damages. He is and was at all relevant times an Accountant and Registered Tax Agent. The defendant is and was at all relevant times an employee of the Australian Tax Office. The process purports to plead counts founded on breach of duty and misfeasance in public office. The relevant allegation for present purposes is that the defendant disclosed certain information about the financial and taxation affairs of the plaintiff and his clients. 2 The particulars of damage are as follows:- "Investigation by members of the New South Wales Police Force, execution of a search warrant upon his business premises in the course of which a quantity of documents were illegally taken by reason of being outside the terms of the warrant, damage to feelings and health as a result of concern about the investigation by members of the New South Wales Police Force, disruption to his business by reason of the investigation, including through clients being contacted by police, damage to reputation." 3 A Defence was filed on 9 April 1999. It admits the communication of information about the financial and taxation affairs of some of the plaintiff's clients to members of the NSW Police Force. 4 In August 1999, the plaintiff served a Subpoena to Produce Documents on the Commissioner of Police. Pursuant to the subpoena, two bundles of documents were produced to the court. One of the bundles was marked "Privileged Documents". The privilege claimed is that of public interest immunity. It is said that the documents relate to ongoing police investigations into the affairs of the plaintiff and that granting access would or would have a tendency to impede or frustrate that investigation. The other bundle was marked "Non Privileged Documents". It was admitted into evidence (Exhibit 1). 5 On 14 April 2000, the Commissioner of Police filed a Notice of Motion seeking to obtain relief upholding the objection taken to access. The Notice of Motion was heard by Deputy Registrar Howe. He delivered reasons for his decision on 10 July 2000. He made orders as follows:- "1. The claim for public interest immunity asserted by the Commissioner of Police be upheld. 2. Access is denied to any party to the documents which have been produced to the Registry and identified by the Commissioner of Police as being subject to a claim of public interest immunity." 6 On 8 August 2000, the plaintiff filed a Notice of Motion seeking a review of the decision. The review was undertaken on 13 December 2000. 7 A copy of the subpoena is Annexure A to an affidavit sworn by Mr Moroney. The relevant portion of the subpoena for present purposes is set forth in the Registrar's reasons. It is not necessary to repeat that material once again in this judgment. It suffices to identify it as paragraphs numbered 1, 2, 4, 6 and 8 and the documents numbered 7, 10 and 11 in the schedule to paragraph 16. Broadly speaking, the plaintiff contends that the documentation is sought for the forensic purpose of establishing the fact and extent of the provision of such information and the fact and extent of the use of it by the police to investigate the plaintiff. 8 At the outset, it is important to stress that the plaintiff's application required the court to undertake a review of the decision of the Registrar. Generally speaking, such a review is an exercise involving the court in looking at what has been done by the Registrar in the light of the material that was placed before him. The plaintiff has the burden of demonstrating a basis for a disturbing of the decision. 9 It was common ground that the Registrar decided inter alia what may be referred to as a threshold question. The question of the need to show a legitimate forensic purpose was decided adversely to the plaintiff. It is well established that the need to show such a purpose arises even if the claim of public interest immunity fails ( Regina v Gergis [2000] NSWCCA 508). 10 Following preliminary discussion with counsel, it was decided to proceed with a review of the Registrar's decision on that question in the light of the material that had been placed before him. 11 Before proceeding further there is a preliminary observation that may be made. Some minds may have thought that there was potential for the subpoena to be set aside as oppressive. However, as this has not been argued, I put it aside for present purposes. 12 The conduct of the case for the plaintiff requires an identification of the "certain information" that was in fact disclosed to the police. It could be thought that this matter might be one of priority in the preparation of this case. One of the purposes of the subpoena is said to be to assist in that identification. 13 The court has been told that the defendant has sought certain particulars of the allegations made in the Statement of Claim. It appears that the plaintiff has not, at this stage, sought particulars of the admission made in the Defence. Any such particulars, if provided by the defendant, could be expected to assist in the identification of the "certain documents". 