Egglishaw v Australian Crime Commission

Issues in the proceeding 8 The applicant claims that the summons dated 27 January 2004 is invalid or, in the case of one ground, was invalid at the time it was issued, on four grounds, or any one of them. Those grounds are as follows: 1. The summons was not accompanied by a copy of the relevant determination of the Board of the respondent as required by s 28(2) of the Act; 2. The summons was not in the form required by s 28(1) of the Act; 3. The summons was not accompanied by the written statement required by s 29A(3) of the Act; 4. The summons was invalid at the time it was issued because the examiner did not record the reasons for the issue of the summons prior to the issue of the summons. Although the summons was "retrospectively validated" by the Australian Crime Commission Amendment Act 2007 (Cth), the examination of the applicant conducted pursuant to the summons was, and is, unlawful. 9 The applicant claims that the notice to produce dated 19 February 2004 is invalid, or, in the case of one ground, was invalid at the time it was issued, on four grounds, or any one of them. Those grounds are as follows: 1. The notice to produce failed to specify accurately the determination of the Board of the respondent pursuant to which the respondent was conducting the special investigation. 2. The notice to produce was not accompanied by the written statement required by s 29A(3) of the Act. 3. The notice to produce required the applicant to produce to a Mr David Hellings various documents and things specified in the notice. That fact is admitted by the respondent. The applicant further alleges that in fact the respondent required him to produce to a Mr Ian Andrew the documents and things specified in the notice and they were produced to Mr Andrew pursuant to that requirement. The applicant claims that, in those circumstances, the respondent breached s 29 of the Act and that production pursuant to the respondent's requirement was unlawful. 4. The notice to produce was invalid at the time it was issued because the examiner did not record in writing his reasons for issuing it prior to its issuance. Although the notice to produce was "retrospectively validated" by the Australian Crime Commission Amendment Act 2007 (Cth), the production of the documents and things by the applicant pursuant to a requirement under the notice was, and is, unlawful. 10 It will be apparent from the above summaries that the factual issues which might arise in relation to the grounds of challenge to the summons and, save and except for the third ground, in relation to grounds of challenge to the notice to produce lie within quite a narrow compass. In fact, all of the documents or parts of documents in issue in relation to the first order sought by the applicant appear to relate to the third ground of challenge to the notice to produce. 11 I turn now to address the three orders sought by the applicant.

The first order sought by the applicant 12 As far as the first order sought by the applicant is concerned, six of the 13 documents discovered in Part 1 of Schedule 1 of the list of documents were initially in issue. Those documents are described in the respondent's list of documents as follows: 6. Extracts from Ian Andrew's diary 19.2.04 Copy 7. Extract of chronology prepared by Ian Andrew 31.3.06 Copy 8. Extract of transcript of examination proceeding of 19 February 2004 19.02.04 Copy 9. Extract of audio recording of examination proceeding of 19 February 2004 19.2.04 Copy … 11. Statement of Ian Andrew in R v Sturt and Hargraves (Queensland proceedings) 18.09.06 Copy 12. Affidavit of Ian Andrew in Egglishaw v ACC & Anor VID 1649/2005 10.04.06 Copy

