SCOTT v JONES & ANOR

v PARTIES : ALAN JONES (First Defendant)

RADIO 2UE SYDNEY PTY LTD (Second Defendant) FILE NUMBER(S) : SC 20883 OF 2001 P Singleton (Commissioner of Police)

COUNSEL : T Blackburn (Defendants)

I V Knight (Commissioner of Police) SOLICITORS : Corrs Chambers Westgarth (Defendants)

• 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUDGMENT (Subpoena to produce documents - legitimate forensic purpose - subpoena issued before s7A trial under Defamation Act 1974) 1 The plaintiff sues the defendants in respect of two broadcasts. In the first programme she is not named and relies upon the following extrinsic facts:

1. The plaintiff was a very senior police officer.
2. The plaintiff was a member of GREAT panels.
3. The plaintiff was one of the police service's highest ranking officers.
4. The plaintiff was a person promoted during the years when Mr Ryan was the Commissioner for Police.
5. The plaintiff earned a high salary.
6. The plaintiff was a Commander.
7. The plaintiff worked at Police Headquarters.
8. The plaintiff was the only person who had all of the qualities detailed above. 2 A trial pursuant to s7A of the Defamation Act 1974 has not taken place. I add that it appears from the court file that the defendants have not filed a defence in respect of those issues with which the jury will be concerned, in this case especially in relation to the first programme, the issue of identification. 3 The Commissioner for Police by notice of motion filed on 8 April 2002 moves to set aside a subpoena served upon him calling for the production of certain documents in accordance with the schedule to the subpoena. That schedule is in the following terms: "All documents including, but not limited to, files, records, notes, memoranda, correspondence, minutes of meetings and other documents in your possession and power or control relating to the following matters:
9. The internal police investigation conducted as to why Ms Scott completed a "P16" indemnity form on 18 January 1990 during investigations into paedophile Robert "Dolly" Dunn.
10. The complaints made on behalf of Nick Bingham to the Police Integrity Commission, the Ombudsman and to Internal Affairs in 1998 in relation to his attempt to appeal G.R.E.A.T. over a promotions decision.
11. Complaints made by any police officers (including Chief Inspector Frank McGoldrick, Inspector Carolyn Smith and a senior unsworn officer, Michael Murphy) about Ms Scott to the then Commander of Police Internal Affairs Geoff Schuberg, which complaints were, amongst others, taken to the chairman of the Police Board by Acting Commissioner Taylor in mid 1996.
12. The internal affairs investigation initiated after an incident at the Cave nightclub in 2001 involving two female police officers, subsequent to which the two officers were issued with loss of confidence notices and any further disciplinary procedures that have been undertaken in relation to this incident.
13. The internal police investigation conducted after a highway patrol officer stopped Ms Lola Scott for speeding in the Nyngan area in 1997 and the subsequent process by which Ms Scott was issued with a caution notice.
14. The investigation supervised by Internal Affairs chief Mal Brammer into allegations involving Ms Scott, where written submissions were taken from senior staff.
15. Minutes of a meeting between Peter Ryan and Ms Scott on 12 October 2000 in relation to a series of complaints from police about her management style, after which Ms Scott took leave from the NSW Police Force on 13 October 2000.
16. Ms Scott's promotion to the rank of Commander in the NSW Police Service and any decisions relating to Ms Scott's remuneration for this position.
17. The job description and list of duties to be performed by the Head of Strategic Services.
18. The decision to allow Ms Scott to undertake training at Bramshill, the National Police Training College in the United Kingdom.
19. The decision made to order back to work Constable Ruben Sackey who was involved in a stake-out on 5 September 2000". 4 The affidavit in support of the motion is that of Craig Jeffrey Capper sworn 13 June 2002. The deponent is a Sergeant of Police and is the Co-ordinator of the Subpoena Section of Court and Legal Services within the NSW Police. In paragraph 3 of his affidavit he makes reference only to paragraph 6 of the schedule to the subpoena and states: "Whilst the paragraph is open to more than one interpretation, I have been able to identify more than one investigation falling within the description contained in that paragraph". 5 The motion was heard before me on 6 August 2002 and 4 November 2002. On the latter occasion I received a bundle of correspondence between the defendants' solicitors and the Crown Solicitor (appearing for the Commissioner) which contained a document described as a schedule purporting to set out bases of legitimate forensic purpose in relation to the subpoena. A revised version of that schedule was subsequently supplied to me on 7 November 2002. Within that bundle of documents is a letter dated 31 July 2002 (that is, before the first hearing date of the motion) in which the defendants purport to clarify the matters to which the schedule to the subpoena refers. 6 The Commissioner moves to seek to have the subpoena set aside essentially on two bases: first, that there is no legitimate forensic purpose in its issue and second, that it is unacceptably lacking in particularity and is thereby oppressive. 