Kable v State of NSW & Anor

Director of Public Prosecutions (Second Defendant) JUDGMENT OF : Master Harrison

Mr P W Bates (Plaintiff) COUNSEL : Mr M J Leeming (First Defendant) Mr Angus Neil-Smith of Brezniak Neil-Smith & Co (Plaintiff)

SOLICITORS : Mr Ian Linwood Crown Solicitors Office (First Defendant)

Ms Helen Langley Director of Public Prosecutions (NSW) CATCHWORDS : Review Registrar's decision - subpoena Community Protection Act 1994 (NSW) LEGISLATION CITED : Imperial Acts Application Act 1969 Commonwealth of Australia Constitution Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51 Beaufort Air-Sea Equipment Pty Ltd v Emhart Australia Pty Ltd (NSWSC unreported, Master Malpass, 18 December 1992) Westpac Banking Corporation v Cameron Abemond Pty Ltd and Westpac Banking Corporation v Cameron (NSWSC unreported, Santow J, 3 November 1994) Modern Woodcraft Pty Ltd v Nett (NSWSC unreported, Young J, 7 March 1997) CASES CITED : R v Jackson (1987) 8 NSWLR 116 Mundey v Askin (1982) 2 NSWLR 369 Hanahan v Ainsworth (1990) 22 NSWLR 73 United Telecasters Sydney Pty Limited v Hardy (1990-91) 23 NSWLR 323 Spautz v Gibbs (1990) 21 NSWLR 230 Sourian v State of NSW & Ors DECISION : See para 28

