SG v New South Wales Crime Commission

Consideration

As earlier stated, when the motions were before the Court for hearing, on 18 December 2020, the Court gave directions, the effect of which was to implement part of the process suggested by the Attorney. While not suggesting consent, there was a degree of consensus to that approach, at least as an initial step.
That direction required the Commission to copy those documents produced by the AFP in answer to the subpoena addressed to him and to produce a redacted version of those documents for inspection by the plaintiff. That production was to have occurred on or before 24 December 2020. The Court has not been informed that there has been any issue associated with compliance with that direction.
It is necessary for the Court to deal with the remaining aspects of the motions before it. One of the issues raised by the grounds addressed by the parties relates to that which is commonly, but incorrectly, called the "implied undertaking" relating to the use of documents produced, on compulsion, in proceedings.
The "implied undertaking" refers to the prohibition, absent leave of the Court, on the disclosure or use of documents produced to the Court as a result of the exercise of compulsive powers otherwise than for the purposes of the conduct of the proceedings. The prohibition is now contained within the provisions of UCPR r 21.7, which is in the following terms: "21.7 DISCOVERED DOCUMENTS NOT TO BE DISCLOSED (1) No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court. (2) Nothing in subrule (1) affects the power of the court to make an order restricting the disclosure or use of any document, whether or not received into evidence, or the operation of any such order."
It has long been the law that information provided by the use of the Court's compulsory processes could only be used and disclosed for the purpose of the proceedings in which that production was compelled. At one point, there was a requirement to obtain an undertaking before access was granted to any such information.
Given the terms of UCPR r 21.7, that undertaking would be unnecessary. However, for many years prior to the promulgation of the current rule it had been established that the law prohibited disclosure, except by leave of the Court.
The term "implied undertaking" was used by the House of Lords. [8] In Hearne v Street, [9] the High Court clarified that the prohibition on the use of material, obtained by the coercive powers of the court in proceedings other than those in which those coercive powers have being exercised, was an aspect of substantive law and the obligation bound not only the parties to proceedings but also a third party who knew the origins of the material.
The High Court [10] clarified that the "undertaking" was described in that way for both historical reasons and to indicate the way in which the obligation, imposed by law, binds the recipient of the documents and highlights the substantive nature of the obligation. [11] A breach of the obligation is a contempt of the court. [12]
In these proceedings, the plaintiff alleges an abuse of process, because the Commission, or its officers, has made it clear that information is being sought, in the proceedings, for the purpose of laying a foundation for criminal proceedings for breach of s 80 of the Act. If that were so, such a prosecution would require the Commission, or its legal representative, to disclose to prosecuting authorities information received on discovery and/or as a result of production on subpoena for use in other proceedings and, without leave of the Court, would be a contempt of the Court.
The underlying principle has been discussed, overwhelmingly, as it relates to documents and information provided as a result of discovery. But the same principles apply to any coercive action which requires a party to reveal information and documents that, otherwise, could be kept private. Thus, the principle applies equally to documents produced on subpoena.
The principle, at least insofar as it relates to separate criminal proceedings, has similarities to the manner in which the courts have dealt with the compulsory examination of persons suspected of committing criminal offences. [13] There are of course significant differences.
In X7, supra, the High Court was concerned with the privilege against self-incrimination and the right to silence. Discovery directed at the plaintiff for the purpose of inculpating JG does not give rise to a privilege against self-incrimination in the plaintiff.
It may well be that, in answer to a subpoena addressed to JG, JG may raise issues associated with the privilege, but that is not an issue raised as a result of an order for discovery compelling the plaintiff to produce documents, some of which may have originated with JG. At this stage, the Court has no application by JG in relation to any subpoena issued compelling him or her to produce documents.
The foregoing discussion informs the attitude of the Court to the objection by the plaintiff to the orders for discovery requested by the Commission, the details of which will be dealt with in the following reasons for judgment.
While the plaintiff does not have open to him a claim for privilege based upon the privilege against self-incrimination associated with alleged criminal conduct by JG, there may be some claim for legal professional privilege and/or the privilege against self-incrimination associated with the conduct of the plaintiff in facilitating, and/or aiding or abetting or procuring, the conduct by JG. No such claim has been, thus far, agitated.