7 Further, as I understand it, in the event that the integrity of the subpoena is upheld, the Commissioner will then seek to advance what are presently inchoate claims of public interest immunity. 8 The context in which the issues raised by the motion are to be resolved is unusual by reason of the setting being a defamation action in which there has taken place no trial pursuant to s7A. In the usual course of events, such a trial merely disposes of two issues of fact namely whether the matters complained of in fact carry imputations and whether those imputations, if carried, are defamatory of the plaintiff. Additional components can intrude upon the jury's function, as one does in this instance in relation to the first publication, namely the question of identification. The ambit of that issue has been exposed by reference to the extrinsic facts set out above. As at the time of the s7A trial, the Court, and the jury's function, is not concerned with any matter by way of defence apart from those issues going to s7A matters. It is not concerned with issues in relation to reputation, truth, comment, privilege or any other such matter. The issue of truth or falsity of the imputations placed before the jury is irrelevant to their consideration. Whilst it does appear from the statement of claim that the issue of truth or falsity of yet to be found imputations is to be raised by the plaintiff in the context of aggravated damages (Tabe v Amalgamated Television Services Pty Ltd [1987] A Def R 50, 025) it is not presently a justiciable issue. 9 Whilst, internally as it were, the defendants may give consideration to their approach to the conduct of a s7A trial on the basis of information they have as to defences they will have available to assumed found imputations, as far as the Court is concerned that is not an issue in the litigation as presently structured for determination. 10 Indeed, it must be borne in mind, that by reason of the peculiar legislative regime that attends defamation actions, there is a discrete process for the determination of an issue which discloses, or may disclose, whether in fact a plaintiff has a cause of action or not (namely the s7A trial). This, in my view, provides a different, if not unique, matter of focus for the determination of the issues raised by the notice of motion. This is not an instance, like many cases, where the pleadings have closed, the issues have become identified and in anticipation of a hearing subpoenas of a kind under consideration here are brought up for the attention of the Court. The forensic exercise (namely the s7A trial) is detached, focused, discrete, and at this point provides the limited context for the consideration of the issues raised on the motion as I have said. 11 For the Commissioner it was submitted that the distinction between production of documents to the Court (including any application for the setting aside of the subpoena) and later inspection of the documents by the parties must be borne in mind. Reference is made to the decision of the Court of Appeal in Waind v Hill and National Employers' Mutual General Association Ltd [1978] 1 NSWLR 372 and Attorney General for NSW v Stuart [1994] 34 NSWLR 667.It was argued that Waind v Hill concerned the second step only, namely "inspection". Here, the Commissioner is presently objecting to "production" and is seeking to set the subpoena aside and thus Waind v Hill is not authority setting the test to be applied in the present case. 12 Further reference is made to the recent decision of the Court of Appeal in Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 (20 May 2002). 13 The appeal was concerned with the refusal of an order in the District Court in a civil action to set aside a subpoena. In the course of delivering judgment for the Court Brownie AJA said: "[20] Next, the claimant contended that the subpoena lacked a legitimate forensic purpose. Once again, it is plain beyond argument that, if documents are produced on subpoena, and objection is taken to their being inspected, inspection should not be permitted unless and until the party who procured the issue of the subpoena identifies a legitimate forensic purpose. In that context it is said that a party is not entitled to go on a fishing expedition, nor should the court do so: Small at 575; R v Saleam (1989) 16 NSWLR 14 at 17-18; and Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681. See too Air Canada v Secretary for State for Trade [1983] 2 AC 394 at 439 and 453 and Alister v The Queen (1984) 154 CLR 404 at 414. [21] However, it is not necessary for the recipient of a subpoena to actually produce the documents to the court, and then to argue that inspection should not be permitted. The respondent may instead move to set aside the subpoena: Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498". 14 It was contended that there is a rule in civil cases that the party issuing the subpoena bears "the onus" of demonstrating that the subpoena has a legitimate forensic purpose and of doing so with precision. In support of this proposition reliance is placed upon decisions in two criminal cases. The first is Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498 where Barr AJ (as his Honour then was) said (at 504): "It is the duty of the Court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought and to refuse access unless such an identification is made".

