Before the Court is a Notice of Motion filed on 5 October 2023 by Mrs Lesley Lloyd seeking a review of a decision of a Registrar of this Court at Bega of 7 September 2023, and further orders that the decision be set aside and that access be given to Mrs Lloyd, the daughter of the late Clare Margaret Nowland, and the sister of the executor plaintiff, Michael John Nowland, to body‑worn camera footage of police officers, which was taken on 17 May 2023, during their attendance at Yallambee Lodge, 1 Binalong Street, Cooma, in New South Wales.
In the proceedings, a Statement of Claim was filed on 19 May 2023 by Clare Margaret Nowland ("the Deceased"), seeking damages in tort for trespass of the person and in battery and in negligence.
Following the unfortunate death of Mrs Nowland on 24 May 2023, an Amended Statement of Claim was brought by Michael John Nowland, seeking various relief on behalf of the Estate of the Deceased.
The background to the decision in question is set out in the affidavit of Arabella Paris Jorgensen‑Hull dated 5 October 2023, which was read on the application.
There was correspondence between the solicitors for the parties seeking provision of a copy of the film footage, pursuant to a subpoena addressed to the Commissioner of the New South Wales Police. Access to the film footage was restricted by a copy being provided to the plaintiff's legal representatives and consent to review‑only access to the footage for Mr Nowland, the executor. It seems that orders were actually made by the court not consistent with the consent, which was provided on behalf of the defendant. In those orders, access was only given to the lawyers, and not to Mr Nowland. There is no issue, in the light of the correspondence, that orders should be varied to allow the executor, Mr Nowland, to have the review‑only access of the footage.
The present application is made by Mrs Lloyd who is not a party to the civil proceedings. The purposes of the access sought are set out in the evidence and in the application that was made for access to Mrs Lloyd. In essence, the background is given that Mrs Lloyd is the daughter of the Deceased, is the sister of the plaintiff, Mr Michael Nowland, and was previously the duly appointed power of attorney for the Deceased, spent significant amounts of time with the Deceased, including making observations about her behaviour, demeanour and health and wishes to provide support to the executor, particularly when he reviews the footage of the incident. As the matter has developed, it seems clear that a purpose for access is to provide instructions of the observations of Mrs Lloyd of the Deceased in the period prior to her death and before the incident in question.
In evidence is the application which provides the reasons for requesting the leave. That includes, in paragraph 3(a):
"to … assist the Executor of the Estate [of the Deceased] to provide instructions to the plaintiff's solicitors in relation to issues in these ongoing civil proceedings, including [the Deceased's] capacity, presentation and actions during the subject incident."
I read that as providing instructions of a comparative position to the period immediately prior to the incident in terms of the Deceased's day‑to‑day presentation. I will not set out in these reasons the detail of the application and the reasons for rejection, but they should be considered in detail.
The Registrar, on 7 September 2023, refused to provide an order for access by Mrs Lloyd to the subpoenaed material based on the fact that the Deceased was the current plaintiff; that it was expected that the plaintiff would change due to the death of the plaintiff; that the lawyer for the family already had access to material; it was "early days in the proceedings and the matter was not close to conclusion"; there were actions in two other jurisdictions which may allow for the family to view the subpoenaed material; and the Court, which I understand to be the Court at Bega, did not have "the resources to allow for private viewings of the material".
An application for review was made. The Registrar referred the applicant to Part 49.20 of the Uniform Civil Procedure Rules 2005, hence the reason for the current application.
Part 49.19 ‑ .20 of the Uniform Civil Procedures Rules 2005 is as follows:
"49.19 Review of registrar's directions, certificates, orders, decisions and other acts
(1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit.
(2) An application may not be made in relation to the following -
(a) Decision to waive, postpone or remit fees
a decision to make, or not to make, an order under clause 11(1) of the Civil Procedure Regulation 2017, except as provided by clauses 14 and 19 of the Guidelines for the Waiver, Remission and Postponement of Fees, published by the Attorney General,
(b) Particular winding up order
an order to which Part 80A rule 21(1) of the Supreme Court Rules 1970 applies,
(c) Winding up order made under Corporations Act
an order to which rule 16.1 of the Supreme Court (Corporations) Rules 1999 applies,
(d) Mutual recognition
a direction, certificate, order, decision or other act of a registrar in relation to the functions of the Court under the Mutual Recognition Act 1992 of the Commonwealth or the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth.
49.20 Applications generally
(1) An application for review of a decision of a registrar is to be instituted by filing a notice of motion.
(2) The notice of motion must be filed within 28 days after the material date.
(3) The registrar may extend time under subrule (2) within 28 days after the material date, or on a notice of motion filed within 28 days after the material date, and not otherwise.
