Mehanna v State of New South Wales

(B) ISSUES

1. The principal issues for determination are therefore: 1. Do Officers Morrison and Bennett have standing to make the application? 2. Is there a proper basis for the earlier order to be set aside? 3. What order for access should be made?

(C) STANDING

1. Rule 33.4 of the Uniform Civil Procedure Rules 2005 provides: "33.4 Setting aside or other relief (1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. (2) An application under subrule (1) must be made on notice to the issuing party. (3) The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest."
2. Rule 33.8 provides: "33.8 Removal, return, inspection, copying and disposal of documents and things The court may give directions in relation to the removal from and return to the court, and the inspection, copying and disposal, of any document or thing that has been produced to the court in response to a subpoena."
3. Rule 33.4 raises two questions: does the ambit of the words "any person having a sufficient interest" extend to Officers Morrison and Bennett whose personnel files are subpoenaed, and secondly, does "grant other relief in respect of [the subpoena]" include orders for access.
4. As to the second question, the parties accepted that r 33.4 is an empowering provision applicable to the application by Officers Morrison and Bennett. I do not see any reason to read down the terms of "other relief". Refusing or granting access to documents produced under subpoena are forms of relief regarding a subpoena (which is necessarily interlocutory relief) and are "in respect of" a subpoena for these are words of wide import (see Workers Compensation Board of Qld v Technical Products Pty Ltd (1988) 165 CLR 642 at 653‑4 (per Deane, Dawson and Toohey JJ), see also 646‑7 (per Wilson and Gaudron JJ), Wonall Pty Ltd v Clarence Property Corp Ltd (2003) 58 NSWLR 23 at [41]‑[43]; [2003] NSWSC 497). The circumstance that directions about access are empowered by r 33.8 is not a reason to read down the terms of r 33.4.
5. As to the first question, the "sufficient interest" claimed is that the personnel files are evidenced to have "a significant amount [of] private personal and sensitive information" about Officers Morrison and Bennett. Ms Mehanna submits that, "personnel files are the property of the Commissioner of Police". So much must be accepted. But a subpoena generally is directed to the person having the possessory or proprietary interest in the documents (in this case, the Commissioner), and the terms of r 33.4(3) do not confine its applications to parties and to the recipient of the subpoena.
6. Ms Mehanna submitted that the police officers' concern for the personnel files was different from a banking customer's file on the basis that a customer would commonly have copies of documents. If that is a distinction, which I doubt (i.e., I would infer that copies of many of the documents in a police officer's file would also be held by the police officer), it is not a material difference. Patients of a medical practice might not hold copies of documents in their medical file, but that would not be a reason to deny their "sufficient interest" in the disclosure of their medical file.
7. Unconstrained by authority, I would not think that a "person having a sufficient interest" should be confined to the recipient of a subpoena, or that "sufficient interest" should be confined to a possessory or proprietary interest in the documents the subject of the subpoena.
8. In Fried v National Australia Bank Ltd [2000] FCA 911, Weinberg J considered whether "any person having a sufficient interest" extended beyond the person to whom the subpoena was addressed so as to include parties. The rule in that case, unlike r 33.4, did not specifically refer to parties. Weinberg J (see at [5]‑[9]) referred to Re ACI International Ltd (1986) 11 ACLR 240 and Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241, both of which decided that the phrase did not include parties. Weinberg J then referred, apparently with approval, to the applicant's submission (Fried at [13]) that the: "case for treating any such party as having a sufficient interest to seek to set aside a subpoena was even stronger when the documents sought related specifically to the affairs of that party".
9. In Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 102, Powell J held that an application may be made: "not only by the person to whom the subpoena is directed but also by a party to the litigation and any other person who might be shown to have a legitimate interest in having the subpoena set aside".
10. In Trade Practices Commission v Kimberley Homes Pty Ltd (Federal Court, 19 July 1989, unreported), where the statutory provisions specified the "person named in the subpoena" as having a right to set aside a subpoena (rather than the subsequent wider formulation), the Federal Court nevertheless allowed a party to make an application.
11. Weinberg J in Fried at [19] favoured the wider view in Kimberley Homes and Botany Bay, although his Honour did not find it necessary to express a "firm conclusion".
12. I also take the wider view that "any person having a sufficient interest" includes persons who have a "legitimate interest" in the subpoena (Botany Bay at 102D), and as the documents relate "specifically to the affairs" of Officers Morrison and Bennett (see Fried at [13]), I accept that they are "person[s] having a sufficient interest" within the ambit of the phrase in relation to r 33.4, even though the documents do not belong to them.
13. Ms Mehanna also made submissions about the similarity of interest between the Officers and the Commissioner, who has already made an application. This is not a reason for a lack of standing in the Officers, although it may be relevant to the second issue concerning the force of the existing order.