13 In the case of documents numbered 6, 7, 8 and 9, extracts only of the document have been discovered and when copies of the documents were produced for inspection it became clear to the applicant that parts or sections of the documents produced had been masked. If a party wishes to discover only parts of a document, either in the sense of certain pages or the document with parts or sections of the document masked, and it is not feasible to indicate precisely what is being discovered in the list of documents then, as I understand it, the longstanding practice is "either to schedule to the affidavit of documents those parts only which are relevant, or to schedule the whole document and to seal up those parts which are sworn to be irrelevant" (Bray E, Digest of the Law of Discovery (2nd ed, Sweet & Maxwell; Stevens & Sons, 1910), reprinted in Bray E, The Principles and Practice of Discovery 1885 With Bray's Digest of Discovery 1910 (Legal Books, 1985) at 55-56). Whether that precise procedure was adopted here is not entirely clear, but, on the material before me, I am satisfied that the respondent was discovering parts only of a document, both in the sense of certain pages of the document and then parts or sections only of those pages, and that it did so because it considered that the excluded or concealed parts were irrelevant. 14 In the case of each of the documents numbered 11 and 12, the whole document was discovered, but, when copies of the documents were produced for inspection by the applicant, large parts or sections of the documents were masked. In the case of those documents, because of the description of the documents in the respondent's list of documents, there is a real question as to whether the oath of discovery attached to the documents as produced. However, it is not necessary for me to pursue that issue because the respondent, without conceding the relevance of the whole documents, has said it will provide complete copies of the documents to the applicant. 15 It follows from the above that the only documents in dispute in relation to the first order sought by the applicant are the documents numbered 6, 7, 8 and 9. Document number 6 is a copy of one or two pages of Mr Ian Andrew's diary for the period from 16 February 2004 to 23 February 2004. The only entries disclosed (other than some inconsequential entries for other days) are those for 19 February 2004, and they appear to relate to the service of the notice to produce and Mr Andrew taking possession of certain documents and things. Document number 7 is a copy of two pages of a chronology said to have been prepared by Mr Andrew. A large part or section of the document has been masked and the information which is disclosed relates to events on 19 February 2004 and the service of the notice to produce. Document number 8 is a copy of three pages of the transcript of the examination of the applicant on 19 February 2004 or events relating thereto. A small section of the transcript is masked. The disclosed part relates to the service of the notice to produce. I have not been given a copy of the extract of the audio recording which is document number 9, but it is fair to assume that it reflects the information recorded in the transcript (that is, document number 8). 16 The respondent submits that the course it has taken accords with a longstanding practice as to the masking or sealing up of documents on the ground that the concealed parts of a document are irrelevant. It submits that the oath of the party giving discovery is conclusive unless there are grounds for concluding that proper discovery has not been given (see O 15 r 8). That means, so it was submitted by the respondent, that it is conclusive not only as to whether there are any other relevant documents but also as to whether the sections of a document sealed up or concealed are relevant or irrelevant. A clear statement of the rule of practice upon which the respondent relies was made by Hoffman LJ in GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172; [1995] 2 All ER 993 ("GE Capital") at 174; 994-995: It has long been the practice that a party is entitled to seal up or cover up parts of a document which he claims to be irrelevant. Bray's Digest of the Law of Discovery,2nd ed. (1910), pp. 55-56 puts the matter succinctly: "Generally speaking, any part of a document may be sealed up or otherwise concealed under the same conditions as a whole document may be withheld from production; the party's oath for this purpose is as valid in the one case as in the other. The practice is either to schedule to the affidavit of documents those parts only which are relevant, or to schedule the whole document and to seal up those parts which are sworn to be irrelevant; …" The oath of the party giving discovery is conclusive, "unless the court can be satisfied - not on a conflict of affidavits, but either from the documents produced or from anything in the affidavit made by the defendant, or by any admission by him in the pleadings, or necessarily from the circumstances of the case - that the affidavit does not truly state that which it ought to state:" per Cotton L.J. in Jones v. Andrews (1888) 58 L.T. 601, 604. 17 That approach has been followed in Australia: Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335; Optus Communications Pty Ltd v Telstra Corp Ltd (unreported, Lockhart J, 27 April 1995). 18 The applicant submits that the rule of practice identified in GE Capital does not apply under the Rules of this Court. He submits that a party making discovery is not entitled to seal up or mask parts or sections of a document unless he has the consent of the other party or the permission of the Court. He refers to Telstra Corp v Australis Media Holdings (unreported, Supreme Court of New South Wales Equity Division, McLelland CJ in Eq, 10 February 1997) ("Telstra Corp"); Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 ("Gray") and Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041. In Gray, Branson J said (at [15]-[16]): 15 In my view, where in this Court categories of documents are required to be discovered and thereafter made available for inspection, the true obligation on the party giving discovery is the same as that identified by McLelland CJ in Eq in Telstra Corporation v Australis Media Holdings by reference to Pt 23 of the New South Wales Supreme Court Rules. The Chief Judge there said: "Under the new discovery rules, Pt 23 of the Supreme Court Rules, … classes of documents required to be discovered may be, and were in the present case, specified not by reference to relevance to a fact or facts in issue, but by description of the nature of the documents, rendering it unnecessary to consider questions of relevance to an issue, as such. If in such cases the party giving discovery desires to withhold, by making [sic] or otherwise, production of part of a discoverable document on the ground that that part does not contribute to the satisfaction of any of the criteria by reference to which the class of documents is described, then it may be that a case can be made for giving effect to that desire, but in my view, unless there is some relevant qualification in the order for discovery, the order requires that the whole document be produced unless there is an agreement to the contrary by the party to which discovery is being made, or unless relief from the requirement, for example by making [sic] certain portions is obtained from the Court. 