The plaintiff, acting for himself, has brought proceedings against the Independent Commission Against Corruption (NSW), David Ipp QC and the State of New South Wales. He seeks the following relief:
A declaration that each of the defendants engaged in misfeasance in public office.
A declaration that the Operation Vesta Report was:
a. ultra vires;
b. to the extent that it concerned the plaintiff, ultra vires;
c. to the extent that it made findings of corruption against the Plaintiff, not made according to law and is a nullity; and
d. to the extent that it made findings that the plaintiff gave false or misleading evidence to the ICAC, not made according to law and it's a nullity.
He also seeks general damages, aggravated damages, special damages, exemplary damages, interest and costs.
The Hon David Ipp QC was the commissioner who prepared the report.
The investigation which led to the report concerned two allegations. The first was that from early 2007 to early 2008 Andrew Kelly, a senior executive of the Sydney Harbour Foreshore Authority (SHFA), acted in conflict with his official duties when dealing with the plaintiff and members of the Kazal family in relation to properties at The Rocks which were owned by the SHFA and leased to Kazal family businesses at a time when Mr Kelly was, or anticipated being, involved with the plaintiff and members of the Kazal family in private business. The second was that the plaintiff sought improperly to influence the exercise of Mr Kelly's official functions by holding out the prospect of Mr Kelly being involved with the plaintiff and members of the Kazal family in a private business in the United Arab Emirates, and paid Mr Kelly for his expenses associated with a trip to the UAE in May 2007, intending thereby to influence Mr Kelly to act in a manner favourable to Kazal business interests when dealing with Kazal tenancies at the Rocks.
The report made findings of corrupt conduct on the part of Mr Kelly. In relation to the plaintiff it concluded:
In holding out the prospect of employment in the UAE to Mr Kelly and paying him $11,170 for his May 2007 flight and accommodation expenses, with the intention that these would tend to influence Mr Kelly to exercise his official SHFA functions in a manner favourable to Kazal business interests, Charif Kazal's conduct is corrupt. This is because such conduct could adversely affect, either directly or indirectly, Mr Kelly's impartial exercise of his official functions (in his dealings with Kazal tenancy matters) and therefore come within section 8(1)(a) of the ICAC Act. His conduct falls within section 9(1)(a) of the ICAC Act because it could constitute or involve an offence under section 249B(2)(b) of the Crimes Act of corruptly giving an agent (Mr Kelly) a reward, the receipt or expectation of which would tend to influence the agent to show favour to any person in relation to the affairs or business of the agent's principal (SHFA).
Kazal v Independent Commission Against Corruption [2018] NSWSC 1370 | Case summary | Zoe
The statement of claim pleads that in 2010 and 2011 ICAC initiated and held a public inquiry identified as Operation Vesta into a conflict of interest of a senior executive officer of the Sydney Harbour Foreshore Authority which was said to have occurred in 2007 and 2008. That officer was identified as Andrew Kelly.
The plaintiff pleads that on 16 December 2011 the Commissioner submitted a report of its findings to the NSW Parliament, and that the report found that the plaintiff had engaged in corrupt conduct within the meaning of ss 8 and 9 of the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act).
Five matters are alleged as the basis for the assertion that the conduct of the first and second defendants was ultra vires and not carried out according to law. Those matters are these:
(1) The inquiry proceeded outside the terms of reference (paragraphs [6]-[9]);
(2) The plaintiff was denied procedural fairness by the first and second defendants not suggesting to the plaintiff that he was dishonest, corrupt or acted improperly (paragraphs [10]-[11]);
(3) The first and second defendants failed to take account of a conflict involving litigation between the plaintiff and a witness upon whom ICAC relied, Rodric David (paragraph [12]);
(4) The first and second defendants denied the plaintiff procedural fairness by failing to disclose and admit into evidence an exculpatory statement from Mr Paul Neilsen which the first defendant had in its possession (paragraphs [4] & [5]);
(5) Subsequent to the report, ICAC made repeated submissions to the DPP that the plaintiff should be charged (paragraphs [17]-[22]).
The conduct of the first and second defendants was said to be malicious or reckless with intent to cause injury, reputational and financial harm to the plaintiff, was said to be conduct which the first and second defendants knew or ought to have known was beyond their power, and that had a foreseeable risk of harm. The plaintiff alleged that the first and second defendants acted in bad faith.
