State of New South Wales v Meredith

Court of Appeal (NSW)|2024-11-29|Before: Ward P, Adam P, Garling J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

THE COURT: By a summons filed 22 November 2024 the applicant seeks leave to appeal from orders made by Garling J on 19 November 2024 (see Meredith v State of New South Wales (No.3) [2024] NSWSC 1499 (Primary Judgment or PJ)). By those orders, a subpoena served on 18 October 2024 on the respondent's solicitors by the applicant was set aside, as also was a notice to produce to the respondent bearing the same date.
There is a degree of urgency about the matter in circumstances where a Court-ordered mediation is scheduled to take place on 3 and 4 December 2024, with 11 December 2024 as a further date if necessary. The Court ordered the mediation as far back as 20 May 2024.

Background summarised

The substantive proceedings are representative proceedings brought under Pt 10 of the Civil Procedure Act 2005 (NSW). The respondent to the summons (the plaintiff below) brings the proceedings for herself on behalf of group members who fall within the definition set out in [7] of the further amended statement of claim filed 30 March 2023. The respondent alleges that a strip search of her carried out by NSW police officers was conducted contrary to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Damages, including aggravated damages and exemplary damages, are sought for what is contended to be actions constituting battery, assault and false imprisonment.
Garling J has case managed the proceedings and made various interlocutory orders with a view to there being a first substantive hearing in May 2025, with an estimate of four weeks. It is proposed at that hearing to address the respondent's own claim and some common questions (see Annexure A to Garling J's earlier judgment in Meredith v State of New South Wales [2023] NSWSC 1546 and Annexure A to the further amended statement of claim).
The proceedings potentially affect 5,200 people who have been identified as persons who have been strip searched by NSW police at music festivals held during the relevant period (22 July 2016 - 21 July 2022). The pre-trial procedures have also resulted in approximately 2,316 individuals registering as members of the group.
It is not disputed that the respondent has provided the applicant with considerable information about the individuals who have registered as group members, including the festival at which the search was conducted, the date of the search, the fact that the search was conducted by an officer of the NSW police etc.
That information did not, however, include information which would enable the personal identification of each registered individual.
On 18 October 2024, the applicant's solicitors served both a subpoena and a notice to produce which sought the production of documents in the following two categories: 1. "A list of 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 purposes of the proceedings: 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. [This category related to persons who had opted out of the proceedings, but it is no longer pressed].
On 31 October 2024, the respondent filed a notice of motion seeking to have the subpoena and notice to produce set aside. The matter was heard with commendable speed by Garling J on 19 November 2024 and his Honour delivered ex tempore reasons on that day.
His Honour's reasons for judgment may be summarised as follows.

The primary judge's ex tempore reasons for judgment summarised

The primary judge summarised the plaintiff's arguments in support of the motion. In brief, she contended that there was no legitimate forensic purpose of issuing the subpoena and notice to produce. She emphasised that the police had denied, in her own particular case, that any strip search had occurred other than in compliance with relevant legislative requirements and also denied that it had engaged in any systemic course of conduct which was unlawful. She submitted that until those particular matters had been determined, favourably to her, the personal identification details of the group members were wholly irrelevant, thus there could be no legitimate forensic purpose in seeking production of the material.
In contrast, the defendant contended that there was a legitimate forensic purpose and that provision of the information sought in advance of the mediation would promote the overriding purpose in s 56 of the Civil Procedure Act.
At PJ [26] His Honour summarised evidence given by the defendant's solicitor as to why the personal identification information was necessary. In brief, that evidence was to the effect that information was needed for there to be a meaningful discussion at the mediation about liability and quantum, which was likely to proceed by reference to the group as a whole and not merely the plaintiff's own claim.
The defendant added that there was also a legitimate forensic purpose because it was reasonable for the Court to be satisfied that the material sought "would likely add in the end in some way or another to the evidence in the case".
The primary reason given by the primary judge for setting aside the subpoena and notice to produce related to the timing of the proceedings and the relatively early stage they had reached. His Honour noted at PJ [33] that the hearing scheduled for May 2025 was in relation to common questions and their determination, as well as the nature of the issues to be established by the plaintiff in her own case. This did not require individual group members to be identified. The common questions were expressed in a way which did not relate to any particular group member's entitlement to damages, but were rather directed to whether particular conduct by the police was contrary to law and whether some features of that conduct were relevant to an assessment of aggravated or exemplary damages. The identity of the group members was not needed in order to answer those questions.
His Honour was particularly cognisant that, ordinarily, group members remain passive in the conduct of a representative proceeding and individual claims would not ordinarily arise for resolution at this early stage.
His Honour left open at PJ [37] whether, after determination of the common questions presented at the first hearing, there might arise a legitimate forensic purpose to obtain the relevant material.
As to the defendant's claim that the information was relevant for the mediation and issues which might arise, the primary judge expressed strong doubts that the information would have any significant impact on the conduct of the mediation. This was because there was uncertainty concerning the size of the potential class, which meant that the parties to the mediation would need to make their own assessments based on the information available to them. Despite those doubts, however, his Honour said that he preferred to examine the question of the relevance of the subject information to the mediation in the context of an assumption that a legitimate forensic purpose could be established. It is desirable to reproduce PJ [45] and [46]: [45] 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. [46] 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.