Further, the comment by the Commissioner, to which earlier reference has been made, [14] to the extent that it discloses a purpose or effect that amounts to a detriment to be imposed upon JG or the plaintiff's solicitor on account of the proceedings having been taken in this Court, may, in and of itself, amount to contempt of the Court. [15] The statement by the Commissioner may arguably have or have had a real tendency to interfere in the administration of justice, in that criminal sanctions would be imposed if the plaintiff persisted in asserting the rights alleged in the proceedings before the Court. [16] However, the comment of the Commissioner seemed not to be directed to separate proceedings, whether or not criminal, but to a motion in these proceedings to dismiss summarily on the basis of public policy or illegality.
If the purpose of a notice to produce, subpoena or discovery is to obtain evidence of unlawful conduct by JG, for use in other proceedings, such a purpose would be extraneous to the purposes for which the compulsive powers of the Court may be used in these proceedings and would be an abuse of the proceedings. Nevertheless, if there be a legitimate purpose in obtaining documents that are sought, which documents may also provide evidence of unlawful conduct, then the requirement to produce the documents is not an abuse of process. The Court would, ordinarily, by one or other order, prevent the collateral use of the documents produced.
The next issue with which it is necessary to deal, as a matter of principle, and as a prelude to dealing with the details of each of the motions, is the effect, if any, of s 80 of the Act. It is necessary to give some background.
As stated by the Court earlier, [17] the substantive proceedings allege a contract of employment or contract for services under which the Commission is obliged to pay the plaintiff amounts the plaintiff says are owing pursuant to an obligation to pay for information provided by the plaintiff as a source. The Commission, previously, relied upon the provisions of s 80 of the Act [18] to dismiss the proceedings, in totality, as an abuse of process.
In these proceedings, the Commission relies upon s 80 of the Act in two ways. First, the Commission submits that the information already obtained by the plaintiff has been obtained "illegally", in that it has been obtained inconsistently with the terms of s 80 of the Act. As a consequence, it is said the plaintiff is not entitled to rely upon that material in the proceedings.
Secondly, the Commission relies upon the terms of s 80 of the Act to prevent the Court from requiring the Commission or the AFP from producing to the Court documents or information, or divulging or communicating to the Court that which has come into the possession of the Commission, its officers, or the AFP as a result of the performance of functions under the Act.
First, the Court makes clear that there is no evidence before the Court on which the Court could draw an inference or come to a conclusion that the material obtained, thus far, by the plaintiff, being information or documents provided to the plaintiff by the Commission, was obtained inconsistently with the provisions of s 80 of the Act. The plaintiff is not an executive officer or member of the staff of the Commission.
Nor does the plaintiff fit within any of the classes of persons defined in s 80(1) of the Act. Nor is there evidence before the Court that the plaintiff was a person who was provided information by the Commission on the express requirement that the material was to be treated as confidential. [19]
In relation to the AFP, the functions of the AFP are defined by Commonwealth legislation. The functions of the AFP and/or the Attorney are not functions performed under the Act. As a consequence, the AFP, even if it be a person to whom the provisions of s 80(1) apply, is not performing functions under the Act and, leaving aside the extended operation of s 80(5) of the Act, is not a person caught by the prohibition on a court to produce documents or divulge information, [20] as stated in SG v New South Wales Crime Commission [2016] NSWSC 1615 [21] (hereinafter "the first judgment").
As noted already and determined by the Court, as presently constituted, in the first judgment, properly understood and construed, the terms of s 80 and the limitations on a court's capacity to require production or the divulging of information relate to the special functions of the Commission, not to its corporate functions. As a consequence, unless such information expressly or inferentially relates to the special functions and investigative powers of the Commission, correspondence setting out the terms of engagement of the plaintiff, if there be any, or the work to be performed, would not be subject to limitation.
