Meredith v State of New South Wales

Various Interlocutory Steps

1. Interlocutory proceedings have been engaged in which led to a judgment in 2023 about whether the proceedings were appropriately constituted as representative proceedings under Part 10 of the CPA. For the reasons given in Meredith v The State of New South Wales [2003] NSWSC 1546 (the "Common Questions judgment"), I held that the proceedings were properly constituted and that a number of common questions arose. In addition to making other interlocutory orders, I fixed the hearing of the plaintiff's case in its entirety and the hearing of those common questions for a period of four weeks in May 2025.
2. The necessary interlocutory orders for the notification of the existence of the proceedings, and the making of provision for individuals to opt out of the proceedings have been made. Included in those orders regarding the opt out procedure, was an order that the defendant was to provide to the solicitors for the plaintiff, from its own records, the contact details for "persons searched (both general and strip search) at relevant music festivals".
3. Pursuant to that order, the personal details of about 36,000 people who had been searched were provided. Of that number it appears that about 5,200 were identified from the defendant's records as having been the subject of strip searches by New South Wales Police at the relevant music festivals.

Registration

1. In addition to the opt out procedure, group members have been offered the opportunity to register as members of the group with the plaintiff's solicitors. Approximately 2,316 individuals have done so. It is to be observed that this number is less than 50% of the number of individuals subjected to a strip search at the relevant music festivals provided to the plaintiff by the defendant based upon its records.
2. The plaintiff has provided to the defendant, through means of an electronic spreadsheet, a great deal of information about those registered individuals. That information includes the festival at which the search was undertaken, the date of the search, the fact that the search was conducted by an officer of the New South Wales Police, how much of the individual's clothing was required to be removed, other matters of conduct by police officers during the search, a specification of the location of the search, whether that location was fully enclosed or out of public view, whether the search could be observed by members of the public or police officers not involved in the search, and whether there was any apparent disconformity between the gender of the police officers undertaking the search and the individual being searched.
3. As well, other details about the search are provided, including whether at the time of the search the individual was a minor, i.e., below the age of 18. That particular piece of information is important, because the legislation and regulation provide different requirements regarding the searching of minors.
4. The information which was provided did not include the personal identification particulars of each registered individual, i.e., name, including any alias, and the date of birth of that individual.
5. The parties have arranged for a mediation to occur with respect to the whole of the proceedings across the course of three days in December 2024.

Subpoena and Notice to Produce

1. By letter dated 18 October 2024, the solicitors for the defendant served a Subpoena addressed to the plaintiff's solicitors and a Notice to Produce addressed to the plaintiff herself, both of which were in substance in identical terms. The defendant sought the production of documents falling relevantly into two categories, the first of which is: "2. A list of the names and other identifying information of people (as specified below) who have either become your clients or registered their personal information with you for the purpose of the proceedings: A. The person's name and known aliases as known by you; B. Date of birth, if known to you; C. The music festival at which the person is alleged to have been strip searched, if known to you; D. The date of the alleged strip search, if known to you."
2. In the event that a list of those names was not in existence, the Subpoena and Notice to Produce sought copies of documents which recorded the names and the other identifying information of the people who had either become clients of Slater & Gordon or else had registered as group members.
3. The second category of documents sought relating to those who opted out is no longer pressed and can be put to one side for the purposes of this judgment.

Plaintiff's Notice of Motion

1. On 31 October 2024, the plaintiff filed a Notice of Motion seeking to set aside the subpoena and the Notice to Produce and seeking an order for costs.
2. The Court first heard a contested interlocutory application as to whether the Motion should be heard and disposed of expeditiously and prior to the mediation or whether it should be heard and disposed of in the ordinary course.
3. The Court fixed a short timetable to enable the matter to be heard and determined today. That was because the Court took the view that the determination of the matter ought occur prior to the mediation so that the parties were in a position to know what the Court's decision was prior to that time.
4. Because the matter has been heard quickly, and a judgment is required promptly, it is appropriate that these reasons be provided today, the day of hearing of the matter, in a slightly truncated and less eloquent form than would be provided if the Court had time to consider its judgment and prepare it reasons in writing. However, it needs to be said that I have considered, both in advance of the hearing today and with the assistance of oral submissions of counsel, all of the arguments that have been advanced.

Plaintiff's Submissions

1. Putting the matter generally, the plaintiff submitted that having regard to the information which had passed from the defendant to her as part of the opt out process, and the "anonymised" spreadsheet information which had been provided to the defendant by the plaintiff's solicitors containing some information with respect to the group members who had registered, and having regard to the nature of the issues to be determined at the first hearing in May 2025, namely the plaintiff's claim and the common questions, there was no legitimate forensic purpose identifiable upon which it was proper for the defendant to have issued the Subpoena and Notice to Produce.
2. In particular, the plaintiff drew attention to the fact that the police had denied that, in the individual claim of the plaintiff, any strip search had occurred other than in compliance with the requirements of the legislation, and that, to the extent relevant for the determination of any award of exemplary damages, the defendant denied that it had engaged in any systemic course of conduct which did not comply with the appropriate legal requirements and obligations.
3. The plaintiff submitted that unless, and until, those matters had been determined, and in a way which was favourable to her, the personal identification details of the group members were wholly irrelevant to the proceedings and any issue in them. Accordingly, the plaintiff submitted, there was no legitimate forensic purpose to be gleaned from the provision of that material.