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

21296/96 - GREGORY WAYNE KABLE v STATE OF NEW SOUTH WALES & ANOR

1 MASTER: By notice of motion filed 21 March 2000 the plaintiff seeks firstly, to review the decision of Registrar Irwin dated 16 March 2000; secondly, that the first defendant produce to the court the 34 boxes of documents with regard to "Task Force Harm" in the possession, custody or power of the first defendant encompassed by paragraph 10 of the plaintiff's notice to produce dated 3 November 1999; and thirdly, that the costs order made by Registrar Irwin on 16 March 2000 be set aside and in lieu thereof the first defendant pay the costs of the plaintiff and incidental to the first defendant's notice of motion filed on 24 December 1999 and pay the plaintiff's costs of and incidental to the instant notice of motion. 2 At the outset of this review, it was foreshadowed that the plaintiff would seek to have admitted into evidence several parliamentary debates to show "improper purpose" and the collective state of mind of Parliament. In this regard, Ms Ludlow, solicitor instructed by the Clerk of the Legislative Assembly and Clerk of the Parliaments sought leave to appear. If these documents were to be admitted into evidence the matter would be adjourned to allow Parliament to make submissions. 3 On 18 March 1999 I gave judgment in the plaintiff's unsuccessful application for summary judgment. It is not necessary to canvass that judgment other than reproduce below the background in these proceedings. On 1 August 1990 the plaintiff pleaded guilty to a charge of manslaughter. The plea was accepted on the basis of diminished responsibility and the plaintiff was sentenced to imprisonment for 5 years and 4 months. The plaintiff was entitled to be released on 5 January 1995. However, on 6 December 1994, the Community Protection Bill had passed through both Houses of the New South Wales Parliament and was assented to by the Governor. It commenced on 9 December 1994. 4 Section 5(1) of the Community Protection Act 1994 (NSW) (the Act) empowered the Supreme Court to make an order for the detention of a specified person in prison for a specified period if it was satisfied on reasonable grounds that the person was more likely than not to commit a serious act of violence and that it was appropriate, for the protection of a particular person or the community generally that the person be held in custody. The maximum period for detention was six months (sub-s (2)) but more than one application could be made in relation to the same person (sub-s (4)). Section 3(3) stated that the Act authorised the making of a detention order against a named individual and no other. There was only one named individual, the plaintiff. 5 On 13 December 1994 the Director of Public Prosecutions commenced proceedings (No 13152 of 1994) in this court seeking an interim order that the plaintiff be detained in prison for 3 months pursuant to the Act and that the plaintiff undergo medical examination. On 19 December 1994 Spender AJ gave judgment and held that the Act was constitutional. His Honour declined to stay the proceedings and made an order requiring the plaintiff to be psychiatrically examined by doctors selected by the Director of Public Prosecutions. The application for an interim detention order was stood over to 22 December 1994. On 30 December 1994 Hunter J made an interim order pursuant to the Act for the detention of the plaintiff and set the application for a final order down for hearing on 9 January 1995. On 23 February 1995 Levine J made an order for preventive detention, pursuant to s 5(1) of the Act in respect of the plaintiff for a period of six months. 6 On 9 May 1995 the plaintiff's appeal against the order made by Levine J was dismissed. On 19 July 1995 Sully J dismissed the plaintiff's application to revoke the order. On 3 August 1995 the Director of Public Prosecutions filed a summons seeking an interim order for the plaintiff's detention and a further order that the plaintiff be detained for six months. On 21 August 1995 Grove J decline to revoke the order made by Levine J but he also declined to make any further order against the plaintiff. On 22 August 1995 the plaintiff was released from prison. 7 The plaintiff was granted special leave to appeal on 8 August 1995. On 12 September 1996 the High Court delivered its judgment in Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51. The issue before the High Court for determination was whether the Act was a valid law of the Parliament of New South Wales. Brennan CJ and Dawson J held that the Act was valid. Toohey, Gaudron and McHugh JJ held that the Act was invalid. Her Honour also stated that it was not possible to sever s 5 from the rest of the Act which exists only to give effect to that section. Gummow J concluded that the whole of the provisions of Pt 2 of the Act (ss 5-26) are invalid. The provisions of Pt 1 (ss 1-4) are ancillary to Pt 2 and fall with it, save in so far as they may have any valid operation in relation to Pt 3 (ss 27-31). In relation to Pt 3 Gummow J stated that: "Sections 27, 29, 30 and 31 are ancillary to Pt 2 and have no operation in respect of other persons, subject matters or circumstances within the meaning of s 31(2) of the Interpretation Act 1987 (NSW), such as to preserve an operation unaffected by the invalidity of the balance of the statute. There remains s 28. This states that no action lies against any person (including the State) for or in respect of any act or omission done or omitted by the person so long as it was done or omitted in good faith for the purposes of, or in connection with the administration or execution of, this Act. The section operates to confer protection in respect of acts or omissions done or omitted "in good faith". But they must have been done or omitted also for the purposes of, or in connection with the administration or execution of, "this Act". That assumes, contrary to the true situation, the validity of the statute. In truth, there was no law to be administered or executed. I conclude that s 28 falls also (301)." 8 Hence it was held that the Act was invalid. 9 The plaintiff alleges in the amended statement of claim that the conduct of the first and second defendants jointly and severally in instituting proceedings against him were unconstitutional, improper, arbitrary, malicious and were an abuse of process (para 21 ASC). The plaintiff alleges causes of action against the first defendant of false imprisonment and assault and battery (paras 31 and 32 ASC). He alleges that the joint and several abuses by the defendants of the court's process in instituting the former proceedings against him caused and materially contributed to his suffering, harm, injury and loss (para 22 ASC). He is seeking damages including aggravated exemplary damages.

Review 10 Before the registrar were the affidavits of Ian Kirk Linwood sworn 24 December 1999, Helen Christine Langley sworn 1 March 2000 and Alan Maurice sworn 15 November 1999, transcript of oral evidence of Mr Linwood given before the registrar on 3 March 2000 and a letter dated 21 January 2000 from the solicitor for Public Prosecutions to the Prothonotary. At the time of the hearing before the registrar, no transcript was available of Detective Inspector Champion's oral evidence of 29 November 1999. This has now become available. The plaintiff seeks to rely on this transcript during this review and no objection was made to it being taken into account. Additionally, reference were made at the hearing before the registrar to some of the documents exhibited to the affidavit of Angus Neil-Smith sworn 14 December 1998. The affidavit and exhibits are relied on by the plaintiff. 11 There are several cases which are authority on the consideration that ought to be given on review. They are Beaufort Air-Sea Equipment Pty Ltd v Emhart Australia Pty Ltd (NSWSC unreported, Master Malpass, 18 December 1992); Westpac Banking Corporation v Abemond Pty Ltd and Westpac Banking Corporation v Cameron (NSWSC unreported, Santow J, 3 November 1994) and Modern Woodcraft Pty Ltd v Nett (NSWSC unreported, Young J, 7 March 1997). 12 From these decisions, the approach I should take is that I should inform myself of all the material before Registrar Irwin at the time when he made the order. I can consider the fresh evidence which the plaintiff has put on and which has not been objected to by the defendants. I can allow fresh evidence to be tendered. I should also make my own decision based on the material before me and having heard legal argument.