It should be noted that apart from the prayers for relief, the only references made to the third defendant were: (1) a pleading in paragraph 1 that the third defendant was capable of being sued by reason of s 5 of the Crown Proceedings Act 1988 (NSW); and (2) an assertion in the last paragraph of the pleading that "as a result of the conduct of the Defendants set above" the Plaintiff has suffered loss and damage. The relevance of that matter will be made clear later.
On 26 February 2016 the plaintiff served a Notice to Produce on the Crown Solicitor acting for the first defendant. It required production of the following documents:
1. Copy of file for Operation Vesta, including details of original complaint letter and paperwork supporting calling of a Public Inquiry.
2. Copy of all communications between ICAC and the Premier regarding Charif Kazal or Operation Vesta.
3. Copy of all communications between ICAC and the Premier's Office regarding Charif Kazal or Operation Vesta.
4. Copy of all communications between ICAC and Rodric David or his representatives regarding his role as an ICAC witness & any immunity deal offered.
5. Copy of all communications between ICAC and all Witnesses (including copies of Statements taken) regarding Charif Kazal or Operation Vesta.
6. Copy of all communications between Land & Property Management Authority and ICAC regarding Andrew Kelly and his statement on 1 Sept 2010 confirming Rodric David was most likely behind the false headlines and was a defendant in litigation Charif Kazal had commenced where Mr Kelly was testifying as a witness against David.
7. Copy of all communications between ICAC and any other third parties regarding Charif Kazal or Operation Vesta.
8. Copy of all communications between ICAC and the DPP regarding Charif Kazal, Andrew Kelly or Operation Vesta.
On the same day the plaintiff served a Notice to Produce on the Crown Solicitor acting for the third defendant in the following terms:
1. Copy of all communications related to Operation Vesta, including emails between former Premier Barry O'Farrell and ICAC representatives.
2. Copy of all communications between Land & Property Management Authority and ICAC forwarded to the Premier or Premier's Department regarding Andrew Kelly and his statement on 1 Sept 2010 confirming Rodric David was most likely behind the false headlines and was a defendant in litigation Charif Kazal had commenced where Mr Kelly was testifying as a witness against David.
3. Copy of all communications between ICAC and the Premier's Office regarding Charif Kazal, Andrew Kelly or Operation Vesta.
4. Copy of any representations made to Premier O Farrell by Mike Baird on behalf of Charif Kazal or Andrew Kelly.
5. Copy of all analysis done and shared with Parliament prior to the passing of overnight retrospective legislation that denies anyone previously found corrupt by ICAC of challenging the finding in a Court of law, including any legal advice on this being a clear denial of natural justice.
6. Copy of any action taken or recommendations arising by Parliamentary Committee for ICAC since the report by Acting Inspector John Nicholson was tabled in Parliament on 28 June 2017 in which he reported the potential breach of basic human rights of those like Charif Kazal found to be corrupt and given no opportunity to challenge the decision in a Court of law.
On 6 March 2018 the Crown Solicitor wrote on behalf of the first defendant to the plaintiff with respect to the Notice to Produce served on the first defendant`. The letter drew attention to s 111 of the ICAC Act and to the decision in Obeid v Ipp [2015] NSWSC 1755 at [12]-[13]. The letter also drew attention to r 21.10 Uniform Civil Procedure Rules 2005 (NSW) and said that the Notice to Produce failed clearly to identify a specific document or thing, that it sought the production of documents which were not relevant to a fact in issue, and that it amounted to a fishing expedition. It asked the plaintiff to reconsider the Notice to Produce, but warned that, if the plaintiff pressed for production, a Notice of Motion seeking to set aside the Notice to Produce would be filed.
The Crown Solicitor also wrote to the plaintiff on the same day on behalf of the third defendant. The letter reiterated an argument which had been earlier made in correspondence with the plaintiff, that the third defendant should be removed as a party to the proceedings because the statement of claim did not plead any matter against the third defendant. The letter also went on to point out UCPR r 21.10 and made the same assertions about that rule as had been made in the letter on behalf of ICAC. Again it was said that, if the plaintiff pressed for production, a Notice of Motion would be filed to set aside the Notice to Produce.
