CH v State of New South Wales

Supreme Court of NSW|2016-12-05|Before: Garling J, Wilson J

Judgment

By Notice of Motion filed on 27 May 2016, the plaintiff, CH, sought various orders relating to amendment of pleadings, severance of issues for hearing, transferral of the proceedings to the District Court of New South Wales, and discovery.
Parts of that Motion were disposed of by Wilson J on 29 July 2016, who reserved the issue of the costs of the proceedings up until that date. Accordingly, when the matter came before me for hearing on 5 December 2016, the remaining issues to be decided were orders which the plaintiff sought in relation to discovery and issues relating to costs.
The plaintiff also sought leave to further amend his Amended Statement of Claim. I heard submissions on this issue and on the issue of discovery on 5 December 2016 and 15 December 2016. On 15 December 2016, I ordered that the plaintiff, on or before 4pm on 3 February 2017, serve on the other parties any further proposed Amended Statement of Claim. I also reserved all questions of costs.
On 10 February 2017, I ordered the plaintiff to file and serve a Third Further Amended Statement of Claim in accordance with the draft provided to the Court on 3 February 2017. The Third Further Amended Statement of Claim was filed in accordance with my orders on 16 February 2017. Proceedings were stood over to 24 March 2017.
On 24 March 2017, in accordance with Consent Orders handed up on that day, I ordered that there be judgment in favour of the first defendant, the Commonwealth of Australia, and made no order as to costs. These orders had the effect of disposing of the proceedings between the plaintiff and the Commonwealth.
On this occasion I also formally reserved my decision on the Motion for Discovery, and made an order in which, in light of the amended pleadings, the plaintiff and the defendants were to file and serve any further submissions which they wished to make on the question of discovery. I note that I have not received any submissions from the parties pursuant to these orders.

Facts

The proceedings in this case arise out of the plaintiff's purchase and possession of the 1980 Swedish film "Barnens Ö" ("the film") on or about 29 January 2011. The plaintiff contended that at the time he purchased the film, it had not been given any restricted classification. The film has been the recipient of several awards at international film festivals and was rated R 18+ by the Australian Government Classification Review Board ("the Classification Review Board") on or about 1 October 2013. In one scene of the film, a young boy is seen to engage in sexual activity in which his genitals are shown.
On or about 17 October 2013, the Australian Federal Police ("AFP") applied to the Classification Review Board to have the film re-classified by being designated "Refused Classification". The film was designated as "Refused Classification" on 22 October 2013. A film which is designated "Refused Classification" is commonly referred to as being banned. It cannot be sold or legally imported into Australia.
Between July 2013 and July 2014, members of the Child Exploitation Internet Unit, State Crime Command of the NSW Police Force, commenced an investigation into the plaintiff on the basis of the plaintiff's purchase of the film. As a result of this investigation, a search warrant in accordance with Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) was granted on 17 November 2014. The warrant was executed at the plaintiff's residence on 18 November 2014, and several items belonging to the plaintiff were confiscated. The search warrant alleged the commission of an offence against s 91H of the Crimes Act 1900 (NSW).
The plaintiff pleaded in his Third Further Amended Statement of Claim that, at the time that an investigation was begun into the plaintiff, the relevant members of the NSW Police Force knew, or ought to have known, that, inter alia: 1. the plaintiff had purchased the film at a time that it had not been classified at all; 2. the film had subsequently been classified R 18+ on or about 1 October 2013; 3. the above matters identified the film as not falling within the meaning of "child abuse material" under s 91FB of the Crimes Act, or unlikely to fall within that meaning; 4. therefore, the plaintiff had not committed any criminal offence by purchasing, or possessing the film; and 5. as a result, any search of the plaintiff's premises was improper and/or could not be justified.
Moreover, the plaintiff pleaded that, at the time the Part 5 warrant was applied for by the third defendant who was a member of the NSW Police force, he did not believe, or did not have reasonable grounds for believing, that the film was illegal and that the plaintiff had committed an offence under s 91H of the Crimes Act.
The plaintiff further pleads that the third defendant who affirmed the application for the Part 5 search warrant did not believe, or did not have any reasonable grounds for believing, that the film constituted child abuse material.
As a result, the plaintiff pleaded that the defendants in these proceedings owed a duty of care to the plaintiff to take reasonable care for the safety of the plaintiff in the circumstances of the case, including: 1. investigating the background of the film, including its commercial history and artistic qualities and reputation; 2. viewing the film to obtain information about its literary and artistic merit (which is a mandatory consideration under s 91FB(2)(b) of the Crimes Act); and 3. making such other enquiries as necessary to determine whether the power to obtain a search warrant should be exercised.
As a result, the plaintiff pleaded that, at the time that the warrant was executed, it was invalid, or had been procured by misleading, incorrect or incomplete disclosure of information by the police officers involved in the investigation of the plaintiff.
As a consequence of the matter to which reference has been made, the plaintiff pleaded that members of the NSW Police committed a tort against the plaintiff by entering his residence on 18 November 2014 without his consent.
The pleadings also raise causes of action in misfeasance in public office, trespass, and malicious procurement of a search warrant. The plaintiff also makes an administrative law claim which pleads that the third and fourth defendants used their statutory powers improperly and unlawfully.
Accordingly, one key issue in the proceedings is the state of mind of the various police officers who participated in the investigation of the plaintiff and in the application for, and the execution of, the search warrant at the plaintiff's residence on 18 November 2014.