(D) SETTING ASIDE THE ORDER

1. One power to set aside or vary an order is found in UCPR 36.16. It provides in subrule (3A) that: "(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered."
2. Ms Mehanna initially submitted that the motion was filed on 6 November, more than 14 days after the orders were entered, but the court copy of the motion was filed on 31 October 2017, some 13 days after entry of the orders, a matter accepted by Ms Mehanna. It follows that the Court may determine the matter afresh as if no order had been entered.
3. Another basis for the Court's power to reconsider the matter was raised. UCPR 36.16(3) provides: "(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief."
4. Ms Mehanna submitted that subrule (3)(a) is applicable to exclude the power because the Court had previously determined a "question…arising on [a] claim for relief". But a "claim for relief" is defined in s 3 of the Civil Procedure Act 2005 as: "3 Definitions (1) In this Act: … claim for relief includes: (a) a claim for possession of land, and (b) a claim for delivery of goods, and (c) a claim for the recovery of damages or other money, and (d) a claim for a declaration of right, and (e) a claim for the determination of any question or matter that may be determined by the court, and (f) any other claim (whether legal, equitable or otherwise) that is justiciable in the court."
5. Although this is an inclusive definition, all of the types of claims specified are claims for final relief. The Interpretation Act 1987 provides that the meaning of the expression "claim for relief" would have the same meaning in the Uniform Civil Procedure Rules 2005 made under the Act (see Interpretation Act 1987 s 11 and Civil Procedure Act 2005 s 9). This indicates that "claim for relief" is an expression directed to final relief.
6. Also, there is nothing to indicate an intention to vary the long‑established rule that the Court retains the power to vary an interlocutory order "up to the time of the final disposition of the proceedings" (Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46).
7. Thirdly, to hold otherwise (i.e. so that the exception embraces interlocutory orders) would render the powers in the chapeau to subrule 36.16(3) nugatory.
8. The process of construction commences with the ordinary and grammatical meaning of the words in question having regard to their context and purpose: Rail Corporation New South Wales v Brown (2012) 82 NSWLR 318 at [39]; [2012] NSWCA 296. And matters of fairness and consistency are important (see generally Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 at [69], Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at [23]‑[25]; [2012] HCA 56, and Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104 at [67]).
9. On this approach, the question of whether access should be granted is not a question that arises "on any claim for relief" even if it arises in the proceedings contrary to Ms Mehanna's submission.
10. For these reasons, I find that the Court has the power to set aside the interlocutory decision regarding access.
11. That leaves the question of whether the existing order should be set aside. Matters relevant to the question here included that this is an application by Officers Morrison and Bennett, who have not previously been heard in respect of access; that the Commissioner and the State may have similar, though not identical, interests and have been heard; that the Commissioner and the State consented to the previous order; that the State and eventually the Commissioner, although supporting the application, do not join in it; that this Court decided the matter without any reasoned judgment but rather, and rightly, because all the parties then before it, the State, the Commissioner and Ms Mehanna, consented to the access order; and that because of the consent, no attention was directed to the questions that should attend an order for access, namely, whether it is "on the cards" or "there are concrete grounds" (QQ v Commissioner of Police, NSW Police Force [2011] NSWADT 54 at [43]) for the belief that the documents will be probative in assisting the plaintiff's case.
12. I was concerned about the likelihood that the Officers' instructions might have been considered by the State and the Commissioner in the consent to the previous court order, a concern that was not entirely removed by the absence of any evidence on the matter. The limited period (indicated by the transcript) during which the Commissioner was able to give instructions about the access order might suggest that the Officers' views were not obtained.
13. In any event, the right of the State and the Commissioner to apply to vacate the existing order under r 36.16(3A) had not lapsed at the time of the Officers' application. As the Commissioner and the State were not precluded from making any application, so neither should the Officers be precluded. Whether the Commissioner and the State behaved like model litigants or not in consenting to an access order and then supporting an application to set it aside is a matter more relevant to costs than to the appropriate access order and whether the existing order should be vacated.
14. Brimaud at 46 is authority for the need for a material change in circumstances before the Court would vary interlocutory orders of a substantive nature. That case did not concern an application by a new party, as here, or a decision made without a consideration of the merits, as here. Also, the rule is inapplicable to mere procedural orders. I would be inclined to place orders for access to documents in the category of procedural rather than substantive orders even if substantive rights are often found "secreted in the interstices of procedure" (Maxwell v Murphy (1957) 96 CLR 261 at 286; [1957] HCA 7, Downs v Williams (1971) 126 CLR 61 at 83; [1971] HCA 45). In any event, the application by the Officers constitutes a material change in circumstances.
15. The circumstance that Ms Mehanna has yet to access the documents so that the interlocutory order has not been "carried into effect" and remains executory is a further reason why it is open to review by the Court that made it (see National Employers' Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372 at 386E).
16. The Officers also relied on Waind & Hill at 386C to D to submit that any order for access prior to the actual production of the documents is premature, but I do not think that that is the effect of the passage cited. It concerns a situation where there was no "opportunity to make an objection" related to access. In this case, the Commissioner and the State had a clear opportunity to object, and when asked, declined to do so but consented to the order proposed. The position of the Officers is of course different.
17. Bearing all these matters in mind, I think the order should be considered afresh independent of the existing orders.

