Hamilton v State of New South Wales

New South Wales Commissioner of Police (Subpoenaed Party) Representation: Counsel: A Bannon SC & A Maroya (Plaintiff) P Saidi (Defendant & Subpoenaed Parties)

Solicitors: Hoffman & Koops (Plaintiff) J McDonnell, A/Crown Solicitor (Defendant & Subpoenaed Parties) File Number(s): 2013/55881 Publication restriction: Nil

Judgment

1. HER HONOUR: There are two motions before this Court for determination. By notice of motion filed 3 March 2015, the Director of Public Prosecutions seeks an order that in respect of the subpoena to produce issued by the plaintiff on 8 December 2014, he be excused from producing documents pursuant to Rule 1.9 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") on the basis that the documents captured by the subpoena are subject to client legal privilege. By notice of motion filed 30 March 2015, the NSW Commissioner of Police seeks an order that the subpoena to produce issued by the plaintiff on 3 December 2014 be set aside under UCPR 33.4.
2. The plaintiff is Janice Hamilton ("Ms Hamilton"). She was represented by Mr Bannon SC. The defendant is the State of New South Wales ("State of NSW"). The Director of Public Prosecutions ("the DPP") and the New South Wales Commissioner of Police ("the Commissioner of Police") are the subpoenaed parties. The DPP and the Commissioner of Police were represented by Mr Saidi, as counsel for the State of NSW. The issue in relation to the subpoena addressed to the Commissioner of Police was resolved before the hearing. The only remaining issue is that of costs and it will be dealt with at the end of this judgment.
3. Ms Hamilton relied upon the affidavit of her solicitor Harland Sebastian Koops sworn 24 March 2015. The DPP relied on two affidavits of Johanna Pheils sworn 12 March 2015 and 20 March 2015.

Background facts

1. By amended statement of claim filed 16 April 2014, Ms Hamilton alleges that four police officers, namely Detective Inspector Paul Jacob, Detective Sergeant Stuart Owen, Detective Senior Constable Graham Norris and Detective Senior Constable John Southgate ("the police officers"), were each guilty of the tort of misfeasance in public office. The alleged misfeasance by each of the police officers occurred between April 2005 up until the death of Ms Hamilton's de facto spouse, Ken Dyers ("Mr Dyers").
2. From 2002 to 2005, the NSW Police Force conducted investigations into allegations of sexual offences perpetrated by Mr Dyers against two complainants ("Complainant 1 and Complainant 2"). Complainants 1 and 2 were both children whose parents were members of an organisation called Kenja, of which Ms Hamilton and Mr Dyers were the founders and leaders. The sexual abuse purportedly occurred during individual counselling sessions conducted by Mr Dyers at the Sydney premises of Kenja.
3. In February 2005, following a case review, the investigations into the allegations made by Complainants 1 and 2 were suspended without any charges being laid against Mr Dyers.
4. On 8 April 2005, one of the police officers released a written report ("the Norris Report") recommending that an investigation and enquiry be undertaken into Mr Dyers. In October 2005, following the recommendations in that report, the NSW Police Force set up "Strike Force Caroola" to re-investigate the allegations made by Complainant 1 and Complainant 2 against Mr Dyers. The police officers were all involved in Strike Force Caroola.
5. On 27 October 2005, Mr Dyers was arrested in relation to the allegations. On 28 October 2005, a bail hearing took place at the Sutherland Local Court, with Mr Dyers being released on bail subject to conditions. On 24 and 25 May 2006, committal proceedings were held at the Downing Centre, and at the conclusion of such proceedings Mr Dyers was committed for trial, with bail being continued.
6. On 8 June 2006, Mr Dyers was indicted on 21 counts of aggravated indecent assault and aggravated sexual intercourse without consent. In September 2006, Mr Dyers made an application for a stay of the criminal proceedings. The application was opposed by the DPP. On 30 April 2007, the stay application was heard by Phegan DCJ over three days. On 3 May 2007, Phegan DCJ dismissed the application for a stay and decided that Mr Dyers was unfit to stand trial. On 7 June 2007, the Mental Health Review Tribunal determined, pursuant to the provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW) that Mr Dyers would not become fit for trial within twelve months. Bail was continued.

The pleading framework

1. The basis of the misfeasance allegation pleaded in the amended statement of claim is that by releasing the Norris Report, and through Strike Force Caroola, the police officers acted upon accusations made by Complainant 1 against Mr Dyers in circumstances in which they knew that Complainant 1 was an unreliable witness, or failed to properly consider or investigate the allegations made by Complainant 1, or procured or caused to be procured an allegation by Complainant 1 that she was sexually assaulted by Mr Dyers. As Ms Hamilton allegedly witnessed Mr Dyers' suicide, she claims damages for psychological injury and harm as a result of the alleged misfeasance of the police officers.
2. By amended defence filed 19 December 2014, the State of NSW has denied any wrongdoing on the part of the police officers, has placed in issue firstly, whether or not any of the police officers have committed the tort of misfeasance in public office; secondly, any responsibility for the causation of the death of Mr Dyers, and thirdly, any foreseeability on the part of the police officers with respect to the death of Mr Dyers. In addition, any duty of care owed to Ms Hamilton is disputed. The defendant has raised a Limitation Act 1969 (NSW) defence.