The Commissioner also relied upon what is referred to by Barr AJ citing R v Saleam (No 1) (1989) 16 NSWLR 14 at 18C. The contention, it was said, has been reinforced in Tuxford at paragraph [22]. 15 What are said to be important of judgments of the Court dealing with objections to subpoenas in civil cases are: Carroll v Attorney-General (1994) 74 A Crim R 162 where at 181-2 Mahoney AP said: "[It] is not the right of a party to litigation, merely by subpoenaing documents from a third party, to achieve inspection of them. As I have said, the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a "fishing expedition", to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding. …

But mere relevance is not enough: thus, it is not enough for the party to show only and without more that the document plainly shows and shows only that his case cannot be made out. It is not enough for the party to say: "The documents are relevant in the sense that prima facie they establish the case against me: therefore I am entitled to see them and to tender them". In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case…He must be able to indicate that the document is relevant in the sense that it may assist his case…He must be able to indicate that the document is relevant in the sense that it may assist his case. That, in my opinion, is not sufficient".

A further reference is made to Tuxford and the observations Brownie AJA made in relation to one paragraph of the subject subpoena at [26]-[27]: "[26] One can readily visualise that some documents which might accurately be described as briefing papers relating to the investigation mentioned might throw some light on the issues raised by the pleadings, but the opponents need to go further.