The plaintiff wrote a letter in response to each of the letters from the Crown Solicitor. The plaintiff's letters were in substantially the same terms as each other. The letters did not address the issue of the Notices to Produce. Rather, the letters seemingly provided more details about the complaints the plaintiff made about the defendants as pleaded in the Statement of Claim.
On 20 March 2018 each of the first and third defendants by a Notice of Motion sought summary dismissal of the proceedings. By a Motion filed on the same date, the second defendant, who was represented by independent solicitors, filed a similar motion.
On 23 March 2018 the Crown Solicitor acting for the first and third defendants filed a Motion on behalf of each such defendant seeking to set aside the Notices to Produce. It is those Motions which came before me for hearing.
At the outset of that hearing counsel for the third defendant sought leave to move also on that part of the Notice of Motion for summary judgment that separately sought an order for the removal of the third defendant from the proceedings. Notice to that effect had been given to the plaintiff on 12 April 2018. The plaintiff opposed the matter of the third defendant's continuing involvement being heard along with the Notices of Motion to set aside the Notices to Produce.
What had been listed by the Registrar for hearing on 26 April were the two motions to set aside the Notices to Produce. Although some notice was given to the plaintiff that the third defendant would seek to move on that part of its Notice of Motion filed on 20 May 2018 to have the proceedings dismissed as against it, the plaintiff said that he was not in a position to deal with that matter. Since he was appearing unrepresented, I considered that it would be unfair to him to be required on relatively short notice to deal with that issue. During the course of the hearing I, therefore, refused leave for the third defendant so to move.
The first defendant moves to set aside the Notice to Produce served on it on three grounds as follows:
(a) the Notice has no legitimate forensic purpose;
(b) the Notice seeks the production of documents covered by s 111(3) of the ICAC Act; and
(c) the Notice does not comply with UCPR r 21.10.
The third defendant relies on four grounds to set aside the Notice served on it as follows:
(a) to the extent the documents are said to be relevant to the State's liability, there are no pleaded allegations against the State, and the Notice therefore lacks a legitimate forensic purpose;
(b) to the extent the documents are said to be relevant to the liability of ICAC or the Commissioner, the Notice lacks a legitimate forensic purpose;
(c) the Notice is oppressive; and
(d) the Notice does not comply with UCPR r 21.10.
As I have noted, the plaintiff appeared unrepresented at the hearing of the notices of motion. Contrary to directions made by the Registrar, he had failed to file and serve written submissions in response to the notices of motion. He had, however, filed lengthy affidavits which appeared, largely, to go to the substance of the claim being made by him or, at the very least, contained material in answer to other motions filed by the three defendants seeking summary dismissal of the proceedings. Those affidavits also exhibited a large number of documents.
Objection was taken by counsel for the first and third defendants on the basis of the relevance of much of the affidavit material and the documents, and also on the basis that the material set out in the affidavits was not in admissible form. Rather than spend time considering each of the parts of the affidavits objected to (one affidavit contained 141 paragraphs and the other contained 89 paragraphs), I said that I would read inadmissible material as a submission being made by the plaintiff. Counsel for the first and third defendants did not object to that course. Counsel also agreed that I should receive the material that was, prima facie, irrelevant for the purpose of weighing up its relevance. That was an entirely proper approach by counsel when the plaintiff was unrepresented.
Even taking the affidavit material as largely amounting to submissions, it was difficult to discern how the plaintiff justified the width of the material sought in the Notices to Produce. During oral submissions the plaintiff put forward the following bases to justify the Notices to Produce. First, the plaintiff was entitled to the information because it was relevant for him to understand how what he said had happened to him as a result of the ICAC enquiry could have happened. Secondly, the plaintiff was given no choice but to participate in the enquiry, and on that basis he should be entitled to the documents. Thirdly, the documents could disclose that there were other failings and other things that were wrong that he was entitled to know about. Fourthly, in the light of the public exposure the plaintiff has had as a result of the enquiry and the report, he should be entitled to "discovery".
I endeavoured on a number of occasions during the plaintiff's oral submissions to direct his attention to considerations concerning the Notices to Produce, but his focus constantly returned to the substance of his claims against the defendants. He had prepared a lengthy table which sought to relate various portions of the report by the Inspector of the ICAC into the Operation Vesta inquiry to the documents he had sought to have produced. The plaintiff had also prepared another document which set out various portions from the Inspector's report which were said to be supportive of the plaintiff's claims in the proceedings, and in that way to the documents he wanted produced. A close examination of both the table and the other document disclosed that in a number of cases the portions of the report that were reproduced were simply recitations of submissions and contentions that had been made by the plaintiff and/or Mr Kelly to the Inspector.