(E) APPROPRIATE ORDER FOR ACCESS

1. The only legitimate purpose of permitting the inspection of a stranger's documents can be to add to the relevant evidence in the case (Waind & Hill at 384D). That relevance can be substantive to the issues or adjectival, which refers to the capacity of the documents to support a conclusion or proposition that has arguable relevance to the proceedings (see Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432). Adjectival relevance includes matters relevant to credit.
2. Ms Mehanna served tendency notices on the State in respect of the two officers, to the effect that they had a tendency to be prejudiced against persons who appeared to be of Middle Eastern origin, extraction or appearance. This was relied on, among other matters, to establish the relevance of the personnel file. While the specified matters in the tendency notices do not appear especially strong in establishing the alleged tendency, and the form of the alleged tendency may itself be problematic, this is not the occasion to judge those questions.
3. The real question is whether the personnel file could be expected to have documents supporting Ms Mehanna's allegation, whether that test be "on the cards" (Regina v James Saleam [1999] NSWCCA 86 at [11], Alister v R (1983) 154 CLR 404; [1983] HCA 45), a "probability" (cf Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 at [77]), not "merely relevant" (Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 182), that the documents could "materially assist" Ms Mehanna's case (see Chidgey at [86]), or there would be a "legitimate forensic purpose" (Saleam at [11]).
4. Whether the test for access is the same as the test for production, as Ms Mehanna submitted and was supported by Saleam at [11], or it is something higher, as the Officers submitted in reliance upon Chidgey, might not be crucial in this case (see generally Ritchie's Uniform Civil Procedure NSW at [33.4.30]).
5. Both the Officers and Ms Mehanna asked that I examine the documents to determine which should be the subject of access, and the Commissioner and the State, by their silence, inferentially supported that course. Although initially reluctant, I agreed to that request.
6. I indicated that the content of "complaints, counselling [and] reprimands" (see Mehanna v State of New South Wales (District Court (NSW), Robison J, 18 October 2017, unrep, p 9)) related either to the tendency alleged or conduct similar to that alleged in the statement of claim, or matters going to credit generally, might properly be accessible, and I did not understand there to be opposition voiced in relation to that course. However, a review of the documents does not indicate that those types of documents exist. The great bulk of the documents can have no possible relevance to the issues in the case. None of them seem to have relevance to the tendency point raised by Ms Mehanna, although some could have arguable relevance to other issues, including credit.
7. The Officers submitted that although a personnel file might have some documents of the type indicated, unless there was some material to indicate a likelihood that those documents in these particular files are amongst those caught by the subpoena, then the subpoena was a fishing expedition. There may be some force in this (see e.g. Hunt v Judge Russell and De Pinto; Schulz v Judge Russell and De Pinto; sub nom Hunt and Boyce v De Pinto (A Crim R) (1995) 63 SASR 402).