14 The plaintiff looks to inter alia the contents of Exhibit 1 as showing that both information and documentation has been disclosed to the police. It appears from what has been said from the Bar Table that there may be other sources available to him which also show that material has been provided to the police. 15 Not only have particulars not been sought by the plaintiff, at this stage, the plaintiff has not used other court processes (I have in mind the processes of discovery and interrogatories) for the purposes of inter alia identifying the "certain information". 16 Discovery could be expected to bring about a precise identification of the documentation that has been passed on to the police. Interrogatories could be expected inter alia to precisely identify the information (including that which has been transmitted orally) which has been disclosed to the police. They may also produce helpful material on the question of use. 17 It seems to have been conceded in argument by the plaintiff that the use of these processes would provide the most effective methods of identifying the "certain information". However, it is said that the subpoena is necessary to obtain material to establish user of it by the police. 18 I doubt that the question of the user of the "certain information" can be usefully or effectively explored, until the information and documentation is first identified. When that has been done, there may or may not be a legitimate forensic purpose in issuing a further subpoena to the police. In any event, at that stage, the plaintiff should then be in a position to frame with more precision any relevant documentation that requires production (it could be framed having regard to the identified material). 19 Counsel for the Commissioner of Police makes the point that there has been compliance with paragraph 12 of the subpoena (which looks to "original or a copy of the complaint and all other records supplied by Alan McEntee to Liverpool Police in about September 1995 and referred to by Detective Inspector W T Laney in his letter dated 6 March 1996 addressed to Alan McEntee at the ATO."). It is said that this sees an effective production of all the documentation that was passed on by the defendant. Issue was not joined on this submission and what has been said may well be the case. 20 For present purposes, the relevant legal principles were not in dispute. The party issuing the subpoena has to show that it is at least "on the cards" that the documents which are sought will assist his case (see Gergis ). He is not entitled to have access to such documents simply to see whether they may do so. 21 Although it was not argued by those concerned with the present Notice of Motion, it perhaps should be added that the leave of the court is required to inspect any document produced in compliance with the requirements of a subpoena and not admitted into evidence ( Supreme Court Rules 1970, Part 37 rule 10). The court has a judicial discretion in relation to the granting of leave. 22 I now turn to the relevant portion of the subpoena. If one puts aside what has been sought and produced, largely one finds paragraphs drafted in wide terms. 23 Production is required of inter alia all records of certain investigations, all records or documents held or generated by Police Internal Affairs relating to certain matters, all records and statements about the client from any former clients or any members of the ATO from July 1995 to date, originals or copies of police duty books, records or notebook entries by certain officers regarding certain matters, all records given to Police Internal Affairs and all subsequent reports regarding complaints by the plaintiff about certain persons and all statements of complaints made by persons regarding the plaintiff. In the subpoena, the term "records" is itself given a wide definition. At least a significant body of this documentation would not appear to be relevant to the task of identifying the material passed on to the police and the use made of it by them. It might inform him of other matters (inter alia of evidence acquired by police from persons other than the defendant and as to the progress of the investigation). As to the balance of those documents (like those just mentioned) it seems to me that the requisite test cannot be satisfied. The impression of a fishing expedition is strongly conveyed. 24 I am not satisfied that it is at least "on the cards" that access to those documents will assist the plaintiff's case. I am not satisfied that they are sought bona fide to assist the plaintiff in this case. It seems to me that there is force in the defendant's contention of abuse of process. Accordingly, I am not satisfied that the plaintiff has demonstrated the requisite legitimate forensic purpose. It follows that I have reached the conclusion that no basis has been demonstrated for a disturbing of the Registrar's decision. 25 The Notice of Motion filed on 8 August 2000 is dismissed. The plaintiff is to pay the costs of that Notice of Motion. The Exhibit may be returned. **********

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