Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; 77 NSWLR 506

Lonrho v Shell (No 2) [1982] AC 173

Morton & Ors v Nylex Ltd & Another [2007] NSWSC 562

Waller v Waller [2009] WASCA 61

Rosalie Balkin and Jim Davis, The Law of Torts (LexisNexis, 5th Ed, 2013)

The Commonwealth of Australia (Defendant/Respondent)

1. On 27 November 2017, the plaintiff filed an application for orders under r 650 and/or r 651 of the Court Procedures Rules 2006 (ACT) seeking preliminary production or discovery of "the documents, information and/or things" described in the seven categories set out in the application.

2. The plaintiff relied on an affidavit of Mr Martin Carrick, affirmed on 23 November 2017. Mr Carrick is the plaintiff's solicitor. The defendant relied on an affidavit of Mr Robert Andersen, affirmed on 19 February 2018. Mr Andersen is a solicitor acting for the defendant.

3. When the matter commenced before me, I was informed that most of the application was not being pressed. The only category now relevant is that set out in the proposed order 1(d). Further, this order is only being sought under r 651.

4. The scope of order 1(d) was later refined in submissions to make it clear that "the person or persons leaking information" were members of the Australian Federal Police (the 'AFP').

5. The parties agreed, for the purposes of the application, that the relevant background facts are those set out in the defendant's submissions. The description given in the submissions is fairly lengthy. I will summarise it as follows:

(a) At the relevant time, Mr Hall was the ACT Head of the Construction Division of the Construction, Forestry, Mining and Engineering Union (the 'CFMEU').

(b) In early 2015, Mr Hall spoke to the then ACT Minister for Police and Emergency Services, Ms Burch, about the behaviour of AFP officers. In April 2015, Ms Burch and her assistant, Ms Hawthorne, met with Mr Rudi Lammers, Chief Police Officer of the ACT ('the April meeting'). At the time, Mr Hall was under investigation by the Royal Commission into Trade Union Governance and Corruption.

(c) On 14 December 2015, Mr Long (Team Leader, AFP National Media) contacted Mr Kinsmore (AFP Coordinator, Media and Public Engagement) regarding a claim that Ms Hawthorne "leaked" details of the April meeting to Mr Hall. It was alleged that Mr Hall contacted Ms Burch to demand that she ask Mr Lammers why the CFMEU was being investigated and give him a "dressing down". The AFP denied any interference by the ACT Government in operational matters.

(d) On 15 December 2015, an article appeared in the Australian Financial Review (the 'AFR'). The article, authored by 'Hannan, McKenzie and Baker', contained details of the alleged leak and stated that the CFMEU had "used its influence" to get the AFP to back off from action on Canberra construction sites. Ms Hawthorne and Ms Burch resigned shortly thereafter.

(e) The AFP announced that they were conducting an inquiry into the telephone call between Mr Hall and Ms Hawthorne. The investigation was completed on 22 March 2016. It was announced that, while no charges were laid, "police have expressed concerns with the way the sensitive and confidential police information was handled".

(f) On 5 April 2016, the Canberra Times published an article which asserted that the source of the 15 December 2015 article was a leak from the AFP. Mr Kinsmore discussed this matter with Mr McKenzie (one of the authors of the AFR article). Mr McKenzie adamantly denied that his source was the AFP. The author of the Canberra Times' article apologised for his assumption. This apology was passed on to Ms Beauman, Mr Lamers and Mr Bluett. It was agreed that there was no need for a formal retraction, "as it would only give rise to further speculation".

(g) On 1 June 2016, Mr Hall's legal representatives made a complaint to the Commonwealth Ombudsman concerning the AFP in relation to the alleged leak. The complaint stated:

Mr Hall is concerned that a recorded telephone conversation he was party to, whilst possibly legally obtained for a particular purpose, was used by the AFP for... another unrelated purpose, being its leaking to the AFR or the leaking of the content of the recording to the AFR. The result of that leak had serious consequences for the Minister and her Chief of Staff. Whatever the reason for their resignations, there can be no suggestion that they engaged in any criminal conduct. The leak also had consequences for Mr Hall in that the conduct of the investigation created the implication that... he had been involved in unlawful behaviour. Such an implication reflected adversely on the CFMEU as well.