[2]
(a) Is there a legitimate forensic purpose?
The relevant legal principles for setting aside a notice to produce were summarised by Ward J (as her Honour then was) in In the matter of One.Tel Ltd (in liq) - SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491 as follows:
[21] The relevant test in seeking to set aside a notice to produce was considered by Brereton J in Portal Software v Bodsworth [2005] NSWSC 1115. The Optus Group points in particular to what was said by his Honour at [24]-[26] and notes that this was applied by Hall J in GB, by his tutor, FB v Western Sydney Area Health Service [2010] NSWSC 181, at [70].
[22] In Portal Software, his Honour described (at [24]) the test as being whether the documents sought by the notice to produce have "a sufficient apparent connection to justify their production or inspection" (citing White v Tulloch (1995) 127 FLR 105) and said that the test of adjectival relevance (ie, as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for "could possibly throw light on the issues in the main case" (at [24]), citing Trade Practices Commissioner v Arnotts Ltd (1989) 21 FCR 306).
[23] I note that in Cosco Holdings Pty Limited v Commissioner of Taxation (1997) 37 ATR 432, Spender J had earlier considered the statement of Beaumont J in Trade Practices Commission v Arnotts as to the test of adjectival relevance and had noted that the word "possibly" was there "not used in any speculative sense" and so a subpoena (as was there in issue) may be set aside if the issuing party cannot, on reasonable grounds, show that there is a reasonable possibility that the documents sought will assist in resolving a matter in dispute in the proceedings.
[24] Nicholas J in ICAP Pty Limited v Moebes [2009] NSWSC 306 adopted an approach to Trade Practices Commission v Arnotts consistent with that of Spender J in Cosco.
[25] In ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, the Court of Appeal held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose:
I]t must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will.
[26] In Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100, Young JA, to similar effect as had Brereton J in Portal Software, held that for present purposes a notice to produce is the equivalent of a subpoena and that the ordinary rules as to oppressive subpoenas can be applied (at [33]). His Honour also said that, in modern litigation, a person is entitled to issue a subpoena and have it answered if there is a legitimate forensic purpose in issuing the subpoena, that is, that he or she has a reasonable cause to believe the documents subpoenaed have the capacity to throw some light on the issues in the proceedings, at [34].
[27] Although, as I noted in McLaughlin v Dungowan Manly (unreported, 14 July 2009, NSWSC), the authorities have largely dealt with relevance in the context of "fishing" objections (in which questions of relevance necessarily arise) and there is a significant overlap between considerations as to whether what is sought is relevant to an issue in the proceedings, whether it is oppressive and whether it constitutes impermissible "fishing", the two grounds for objection do not completely overlap, so that a notice to produce may be set aside even if it seeks relevant documents.
[28] The suggestion that mere relevance might be sufficient to establish a legitimate forensic purpose was rejected by Beazley JA in Attorney-General (NSW) v Chidgey [2008] NSWCCA 65, (there in the context of criminal proceedings). In Chidgey, her Honour did not accept that it was a legitimate forensic purpose to engage in a "fishing expedition" to discover whether there was a case at all, referring to The Commissioner for Railways v Small (1938) 38 SR (NSW) 564, at 573-4; 55 WN (NSW) 215, at 575 where Jordan CJ had stated that a party was not entitled to use a subpoena for that purpose.
[29] Insofar as the Optus Group also referred to the test noted by Brereton J, in Portal Software, that a notice to produce will have a legitimate forensic purpose if it appears to be "on the cards" that the documents sought will materially assist, that formulation of the test appears more generally to be used in the context of criminal (not civil) proceedings. (His Honour had there referred to what was said in Alister v R (1984) 154 CLR 404, at 414 by Gibbs CJ and in R v Saleam (1989) 16 NSWLR 14, at 18. In Chidgey Beazley JA saw no reason to depart from the test and the language used in Alister and Saleam.)