(4) The court may extend time under subrule (2) at any time.
(5) For the purposes of this rule, the material date is the date of the direction, certificate, order, decision or other act to be reviewed.
(6) (Repealed)."
On the last occasion the matter was before the Court, an adjournment was sought by the defendant in order for further instructions to be obtained. The matter came on for hearing before me today. Mr Tierney of counsel appears for the applicant, and Mr Perla of counsel appears for the defendant.
The State of New South Wales read on the application the affidavit of James Francis Clohesy dated 26 October 2023. In summary, the defendant opposes the application for non-party access. The position of the State of New South Wales and the Commissioner of Police is set out in paragraph 31 of Mr Clohesy's affidavit.
It is noted that:
1. The body‑worn film footage has not been disclosed in proceedings in open court;
2. It has not entered the public domain;
3. The applicant, Mrs Lloyd, has not provided a statement to police in relation to the criminal prosecution of one of the police officers, Constable Kristian White;
4. Having regard to Mrs Lloyd's relationship with the late Mrs Nowland, that there is the potential, which is described as a "real potential", for Mrs Lloyd to be a witness in the criminal prosecution; and
5. There may be a possible contamination if the viewing occurs that could affect the fairness of the trial of Constable White. Paragraph 31 of Mr Clohesy's affidavit should be considered in any review of these reasons in some detail.
In support of the opposition, Mr Perla provided the Court with helpful written submissions dated 26 October 2023, which set out the reasons for the opposition.
Mr Tierney, on behalf of the applicant, indicated that although he did not concede that a House v The King error needed to be made in relation to the Registrar's decision that, in any case, he submitted there were a number of legal errors in the decision, which he outlined in some detail, including that there was a failure to take into account relevant considerations and a taking into account of irrelevant considerations.
Mr Perla's submissions helpfully provide the background to the matter and refer to the legal principles applicable. They submit that the application should not succeed, having regard to the concern in relation to the criminal trial and also that exceptional circumstances have not been established by the applicant to support the access sought. It is also submitted, for the reasons given, that the Court should not find that there was substantive error in the Registrar's decision. Emphasis was placed on the desirability of ensuring a fair trial. In particular, it was submitted that the references to the desire of Mrs Lloyd to support her brother gave rise to the potential for prejudice, but it was not contested that there was a clear understandable desirability of Mrs Lloyd to see the footage and to provide support to the executor and her family, as a senior member of the family. I point also to a number of matters which were stated by Mr Perla from the bar table, and they are that the charges were brought against the officer in question in May 2023, and it is understood that no statement has yet been taken from Mrs Lloyd. Mr Tierney indicated that Mrs Lloyd was willing to cooperate in providing a statement to the police, provided her solicitors were also present.
I refer to the principles which Mr Perla sets out in relation to the review of a registrar's decision in paragraph 10 of his written submissions arising from the decision of Dhanji J in Endemi v Ginman (No 3) [2023] NSWSC 395 at [17], following earlier comments by Hallan AsJ, as his Honour then was, in Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39].
In considering the application, I also take into account the statements of principle in the follow cases:
1. Tomko v Palasty (No 2) [2007] 71 NSWLR 61; [2007] NSWCA 369 at [4]-[10], in relation to the principles to be applied in reviewing a decision of a registrar;
2. Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11 at paragraph 17 to 19, where his Honour Hodgson JA, who was a member of the Court of Appeal in Tomko, indicated that he adhered to what he said in Tomko. In paragraph 18, his Honour said:
"18 Thus in my view a review of a decision of a Registrar is not an appeal, and in such a review a court must exercise its own discretion. This discretion extends to a discretion as to whether and if so how to intervene, and there is an onus on a person seeking to have a court set aside or vary a Registrar's decision to make out a case that the court in the interests of justice should exercise its discretion to do so."
His Honour continued:
"19 In a case of a decision on practice or procedure, this will normally require at least a demonstration of error of law or an error of the kind referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499, or a material change of circumstances or evidence satisfying the requirements of fresh evidence."
1. In Sebie v Krejci (No 3) [2023] NSWCA 221, Gleeson JA and Basten AJA also considered the principles in paragraphs 15 to 16. Their Honours referred to Tomko v Palasty (No 2) and indicated that:
"15. … In summary, a review of a decision of the Registrar is not an appeal and in such a review, the Court must exercise its own discretion. This discretion extends to a discretion as to whether and, if so, how to intervene."
It was confirmed by the Court of Appeal, relying on Dae Boong, that the onus is on the applicant seeking to have the court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so. And it was repeated that, with respect to a decision on practice and procedure, this will normally require a House v The King error.