6. I think that the application fails at a number of levels.

7. It is worth starting with the general observation made by Connelly J in Elmaraazey v The Law Society of the Australian Capital Territory [2006] ACTSC 124; 205 FLR 445 at [18]:

...The cautious approach that a court considering making an order against a party not yet involved in litigation has been well described by Miles CJ in Matuska v Ali (1987) 71 ACTR 23. This is an extraordinary form of relief. It allows the court to order a person not a party to litigation to release documents to another party themselves not yet involved in substantive litigation.

8. The next step is to set out r 651 of the Court Procedures Rules 2006 (ACT):

R 651 Discovery to identify right to claim relief

(1) This rule applies if -

• (a) a person (the applicant) has, or may have, a cause of action against someone (the potential defendant); and
• (b) either -
  • (i) the applicant, after making reasonable inquiries, cannot obtain sufficient to decide whether to start a proceeding in the court against the potential defendant for the cause of action; or
  • (ii) the following provisions apply:
    • (A) the applicant is a party to a proceeding in the court;
    • (B) the potential defendant is not a party to the proceeding;
    • (C) the applicant, after making reasonable inquiries, cannot obtain sufficient information to decide whether to make a claim for relief in the proceeding against the potential defendant for the cause of action;
    • (D) the claim for relief could properly have been made in the proceeding against the potential defendant if the potential defendant were a party; and
    • (E) the applicant has reasonable grounds for believing that the potential defendant has or has had possession of a document or thing that can assist in deciding whether to start the proceeding, or make the claim for relief, against the potential defendant; and
    • (F) inspection of the document or thing by the applicant would help in making the decision.

(2) If subrule (1) (b) (i) applies, the applicant may apply to the court by originating application for an order under this rule (and, if relevant, an order under rule 715 (Inspection, detention, custody and preservation of property - orders etc.)) against the potential defendant.

(3) If subrule (1) (b) (ii) applies, the applicant may apply to the court for an order under this rule (and, if relevant, an order under rule 715) against the potential defendant.

Note Pt 6.2 (Applications in proceedings) applies to the application.

(4) The application must be supported by an affidavit stating the facts on which the applicant relies, and stating the kinds of documents or things in relation to which the application is made.

Note 1 For an application mentioned in r (2), div 2.2.3 (Originating applications) contains provisions about the content of originating applications, the filing and service of originating applications, etc.

Note 2 For an application mentioned in r (3), r 6008 (Application in proceeding - filing and service) deals with service of the application and supporting affidavit.

(5) The court may order the potential defendant to produce the document or thing to the applicant.

(6) An order under this rule in relation to any document or thing held by a corporation may be addressed to any appropriate officer or former officer of the corporation.

9. The first reason that I think the application should fail is the inability of the plaintiff to identify a cause of action which might arise from the results of preliminary discovery. The plaintiff submitted that it was not necessary to do so because it would only be able to identify a cause of action when the sought after material was discovered. In other words, a plaintiff who felt that he, or she, had been wronged but did not know if there was any right to seek redress for that wrong, could seek preliminary discovery in the hope that material would be produced that not only gave credence to their feeling of having been wronged, but also provided the basis for an as yet unknown cause of action.

10. I disagree with the plaintiff's position. Rule 651 refers to "a cause of action" (emphasis added), not an open inquiry as to whether any cause of action might exist. The purpose of preliminary discovery is to discover material to support a possible cause of action, not to hopefully discover if any, as yet unidentified, cause of action might exist. It is true that the plaintiff does not have to show a prima facie case on a cause of action but, in my view, it must identify what that cause of action might be.

11. The affidavit in support of the application makes no reference to any specific cause of action. There is a reference in correspondence annexed to Mr Carrick's affidavit (Annexure K) which lists three possible causes of action, namely "the tort of misfeasance in public office, breach of privacy and breach of statutory duty".

12. The elements of the tort of misfeasance in public office could not exist in this case. The breach of privacy tort does not exist in Australia. No clue is given as to which statutory duty might have been breached.