[30] In civil proceedings, however, the "on the cards" test has not been broadly embraced. In ICAP, Nicholas J expressed caution in the application of a test which incorporates a phrase such as "on the cards" or "could possibly throw light on" when the legitimate forensic purpose of a subpoena is challenged.
[31] Applying in this case the test in civil proceedings, as stated by Nicholas J in ICAP (namely that "it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will", at [30]) and noting that it must be reasonable to infer that the documents so sought exist, a careful consideration is required of the issues in the proceedings to which the subpoenaed documents are or may be of relevance in order to assess whether there is a legitimate forensic purpose served by the subpoena. (In that regard, it must in my view be to the issues as identified in the pleadings as they currently stand to which consideration must be given - not the issues as they might stand if an application were successfully to be made to strike out part or all of the pleadings; an issue to which I refer in due course as it was raised as a basis for objection to the Optus Notice by Mr Weston.)
The third defendant denied a legitimate forensic purpose in the Notice to Produce served upon it partly because the documents were said to relate to the State's liability. Although I have agreed not to determine whether the State should remain as a party to the proceedings in this judgment, it is relevant to consider the lack of pleading of any claim or any basis for a claim against the third defendant. Where nothing is currently pleaded against the third defendant, one possibility, deriving from the matters put forward by the plaintiff to justify the Notices to Produce is that the provision of the material might turn up matters that at the present time he does not know. That, of course, would be a classic example of a fishing expedition: The Commissioner for Railways v Small (1938) 38 SR 564 at 574-575; NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [27].
There is a further reason why the various categories of documents sought lack a legitimate forensic purpose. The basis of the claim against the defendants is set out at [7] above. The pleading in the statement of claim is couched in similar terms to a claim for administrative review, although I accept that the plaintiff seeks declarations and damages. Nevertheless, the claim numbered (1) is similar to jurisdictional error; the claim in (2) expressly relies on a denial of procedural fairness; the claim in (3) appears to be a failure to take into account a relevant consideration and the claim at (4) appears to assert an error of law in relation to the admission of evidence and to assert, thereby, procedural unfairness.
In each case, and also in relation to the claim in (5), the claims as framed can be determined on the documents already available to the plaintiff as follows:
(1) Whether or not the matters investigated fell outside the terms of reference (assuming ICAC had terms of reference) can be demonstrated by reference to the summons issued to the plaintiff, the public notice of the enquiry, the transcript of the enquiry, submissions of the parties, and the Report itself. All of this material is already in evidence on the first defendant's motion for summary dismissal.
(2) A denial of procedural fairness would be apparent from the summons, the transcript, the submissions and the Report.
(3) This claim can be demonstrated from the Report itself and from the transcript of the hearing.
(4) This claim can be proved again from the statement of Mr Paul Neilsen, the transcript, the submissions and the Report. The plaintiff has access to Mr Neilsen's statement.
(5) This claim relates to what was said to be improper submissions made by the first defendant to the DPP. The relevant documents are identified in the statement of claim at paragraphs [17]-[22]. They have been served on the plaintiff as the evidence in the first defendant's motion for summary dismissal.
Especially, given the width of the categories of documents in the Notices, there is no reasonable basis beyond speculation that the documents will materially assist in making out the particular issues pleaded. Even if the documents are said to relate to the assertions that the conduct pleaded was malicious, reckless or knowingly beyond power, and that was not submitted by the plaintiff, there is nothing to suggest that the documents would throw any light on those assertions.
The onus is clearly on the person serving the subpoena or the notice to produce to identify a legitimate forensic purpose for the documents to be produced: Tuxford at [20]-[23]. No legitimate forensic purpose has been shown in the present case.
[3]
(b) Section 111 of the ICAC Act
Section 111 of the ICAC Act provides:
111 Secrecy
(1) This section applies to:
(a) a person who is or was an officer of the Commission, and
(b) a person who is or was an Australian legal practitioner appointed to assist the Commission or who is or was a person who assists, or performs services for or on behalf of, such an Australian legal practitioner in the exercise of the Australian legal practitioner's functions as counsel to the Commission, and
(c) a person who conducts a review under section 104D, but only in relation to the person's functions under that section, and
(d) a person or body referred to in section 14 (3), 16 (4) or 53 (6), and
(e) a person who is or was an officer of the Inspector.