16 The respondents did not obtain the agreement of the applicant to the masking of portions of their discovered documents, nor did they seek relief from the Court from their prima facie obligations to allow full inspection of their discovered documents. Nonetheless, having regard to the course of argument on the applicant's notice of motion, it seems appropriate now to give consideration to the claim of the respondents that the masking undertaken by them is appropriate in the circumstances and ought to be authorised by the Court. 19 The applicant submitted that the principle relevant in the present case is that set out in the above passage. 20 Although I was given copies of documents numbered 6, 7, 8 and 9 as they were when produced for inspection by the applicant, neither party took me to the documents. The applicant did not take me to the documents for the purpose of establishing that there were grounds to believe that relevant parts of the documents had been masked. I include in that concept of relevance, parts or sections of the document which throw light on, or provide the context for, the parts which are undoubtedly relevant. The applicant submitted that it did not consent to the masking of the documents, neither has the respondent now made out a case for the Court's permission to mask parts of the documents. Nor did the respondent take me to the documents; for its part, it relied on the oath of discovery and submitted that the applicant had not shown grounds to believe that relevant parts of the documents had been masked. 21 Under the Rules of Court there is express provision for an order for general discovery and for an order for limited discovery. The order for general discovery is no longer of a type that requires discovery of documents relating to any matter in question in the proceeding and the application of the test formulated in The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55 and referred to in Mulley v Manifold (1959) 103 CLR 341. The rule providing for such discovery was amended in 1999 by Federal Court Amendment Rules 1999 (No 6) (Statutory Rules 1999 No 295) (Cth) and replaced with O 15 r 2(3), which was in the following terms: Without limiting rule 3 or 7, the documents required to be disclosed are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given: (a) documents on which the party relies; and (b) documents that adversely affect the party's own case; and (c) documents that adversely affect another party's case; and (d) documents that support another party's case; and (e) documents that the party is required by a relevant practice direction to disclose. Paragraph (e) has since been removed. 22 The expressed aim of the new sub-rule was "to limit the documents that must be discovered to those which are directly relevant to the proceedings" (see the Explanatory Statement for the Amendment). Practice Note 14 was made at about the same time as the amendments. For a detailed discussion of the changes effected by the amendments, I refer to Australian Competition & Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 at [17]-[23] per Lindgren J. 23 The express provision in the Rules for limited discovery is O 15 r 8 and it provides as follows: Where, at any stage of the proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of a party, the Court may order that party: (a) to file any affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and (b) to serve the affidavit on any other party. 24 An order for limited discovery is, or is becoming, the more usual order made by this Court. In the case of such an order, cases such as Telstra Corp and Gray suggest the rule of practice referred to in GE Capital does not apply because the nature of the order (that is, discovery by classes or categories of documents identified in the order) is such that the party giving discovery does not have to consider questions of relevance to an issue. Had I made such an order in this case, I would have been disposed to follow those cases. Perhaps, as Sundberg J observed in Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 (at [26]), in practical terms the difference between the two approaches will not often be of great significance. In this case it does make a difference because the respondent did not seek to justify the masking of the documents beyond its reliance on the oath of discovery and, although in some cases (GE Capital is an example) the Court is able to say from its own examination of the masked documents that there are no grounds to think the masked portions are relevant, I am not satisfied that, if I had to address the question, I could reach that conclusion in this case. 25 The difficulty facing the applicant is that I did not make an order for limited discovery in this case. I made an order for general discovery in the sense of an order which imported the criteria in O 15 r 2(3). Relevance is not determined by the order but by the party giving discovery, having regard to the issues in the case and the criteria in O 15 r 2(3). In those circumstances I see no reason not to apply the longstanding rule of practice referred to in GE Capital. It seems to me that the only difference between a party swearing that there are no other relevant documents and swearing that masked parts or sections of a document are not relevant is perhaps that in the latter case there is an increased possibility of error in excluding parts or sections of a document which put the disclosed parts of a document in their proper context. That, no doubt, is a problem the Court must guard against, as it has had to since the longstanding rule of practice was formulated. However, it is not suggested that any Rule of Court has been made in response to a perceived need to overcome difficulties of this nature. 26 I recognise that there are observations of Selway J in Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] ATPR 41-996 at [12]-[13] that suggest that the longstanding rule of practice does not apply in this Court whether the order is one for general discovery or for limited discovery and that those observations have been referred to in a general way with approval (see Westfield Management Ltd v Brisbane Airport Corp Ltd [2004] FCA 611 at [12] and [22] per Cooper J; Garnet International Resources Pty Ltd v Barton International Inc [2005] FCA 93 at [7]-[8] per RD Nicholson J; Candacal Pty Ltd v Industry Research and Development Board (2005) 223 ALR 284 at 295 [53]-[54] per Lee J). However, for the reasons I have given, I would not follow those observations where the order is, as in this case, an order for general discovery. 27 The first order sought by the applicant is refused.