[27] In the language of Jordan CJ in Small at 575, the opponents were not entitled to procure the issue of the subpoena for the purpose of fishing, that is, endeavouring not to obtain evidence to support their case, but to discover whether they had a case at all, or to discover the nature of the case of the defendant. In the language of Lord Wilberforce in Air Canada at 439 there must be something beyond speculation, some common ground for belief that takes the case beyond a mere fishing expedition". 16 Ultimately, it was submitted, it is now the law in New South Wales that where objection is taken to a subpoena in a civil case that the subpoena has no legitimate forensic purpose, the party that issued the subpoena must demonstrate by reference to issues in the case what is that legitimate forensic purpose and demonstrate that there are concrete, reasonable or definite grounds for believing that the documentation sought would materially assist the case of the party "seeking access": it is to be noted that the reference is to "seeking access", something that occurs after "production" (cf R v Saleam (No 2) (1999) NSWCCA 86 at [11]). 17 Relying upon what was said in Tuxford at [29] and Saleam (No 1) at 17 A-C it is contended that the party issuing the subpoena must establish that the subpoena, as it is drafted, has a legitimate forensic purpose. It is not sufficient that because the subpoena is so widely drawn, that the material caught by a subpoena will include relevant and material useful documents. 18 For the Commissioner attention was then paid by way of example to the first paragraph in the schedule. 19 For the defendants issue was joined on the submissions as to the law on behalf of the Commissioner. It was contended that they are based on a misapprehension of what was decided in such cases as Saleam (No 1) and Tastan. Importantly, however, the defendants assert that they are in a position to demonstrate a proper purpose in any event. 20 For the defendants it was contended that the "rule" for which the Commissioner contends is that the third party recipient of any subpoena merely has to announce an objection to the subpoena without more "to shift the onus" of demonstrating legitimate forensic purpose to the issuing party. It is said that is no authority for such a proposition. With that contention I find myself in agreement, namely, that there is no precise authority. 21 The defendants however go on to argue that it is contrary to Waind v Hill and that I had rejected that argument in Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 215. 22 Waind v Hill, it is argued, sets out clearly the relevant law in relation to the procedure in responding to and objecting to a subpoena. There are in essence two initial steps in response to a subpoena: the production of documents to the Court and the order for inspection. If the documents are produced then an order for inspection is made, the documents may, subject to admissibility, be tendered in evidence (the third step). It is to be borne in mind that here the Court is concerned with the first step, namely production. 23 It was argued that a party who wishes to set aside a subpoena, except in special circumstances, must move the Court in the usual way and establish grounds for the relief sought. This may or may not involve evidence on the application. The onus is on the applicant to set the subpoena aside as the moving party. 24 Saleam was a case in which a person convicted of offences relating to receiving stolen property and fraudulently obtaining money, in the course of his appeal against those convictions issued a subpoena to the Commissioner of Police. Hunt J noted (at 16D): "The subpoena sought the production of every document relating to the investigation and prosecution of the offences with which the appellant and a co-accused had been charged, together with the reports of any investigation into allegations of perjury committed by the principle crown witness in the committal proceedings and at trial". The subpoena was patently defective on its face; it was absurdly "widely drawn" . There could be no legitimate forensic purpose in having produced any of the documents "after" the trial had taken place and on the appeal. There was not even any ground of appeal to which the documents could possibly relate and the subpoena gave every appearance of a fishing expedition. At 17E his Honour noted that being a criminal case it was more appropriate to adopt a more liberal approach to such a subpoena. His Honour referred to what Brennan J said in Alister v The Queen (1984) 154 CLR 404 at 455-456 and drew attention to the peculiar circumstances where a claim for public interest immunity has in fact been made and thereupon the issue of legitimate forensic purpose arises. Saleam itself is not a case involving public interest immunity however at 17 F his Honour said: "In my view, such an approach is relevant also in determining whether there is a legitimate forensic purpose in having the documents produced at any stage of the criminal process whether or not a claim of such immunity (or any other kind of privilege) is made". 25 What was then argued is that what Hunt J said in Saleam was appropriate in criminal matters: when a subpoena is plainly vexatious, it is appropriate to adopt a somewhat more liberal attitude than if such a subpoena were issued in civil proceedings. In the criminal context, rather than set aside the subpoena as being prima facie improper, the party issuing the subpoena is required to identify a proper forensic purpose in the same manner as is involved in the face of a claim of public interest immunity. 26 What the defendants then contended was: to extrapolate from this a general principle that any subpoena issued to a third party, in any proceedings, civil or criminal, and on its face regular, involves some shifting onus upon the recipient merely indicating some ill-defined objection, is not a principle for which Saleam or any other case stands. At 18C Hunt J concluded: "In my view, when a trial judge is faced with a subpoena of this kind, he should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such identification has been made. Sometimes that purpose will not become apparent (even to counsel for the accused who had advised the issue of the subpoena) until the trial has been under way for some time (cf Waind v Hill [1978] 1 NSWLR 372 at 385), and the judge's initial refusal to permit inspection should always be open to review". 27 It was argued that there is no warrant for suggesting that Saleam's case stands for the proposition advanced by the Commissioner to the effect that any subpoena issued to a third party in civil proceedings is the subject of some broader shifting onus merely by the statement made on behalf of the recipient that there is no legitimate forensic purpose. 28 It was further argued that the statement by Barr AJ cited above in Tastan is unexceptional in the context of a prima facie vexatious subpoena issued in a criminal matter. 