(2) A person to whom this section applies shall not, directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person's functions under this Act:
(a) make a record of any information, or
(b) divulge or communicate to any person any information, being information acquired by the person by reason of, or in the course of, the exercise of the person's functions under this Act.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(3) A person to whom this section applies shall not be required:
(a) to produce in any court any document or other thing that has come into the person's possession, custody or control by reason of, or in the course of, the exercise of the person's functions under this Act, or
(b) to divulge or communicate to any court any matter or thing that has come to the person's notice in the exercise of the person's functions under this Act,
except for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of its functions.
(4) Despite this section, a person to whom this section applies may divulge any such information:
(a) for the purposes of and in accordance with this Act, or
(b) for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of its functions, or
(c) in accordance with a direction of a Commissioner or Inspector, if a Commissioner or Inspector certifies that it is necessary to do so in the public interest, or
(d) to any prescribed authority or person, or
(e) if the disclosure is made to a registered medical practitioner or registered psychologist in relation to the provision by that health practitioner of medical or psychiatric care, treatment or counselling (including but not limited to psychological counselling) to a person to whom this section applies.
(5) An authority or person to whom information is divulged under subsection (4), and any person or employee under the control of that authority or person, shall, in respect of that information, be subject to the same rights, privileges, obligations and liabilities under subsections (2) and (3) as if he or she were a person to whom this section applies and had acquired the information in the exercise of functions under this Act.
(6) In this section:
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
produce includes permit access to.
Sub-section (3)(a) is not confined to production to a court. In SA v New South Wales Crime Commission [2015] NSWSC 1979 Fagan J was considering s 80(3) of the Crime Commission Act 2012 (NSW). That sub-section provided:
(3) A person to whom this section applies cannot be required:
(a) to produce in any court any document or other thing that has come into the person's possession, custody or control because of, or in the course of, the exercise of the person's functions under this Act, or
(b) to divulge or communicate to any court any matter or thing that has come to the person's notice in the exercise of the person's functions under this Act.
As can be seen, that sub-section is relevantly identical to s 111(3) of the ICAC Act. Section 80(6) of the Crime Commission Act defined produce as including "permit access to or inspection of". In my opinion, the additional expression "or inspection of", as compared to the definition in s 111(6) of the ICAC Act, does not diminish the applicability of the decision in SA. Justice Fagan said at [26]:
The use of the preposition "in" has the effect that the phrase "produce in any court any document" is apt to describe any production of a document under court procedures or pursuant to the control and direction of any court in the exercise of its jurisdiction. That is how I interpret subs 3(a), with the consequence that an order under r 59.9 that the Crime Commission should produce the reasons to the plaintiff would be a requirement imposed upon personnel of the Commission, to whom s 80 applies, that they "produce in [the Supreme Court] any document that has come into the person's possession, custody or control because of, or in the course of the exercise of the person's functions under this Act". By force of subs 3(a) such a requirement "cannot" be imposed. The Court is forbidden from making the order for production of the reasons under r 59.9, as sought by the plaintiff's notice of motion.
In any event, s 111(2) prevents any person who is or was an officer of ICAC from divulging or communicating any information acquired by the person by reason of, or in the course of, the exercise of the person's functions under the ICAC Act. Although "any person" in sub-s (2) does not include a court ( see A v Independent Commission Against Corruption [2014] NSWCA 414 at [43]), production of the documents to the plaintiff in accordance with the Notices to Produce would result in a contravention of sub-s (2).
[4]
(c) UCPR Rule 21.10
UCPR Rule 21.10 provides:
21.10 Notice to produce for inspection by parties
(cf SCR Part 23, rule 2 (1); DCR Part 22, rule 2 (1), (1A) and (2))
(1) Party A may, by notice served on party B, require party B to produce for inspection by party A:
(a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and
(b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.
(2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.
In Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182 Young CJ in Eq (as his Honour then was) had to consider the predecessor to this rule, Pt 23 r 2 of the Supreme Court Rules 1970 (NSW), which was in relevantly identical terms. His Honour said:
[7] The second matter argued deals with the proper construction of Part 23 r 2 of the Supreme Court Rules. It will be noted that there was no document alleged to be referred to in originating process, pleading, affidavit or witness statement. One must accordingly look for a request to produce any other specific document. The fact that "other" is used gives an ejusdem generis flavour to a specific document. In 2(1)(a) one knows exactly which document needs to be produced. One would expect, accordingly, that the same would apply to a request under (b). The authors of the Supreme Court Practice in note [23.2.2] come to the same conclusion using the reasoning that the underlying intention of the Rules is that parties are not to be subjected to any kind of general discovery obligation unless there is an order of the Court so that rule 2 must be construed accordingly.