Defendant's Submissions

1. Without being, as I have said, comprehensive in the recitation of the defendant's submissions, the defendant advanced the following propositions largely in support of two issues. Firstly, that there was a legitimate forensic purpose, and that the provision of the personal identification details now, in advance of the mediation, promoted the overriding purpose contained in s 56 of the CPA, which would enable the efficient, prompt and fair disposition of the proceedings by means of the arranged mediation.
2. In an affidavit of the defendant's solicitor sworn 5 November 2024, the solicitor sets out, in paragraphs 39 to 44, reasons with respect to the conduct of the mediation as to why the personal identification information was necessary. Those paragraphs are in the following form: "39 If the Defendant does not have access to the information sought under the subpoena and notice to produce, it will not be able to check the records held by the NSW Police Force (if any) with respect to searches conducted of group members who have identified themselves to Slater & Gordon for the purposes of the proceeding. 40 Nor will it be able to check, for example, whether there are any group members whose names do not appear on the list of persons searched at music festivals, which the Defendant prepared for the Plaintiff at her request: see paragraph [19] above. 41 That impedes the ability of the Defendant to negotiate a settlement with the Plaintiff, to the extent those negotiations proceed by reference to the facts and circumstances of group members other than the Plaintiff and known only to the Plaintiff's solicitors. 42 The Defendant will not know the extent to which the records held by the NSW Police Force marry up with any facts and circumstances disclosed to Slater & Gordon by group members, to which the Plaintiff's legal advisors may refer during the mediation. 43 As a practical matter, any discussion about liability and quantum is likely to proceed by reference to the group as a whole and not just the Plaintiff's claim. The Plaintiff's claim cannot be discussed in isolation from the group in any event because of the way her exemplary damages case is framed: see paragraph [24] above. 44 The records held by the NSW Police Force may support, contradict, or say nothing about the claims of group members who have identified themselves to Slater & Gordon. The Defendant is currently ignorant of what records it may hold in relation to those group members."
3. In addition, in written submissions filed in advance of the hearing, the defendant identified that the legitimate forensic purpose for the production of the documents now was because it was reasonable for the Court to be satisfied that the material called for "would likely add in the end in some way or another to the evidence in the case".
4. The defendant also submitted that it would be in a position to use the personal identification material to identify further material held in its own records which may be relevant to the proceedings, thereby increasing the likelihood that the evidence in the case would be added to. It submitted that the "undemanding threshold" of apparent relevance was amply met.
5. The defendant's submissions went on to address the relevance of the documents sought to the mediation which is shortly to be conducted. It submitted that in light of the extracts to which I have earlier drawn attention in the defendant's solicitor's affidavit, the production sought would facilitate a rational and well-informed discussion of liability and quantum with respect to the entire group.
6. Submissions were made that the material called for would allow some quality assessment to be done, i.e., it could be used to address any risk that the defendant's conception of the group may be over-inclusive because its records show only that strip searches have been conducted rather than those alleged to be unlawful, and it may demonstrate that the defendant's conception of the group is under-inclusive because it is possible that an incident was not recorded in the police database as a strip search or as a search at all. It submitted that without the information the chances of success at a mediation would be significantly diminished.
7. Further submissions were made that the approach by the plaintiff and her lawyers was at odds with the provisions of s 56 to s 58 of the CPA, and the modern approach to case management, including early resolution.