(a) Relevant legal principles summarised

The relevant principles which guide the Court's power in determining whether or not to grant leave to appeal where a matter of practice and procedure is involved are well settled. They are to be found in cases such as Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl Limited) [1995] NSWCA 69; Re the Will of FB Gilbert (1946) 46 SR (NSW) 318 at 323; and Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc; (1981) 148 CLR 170; [1981] HCA 39.
The relevant principles (or perhaps, more correctly, guidelines) were identified by the Court recently in Michael Wilson & Partners v Emmott [2024] NSWCA 269 at [34]-[37]: [34] Recently, in Press v iSAM Securities (UK) Ltd [2024] NSWCA 260, we set out some relevant principles guiding the discretion to grant leave identified by Kirk and McHugh JJ in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [25]-[31]. Those principles are as follows: Section 101(2) of the Supreme Court Act refers to this Court granting leave to a party to appeal but does not specify any criteria by which the discretion is to be exercised. In the usual way of the common law method, statements of principle have evolved to guide the exercise of discretion. This Court has stated on numerous cases that it is usually or generally only appropriate to grant leave to appeal concerning matters that involve issues of principle, questions of general public importance or a reasonably clear injustice going beyond something that is merely arguable: see eg Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl Ltd) [1995] NSWCA 69 per Kirby P; The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 at [13]; see more recently eg Shapkin v The University of Sydney [2024] NSWCA 156 at [39]. It is commonly sufficient to refer to those factors in deciding whether to grant leave to appeal. But as is implicit in the use of "usually" and "generally", whilst those factors are important they are neither exhaustive nor necessarily determinative. Thus this Court has also said, for example, that "leave should be granted only where there are substantial reasons to allow an appellate review … such as where there is an error of principle which, if uncorrected, will result in substantial injustice": Collier v Lancer (No 2) [2013] NSWCA 186 at [7] (citations omitted); see also Rodi v Gelonesi [2012] NSWCA 424 at [24]; DEF v Trappett [2017] NSWCA 163 at [25]. There are no "rigid and exhaustive criteria" as the "circumstances of different cases are infinitely various": Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177. The ultimate issue is the interests of justice, taking into account both the circumstances of the particular case and broader interests in resolving matters of public importance and clarifying the law. A range of considerations may be relevant. For example, it has often been said that particular caution is called for in granting leave to appeal a decision pertaining to practice and procedure: eg Adam P Brown at 177; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]. [35] These principles draw in part on well-known authorities such as in Re the Will of FB Gilbert (1946) 46 SR (NSW) 318 at 323 and Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39. [36] As Basten JA pointed out in Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371 at [9], relevant authorities provide a degree of guidance, but most cases can be decided by reference to current legislation and the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). His Honour added at [9]: … Thus, most interlocutory appeals are now subject to the filter of a leave requirement: see eg Supreme Court Act 1970 (NSW), s 101(2)(e). A decision as to whether to grant or refuse leave in a particular case must have regard to the guiding principles set out in Pt 6 of the Civil Procedure Act, as discussed in Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[39]. Some considerations are specific to the circumstances of the particular case; some operate generally in relation to the control of the court's workload and the impact of a particular practice or procedure on other litigants. Again echoing modern concerns, Jordan CJ in Will of Gilbert abjured an approach which would "in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a court of appeal." [37] Consistently with Basten JA's observations, in Hans Pet Allsop ACJ emphasised the importance of ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW) in making discretionary case management orders. Those provisions are well known and need not be set out here.
In brief, leave to appeal will ordinarily not be granted from a decision involving a matter of practice and procedure unless the application raises an issue of principle or the applicant can demonstrate that a significant injustice is likely to result if leave is not granted. The fundamental reason for this approach is that "unless appellate courts exercise restraint in interfering with decisions of trial judges on matters of practice and procedure, the result will be excessive delays, expense and uncertainty in the conduct of litigation" (see Toppro Pty Ltd v Yoo [2016] NSWCA 119 at [19]). As Bell P observed in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [6] an "application for leave to appeal from an interlocutory decision on a matter of practice and procedure faces the high hurdles which have been referred to consistently by this Court".