Additional evidence 13 The plaintiff sought to introduce further evidence and refer the court to certain parliamentary debates. There was no objection to the prints of the Community Protection Bill (Ex A) being tendered in evidence. However, the plaintiff sought to tender Legislative Council Second Reading Speech LC 2 R 15 November 1999, 4951-7, 4964-73; Legislative Council, Second Reading, Com 16 November 1994, 5091-5105; Legislative Council Report, Com, 3R 17 November 1994, 5200-5206; LA 1R 17 November 1994, 5285, LA 2R 23 November 1994, 5649-51 and Legislative Assembly, Second Reading, 2R, RS 2 December 1994, 6278 on two bases, namely firstly that they do not have to go into evidence as they form part of the public record or alternatively that they be tendered in evidence to show that there is material to go before the jury to show that the legislation was introduced for an improper purpose. The first defendant objected on the grounds that these extracts from Hansard are not being used to assist in the interpretation of legislation. It is also my view that these documents are not being tendered to assist in the interpretation of the Act. They are not required to assist the court. The second reason that the first defendant objects to these documents being used by the plaintiff is that they constitute fresh evidence and no reason has been given as to why they were not tendered before the registrar. If fresh evidence is to be introduced it does not form part of the review. It would be referred back to Registrar Irwin for determination. 14 Finally, and in my view most importantly, this document should not be admitted into evidence because it offends paragraph 9 of the Bill of Rights and the right to freedom of speech and Parliamentary privilege. In R v Jackson [1987] 8 NSWLR 116, a crown prosecutor proposed to tender pp 2134 and 2136 of Hansard of 1 November 1983, to show that statements made in evidence by Mr Jackson in his criminal trial were patently untrue. The Bill of Rights 1688, Art 9, which is incorporated by reference into the statute law of New South Wales by the Imperial Acts Application Act 1969, s 7 and the Second Schedule Pt 1. Article 9 (in modern speech) provides "That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament." 15 In Mundey v Askin (1982) 2 NSWLR 369 at 373 the Court of Appeal stated: "…It was submitted that this tender in some way constituted a breach of Parliamentary privilege, and reliance was placed upon Church of Scientology of California v Johnson-Smith [1972] 1 QB 522. There it was held that what was said or done in Parliament in the course of proceedings there could not be examined outside Parliament for a purpose of supporting a cause of action even though the cause of action itself arose out of something done outside Parliament. The reason for its exclusion is, no doubt, to prevent any inquiry into the motives or intentions of Members of Parliament in anything they said or did in the House. But that principle has nothing to do with the present case. Here Hansard tendered to prove, as a fact, that certain things had been said in the course of a debate in the legislative Assembly. There was no question of any further examination of the circumstances in which the debate had taken place or the motives of the participants, or of anything else which might infringe the privilege of Parliament. The ratio of Johnson-Smith's case therefore does not apply. Indeed, in that case (at 531) Brown J said this: 'But the Attorney-General limited what he said about the probable attitude of Parliament to the use of Hansard by agreement by saying that Hansard could be read only for a limited purpose. He said it could be read simply as evidence of fact, what was in fact said in the House, on a particular day by a particular person.' That was precisely the use to which this exhibit was intended to be put. Accordingly, we dismiss the appeal with costs." 16 The purpose of introducing Hansard into evidence in the case before me is to examine the motives of anything said or done in the House. I am bound by this principle enunciated above. I refuse to allow the extracts from Hansard to be introduced into evidence firstly because there is no explanation as to why they were not put before Registrar Irwin, and secondly, they are not being used to assist in the interpretation of legislation as in Mundey but rather to examine the motives of what was said and done in the House.