In my view, the application in the present case was made by the applicant to the Registrar at Bega. The applicant was the only party involved in the application. Mr Perla points out that notice was not given to the defendant in relation to the application, and that appears to be correct. However, it is, in my view, being an application which was not contested, not of the type of application being one of practice and procedure as referred to in the appellate authorities, where there is a consideration of both sides of the arguments and a considered determination. I accept that if the State was notified, it may have put on submissions contesting the application. But I am faced here with a review of the Registrar's decision. In my view, an error of the House v The King type does not have to be established in such circumstances.
If I am in error in that decision, and an error of the House v The King type needs to be established, then I continue to consider the review.
In House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ set out the principles to be applied at pages 504 to 505 as follows:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."
Thus, an error of the House v The King type will be held to have occurred in the following circumstances:
1. If the judge acts upon a wrong principle;
2. If he allows extraneous or irrelevant matters to guide or affect him;
3. If he mistakes, and if he does not take into account some material consideration.
In those circumstances, the judge's determination should be reviewed, and the appellate court may exercise its own discretion in substitution for the judge if it has the materials for doing so.
The question, therefore, turns to the position of the Registrar in the decision under review if I am in error in relation to the view that I consider that a House v The King error does not need to be established.
Turning to matters that the Registrar refers to in the decision, the first reason is that it was a District Court civil file currently between the Deceased and the State of New South Wales. That is correct. The second reason is that it is expected that the plaintiff will change due to the death of the Deceased. Mr Tierney criticised that but, to me, it appears to be a fair matter to infer, as if the proceedings are to continue, there must be a legal representative for the Estate. The third reason referred to is the lawyer for the family already has access. While that is correct, that appears to me to fail to take into account that the lawyers for the family require instructions from a party, and also will need to obtain evidence for the purpose of any proceedings. The fact that the lawyer for the family already has access, to me, whilst correct, fails to take into account the relevant matters which I have indicated.
The fourth reason is that it is "early days in the proceedings", and the matter is not close to conclusion. In my view, while that is correct, it is the very time when it is early in the proceedings, if at all possible, when it is desirable for evidence to be accumulated while is it fresh in the minds of the witnesses involved. In that regard, I refer to the recent decision of Nixon J in Salmon v Albarran [2023] NSWSC 1238 of 19 October 2023, where his Honour, at paragraphs 24 and following, considers a number of principles relating to evidence, but in particular, his Honour refers in paragraphs 29 and following to the fact that the events in question in that case occurred a long time ago and, in the consideration of the evidence, it was appropriate to take into account the impact of the passage of time on the recollection of witnesses. In my view, where courts take those principles into account, and they, to me, are all both reasonable and correct, the court must assess in any evidence when the evidence was given. If a statement is taken at the time, in my view, that makes it a relevant factor in any argument about the reliability of the evidence in it.
The fourth matter, second appearing, in the Registrar's reasons is there are "actions in two other jurisdictions which may allow for the family to view the subpoena material". There was no evidence before me of what those actions which are referred to. If it is the criminal proceedings, then there is no suggestion that Mrs Lloyd has seen the material in the proceedings. Otherwise, I do not speculate about the other actions.
The last reason given is that this Court does not have the resources for private viewings of the material. I assume that is a reference to the Bega District Court, but, of course, the plaintiff's lawyers have been given access to the material. It is presumed that review‑only access, if given to Mrs Lloyd, could be readily accommodated by the solicitors in question. That relevant matter was not taken into account by the Registrar which, in my view, it should have.
I am, therefore, satisfied that there have been errors by the Registrar by failing to take into account relevant considerations and the taking into account of irrelevant considerations. In summary, they are the taking into account that the lawyer for the family already has access when the Executor and other persons did not; the fact it was "early days" in the proceedings, without taking into account the desirability, wherever possible, to obtain early evidence; and the fact the Court did not have the resources to allow for private viewings of the material, when it was contemplated that access had already been given to the solicitors, and there could be review‑only access provided by them to Mrs Lloyd.
The other matter not taken into account by the Registrar is the potential relevance of Mrs Lloyd's evidence in the proceedings. It is said by Mr Perla that that is not expressly set out in the application but in my view, the reasons being to assist the Executor to provide instructions must be also to provide potential evidence, which would allow the executor to give instructions to the lawyers in question.
I am, therefore, satisfied, for the reasons I have given, that there was a House v The King error by the Registrar. The question, then, arises of exercising the discretion of the Court. In my view, the error having been established, with the onus having been satisfied by the applicant, I need to take into account a number of significant matters in considering the application and in deciding what to do.