(b) Disposition

For the following reasons, we are not persuaded that there should be a grant of leave to appeal in the particular circumstances here.
First, contrary to the applicant's contention in its written summary of argument, the primary judge did not determine that production of the documents was "not required" by the applicant for the purposes of the mediation. His Honour's reasons were more nuanced. As pointed out in our summary above of those reasons, his Honour was prepared to assume in the applicant's favour that a legitimate forensic purpose could be established in seeking the relevant information for the purposes of the mediation. But he was not satisfied that the information sought would add materially to other information already in the possession of the respective parties. His Honour explained why this was so at PJ [39]-[44]. In brief, this was because: 1. from its own records, the respondent had been able to identify approximately 5,200 individuals who had been strip searched by NSW Police during the relevant period and at the relevant music festivals; 2. the respondent had already provided considerable information about group members to the applicant; 3. uncertainty is a feature of a representative proceeding and that uncertainty was likely to persist; and 4. the particular proceedings were "open class" and the registered group members were only a subset of that open class.
This involved what may be described as an evaluative assessment on the part of the primary judge. We acknowledge that such an assessment is one on which reasonable minds might differ. On one view, for example, the respondent's refusal to provide the additional information might be viewed as antithetical to the prospects of the mediation producing a successful outcome. Another judge may have given this consideration greater weight in conducting the evaluative assessment. But to obtain leave to appeal on such a matter, particularly where it relates to practice and procedure, requires the identification of something which is beyond merely arguable.
The applicant has not identified any sufficiently arguable error of law or fact in the primary judge's evaluation. In those circumstances, it is unnecessary to resolve the respondent's contention before us that the purported purpose of aiding a mediation cannot ever properly be equated with a "legitimate forensic purpose".
Moreover, the applicant has failed to demonstrate any issue of principle or public importance relating to the reasoning or orders made by his Honour. The reasoning was directed to the particular circumstances of this case, including the significance of their character as representative proceedings. Little, if any, significance attaches to the fact that in other cases, such as Simon Dirk Kenworthy-Groen as administrator of the estate of William Grove v Grove [2022] WASCA 120 at [52] per Murphy, Mitchell and Vaughan JJA and Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276 at [22]-[23] per Martin CJ, the view has been expressed that legitimate forensic purposes may include purposes relevant to management of cases prior to trial, including preparation for mediation and the encouragement of settlement. Neither of those cases involved a representative proceeding, which invariably involves different processes and procedures.
Merely because particular documents might assist a party in a mediation does not necessarily justify their compulsory production. For example, in Evans v Davantage Group Pty Ltd (No 2) [2020] FCA 473, Beach J declined to compel the respondent in a class action to produce information relating to its insurance arrangements. His Honour said at [98]: And as I have said, in circumstances where production or disclosure of the relevant insurance details will confer a tactical advantage on the applicant, and a corresponding disadvantage upon the respondent, thereby creating an asymmetry in the parties' positions at mediation, facilitating such a course would not usually be appropriate to ensure that justice is done in the proceeding. The interests of the applicant and group members do not trump those of the respondent to that extent.