The decision of Registrar Irwin of 16 March 2000 17 The first defendant sought to set aside paragraph 10 of a notice to produce issued by the plaintiff. On 16 March 2000, Registrar Irwin ordered that the notice to produce be set aside and the plaintiff/respondent pay the costs of the defendant/applicant. 18 Paragraph 10 of the notice to produce reads as follows: "Any and all originals and copies of documents with regard to Task Force Harm, and without limiting the generality thereof:

(a) the terms of reference of Task Force Harm; (b) the membership of Task Force Harm; (c) agendas and all meeting papers and all records of meetings of Task Force Harm; (d) recommendations and reports made by Task Force Harm." 19 The whole of the paragraph is the subject of objection. "Task Force Harm" was set up in 1995 and is still in existence. It is a name given to a group of people within the Crown Solicitors office established to provide advice to the government concerning the plaintiff and subsequently to the DPP. These documents comprise of 34 boxes of material. 20 The grounds relied upon for setting aside the notice to produce were that firstly, it was a fishing expedition and it is uncertain in its meaning and it amounts to discovery. The registrar held that the documents described in the notice to produce were not uncertain and this finding is not challenged. The argument that it was lacking legitimate forensic purpose was not argued and has been stood over to be determined on another occasion. In relation to fishing, the registrar stated: "The Plaintiff/Respondent does not says that he has any evidence of these matters beyond the decision of the High Court in Kable. Master Harrison in her judgment of 18 March 1999 in these proceedings found that the High Court had not determined the causes of action of malicious prosecution, false imprisonment, assault or abuse of process. To date the plaintiff had failed to provide any evidence of any malice, absence of reasonable cause, or improper purpose. It was submitted on behalf of the Plaintiff that access to the material the subject of the notice would permit the real issues to be tested and would bear on the issue of the degree of collaboration between the First and Second Defendants and their respective roles in instituting and maliciously prosecuting the proceedings. Provided that the material sought by the notice was relevant to the issues in dispute it could not be said to be "fishing". The editors of Halsbury's Law of Australia at 325-7420 state in relation to "fishing" that "the subpoena is served not for the purpose of requiring production of specific documents or a specific class of document which the person subpoenered (sic) is reasonably expected to hold and which are likely to advance the issuing party's case but with the intention of seeing what documents the party served may have, and whether the issuing party has a case at all. It is not necessary however, that a party serving a subpoena knows of the contents or existence of the documents sought". In Commissioner for Railways v Small (1938) 38 SR 564 Jordan CJ at 564 said "as a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories for the purpose of "fishing" ie. endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all;" and His Honour cited Hennessy v Wright (1890) 24 QB 445). That was a libel action arising out of a newspaper report based on a certain manuscript. The plaintiff had administered interrogatories to learn the text of that part of the manuscript on which the report was based which might not have been published with a view to ascertaining whether the author was motivated by malice. Lopes LJ said "If the Plaintiff wants to know the name of the correspondent in the Mauritius, or to see the original manuscript merely for the purpose of obtaining information in order that he may see if he has a case of which he has at present no knowledge or only a very partial knowledge, I am clearly of the opinion that on that ground the interrogatories should not be allowed." I accept that the material sought might contain information relevant to the issues but the Plaintiff/Respondent does not know if it does. He is therefore in the position described by Jordon CJ in Smalls case. The notice should be set aside on the ground that it is fishing." 21 The plaintiff's counsel conceded that the plaintiff had "no evidence of any actual ill-will". However the plaintiff submitted that he will seek to establish malice in the broad sense based on the findings of the High Court. Some additional authorities namely Hanahan v Ainsworth (1990) 22 NSWLR 73, United Telecasters Sydney Pty Limited v Hardy (1990-91) 23 NSWLR 323 and Spautz v Gibbs (1990) 21 NSWLR 230 were referred to by the plaintiff. It was submitted that the findings in the High Court decision itself when put to the jury would be sufficient evidence of improbable cause. Plaintiff's counsel did not submit that there were no intentional elements in the torts of malicious prosecution and abuse of process but rather that, in a wide sense, the objective facts could allow the jury to find that these causes of action were established. If this be the case, then the documents sought are not necessary, and irrelevant.