Discernment

1. In my view, the orders sought in the Notice of Motion should be made. My short and concise expression of the reasons for that course is this.
2. As far as the hearing of the proceedings which is to take place in May 2025 is concerned, the hearing of the common questions, the nature of the issues to be established by the plaintiff and the determination of answers to the common questions do not require any identification of the individual group members.
3. The common questions which are asked, and which may impact on a group member's claim, have been specifically phrased to ask questions not about whether a particular group member has or has not established their entitlement to damages, but rather, to determine whether the conduct of the police in doing certain things which are identified was contrary to the legislation, and whether defences advanced by the defendant, such as those pursuant to specific legislative provisions, are viable defences, whether the provisions of legislation preclude the award of aggravated or exemplary damages, and whether certain features of conduct are relevant to an assessment of aggravated or exemplary damages. The answers to those common questions will not be advanced by knowledge of the identity of group members.
4. The particular nature of representative proceedings involves the concept that group members, whether they are registered or not, do not participate in any proactive way, speaking generally, at a first hearing of the representative proceedings. Of course, it is entirely possible that a group member would give evidence if asked to do so, however, their claim is not ordinarily submitted for resolution at that time and, in this case, no such claims are submitted. The notion of representative proceedings involves group members remaining passive in the conduct of the litigation.
5. Accordingly, I can see no legitimate forensic purpose for the personal identification details to be provided for the purpose of the litigation of the first hearing of the proceedings, and the determination by the Court of the common questions.
6. Whether, after the first hearing, and determination of the common questions occur, there is then a legitimate forensic purpose for a subpoena to obtain this material must necessarily depend on what happens in the future, and what issues the Court is then embarked on determining.
7. The second part of the basis for the issuing of the Subpoena and Notice to Produce is the relevance of the information so as to enable the defendant to examine its position in advance of, and for the purpose of, the mediation. It is clear that what the defendant wishes to do with the information, should it be obtained, is to confirm by reference to its records such matters as whether one or more of the registered group members is recorded in their records as having been subject to a strip search. It also wants to identify whether a registered group member may have had previous interactions with members of the police, which may be relevant, in its submission, to the proper value of that claim. As well, it seeks to in effect do a quality audit on the group members so that it can formulate its view as to the likely size of any ultimate action and the likely success of some or all of the individual claims, and thereby fully inform itself so that a proper settlement can be entered into.
8. It is the nature of representative actions that both the plaintiff and her advisers and the defendant and its advisers will be faced with uncertainty regarding the size of the potential class. Whilst in some cases that will not loom large, in cases such as this, it is inevitable that there will be uncertainty.
9. First, the plaintiff has pleaded a large class, namely, all people subject to a strip search, as has been defined, across a number of music festivals, which have been defined. Secondly, the numbers (5,200 or thereabouts) of those whom the police records note as being subject to a strip search in the relevant period and at the relevant music festivals, is a large and necessarily imprecise number. Information which is put into police records is only as good as the person putting the information in, and in the case of police records, that could be a very large number of individual police officers. Thirdly, the numbers registered with the plaintiff's solicitors are obviously less than the full potential class. Not every person can be expected to register at this stage of the proceedings. In due course, orders can be made limiting the class, but the time for that has not yet arrived.
10. It is necessarily a matter for the judgment of the plaintiff's lawyers and the defendant's lawyers, each together with their clients, to make an assessment, informed by as many factors as they can gather, of the size of the class, the likelihood of success of the class as a whole, or alternatively, in cases where individual tort claims are raised, the percentage of successful claims, and to consider all of those matters when negotiating a resolution. Indeed, it is the uncertainty with which both parties are confronted which leads to, and has led in the Court's experience, to a range of techniques being adopted to enable resolution of the group member claims, which include provision for, perhaps, a matrix of damages by reference to integers which may or may not increase or lessen the value of damages, agreements being reached as to an aggregate sum for an identified number of claimants and with conditions being added in the event that either party overestimates or underestimates the number of members within a group.
11. All of these very different arrangements which the Court sees when being asked to approve settlements, involve assessments of the parties' own information as to what has occurred, their own assessments of the likelihood of success or otherwise, and any other factors which may exist which point towards a resolution. Often, as is well known, those factors may or may not be directly related to the risk of winning or losing the case. It may be important for people to resolve proceedings, for one reason or another.
12. I am wholly unpersuaded that the provision of names to the defendant, to be used in the way outlined in the earlier material, would have any significant impact on the conduct of this mediation. The checking of those who are registered group members can be done with reference to the anonymised information. Whether or not the individual has previously been searched or come to the attention of the police seems to me to be of very little, if any, relevance whatsoever to the assessment of damages for conduct which is said to have occurred.
13. It is true that the checking of records to compare the registered group members with the police records may indicate that the police records are in some way deficient, or alternatively, it may simply indicate that there will be an issue about whether one group member or another was ever searched or strip searched, but that is not going to make, in my assessment, any material difference to the way in which the mediation is to be conducted.
14. I have preferred to examine the question of relevance in the context of an assumption that a legitimate forensic purpose for the issue of the Subpoena or Notice to Produce can be established by relation to the existence of the mediation and any issues which may arise in the mediation.
15. I prefer at this stage of this proceeding to express no clear and formed view about that, but it is sufficient to say that I don't regard it as an unarguable question but the resolution of it can remain for a different time, because I am not satisfied that the information sought would add in any way materially to the information relevant to the determination of the proceedings through the alternative dispute resolution method of a mediation.

Orders

1. In all of those circumstances, I have formed the view that there is no legitimate or other proper purpose for the Subpoena and Notice to Produce and, accordingly, I make the following orders: 1. Order that the Subpoena served by the defendant on the plaintiff on 18 October 2024 be set aside. 2. Order that the Notice to Produce served by the defendant on the plaintiff dated 18 October 2024 be set aside. 3. Order the defendant pay the plaintiff's costs of and incidental to the Notice of Motion filed 31 October 2024.

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: 26 November 2024