Documents Already Provided by the Defendants

The Commonwealth filed a Defence to the proceedings on 11 May 2016. That Defence made reference to six documents to which the plaintiff did not have access. It was apparent from the Defence that the specified documents ought to be in the possession of the NSW Police. The plaintiff then sought, by Notice to Produce dated 15 May 2016, the production of those documents by the NSW Commissioner of Police for NSW.
This Notice was responded to with a letter from the Crown Solicitors' Office, which requested that the nominated categories be narrowed. The Commissioner of Police for NSW provided the plaintiff with some documents after negotiating the terms of the Notice to Produce. The email correspondence between the solicitors carried the suggestion that the documents provided to the plaintiff pursuant to the modified categories in the Notice to Produce, constituted all of the documents in the Commissioner's possession which were relevant to those categories.

Procedural History

As earlier described, the proceedings have had a somewhat complex procedural history. It is fair to say that the issue of identification of the appropriate parties has taken some time to be resolved.
As well, because the plaintiff claims both tortious damages and administrative law relief in the same pleading, a number of issues have arisen about the appropriate shape of any hearing.
Finally, over the course of the interlocutory hearings, the plaintiff made a number of unsuccessful attempts to amend the pleadings. Ultimately, a form of amended pleading has been produced. It was necessary to have the pleading in final form before the Court could consider the plaintiff's Motion for Discovery, so as to be able to identify the issues which were, or were likely to be, in dispute. As well, the settled pleading was necessary to enable a determination of questions of relevance when dealing with the Motion for Discovery.

Plaintiff's Submissions

The plaintiff seeks an order, pursuant to r 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) (the "UCPR"), that he be granted discovery which provides him with access to any documents which were created by, or to which the NSW Police had access, at the time that the plaintiff was being investigated for the possible commission of an offence contrary to s 91H of the Crimes Act.
Counsel submitted during the hearing of the Motion that the categories of discovery were very limited, and went to the key issue in the proceedings, namely, what was in the minds of the police officers who were involved in the investigation of the plaintiff including the application for a search warrant and the eventual execution of the Part 5 warrant at the plaintiff's place of residence.
The plaintiff further submitted orally that a Notice to Produce would not assist the plaintiff, because the plaintiff was not able to identify the particular documents that he required. This was because the plaintiff only became aware of the existence of certain documents that had passed from the AFP to members of the NSW Police when they were identified in the Defence filed by the Commonwealth.
As a result, counsel submitted that the plaintiff had a powerful case for particular and specific discovery of a limited category of documents crucial to the plaintiff's claim; that is, documents which were used to inform the minds of the investigating police officers during their investigation of the plaintiff, or were available so to be used.
During the proceedings the plaintiff handed up a document containing the plaintiff's proposed categories of discovery. During the course of oral argument, the following very broad categories of discovery were distilled, being: 1. documents in the possession of the investigating police referring to the matters in issue in the proceedings; 2. documents which the investigating police officer did not have, but which others in the police force had, and which were referable to the issues in the proceedings; and 3. other documents which may not relate specifically to the plaintiff but which related to or were relevant to or touched upon the matters in issue in the proceedings.

Second Defendant's Submissions

The second defendant opposed the application for discovery on the basis that it was premature, the categories were defective, there were no special reasons upon which the Court could order discovery (as required by r 21.8 of the UCPR), and that discovery was unnecessary.
The second defendant pointed to r 21.2(2) of the UCPR, which requires that a class of documents must not be specified in more general terms than the Court considers to be justified in the circumstances.
Nevertheless, counsel for the second defendant accepted during the course of argument that, at some point in time, either through a Notice to Produce, an order for discovery, a subpoena or some other legitimate form of compulsion, at least the individual police officers involved in the investigation who obtained the search warrant could be required to produce any document containing any information upon which they relied for the purpose of obtaining the search warrant.