Misfeasance in public office

1. While the law is still developing with respect to the tort of misfeasance in public office, what appears clear on the current state of the law is that, in order to succeed, a plaintiff must establish at least the following: (i) That the alleged wrongdoer is a public officer (this is conceded in the case of the four nominated police officers); (ii) Such public officer has exercised or failed to exercise a power as a public officer; (iii) Maliciously; (iv) Causing damage to the claimant of a type which was foreseen by the defendant: Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, Deane J at 370.
2. The critical element for the purpose of these proceedings is malice on the part of each of the police officers.

Subpoena to the Director of Public Prosecutions

1. On 8 December 2014, this Court issued a subpoena, at Ms Hamilton's request addressed to the DPP. After negotiation between the parties, on 10 February 2015 Ms Hamilton provided a revised schedule to the subpoena. As it now stands, the subpoena requests the following: "Copies of all documents held by the DPP in the file concerning the prosecution into Kenneth Emmanuel Dyers for the period 2005-2007, which record: Matters raised by the DPP in relation to the adequacy of the Police investigation into Kenneth Emmanuel Dyers generally, or the adequacy of any particular aspect of such investigation; Communications with the NSW Police in relation to (i), above, and Any requests by the DPP for further investigatory work to be undertaken by the Police."
2. This subpoena aims to retrieve documents held and created by the DPP in relation to communications with the police officers after the charges were first laid against Mr Dyers in 2007.
3. On 16 February 2015, solicitors from the Crown Solicitor's Office informed the solicitors for Ms Hamilton that "all documents captured by the revised schedule to the subpoena are subject to a claim of legal professional privilege" by the DPP. By letter dated 17 February 2015, Ms Hamilton's legal advisors advised the Crown Solicitor that Ms Hamilton did not accept that the documents were the subject of a proper claim of legal professional privilege. On 25 February 2015, solicitors from the Crown Solicitor's Office wrote to Ms Hamilton's solicitor stating that the claim for client legal privilege was made on the basis that the documents were created by legal officers of the Office of the Director of Public Prosecutions ("ODPP") for the dominant purpose of existing litigation, being the then criminal proceedings involving Mr Dyers.
4. Ms Pheils, a solicitor employed by the ODPP, sets out the documents located within the ODPP with respect to the claim for client legal privilege is made (Aff. 12 March 2015 at [20]). She says that those documents comprise materials created or gathered for the dominant purpose of providing legal advice to a client or legal services relating to court proceedings. Ms Pheils provided a brief description of each document as follows:

• Internal memoranda, notes and summaries created by officers of the ODPP.

Client legal privilege

1. The DPP objects to producing the documents pursuant to UCPR 1.9(3), and cannot be compelled to do so unless and until such an objection is overruled.
2. The relevant provisions of the Evidence Act are ss 118 and 119. They read: "118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party."
3. The effect of s 118 is that, where a client objects, the Court is not to compel the production of material in answer to a subpoena which would result in the disclosure of confidential communications made between two or more lawyers acting for the client, or confidential documents prepared by a lawyer or another person, for the dominant purpose of providing legal advice to the client. The effect of s 119 is that the Court will not compel production of evidence of confidential communications made between a lawyer acting for the client and another person, or the contents of a confidential document prepared, for the dominant purpose of the client being provided with professional legal services in relation to actual or pending litigation in which the client was, or might have been, a party.
4. "Confidential communication" and "confidential document" are defined in s 117 of the Evidence Act to incorporate a requirement of "an express or implied obligation not to disclose its contents, whether or not the obligation arises under law".

Is the material privileged?