29 Thus isolating criminal matters per se, and cases in which the issue of public interest immunity arises, attention is given to the decision of the Court of Appeal in Waind v Hill. At the outset it must be noted that that appeal was from a decision of Carmichael J permitting inspection. It was thus, as the Commissioner rightly says, acutely concerned with the second step. That, however, in my respectful view does not derogate from the unquestioned authority of the decision of that Court (the judgment of Moffit P) as to the respective stages in the subpoena process. 30 At 382 having dealt with an abuse of processes constituted by the issuing of a subpoena in substitution for discovery, his Honour went on to say: "The issue of a subpoena may involve an abuse of the power in other ways and, as stated in Small's case (1938) 38 SR (NSW) 564 at 574) objection to production to the court may be on other grounds. Thus, it would be an improper use of the subpoena if it were not sought for the purpose of the litigation, but for some spurious purpose, such as to inspect the documents in connection with other proceedings, or for some private purpose, or in collusive proceedings to give them publicity. A witness might argue the documents must be sought for some undefined spurious reason, as they have no conceivable relation to the proceedings. The court would jealously consider any of such submissions having regard to the invasion of the private rights of the stranger occasioned by the operation of the subpoena". (382E-F) 31 Thus crystallised, the position for which the defendants contended is that in civil proceedings, it is not open for the third party recipient of a subpoena merely to state that it objects to production (that is, compliance with a peremptory order of the Court) on the basis that the issuing party must show legitimate forensic purpose in the issue of a subpoena otherwise regular on its face. There is no authority one way or another on this point. Such authority as exists both in the criminal sphere and in the civil sphere, in my view does point to circumstances in which a third party recipient of a subpoena (regular on its face) may ask the Court to have the issuing party show sufficiently a basis in terms of legitimate forensic purpose to warrant the enforcement at the production stage of the peremptory order of the Court. The reality of modern litigation is that the third party recipient (whilst taking no objection as to the form of the subpoena) would have no information as to why it is that the affairs of that party have been intruded upon by the peremptory order of the Court for the production of documents in an action to which it is a stranger. 32 Whilst the general principles states by Moffitt P in Waind v Hill are unchallengeable in their correctness as a matter of law, it does seem especially from the judgment of Brownie AJA in Tuxford (noting his adoption of the statement Barr AJ - in a criminal case - cited above), that the third party recipient of a subpoena in civil actions can take that objection, or "position" in relation to legitimate forensic purpose. 33 It is not an objection or position that the Court should permit to be taken lightly in the absence of any other flaw in the subpoena as a document not least by reason of the potential for mischief in the interference in the administration of justice in terms of the litigation between the actual parties in the course of which the subpoena has been issued. 34 In the instant case, leaving aside the want of particularity also relied upon by the Commissioner, the assertion by the defendants that in any event they can satisfy the requirement of legitimate forensic purpose, must be considered. 35 I have outlined above the peculiar nature attending the issues for resolution in a s7A trial under the Defamation Act 1974. 36 The schedule to which I have referred provided by the defendants in relation to the subpoena for production does not satisfy me of the existence, at this stage, in this kind of litigation of the forensic purpose. The best that the defendants can do in relation to clause 2 in the schedule is to relate it to extrinsic fact 2, namely that the plaintiff was a member of GREAT. In relation to clause 8 of the schedule the defendants seek to relate this to extrinsic facts 1,3, 4, 5, 6 and 7. The material sought to be produced to the Court under the subpoena otherwise cannot be warranted by reference either to the imputations that are to be the subject of consideration of the jury (and in the absence of the consideration of truth or falsity) or merely by reference in the matters complained of to the subject matters in a generalised way of the respective clauses in the schedule. 37 Thus at this point, holding that the third party recipient the Commissioner is entitled to raise the issue of legitimate forensic purpose (absent any attack otherwise on the subpoena), the defendants, having taken up the challenge, have failed to satisfy me that such a purpose exists at this point in the proceedings. 38 The issue of the subpoena therefore constitutes an abuse of process of the Court. 39 As to the second leg of the Commissioner's arguments relating to want of particularity and clarity, there is no need for me formally to decide that issue. I must say however, that by way of example, clause 6 of the schedule appears oppressive. Equally must I say that the affidavit of Mr Capper discloses little, if anything at all, that could found a finding of oppression on the basis of his evidence in that affidavit. I was otherwise addressed from the bar table about various aspects of various components of the schedule and asserted deficiencies in them; those statements were persuasive but should more properly be the subject of evidence in pursuit of a motion to set aside a subpoena as oppressive. In that regard, clearly the recipient of the subpoena bears the onus that must be discharged on a sound and principled basis. 40 I add that in the course of submissions for the defendants, it was sought to justify the preamble to the schedule to the subpoena on the basis of it being "customary" or almost an everyday matter in the issue of subpoenas. As counsel for the Commissioner rightly pointed out, after the words "all documents" it is arguable that the balance of the preamble is superfluous. 41 No doubt the defendants will give consideration to exercising their rights further to issue a subpoena even prior to the s7A trial. However I cannot help but observe that the general nature of the materials referred to in the schedule on their face point to matters in respect of which a legitimate forensic purpose may well exist after the s7A trial, if that trial determines that the plaintiff has any causes of action against them at all.

1. I make order I in the notice of motion setting aside the subpoena.
2. I order the defendants to pay the Commissioner's costs.

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