Third and Fifth Defendants' Submissions

The third and fifth defendants' objections to the plaintiff's request for discovery were similar in terms to the objections of the second defendant. They argued that the application was premature, because the pleadings had not yet closed, and they submitted that there was no demonstrated need for discovery at such an early stage of the proceedings.
The third and fifth defendants also submitted that the proposed categories of discovery did not differentiate between the position of the second, third and fifth defendants, and criticised the proposed categories as being "in the broadest possible terms".
Further, they argued that all the material that went to the relevant police officers' state of mind in relation to the investigation had already been provided to the plaintiff (in a redacted form) in the form of annexures to three affidavits: an affidavit of Jason Lee Samuel dated 23 June 2015, an affidavit of Jason Lee Samuel dated 6 October 2015, and an affidavit of Eamon Joseph Byrne dated 23 June 2015.
They also submitted that there was no reason why the plaintiff could not seek the documents by an appropriately specific Notice to Produce. On this point, the third and fifth defendants referred me to the decision of Adamson J in Commonwealth Bank of Australia v Goater [2016] NSWSC 710 at [31].

Discernment

In considering whether to make an order for discovery the Court needs to keep in mind that discovery can be a costly burden for the party subject to the order. It involves not just cost but also effort, often considerable, for adequate searches to be undertaken by that party. The length of time necessary for compliance with an order for discovery can also affect the efficiency of the litigation.
On the other hand, a disparity in knowledge of a particular relevant issue between parties to the litigation can be productive of injustice in the presentation of a party's case. Discovery is directed to issues and documents which tend to support one party's case, or prove adverse to the opposing party's case.
As well, in making an order for discovery, the Court must seek to give effect to the overriding purpose of the Civil Procedure Act 2005 (NSW) and the UCPR, namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
As Adamson J pointed out in Goater at [31], the Court also needs to be satisfied that some alternative means to obtain the relevant documents, such as a notice to produce, would not be appropriate.
By reference to the Third Further Amended Statement of Claim filed on 16 February 2017, it is apparent that the plaintiff alleges that the police officer principally responsible for preparing the application for the search warrant in accordance with the relevant legislation was Det. Snr. Constable Eamon Joseph Byrne, and that the third defendant, Snr. Constable Jason Samuel, was the applicant for the warrant.
The plaintiff's allegations of actual or imputed knowledge and absence of belief are directed to the minds of these two identified officers. The second defendant, the State of NSW, is said to be liable for their conduct.
Clearly, what these officers knew at the relevant times is critical to the success of the plaintiff's claim. Their knowledge will depend in part on the contents of the documents which were in their possession at the relevant time, and to which they had regard. Their knowledge (or lack of belief) may also have been informed by other matters such as conversations with fellow police officers, or the product of their investigations.
In my view, as an order for discovery will ensure that the plaintiff is provided with such documents as are relevant to the issue of knowledge described above, it is an important and valuable step to assist in the prosecution of the litigation. As well, it is also relevant, and important in this case, that there is an ongoing obligation of discovery even after the order has been complied with.
In the circumstances here the alternative methods, such as a Notice to Produce, are unlikely to be as effective or efficient since the plaintiff is not presently able to specify the documents that it wishes to have produced with the precision necessary for a valid Notice to Produce (or subpoena).
The timing of this request for discovery was also challenged. It was argued that no discovery should be ordered until after the evidence has been completed. In my view, this would not be appropriate. Here, the evidence upon which the plaintiff relies is to be gleaned from facts and circumstances external to him. Putting damages to one side, the plaintiff is only in a position to give evidence about when and in what circumstances he acquired the film, and then the circumstances surrounding the execution of the search warrant. There is no risk to the integrity of evidence of that nature by early discovery. On the other hand, there is no guarantee that either of the nominated police officers will provide a statement or be called to give evidence. Certainly, the lawyers for the defendants did not proffer any undertaking to call them.
In those circumstances, there is no reason in favour of delaying discovery. On the contrary, an order for discovery now may assist in narrowing the evidence ultimately led at the hearing.
I am therefore persuaded that an order for discovery ought to be made. The terms of the order sought by the plaintiff were too wide and likely to be unduly onerous to the defendants.
In my view, without precluding any application for supplementary discovery, the second, third and fifth defendants ought be obliged to discover: 1. all documents in, and comprising, the file reference number CEIU/03345, at the time it was provided to Det. Snr. Constable Byrne; 2. all documents in the possession of Det. Snr. Constable Byrne, and taken into account by him for the purpose of drafting an application for, and applying for, a search warrant for the premises of the plaintiff; 3. all documents recording the results of enquiries, if any, made by Det. Snr. Constable Byrne for the purpose of drafting an application for, and applying for, a search warrant for the premises of the plaintiff; and 4. all documents taken into account by Snr. Constable Jason Samuel in making an application for, and in obtaining, a search warrant for the premises of the plaintiff.
The term "document" is to be understood consistently with the definition of that term in the Dictionary to the Evidence Act 1995.
A period of 90 days from the date of this judgment ought be ample for the defendants to comply with this order.