1. Counsel for the State of NSW, on behalf of the DPP, submitted that first and foremost, Ms Hamilton has failed to make out the necessary prima facie case in challenging the DPP's claim for privilege, in that she has presented no material capable of supporting any assertion to a prima facie level that there is a foundation in fact for such a challenge: R v Burrell (Supreme Court (NSW), Wood CJ at CL, 1 May 2003, unreported) at [59], citing Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 at 556 and Kang v Kwan [2001] NSWSC 698.
2. Further, the State of NSW submitted that it is clear, when one has regard to the contents of both affidavits of Ms Pheils and upon an inspection of the documents themselves, that the documents were created for the dominant purpose of providing legal advice to the DPP; as (1) at the time the documents were created (from 2005 to 2007), there were criminal proceedings on foot involving the DPP, the investigating police officers and Mr Dyers; (2) the documents were created by legal representatives attached to the ODPP; (3) the information contained in the documents related to the conduct of the criminal proceedings against Mr Dyers; (4) the information in the documents was sought by ODPP solicitors in order to advise the DPP and the investigating police officers about the conduct of the prosecution; and (5) the documents contain confidential communications between the legal representatives for the ODPP and the investigating police officers.
3. Counsel for the State of NSW submitted that the lists and descriptions of documents set out in the affidavits of Ms Pheils disclose sufficient information to justify that the dominant purpose of their creation was to provide legal advice to a client or legal services relating to court proceedings; and that an inspection of the documents by this Court would confirm this.
4. Although Ms Hamilton accepted that the documents sought could be the subject of a valid claim for privilege, she argued that Ms Pheils' description of the documents is an unsubstantiated opinion which cannot be tested, and that as it is not possible to ascertain the dominant purpose of the creation of the documents merely from those descriptions, this Court should inspect the material.
5. In any event, Ms Hamilton submitted that the documents do not attract client legal privilege because it is "entirely possible" that they lack the necessary quality of confidentiality; and as it is unclear whether when they were created, either the police officers or the ODPP solicitors involved were under an express or implied obligation not to disclose their contents. Ms Hamilton argued that Ms Pheils' affidavits are silent as to whether any obligation of confidence existed, and such an obligation cannot exist in a vacuum: State of New South Wales v Jackson [2007] NSWCA 279, Giles JA (Mason P and Beazley JA agreeing) at [48]-[60].

Has privilege been waived under s 122?

1. Senior counsel for Ms Hamilton submitted that client legal privilege has been waived.
2. Loss of client legal privilege is addressed in s 122 of the Evidence Act. It relevantly reads: "122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because: (a) the substance of the evidence has been disclosed: (i) in the course of making a confidential communication or preparing a confidential document … (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers)."

Considerations of fairness

1. Ms Hamilton submitted that even if the documents were disclosed to the Crown Solicitor in confidence, "considerations of fairness" apply in the circumstances of this case so that privilege has been waived (see Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 15).
2. According to Ms Hamilton, the interest of the DPP originally protected by client legal privilege was his interest in ensuring that criminal proceedings against Mr Dyers were prosecuted effectively and expeditiously, and that although the significance of that interest has diminished greatly due to Mr Dyer's death, the DPP still seeks to maintain privilege over the documents. Whatever legitimate interest the DPP now has in maintaining that privilege, that course has provided the State of NSW's legal representatives with a potentially significant forensic advantage over Ms Hamilton in these proceedings. The State of NSW's legal representatives have had access to sensitive and very possibly informative material that Ms Hamilton has not. He argued that that material might well assist her case, as it goes specifically to the issue of the adequacy of the police investigation. According to Ms Hamilton, it would be contrary to a higher public interest to give effect to the DPP's privilege in these circumstances, referring to Gibbs CJ's remarks in R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at 147; as well as in Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 515.
3. Counsel for the State of NSW rejected Ms Hamilton's public interest argument on the basis that no factual material was provided in support of that argument and in effect, no public interest considerations arise.
4. As previously stated, client legal privilege has not been waived. It is my view that this is not a case where the interests of justice should dictate that that result should be otherwise. Any forensic advantage gained by the State of NSW over Ms Hamilton by claiming privilege over the documents is not so significant that the public interest warrants their disclosure.
5. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the DPP's costs of the motion filed 3 March 2015.

Subpoena to the Commissioner of Police - costs

1. On 3 December 2014, Ms Hamilton filed a subpoena that was later served upon the Commissioner of Police requiring the production of various documents. Objections were taken on behalf of the commissioner to the subpoena as a whole on the basis that its terms were too wide, it was vexatious and oppressive and that many of the documents sought lacked a legitimate forensic purpose in regard to the issues in the proceedings. Negotiations subsequently took place but failed to secure a resolution. On 30 March 2015, the Commissioner of Police filed a notice of motion to set aside the subpoena.
2. On 18 May 2015, the parties agreed that if the diaries of Complainant 1 were produced the other documents sought would not be pressed. At the hearing before this Court, the only issue to be decided is costs.
3. Ms Hamilton's position was that the parties should bear their own costs. She referred to Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, McHugh J at 624-5 referred to a number of situations in which a costs order may be made against a party to litigation not determined on its merits, noting that "the court cannot try a hypothetical action between the parties". McHugh J at 624 stated that the trying of a hypothetical action between the parties would effectively "burden the parties with the costs of a litigated action which by settlement or some extra-curial action they had avoided". McHugh J at 625 observed that: "If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases."
4. Counsel for Ms Hamilton submitted that the conduct of the parties in these circumstances bespeaks a result which embodies the rationale of law, practice and policy which underpins the decision in Lai Qin. Negotiations took place, which on any view of it, were appropriate: see Ken Tugrul v Tarrants Financial Consultants Pty Limited ACN 086 674 179 (No 5) [2014] NSWSC 437 at [64]).
5. Counsel for the State of NSW argued that due to the excessive width of the subpoena, Ms Hamilton should bear the costs of the motion.

Amendments 28 October 2015 - An order to cover sheet and last page of judgment. 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: 28 October 2015