22 The plaintiff relied on the following statements from the High Court decision in Kable v DPP (NSW) (1996) 189 CLR 51. The formal basis of the holding of invalidity was that the Community Protection Act 1994 (NSW) was incompatible with Chapter III (the Judicature) of the Commonwealth of Australia Constitution per Toohey J at 99.5, Gaudron J at 108.3, McHugh J at 124.3. According to the plaintiff the following passages of the High Court decision support findings that Act diminished public confidence in and compromised the integrity of judicial proceedings (Toohey J at 98.6; Gauldron J at 107.4; McHugh J at 121.8, 124.4) and that the Supreme Court was required to participate in the making of a preventive order where no breach of the criminal law was alleged (Toohey J at 98.9 and 100.7); Gauldron J at 106.3; McHugh J at 121) and that the proceedings did not have the character of judicial proceedings (Gaudron J at 106.2, 106.9-107.3; McHugh J at 122.2) and were a mockery of judicial proceedings (Gaudron J at 108.2; McHugh J at 122.5) and was an exercise of political executive jurisdiction (McHugh J at 122.6, 124.2) and a denial of equal and impartial justice without the ordinary processes of law (Gaudron J at 107.9, McHugh at 124.4). These statements must be read in context. 23 In my earlier judgment I stated: "The plaintiff's Counsel conceded that the onus is on him to demonstrate that there is evidence of the facts, but submitted that there are no facts that are truly in issue and that the decision of the High Court implies that there was malice. It should be noted that the first defendant was not a party to the High Court proceedings. It is my view that the High Court did not imply malice nor did they consider malicious prosecution, false imprisonment, assault and the other causes of action pleaded by the plaintiff. The plaintiff referred to R v Governor of Brockhill Prison ex parte Evans (No 2) [1998] All ER 993 particularly the following passage by Lord Woolf MR: "The appeal raises issues of importance involving two principles which are deeply embedded in our law. The first is that any authoritative decision of the courts stating what is the law operates retrospectively. The decision does not only state what the law is from the date of the decision, it states what it has always been. This is the position even if in setting out the law the court overrules an earlier decision which took a totally different view of the law. The second principles is that a person imprisoned without authority is entitled to damages irrespective of any question of fault on the part of the person responsible for the imprisonment." … A person alleging abuse of process must show that the predominant purpose of the other person using the legal process has been other than that for which it was designed and there is a heavy onus placed upon the party alleging it - (see William v Spautz (1991-92) 174 CLR 509, joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ at p 529). Malicious prosecution requires the plaintiff to prove that there was an absence of reasonable or probable cause for instituting proceedings and malice in instituting them. The mental state of the defendants through their officers will be relevant. There is no evidence on this issue before the court. The High Court in Kable did not determine these causes of action of malicious prosecution, false imprisonment, assault or an abuse of process. " 24 I agree with Registrar Irwin that the documents may contain information relevant to the issues but the plaintiff does not know if it does. However, from that point onwards my view diverges from that of the Registrar. 25 It could be expected that if Parliament was motivated by ill-will or that legal process was being used for a purpose other than that for which it was designed, the advice from the Crown Solicitors office and the instructions provided by Parliament would be found in the Task Force Harm documents referred to in paragraph 10 of the subpoena. In other words, these documents would establish whether or not the intentional elements of the torts of abuse of process and malicious prosecution were present. As James J stated in Sourian v State of NSW & Ors [1999] NSWSC 1173, namely malice without reasonable and probable cause (at p 39 para 191), pre-trial the plaintiff has no chance of establishing two elements of malicious prosecution. Alternatively, the intention of the parties may be ascertained from the administration of interrogatories. 26 It is my view that the plaintiff in seeking that the documents contained agendas, all meeting papers and records of meetings of Task Force Harm and recommendations and reports made by Task Force Harm may contain evidence that support his case. I do not think that the plaintiff is fishing to see whether or not he has a case. 27 It is my view that the decision of Registrar Irwin was incorrect and should be set aside. Accordingly the review is upheld. The order of Registrar Irwin dated 16 March 2000 is set aside. Costs are discretionary. Costs are to follow the event. The first defendant is to pay the plaintiff's costs. 28 The orders I make are:

(1) The decision of Registrar Irwin dated 16 March 2000 is set aside.

(2) The first defendant is to produce documents in accordance with paragraph 10 of the subpoena by 31 January 2001.

(3) The first defendant is to pay the plaintiff's costs. **********

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