Procedural Background

Proceedings in this case were commenced by Summons and leave was granted to the plaintiff by Bellew J on 8 October 2015, to file and serve a Statement of Claim by 19 October 2015.
Between 19 October 2015 and 10 February 2017, when I ordered the plaintiff to file and serve the Third Further Amended Statement of Claim, there have been six occasions on which the Statement of Claim has been amended, filed and served.
Including versions of proposed Statements of Claim which have been emailed to the defendants from the plaintiff on other occasions but not filed, on my calculation there have been nine iterations of the Statement of Claim.

Plaintiff's Submissions

Counsel for the plaintiff submitted in oral argument that it would be premature to deal with the question of either reserved costs or the costs of the Motion because the final outcome of the proceedings may have an impact on the issue of costs thus far.
Counsel for the plaintiff also pointed out that the swift commencement of proceedings by the plaintiff should weigh in his favour on the issue of costs, considering that it was possible that criminal proceedings might also have proceeded against the plaintiff, although they never did.
When the matter arose on 10 February 2017, the plaintiff handed up the following proposed orders: 1. the costs of and incidental to the amendment of the Statement of Claim to be paid by the plaintiff, save the costs of and incidental to the preparation for, and hearing of, the motion before Wilson J on 29 July 2016 in respect of which the defendants are to pay the plaintiff's costs; 2. the plaintiff's costs of and incidental to the application for discovery to be paid by the defendants; and 3. the general costs of case management be costs in the cause.

Submissions of the Second Defendant

The second defendant submitted that the plaintiff's Notice of Motion on discovery should be dismissed with costs. In the case that the plaintiff was successful on its motion for discovery, the second defendant submitted that it sought costs of and incidental to the motion.
It further submitted that the State should be awarded the costs thrown away by reason of the plaintiff's amendment to the pleadings.

Submissions of the Third and Fifth Defendants

The third and fifth defendants sought costs from the plaintiff in three categories: 1. the costs thrown away by reason of the plaintiff's amendment to the Statement of Claim; 2. the costs of the plaintiff's motion, or a portion of those costs, given that some portions of the motion were abandoned before Wilson J on 29 August 2016; and 3. the costs of the proceedings since 8 October 2015.
On the third issue, the third and fifth defendants pointed to several features of the procedural background to the proceedings, including that:

the Statement of Claim filed on 19 November 2015 joined new parties and pleaded no action against the third and fifth defendants;
no formal steps were taken to regularise the position of the third and fifth defendants in the second amendment of the pleadings;
the plaintiff's indecision with regards to the joinder of the third and fifth defendants extended for some time, despite efforts by those defendants to seek clarity;
the question of amendment of pleadings was not resolved before Wilson J on 29 July 2016; and
different versions of amended pleadings were provided to the defendants on 20 May 2016, 12 August 2016 and 5 September 2016.