13. The plaintiff's submissions, which both post-date the defendant's submissions and are effectively in reply, add two more possibilities: the tort of collateral abuse of process and the civil tort of conspiracy. Once again, the elements of these torts do not fit the circumstances of the potential facts in this case. They plainly cast a net so wide as to attempt to incorporate any cause of action that might theoretically be involved. I think that significantly more is required.

14. For example, the tort of a collateral abuse of process requires the abuse of a curial process. To quote from Balkin and Davis, The Law of Torts (LexisNexis, 5th Ed, 2013) at 718:

The tort is committed whenever a legal process, applied in its proper form, is used as the means of carrying out a collateral an unrelated purpose which would otherwise not have been available, thereby causing damage to the plaintiff.

15. The curial process that may have been abused in this matter is not identified. As to the tort of conspiracy, Lord Diplock, in Lonrho v Shell (No 2) [1982] AC 173 said at 188:

So the tort, unlike the crime, consists not of agreement but of concerted action taken pursuant to agreement.

16. There is no evidence here that might disclose the possibility of relevant action, let alone that the action was pursuant to an agreement.

17. This was said in Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; 77 NSWLR 506 ('Hatfield') at [49]:

...The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application in so far as it is based on that cause of action.

18. It is implicit in the above quote from Hatfield that a particular cause of action must be identified. The same may be said to arise from this passage from the Western Australian Court of Appeal in Waller v Waller [2009] WASCA 61 ('Waller') at [75]:

There must be some tangible backing, or objective foundation, that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion.

19. The next point also arises from the above quotation from Waller. There is nothing in the evidence before me that elevates the possibility of a cause of action beyond mere suspicion. The basis for the allegation is the following assertion made at [15] of Mr Carrick's affidavit:

The plaintiff believes that the only way the AFR could have details of the conversation between himself and Ms Hawthorne is that the details were provided to the AFR, or to someone who provided them to the AFR, by somebody within the AFP who had access to intercepts of his phone calls.

20. It is the use of the word "only" that creates the problem for the plaintiff. There is no explanation as to why the leak could only have come from somebody within the AFP. There is nothing within the affidavit that elevates the plaintiff's belief beyond mere suspicion.

21. In addition, and importantly, r 651(1)(b) requires the applicant to have made reasonable inquiries before making the application. The applicant has plainly not made reasonable inquiries. There are other potential sources of the leak. The list, from which no implication should be drawn, includes the following:

(a) Ms Hawthorne;

(b) Somebody told by Ms Hawthorne. The email which is Annexure C to Mr Andersen's affidavit contains the statement: "Apparently Hawthorne has also been boasting about this to other ALP members";

(c) Somebody told by Mr Hall. While I do not think that the absence from the affidavit of any statement by the plaintiff that he had not told any other person about the information that came to be leaked should be taken as capable of producing an inference against his interest, it is nevertheless notable that there is no statement to this effect.

22. White J, in Morton & Ors v Nylex Ltd & Another [2007] NSWSC 562 at [33] described the obligation in this way:

The onus is on the plaintiffs to make it appear to the Court that, having made reasonable inquiries, they are unable to obtain sufficient information to decide whether or not to commence proceedings against Nylex.

23. The onus in this case has clearly not been discharged. The assertion in the plaintiff's written submissions that "it can reasonably be assumed Hall has, or has sought to speak with anyone that could assist him" is simply not enough to establish the presence of reasonable inquiries.

24. The point arising from r 651(1)(b) is sufficient on its own to reject the application.

25. Annexure C is important for another reason. Counsel for the plaintiff submitted that the references to the ALP in the document could well be typographical errors such that the ALP may have been intended to refer to the AFP. With respect, I found this suggestion so speculative as to not even rise to the level of suspicion. The references to the ALP are consistent with the context in which they appear and there is no evidence to suggest any typographical errors.

26. The defendant submitted that if I reached a stage where I thought r 651 might be applicable, I should in any event refuse the application in the exercise of the discretion that I have. As I have not reached that stage, and do not think that I can, there is no need for me to reach any conclusion as to whether I would otherwise have exercised my discretion against the plaintiff's application.

27. Accordingly, the application is dismissed with costs.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.