Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 429 | Case summary

JUDGMENT (Public interest immunity - "Waind v Hill " discretion) 1 Following my judgment of 19 March on the plaintiff's Notice of Motion to preclude inspection by the defendant of documents the subject of a subpoena and Notice to Produce (NSWSC 212 - DLJT: 24 ), leave was granted by the Court of Appeal on 30 April 1999 (see judgment of Mason P) and the judgment of that Court delivered on 15 April (NSWCA 97). 2 On 16 April I granted leave to the plaintiff further to argue two undecided matters which had previously been raised before me (public interest immunity and the Waind v Hill discretion NSWSC 348 - DLJT: 33 ). 3 On 20 April 1999 the defendant made submissions that it was not open to me to hear further from the plaintiff on these two issues, founding its submissions in observations of the Full Court of the Federal Court in Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 295C-296B, 297E and 298A. 4 Bryant was concerned with final relief. No case was cited to me that could provide authority or assistance in the resolution of this curious area in interlocutory proceedings. I am not persuaded to change the views I expressed in my judgment of 16 April. The two undecided issues have been enlivened before me and are enlivened again. The failure of the plaintiff/respondent to contend, I do not see as precluding me from further considering the matters and it is to be noted that in any event, had the matters been the subject of contention in the Court of Appeal the Waind v Hill discretion would have been remitted to me. Accordingly on that, as-it-were, jurisdictional issue, the defendant fails. 5 I turn to the public interest immunity component of the plaintiff's application to persist in precluding the defendant from inspecting the documents. The relevant documents are document 1 in Annexure A and documents 13, 17, 41, 42, 43, 44 in Annexure B to Mr Lee's affidavit of 1 March 1999. Each of these documents relate to D15 and/or D16 and, it is said, in particular two aspects of the plaintiff's circumstantial case in response to those allegations. All but document 37 are statutory declarations; document 37 is a record of a Police interview with D16 in which the police put to D16 parts of the material in document 1. 6 The foundation for the claim akin to one of public interest immunity rests in the assertions as to confidentiality attending the circumstances in which the material was provided by Mr Lee to the police (documents 1, 13, 41-44). (See paragraphs 4 and 5 of Mr Lee's affidavit and the statement by Mr Lee that he would not have provided that material were it not for that confidentiality: paragraph 6). It is contended that there is strong public interest in effective policing requiring the cooperation with the Police of persons under suspicion (see my rulings on the Police claim for public interest immunity as to the record of the interview of 29 January 1999: 19 March 1999 NSWSC 213 - DLJT: 25 , 1 April 1999 NSWSC 284 - DLJT: 31 ). 7 In an evidentiary context the reference to which is not the subject itself of contention, it appears from the testimony of Superintendent Woodhouse that save for " dotting the i's and crossing the t's" after 29 January his investigations were effectively finished. He also had to receive some information from Mr Lee. He would then put the matter together and submit it to the Director of Public Prosecutions. He did not consider it an investigation that he was actively pursuing though acknowledged that the DPP could direct further inquiries (T982). It is not known, of course, known what the contents of any report to the DPP were or will be. For the purposes of this application, namely to enliven again the public interest immunity component, it is apparent from the evidence thus far before me that a reasonable view could be taken that the investigation is at an end subject to any further direction that could be made by the DPP. Thus the context of continuing police investigations must be viewed in a different light. 8 I dealt with the public interest immunity component of the original application in paragraphs 106 - 163 of my judgment of 19 March acknowledging the attractiveness then of both sides position on this issue. It is to be borne in mind that no claim for public interest immunity has been advanced for the determination by the Court by an instrument of the State and it seems that essentially what the plaintiff is seeking to do is to assert such an immunity vis-a-vis the defendant founded upon the confidential circumstances in which the materials provided (insufficient though they were for the purposes of client legal privilege). I am still of the view that it is desirable in the public interest that confidentiality attend dealings between a suspected person and investigating police, the more so in a continuing investigation, but that confidentiality does not preclude the police from using any information so gained to make relevant inquiries. The Court must not be quick to intervene except in the most exceptional circumstances in a situation such as this ( Sankey v Whitlam (1978) 142 CLR 1 at 44: see also Tipene v Apperley (1978) 1 NZLR 761). Assuming the documents and information contained within them do fall within a class akin to a class of public interest immunity resting in the confidentiality of communications to the Police, I am not persuaded that there is anything in s 130(4) that reinforces the nature of such a cognate public interest immunity. With respect to s 130(5) it is clear that the documents and information contained in them are of importance to the issues on the amendment application and the trial generally in the context of the defence of justification. Access and inspection, however, will still be a matter of discretion. 