The first matter is the very important principle which is central to our system of justice of ensuring that an accused has a fair trial in a criminal matter. The evidence shows that one of the police officers in question has been charged in criminal proceedings, and all reasonable steps must be taken to ensure that there is a fair trial and that any reasonable potential for contamination of evidence is avoided. I take into account the matters which are referred in the affidavit of Mr Clohesy in paragraph 31. In particular, I give weight to the fact that the views are expressed by a Detective Chief Inspector who, by that rank, would be a person of experience. I also take into account the comments of Mr Clohesy in paragraph 32, having regard to his experience in the context of concurrent civil and criminal proceedings which are referred to.
The next matter I take into account is the desirability, which I have referred to, of obtaining evidence when it is fresh in the mind of potential witnesses. This is a matter which is referred in paragraph 31 of Mr Clohesy's affidavit in the context of Ms Lloyd being a potential witness in the criminal proceedings, but also the desirability of obtaining evidence for the civil proceedings while it is fresh in the mind of Mrs Lloyd, and it can be recorded. Delay in justice can sometimes lead to issues about the reliability or value of evidence, and in my view, that is a factor to be taken in account. However, while it is relevant, in my view, it has to be carefully balanced with the first factor, which I have indicated.
The other factors to be taken into account, according to Mr Tierney who appears for the applicant, is Mrs Lloyd's position in the family, her prior role as power of attorney and her relationship with both the Deceased and with the executor. In my view, they are matters to be taken into account, and Mr Perla did not submit that they were not factually correct. However, he emphasised that they are matters which could potentially affect the contamination of the evidence.
Any comments I now make are given with the absolute greatest respect to the positions of the Deceased, Mrs Lloyd and the executor. Obviously, one completely understands their desirability of seeking a review of the footage in question and of Mrs Lloyd's desirability of providing support to her brother, the executor. There is also a natural desire to see the account in the footage. I interpose that the Amended Statement of Claim appears to have been drafted with the footage in mind, as there are extensive quotations in it. All of those matters are highly important to the persons in question. They are, in my view, however, of lesser importance to the legal question which I must face of the balancing of all of the factors in the present case.
Having taken into account the submissions on behalf of the parties, the written submissions of Mr Perla, the oral submissions which have been made today and the affidavit evidence, in my view, some access should be given to the applicant as sought. In making that decision, I take into account the Surveillance Devices Act 2007 (NSW) submissions, which were made by Mr Perla and, in particular, paragraphs 24 to 26 of his submissions. However, in my view, there is a legitimate issue in the present case of obtaining potential evidence for the purpose of assisting in the civil proceedings. Accordingly, taking into account the matters I have indicated, I make the following order, which I will indicate in draft, and I will ask for further submissions:
"In relation to the Notice of Motion filed on 5 October 2023: (1) the decision of the Registrar at Bega of 7 September 2023 to refuse the application for non‑party access to Mrs Lesley Lloyd to have review‑only access to the film footage of the body‑worn cameras of police officers attending the late Mrs Nowland on 17 May 2023 at Yallambee Lodge, 1 Binalong Street, Cooma in the state of New South Wales is set aside, pursuant to Part 49.19 of the Uniform Civil Procedure Rules."
In relation to the nature of the access, I take into account the desirability to give a period of time for a statement to be taken by police from Mrs Lloyd in relation to any matters that may be of relevance in the criminal proceedings. Of course, Mr Perla appears today for the State, but in the affidavit of Mr Clohesy, it is indicated before paragraph 31 that it is the position of the State and the Commissioner to oppose the application.
In my view, a period should be allowed for any statement to be taken by police. I note that no statement has been taken so far, although charges were laid in May 2023. Having regard to that, I propose order 2 to be:
"Upon the undertaking to the Court by Mrs Lesley Lloyd, given through the plaintiff's counsel, not to disseminate the film footage to any other person, apart from the parties to the proceedings and their legal representatives, or to use such film footage without leave in other proceedings, an order is made permitting Mrs Lesley Lloyd from 4 December 2023 to have review‑only access to the film footage referred to in order 1."
There will also need to be an order in relation to a variation to the orders made by the Registrar. So that will be order 3:
"The order made by the Registrar at Bega on 18 August 2023 is varied so that review‑only access is to be granted to the film footage referred to in order 1 to the plaintiff in the proceedings".
That is, obviously, the executor.
[His Honour then dealt with the finalisation of the proposed orders and other issues including costs.]
[3]
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Decision last updated: 20 November 2023
Parties
Applicant/Plaintiff:
MICHAEL JOHN NOWLAND AS EXECUTOR OF THE ESTATE OF THE LATE CLARE MARGARET NOWLAND