Harvey and Anor v State of New South Wales

Mr F Donohoe (Plaintiffs) COUNSEL : Mr P Menzies QC; Mr D Mallon (Defendant) Mr P Singleton (Board of Studies of NSW)

Carneys Lawyers (Plaintiffs) SOLICITORS : Crown Solicitor's Office (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

5051/01 Bruce Harvey and Anor v State ot New South Wales JUDGMENT (On application for inspection of documents produced on subpoena; see p 253 of transcript for 16/06/05) 1 JOHNSON J: The Plaintiffs have issued a subpoena for production of documents directed to the Office of the Board of Studies of New South Wales. The Board of Studies by Notice of Motion sought, in the alternative, firstly an order that the subpoena be set aside or secondly, an order that inspection by the parties not be permitted. 2 On 15 June 2005 I gave judgment on the first application and declined to set the subpoena aside. The Board of Studies produced the documents in answer to the subpoena and was granted leave to file in court and to read an affidavit of David Murphy sworn 6 June 2005 with respect to the question of inspection of the documents. 3 No claim of public interest immunity has been made in relation to the documents. 4 The issue that is presently relevant involves the second step identified in the judgment of Moffitt P in National Employers' Mutual General Association Limited v Waind & Hill (1978) 1 NSWLR 372 at 382 and following. The relevant legal principles applicable to this stage involve the exercise of discretion to permit inspection with the question being whether the documents have apparent relevance to the issues in the proceedings: Waind & Hill at 385E. 5 Factors which are relevant to the second stage include not only the apparent relevance of the documents, but aspects of privacy as well. In Waind & Hill, Moffitt P said at 385F: "However, the limitation upon the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it or use it in cross examination.

The discretion is one concerning the invasion by the subpoena procedure of the rights of a stranger by the party who seeks inspection in aid of the presentation of his case to the court."

6 Again in Waind & Hill, Moffitt P observed at page 383A-D: "At this point documents are in the control of the court, pursuant to the valid order of the subpoena ... the documents are under the control of the judge and, even if the witness has not objected, there may be good reason in the elucidation of the truth why the judge may, eg, defer inspection by one party or the other. Indeed, no doubt, he will normally defer inspection by a party who has not issued a subpoena until his opponent has an opportunity to use the documents in cross examination. There may be good reason why he may, or indeed should, refuse inspection of irrelevant material of a private nature, concerning a party to litigation, or concerning some other person who is neither a party nor the witness. It may well be that documents are the property of some institution, but relate to private matters concerning some person and the officers of the institution do not take objection on the basis that the responsibility for disclosure rests with the court. The documents are in its control, and are used on its responsibility, so far as properly required for the purpose of the proceedings."

7 Accordingly, the test involves consideration of whether the documents have apparent relevance to issues in the case, but, at the same time, it is necessary for the court to have in mind issues of privacy in connection with the documents. 8 If access is granted to documents under subpoena, an obligation arises by way of implied undertaking to the court. This concept is well known to lawyers, but is not so well known to parties to litigation who may obtain access to documents by way of compulsory process. 9 It is appropriate to refer to these principles. Where questions of privacy are said to be relevant to the exercise of discretion to grant inspection, the restrictions that the law places upon persons who obtain access to documents under subpoena are a factor which can be taken into account in deciding whether access should be granted. In that context, it is important that all persons who may obtain access understand the legal obligations that will be placed upon them. 10 Where access is granted to documents produced under subpoena, access is subject to an implied undertaking to the court not to disclose them for any purpose other than in relation to the litigation. The undertaking extends not merely to the documents themselves, but also to copies of the documents and information derived from the documents: Moage Limited v Jagelman (2002] NSWSC 953 at paragraphs 10-12; British American Tobacco Ltd v Cowell (No. 2) (2003) 8 VR 571 at 579-580. 11 A person gaining access to such documents must not use those documents for some collateral or ulterior purpose not reasonably necessary for the proper conduct of the action: Moage at paragraph 10; British American Tobacco at 580. 12 The underlying rationale for the implied undertaking to the court is based upon public policy considerations. The reason for compelling the production of documents lies in the public interest in discovering the truth so that justice may be done between the parties; but that public interest is to be put into the scales against the public interest in preserving privacy and protecting confidential information. The balance comes down, in the ordinary case, in favour of the public interest of discovering the truth by making full disclosure, but with the strict limitations involved in the implied undertaking: Moage at paragraph 10. 13 Contempt of Court may be committed if documents obtained under subpoena are used in an impermissible way: Ainsworth v Hanrahan (1991) 25 NSWLR 155. 14 In Blanch v Deputy Commissioner of Taxation [2004] NSWCA 461, Giles JA (Hodgson and Ipp JJA agreeing) said at paragraph 14: "The implied undertaking is an endeavour to balance the intrusion into privacy by the compulsory production of documents necessary to do justice, with maintenance of privacy otherwise."

15 I have kept these considerations in mind when examining the documents which have been produced. I have read the affidavit of Mr Murphy sworn on 6 June 2005. With respect to the documents which are not contained within confidential Exhibit DM1, I am satisfied that the apparent relevance test laid down in Waind & Hill has been made out and that inspection of those documents ought be permitted by the parties to this litigation. 16 In this respect, I refer to the matters identified in my judgment yesterday as giving rise to a legitimate forensic purpose on the part of the subpoenaing parties. Accordingly, access to those documents is granted. Those documents are contained in a separate white envelope. 17 There are two documents contained within the separate envelope labelled confidential Exhibit DM1. As to the handwritten document, I am satisfied that the document has apparent relevance, so that access should be granted to the parties in these proceedings. As to the second document dated 6 December 1996, which is a typewritten document, I am satisfied that there is apparent relevance in that document, so that access to it should be granted to the parties in these proceedings, subject to one issue. There is mentioned at various points in that letter the name of a person. That person's name is not familiar to me as being a name mentioned in this litigation, nor is that person mentioned in the Dramatis Personae handed up by Mr Donohoe, counsel for the Plaintiffs, on the first day of this trial. Having regard to the matters raised in the affidavit of Mr Murphy and in particular paragraphs 5 to 11, a question arises as to whether the name of that person ought be removed from the letter. I am raising this matter for the consideration of counsel, and in particular Mr Singleton, who appears for the Board of Studies. 18 I note in that respect, firstly, that there is no public interest immunity claim; secondly, that although s.130 of the Evidence Act 1995 has been raised, it does not apply directly and could only apply by analogy. The powers of this Court, however, would allow the removal of a name from the letter. This is especially so if it does not otherwise affect the substance of the letter and taking into account the questions of privacy identified in the affidavit of Mr Murphy. 19 Thirdly, a question arises whether the editing of the document is justified in circumstances where the implied undertaking to the court would bind all persons who obtained access to this document and whether that implied undertaking provides sufficient protection, given the rationale for the undertaking as being protective of the privacy of persons.

(Mr Singleton addressed his Honour regarding editing of the typewritten document dated 6 December 1996. Following submissions, two names were deleted from that document and access to the edited document was granted to the parties.) **********

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