The second order sought by the applicant 28 The respondent is prepared, as I understand it, to produce for inspection document number 9, which is part of a copy of the audio recording. That is all it is required to do and I decline to make any order in relation to this document. 29 Document number 13 is described in the Further Amended List of Documents as follows: 13. Transcript of proceedings of Magistrates Court proceedings in R v Sturt and Hargraves (Queensland proceedings) 03.12.07 Copy

30 The respondent has produced, or is willing to produce for inspection, a copy of this document. The problem here appears to be that the respondent will not allow the applicant to photocopy the document, apparently because it is concerned that will result in an infringement of the Copyright Act 1968 (Cth) ("Copyright Act"). Ordinarily at least, a party inspecting documents has a right to take copies (see O 15 r 12). The respondent did not take me to the provisions of the Copyright Act or make submissions on the point. I will stand over the question of the copying of this document to enable the parties to make submissions on a later occasion if they are not able to resolve the issue in the meantime. 31 In the alternative, the applicant submits that I should give him leave under O 27A of the Rules to issue a subpoena directed to the respondent for the production of the documents numbered 9 and 13. As far as document number 9 is concerned, it seems to me that it would not be appropriate to grant leave to issue a subpoena to a party for a document when that party has indicated that it will comply with its obligations of discovery and production for inspection in relation to the document. As far as document number 13 is concerned, it seems to me that production for inspection is not the issue and that a subpoena would not address the real issue.

The third order sought by the applicant 32 The respondent's policy manual is not a document discovered by the respondent in the Further Amended List of Documents. As I have said, the respondent claims that the policy manual is not relevant to any issue in the proceeding, although it has provided a copy of the document to the applicant with parts or sections masked. 33 The effect of the applicant's application in relation to the respondent's policy manual is that he seeks production for inspection of a copy of the document without any parts or sections of the document masked. Whether an application under O 15 r 8 is the correct procedure is not a question I need to address because I am not satisfied that the document is relevant, or that its production for inspection is necessary. The issues raised by the applicant in its pleadings are whether, in relation to the notice to produce, the provisions of s 29 of the Act were complied with and to whom the documents and things specified in the notice were in fact produced. The respondent's policy manual does not appear to be relevant to those issues, nor is its production necessary, having regard to those issues. 34 There are two documents in Schedule 2 of the Further Amended List of Documents. The first is document number 2, described as "Video tape of examination" and dated 19 February 2004. The Further Amended List of Documents states that an original of the document was last in the respondent's possession on 26 September 2005, but that what has become of the document is unknown to the respondent, as is the fact of the person in whose possession, custody or power, the document now is. The second document is document number 3, described as "Digital video recording of waiting room" and dated 19 February 2004. The date when the document was last in the possession of the respondent is said by the respondent to be unknown. Furthermore, it is said that the document was not retained and that the questions in whose possession, custody or power and where the document now is, are not applicable. 35 During a hearing on 11 December 2008, counsel for the respondent gave an explanation of what the respondent understood had happened to these two documents. 36 Counsel for the applicant put two submissions in relation to the documents. First, although he did not suggest the Further Amended List of Documents did not comply with the Rules of Court in terms of the contents of a list of documents (see O 15 r 6), he suggested that counsel's explanation on 11 December 2008 raised a question about the adequacy of the information in the list. In my opinion, the Further Amended List of Documents complies with the Rules dealing with the contents of a list of documents and there is nothing in counsel's explanation which leads me to think otherwise. 37 Counsel for the applicant's other submission was that it was likely that the respondent had taken copies of the documents and the copies should have been discovered by the respondent. However, no evidence was put forward in support of counsel's assertion and, in my opinion, there is no basis to go behind the Further Amended List of Documents in this regard. 38 The third order sought by the applicant is refused. 39 The applicant's alternative application for leave under O 27A of the Rules to issue a subpoena directed to the respondent requiring production of the documents referred to in the third order he seeks should be refused. As far as the respondent's policy manual is concerned, it seems that it would not be appropriate to grant leave to issue a subpoena for a document which I have decided is not a document which the respondent is required to discover. As far as the two documents in Schedule 2 of the Further Amended List of Documents are concerned, I would not grant leave because, there being no reason to go behind the Further Amended List of Documents, it must be accepted that the documents are no longer in the respondent's possession, custody or power.

Conclusion 40 Subject to the issue concerning the copying of document number 13 in the Further Amended List of Documents, the applicant's application made on 18 December 2008 must be dismissed. I will stand over the issue which I have identified to a date to be fixed. 41 I would not grant the applicant leave to issue a subpoena in relation to document number 9 or the documents listed in Schedule 2 of the Further Amended List of Documents for the reasons given above (at [31] and [39]). I would not be disposed to grant leave to issue a subpoena in relation to document number 13 and the respondent's policy manual, but if the applicant wishes to make further submissions I will give him the opportunity to do so. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate: Dated: 15 January 2009 Counsel for the Applicant: Mr M L Abbott QC with Mr A Thomas

Counsel for the Respondent: Ms S J Maharaj QC with Mr R Prince

Solicitor for the Respondent: Australian Government Solicitor