[8] The words "clearly identified", or their equivalent in s 88 of the Conveyancing Act "clearly indicate", mean that there must be something more than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; there must be a pointing out in a manner that is distinct and free from confusion; see eg Papadopoulos v Goodwin [1982] 1 NSWLR 413.
[9] The word "specific" conjures up the idea of something which is identified and not merely identifiable; see per Sargant LJ in Kursell v Timber Operators & Contractors Ltd [1927] 1 KB 298, 313, 314. (emphasis added)
In Norris v Kandiah [2007] NSWSC 1296 Brereton J (as his Honour then was) said:
[3] There are important and fundamental distinctions between a notice to produce under r 21.10 and a notice to produce under r 34.1. Rule 21.10, appearing as it does in Pt 21 of the Rules, is a process of discovery. A notice under r 34.1, appearing in Pt 34 entitled Notice to Produce to Court and following notices to produce at the hearing including opinions is a process akin to a subpoena for production. I endeavoured to explain the differences between the process of discovery and that of a subpoena for production in A Pty Ltd v Z [2007] NSWSC 899. One of the critical differences is that the touchstone of discovery is the concept of relevance to a fact in issue in the proceedings, whereas subpoenas for production are not necessarily limited to documents relevant to a fact in issue, but may extend to documents relevant to credit.
[4] Part 21 r 10 authorises service of a notice to produce, in respect of documents referred to in originating processes, pleadings, affidavits and witness statements, and "any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue". The limitations with the requirement that there be a "specific document" and that it be "clearly identified" were explained by Young CJ in Eq in Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182. As his Honour explained, the rule was not intended to subject a recipient to any kind of general discovery obligation. The words "clearly identified" mean that there must be something more specific than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; it must be pointed out in a manner distinct and free from confusion. The requirement for specificity connotes something that is identified, and not merely identifiable. His Honour upheld a submission that it would be insufficient to identify a box containing a number of unspecified documents, or a lever arch folder containing a number of unspecified documents; identification of the specific documents was required.
[5] In my view, this notice does not clearly identify specific documents, but calls for classes of documents. It was not the intent of this rule to enable notices to be given requiring production of classes of identifiable documents, as distinct from specific identified documents. Accordingly, in my view, this notice is not a valid exercise of the power to serve a notice to produce under r 21.10, and I would set it aside on that basis.
(emphasis added)
In the present case, the plaintiff does not identify documents that are referred to in any pleading or affidavit nor any other specific document. The form of the notices has the hallmarks of categories of discovery. Almost all of the paragraphs of the Notices to Produce refer to "Copy of all communications…". That is not the purpose of r 21.2 as the authorities make clear.
[5]
(d) Oppression
The third defendant points to the width of the categories of documents sought in paragraphs 1 to 4 of the Notice served on it. The categories are not limited in time and are likely to involve searches in a number of State agencies.
The affidavit of Sasha Jane Lowes sworn 29 March 2018 details what would be require from an IT perspective to attempt to locate all the documents sought. The estimated cost of third party specialists is at least $135,000 and is highly likely to be more. In circumstances where the documents would have tenuous relevance only to the matters pleaded, I consider that the requirements of the Notice to Produce addressed to the third defendant are oppressive.
[6]
Conclusion
I consider that the Notices to Produce do not comply with r 21.10, that the plaintiff has shown no legitimate forensic purpose for the Notices, and that production of the documents would involve a breach of s 111(2) or (3) of the ICAC Act. In addition, at least categories 1 to 4 in the Notice served on the third defendant are oppressive. The Notices to Produce should be set aside.
Accordingly, I make the following orders:
1. The Notice to Produce dated 26 February 2018 served on the first defendant is set aside.
2. The Notice to Produce dated 26 February 2018 served on the third defendant is set aside.
3. The Plaintiff is to pay the costs of the first and third defendants in respect of the Notices of Motion filed 23 March 2018 by those defendants.
[7]
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Decision last updated: 07 September 2018