Orally, counsel for the third and fifth defendants submitted that, between the Statements of Claim distributed on 19 November 2015 and 20 May 2016, his clients had no reason to believe that they would be included in the proceedings. On this point, counsel referred me to correspondence between the solicitors for the plaintiff and the solicitors for the third and fifth defendants annexed to the affidavit of Ms Jessica Murty (dated 24 November 2016), where the plaintiff said: "I take the view that an order having been made that the proceedings commenced by summons now proceed on pleadings, the issues joined between the parties are those identified by pleadings, not the prayers for relief in the summons, or the matters raised in the affidavits that have gone on. I have raised that, and discussed it with Baker, along with a number of other matters. If I am right, Baker is out of the case subject to questions of cost and the like."
As a result, the third and fifth defendants argued that the plaintiff, by his conduct, has kept the third and fifth defendants "in limbo" since October 2015. They further submitted that the plaintiff's conduct of the proceedings has been contrary to the obligations imposed by Part 6 of the Civil Procedure Act; that there has been a failure to assist the Court as required by s 56(3) of that Act; and that such a failure may be taken into account with respect to costs, pursuant to s 56(5) of that Act.
In these circumstances, the third and fifth defendants argued that there should be a costs order against the plaintiff in favour of the third and fifth defendants with respect to the whole of the costs of the proceedings since 8 October 2015.
During argument, counsel for the third and fifth defendants conceded that no great cost was expended by his clients during the time when amendments were made to the pleadings and when his clients did not believe they were to be part of the proceedings. Accordingly, counsel accepted that a costs order dealing with the costs associated with the plaintiff's most recent amendment to the pleadings would be sufficient.

Discernment

Ordinarily, costs follow the event: r 42.1 of the UCPR. However, the Court has a complete discretion to make an order which properly reflects what the interests of justice require in any particular case, including with respect to the interlocutory proceedings: s 98 of the Civil Procedure Act.
There are a number of separate strands which need to be addressed in the context of the interlocutory proceedings in this matter.
The first strand is that raised by the numerous attempts by the plaintiff to produce a pleading upon which he is content to rely. None of those amendments arose from the conduct of any of the defendants. The amendments were each sought by the plaintiff's lawyers to address what they perceived to be changing evidentiary circumstances and the changing ways in which they wished to articulate his case. Expense was incurred by the defendants in considering and responding, including appearances in Court, to the various iterations of the pleadings. In my view, the conventional order for the costs of, and occasioned by, each amended pleading ought to be paid by the plaintiff.
The second strand is that raised by the Motion for Discovery. The plaintiff has ultimately been successful, but to a limited degree. The orders made provide fewer categories and documents than those initially sought. In part this is because the pleadings have changed. As well, the plaintiff has accepted that some categories as originally drafted were too broad.
In my view, in circumstances where each party has had a measure of success on this interlocutory issue, the appropriate order is that each party pay his and its own costs of the proceedings as they relate to discovery.
The third strand relates to the proceedings before Wilson J on 29 August 2016 insofar as they are not dealt with in the previous two strands. The plaintiff sought an order that the defendants pay his costs; the defendants sought an order that the plaintiff pay their costs. My determination of these costs takes place by reference to the transcript of that proceeding, the documents then before the Court, and the submissions of the parties to me. In my judgment, both the plaintiff on the one hand, and the defendants on the other, each had a measure of success. Each party should pay its and his own costs of those proceedings.
The fourth strand for decision with respect to costs is the claim articulated by the third and fifth defendants for the entirety of their costs from 8 October 2015 to date. In light of previous costs orders, I am not satisfied that such an order would do justice between the parties. I refuse to make that order because I am satisfied that the other orders which I have made sufficiently provide for the third and fifth defendant's expenditures on costs.
Finally, the Court needs to consider any other costs relating to various steps which have been taken in the course of the ordinary or typical case management of the proceedings. There is no reason to vary the usual approach with respect to such matters, namely, that such costs as the parties have incurred for case management matters should be costs in the cause.

Orders

The Court makes the following orders: 1. On or before 2 March 2018, the second, third and fifth defendants are to give discovery to the plaintiff of: 1. all documents in, and comprising, the file reference number CEIU/03345 at the time it was provided to Det. Snr. Constable Byrne; 2. all documents in the possession of Det. Snr. Constable Byrne, and taken into account by him for the purpose of drafting an application for, and applying for, a search warrant for, the premises of the plaintiff; 3. all documents recording the results of enquiries, if any, made by Det. Snr. Constable Byrne for the purpose of drafting an application for, and applying for, a search warrant for the premises of the plaintiff; and 4. all documents taken into account by Snr. Constable Jason Samuel in making an application for, and in obtaining, a search warrant for the premises of the plaintiff. 1. Plaintiff to pay the defendants' costs of, and occasioned by, each amended or proposed Amended Statement of Claim. 2. Each party pay his and its own costs of the Notice of Motion of the plaintiff filed 27 May 2016 insofar as it relates to discovery and the proceedings before Wilson J on 29 August 2016. 3. Notice of Motion filed by the plaintiff on 27 May 2016 is otherwise dismissed. 4. Costs of case management hearings to be costs in the cause. 5. Stand the proceedings over for directions to 9am on 1 February 2018 before the Common Law Registrar.

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: 29 November 2017

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