9 I am not, in the end, persuaded that there is a public interest in the maintenance of the confidentiality of these documents in circumstances where no formal claim for public interest immunity has been advanced by the relevant authority, where care in any event as a matter of principle must be taken before the Court quickly decides to attach immunity, where the documents save for the Record of Interview conducted by the Police with one of the complainants was volunteered by the plaintiff to the Police, and the importance of the material to the amendment application and the trial generally, in the weighing exercise, advances any cognate public interest to the exclusion of the conduct of this litigation in terms of the defendant having access to this material, (but subject to discretionary considerations). 10 Thus, the claim founded upon the asserted public interest immunity fails. 11 I turn now to the Waind v Hill discretion. 12 The decision of the Court of Appeal in Waind v Hill (1978) 1 NSWLR 372 was analysed exhaustively by Mr McHugh and Mr Wheelhouse. Unquestionably the matter of inspection is one in the discretion of the trial judge (383A-C). It is to be borne in mind that save for the Record of Interview these are not a stranger's document in the sense that they are initially sourced in one of the parties to the litigation. The important, but not necessarily determinative, question in relation to the exercise of the discretion to permit inspection is whether the documents have apparent relevance to the issues (385D). This they clearly do: the issues both as to the amendment application and the issues to justification generally in the trial. The Court is not concerned with ultimate questions of admissibility (385F). Nor, in my view, is this Court concerned with the revelation of any matters private to the plaintiff given that the matters are relevant (386A). 13 The plaintiff's position boils down to this, in my view: the plaintiff does not want the defendant to have any forensic advantage in obtaining by the inspection of these documents by what is described as the plaintiff's circumstantial case in answer to the defendant's case on justification particularly in relation to D15 and D16. I agree with the submission made by Mr Wheelhouse for the question of " mere forensic advantage or disadvantage" is irrelevant. However if any question of advantage or disadvantage can be elevated to a real question of " injustice ", the matter may well be viewed otherwise. I am of the opinion that that is the case here. 14 The defendant is seeking to establish in this civil trial the guilt of the plaintiff of criminal conduct. That, shortly stated, is what is involved in its plea of justification. It is a forensic exercise of the utmost gravity. The defendant has particularised a case (subject to amendment) and it can be inferred that it has done so on the basis of instructions, information and evidence it proposes to lead. In so serious a forensic environment the course of evidence must not be infected. The elucidation of the truth will be founded upon the evidence that is lead and challenged in the usual way and, in such a case as this involving criminal allegations as it does, by the powerful mechanism of cross-examination. It is of critical importance, in my view, that the evidence of such persons as D15 and D16 be given without there having been made available to the defendant an indication of the plaintiff's case, " circumstantial " or particularly affecting the credibility of those witnesses, in advance. It would defeat rather than serve the ends of justice and the elucidation of the truth in a case of this special kind where the plaintiff is on trial for criminal conduct, where the defendant has made its allegations by way of its plea of justification (and in respect of D15 or D16 there being no issue as to prejudice), for such witnesses to be called by the defendant to know in advance and thus be in a position to tailor their testimony, the position of the plaintiff forensically to destroy that case particularly as to cross-examination as to credit and the proof of " circumstances " otherwise attending the resolution of the defendant's claims. 15 In my judgment in relation to the Corrs subpoena (although argued after the submissions in this application), I have dealt at greater length with the general discretionary considerations which in the end are equally applicable in this instance. 16 I refuse leave to the defendant to inspect the documents referred to in paragraph 5 hereof. **********

Marsden v Amalgamated Television Services Pty Limited

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