Having made that comment, it is clear that, when one is dealing with the engagement of a source, there may be significant matters that relate to the special functions of the Commission that would be disclosed as a consequence of the divulging of work performed or to be performed, including, possibly, the modus operandi of the Commission. However, no evidence before the Court discloses any such information or any real possibility of the disclosure of any such information. As was sought to be made clear in the first judgment, such a conclusion may be reached by reference to a particular class of documentation, on the face of that description, or, otherwise, may require the Court to inspect the documentation for the purpose of determining whether s 80 of the Act applies.
That involves a quandary. It is not, however, without a solution. In the absence of evidence which, on its face, discloses material of the kind to which s 80 of the Act applies, there is no limitation on the Court in requiring production to the Court.
Once production has occurred, then the Court may, for the first time, have evidence that there is material in the documentation, the disclosure of which and/or the compulsory production of which would be inconsistent with the terms of s 80 of the Act. Since the Act defines the term "produce" to include permitting access to or inspecting, the Court would, having received the evidence, be in a position to be able to determine that access or inspection not be permitted as a consequence of the terms of s 80 of the Act. The Court, presently, is not at that point.
I turn then to the details of each of the motions. As already indicated, the plaintiff seeks to set aside subpoenas issued to the plaintiff, JG and the plaintiff's solicitor. The basis for that motion has already been summarised.
Ultimately, the purpose of discovery and/or a subpoena (leaving aside the necessary distinctions between the two methods of compulsory production) is to allow a party to the proceedings to be aware of all that is in the possession of the other party that is adjectivally relevant to the issues in the proceedings. The fact, if it be the fact that the Commission seeks production from the plaintiff of documents that the Commission already has on its records, does not seem, on its face, to be a basis for disallowing the requirement to produce.
I have already dealt with the collateral purpose submission to which the plaintiff has referred. Notwithstanding that there may be a collateral or illegitimate forensic purpose in seeking the documents, there is also, on its face, a legitimate forensic purpose in the Commission obtaining all documents and information adjectivally relevant to the proceedings in the possession of the plaintiff and, in relation to subpoena, in the possession of JG.
Those foregoing comments are, necessarily, subject to any issue that may be raised by either JG or the plaintiff's solicitor as to any privilege in relation to any particular document, some of which issues have already been the subject of comment. The mere fact that the application for discovery by the Commission is one that seeks to determine that which the plaintiff already has in his possession is not a reason for disentitling the Commission from discovery it may otherwise be entitled to obtain. Nor, as stated, is it impermissible for the Commission to seek discovery on the basis of descriptions of documents modelled on descriptions utilised by the plaintiff in one or more previous notices to produce, subpoenas or discovery applications.
The capacity of the Commission to obtain such documents is heightened if, as may be the case, the documents have not been produced already by the Commission, particularly because the Commission does not have a copy of the document.
Paragraph 9 of the subpoena, as stated, seeks the production of the Confidentiality Deed, purportedly signed by the plaintiff. On its face, there seems to be no adjectival relevance of such a document to the substantive issues in the proceedings and no attempt has been made by the Commission to justify its adjectival relevance.
The plaintiff also objects to paragraph 11 of the subpoena, which seeks metadata from an alleged document that was the subject of prior communication between the parties. The plaintiff had served a notice to admit to the authenticity of the document on the defendant. The defendant has denied the authenticity of the document.
The plaintiff submits that, as a consequence, seeking the metadata to the document cannot be a relevant enquiry. On the contrary, it seems to the Court that in circumstances where the authenticity of the document is in dispute, the metadata of the file from which the document was produced is highly relevant as to its authenticity.
As a consequence, the information sought in paragraph 11, being the metadata to the disputed document, is adjectivally relevant to the issues in the proceedings. I turn then to the details.
In relation to the discovery categories sought by the plaintiff, the Commission is required to produce to the Court all those documents that are within the categories outlined in paragraphs 1, 2, 3, 6, 8, 9, 10, 11, 12, 13, and, to the extent that it is narrowed to the dates between 1 July 2003 and 1 January 2005, category 16.
In relation to categories 4, 5 and 7, I reserve to the Commission any further argument it may seek to raise in relation to those categories. On the material currently before the Court, it is unclear whether the nature of or kind of information that may be obtained in those categories is impermissible.