Beach J referred approvingly to Ball J's judgment in Commonwealth Bank of Australia v ACN 076 848 112 Pty Limited [2015] NSWSC 666 where, in declining a creditor's application that a company subject to a deed of company arrangement produce its insurance policy in the interests of "case management principles", Ball J said at [23]: Third, it is not obviously in the interests of justice that the Bank should know the extent of the first defendant's insurance for the purpose of determining whether or not to pursue the proceedings. Knowledge of how much a defendant is willing or able to pay in relation to court proceedings is obviously of considerable tactical advantage to the plaintiff. One advantage is that it may be relevant to the question whether the proceedings are worth pursuing. More often, though, it will assist the plaintiff in settlement negotiations because the plaintiff will not have to discount the amount for which it is prepared to settle to take account of the risk that it will recover less if it pursues its case to judgment than if it settles because any judgment it obtains will not be recoverable. To the extent that the plaintiff enjoys that tactical advantage, the defendant and its insurers suffer a corresponding disadvantage. As Lander J pointed out in Beneficial Finance Corporation [(1996) 68 SASR 19] (at 42), it is for reasons such as that that the insurance arrangements of a defendant are generally regarded as confidential. The Bank did not articulate any reason in this case why in the interests of justice the court should seek to give it a tactical advantage by requiring the disclosure of confidential documents. It may be that disclosure of the first defendant's insurance policies will bring about an earlier settlement at an amount that does not have to be discounted because of the uncertainties associated with recovery of any judgment. But that alone does not mean that it is in the interests of justice to require disclosure.
These observations are apposite to the circumstances here.
Secondly, as previously noted, the primary judge was particularly cognisant of the stage which the representative proceedings had reached. The hearing scheduled for March next year will address the plaintiff's personal claim as well as some common questions. We discern no sufficiently arguable error in the primary judge's reasoning that the information sought regarding identification of the potential class members is not necessary for the purposes of that hearing. The personal identities of the group members and the potentially wider class are not relevant to the hearing of the common questions.
In the course of the hearing before us, counsel for the applicant contended that the information sought by the Commissioner was relevant to [68A] of the further amended statement of claim. The claim for exemplary damages is pleaded at [68]-[68D] of the further amended statement of claim. Significantly, however, although the common questions raise certain issues concerning exemplary damages, which are expressed at a level of principle, it is expressly stated in [18A] of those common questions that those issues do not include the matters pleaded in [68A]-[68D].
Thirdly, we are not persuaded that the primary judge's orders are based on some error of fact or law which is more than merely arguable and which, if uncorrected, would produce substantial injustice. As the primary judge pointed out, as matters stand at present, the parties have within their respective possession extensive information which they can review and assess for the purposes of the mediation.
Fourthly, the Commissioner contended that, in assessing whether the information sought would materially assist in the mediation, the primary judge acted inconsistently with the propositions identified by Bell P in Blacktown City Council at [65]-[69], with particular reference to what was said there as to the concept of "apparent relevance". We do not accept that contention. It fails to take into account the qualifications identified by Bell P at [70] and, perhaps even more significantly, fails to acknowledge that [65]-[69] are directed to the apparent relevance of material to issues in the substantive proceedings, as opposed to the utility of material to a mediation, which may raise different considerations.
Fifthly, in oral submissions counsel for the Commissioner contended that the issue of principle raised by the primary judgment was whether group members in a class action are entitled to anonymity. We disagree. That was not the basis upon which the subpoena and notice to produce were set aside, nor did the respondent rely on that consideration in support of her motion below.
Finally, we consider that there may be an issue as to whether the Commissioner has provided an adequate explanation for her delay in issuing the subpoena and notice to produce, which occurred approximately 5 months after the Court ordered the mediation and only approximately 6 weeks prior to the first day of the mediation. It is unnecessary, however, to resolve that issue in circumstances where we have identified several other reasons why leave to appeal should be refused.

Conclusion

For all these reasons, the summons seeking leave to appeal will be dismissed, with costs. The applicant's notice of motion filed 22 November 2024 should also be dismissed (see at [3] above).

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: 29 November 2024

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