8. However, once the parties submitted that I view the actual documents produced, questions about whether the terms of the subpoena were too wide or that the subpoena might be classified as a fishing expedition fall away. Those matters may be reasons to set aside the subpoena, but that was not the application before me. There may even be determinative of questions of access when that question is determined by the apparent scope of the subpoenaed documents rather than by an inspection. My task on an inspection became whether some particular documents are possibly relevant, rather than whether the type of documents called for by the subpoena were not relevant.
9. Accordingly, I propose to allow access to documents that appear to have a possible substantive or adjectival relevance to the proceedings, but not otherwise. That approach also seems to give best effect to the overriding purpose in s 56 of the Civil Procedure Act 2005 by potentially avoiding the need for another subpoena and a debate about its terms.
10. The documents to which access should be given and that have the possible substantive or adjectival relevance to the proceedings are limited. They comprise, in my view, three documents: an "Expression of Interest" dated 2 April 2014 by Officer Bennett and two documents concerning applications by Officer Morrison which are labelled at the right‑hand foot of the page, 42933.47 and 42933.48 on the first document, and 42933.51 and 42933.52 on the second page. The redaction on p 42933.47 should remain. On my observations, these are the only documents of potential relevance.
11. Accordingly, I propose to grant access to these documents with the redactions indicated. As is perhaps obvious, this order should not be taken to preclude Ms Mehanna from seeking production access to other documents pursuant to a subpoena more focussed on documents relevant to the particular issues in the dispute, nor to indicate any particular relevance for admissibility purposes of the documents the subject of the grant of access.

(F) COSTS

1. Although the applicants have been largely successful, that success is not total and it is impossible at this stage to determine the value of the three documents to which access was granted. This application arose largely because, although now supporting an application denying the plaintiff access to the documents, the State and the Commissioner had consented to access on the previous occasion. In my view, the applicants' costs of the application should be paid by the Commissioner and the State, although the applicants sought no express order. The plaintiff's costs should be her costs in the proceedings.

(G) ORDERS

1. Accordingly, the orders proposed are: 1. Set aside the orders for access made on 18 October 2017 insofar as those orders concern the personnel files of Officer Katie Bennett and Officer Paul Morrison. 2. Grant access to the plaintiff to: 1. the 3-page "Expression of Interest" document created by Officer Bennett dated 2 April 2014; and 2. pages 42933.47, 42933.48, 42933.51 and 42933.52, as redacted. 1. Costs of the plaintiff be her costs in the proceedings. 2. In respect of the documents referred to in order (2)(b) above, that access be granted at 10am on Friday, 17 November 2017, subject to any claim for privilege. 3. Grant liberty to the parties to make any further application concerning costs in respect of the motion within 14 days.

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: 12 March 2018