As to paragraphs 14 and 15 of the discovery categories, such documents are not required to be produced. At this stage, except to the extent that such documents fall within those categories otherwise covered by other categories described in the document, those documents do not seem to be adjectivally relevant to the issues between the parties in the proceedings. Further, they, on their face, would seem to detail information that is part of the information gathering and collating purposes special to the Commission and protected by the terms of s 80 of the Act.
In making the foregoing rulings, I reiterate that all of the material obtained in this proceeding has been the subject of suppression orders and orders preventing access and all of the material would be confidential. Further, to the extent that the material is produced and the content of the material reveals information that might be arguably covered by the provisions of s 80, it is still open to the Commission to address the Court on access to the documents and, to the extent that the Commission was successful, return of the documents and the vacating of the orders already made.
The Commission raises an issue based upon what it submits are the proceedings being barred by operation of the Limitation Act. The proceedings are currently before the Court. No application has been made to strike out the proceedings on the basis of the limitations prescribed by the legislature as to the timing for the substantive claim.
In those circumstances, it is not convenient nor within the primary objective of the Civil Procedure Act, which requires the Court to facilitate the just, quick and cheap resolution of the issues between the parties, for the Court to prevent parties obtaining access to documents adjectivally relevant to the proceedings by bringing forward an issue as to the operation of the Limitation Act in circumstances where none of the parties has sought to rely upon those provisions.
It seems, on its face, that the categories of discovery are not oppressive or excessively broad. The plaintiff has already filed the statement of claim commencing the proceedings, which has been verified.
There is nothing in the categories of documents sought by the plaintiff that suggests the plaintiff is fishing or seeking to determine whether the plaintiff has a case, rather than obtaining material that may be used in support of the case already alleged. If, as is suggested by the Commission, some of the documents are already in the possession of the plaintiff, that is not a reason why the documents ought not be produced, as possession of the documents by the Commission is relevant to the authenticity and provenance of the documents and is adjectivally relevant to an issue in the proceedings.
I turn then to the motion to set aside the subpoena. I do not set it aside. To the extent that documents be in the possession of the plaintiff, those documents that are within categories 1, 2 or 3 are adjectivally relevant.
It may be that there are no such documents in the possession of the plaintiff but that is not a basis upon which the subpoena ought to be set aside. Nor is it permissible to set aside the documents referred to in paragraphs 4, 5, 6, 7, 8, 9, 11, 12, or 13. I set aside the requirement sought to be imposed to produce the Confidentiality Deed, which, as stated, does not seem, on its face, to be adjectivally relevant to the issues between the parties.
Lastly, I deal with the motion of the Attorney. As already stated, the Attorney is not a body that performs functions under the Act and, as such, on its face, the provisions of s 80(3) of the Act do not apply to the Attorney.
At least some of the information sought to be obtained as a consequence of the exercise of a compulsive power of the Court from the Attorney has already been produced as a result of the application under freedom of information legislation. It is unnecessary for the Court to determine whether the requirement on a Commonwealth agency to adhere to the terms of that Commonwealth legislation would, on any analysis, override the provisions of s 80 of the Act. It is sufficient, for present purposes, to note that the information has already been divulged and has been divulged voluntarily (or under an obligation imposed by legislation). As a consequence, the terms of s 80 of the Act have no work to do.
The reservation provided by the Court to the Commission, in relation to any particular document provided by it, applies to any document produced by the AFP. Those issues will become more obvious once the Court is apprised of issues arising from the redacting of documents already produced.
For the foregoing reasons, the Court makes orders in accordance with the reasons herein, namely: 1. The plaintiff's motion seeking to set aside subpoenas issued by the New South Wales Crime Commission to the plaintiff, JG and the plaintiff's solicitor is dismissed, except as to paragraph 10 of the aforesaid subpoenas; 2. The plaintiff's application for discovery in the categories attached to the plaintiff's motion filed 26 August 2020 is granted, save as to paragraphs 14 and 15 thereof; 3. Access to documents produced on subpoena by the Australian Federal Police is denied, subject to the production of redacted material by the defendant herein and subject to further order of the Court; 4. The application by the Attorney seeking to set aside a subpoena addressed to him is dismissed; 5. The costs of all motions be costs in the cause.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (8 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (10)