Review
6 There are some cases that are authority on the consideration that ought to be given on review. They are Beaufort Air-Sea Equipment Pty Ltd v Emhart Australia Pty Ltd (NSWSC unreported, Master Malpass, 18 December 1992); Brijeski v Sunbeam Corporation Limited (NSWSC, unreported Master Greenwood, 29 January 1997); Westpac Banking Corporation v Abemond Pty Ltd and Westpac Banking Corporation v Cameron (NSWSC unreported, Santow J, 3 November 1994); Modern Woodcraft Pty Ltd v Nett (NSWSC unreported, Young J, 7 March 1997); Mariala Estates Limited v Athanasi & Ors [2001] NSWSC 1013; and Abram v National Australia Bank Limited [2001] NSWSC 916.
7 From these decisions, the approach I should take is that I should inform myself of all the material before the Registrar at the time when he made the orders. I can consider the fresh evidence which the plaintiff has put on and which has not been objected to by the defendants. I can also allow fresh evidence to be tendered. I should also make my own decision based on the material before me and having heard legal argument.
8 It is common ground that the evidence before Assistant Registrar Howe was the affidavit of Geraldine Anne Daley sworn 12 July 2002 and the affidavit of Belinda Buckley sworn 27 February 2002. However the plaintiff had objected to the admissibility of paragraphs (2) and (3). At page 3 of his reasons dated 11 March 2002 the Assistant Deputy Registrar stated:
"Objection was taken to paragraphs 2 and 3 of Ms Buckley's affidavit. The applicability of section 75 of the Evidence Act 1995, in the light of a bundle of "business records" tendered, was argued. In the end, these paragraphs were not read for reasons which will become obvious shortly."
9 It seems that the Assistant Deputy Registrar did not rule upon or take the evidence in paragraphs (2) and (3) of the affidavit into account.
10 At this hearing I permitted the defendant to rely on a further affidavit of Belinda Buckley sworn 9 April 2002. In relation to the earlier affidavit, I disallowed paragraph (3) except the first sentence. In essence, paragraph (2) of the earlier affidavit is now admissible in light of the explanation of the source of the documents now being given in paragraph (11) of the latter affidavit. I decided to allow this further evidence as I considered it necessary in order to deal with the substantive issue.
11 In the defence it is pleaded that any loss or damage was caused by the conduct of the plaintiff in that firstly, he submitted Australian delivery vehicles for testing in lieu of vehicles representative of those the plaintiff allegedly proposed to import (para 12(g)); secondly, the defendants say that the subject compliance plate approval, if granted, would only have entitled the plaintiff to import complete vehicles and convert them from left hand drive to right hand drive in order to meet registration requirements and would not have entitled him to import vehicles in parts and thereafter assemble (para 14); and thirdly, the defendants say that the plaintiff's proposed importation of vehicles involved the illegal purpose of evading the special duty of $12,000 collected by the Australian Customs Service under the authority of the Customs Tariff Act 1987, applicable after 1 July 1992 to each used or second hand vehicle imported into Australian in high volume and that the plaintiff is thereby not entitled to any damages (para 15). Hence the plaintiff's conduct after the contract was entered has been put into issue. It is to this conduct that the defendant says that the subpoenae are directed, not merely to the issue of the plaintiff's credibility.
12 In his reasons Assistant Registrar Howe further stated:
"Mr JB Conomy, counsel for the plaintiff, presented both written and oral submissions that contained the following points -
· the subpoena constituted a "fishing expedition"
· the documents sought were irrelevant
· the documents sought had no probative value as they were unrelated to any issues raised in the statement of claim
· there was a lack of legitimate forensic purpose
Mr G Ellis, counsel for the defendant, rebutted the above claiming the documents went to the credibility of the plaintiff, that there was no need to read down discovery as a subpoena could be used for such a purpose, and that the application had a legitimate forensic purpose.
I intend to deny access to the documents produced because they are -
· not limited to any specific time period but cover the entirety of the plaintiff's lifetime and so may disclose a criminal conviction which could be both embarrassing and irrelevant
· the documents have been produced not for a specific purpose, such as ascertaining whether a criminal conviction has been recorded against the plaintiff for actions concerning the transactions which are in dispute between the parties to this litigation, but may disclose a broad range of convictions which are irrelevant to any issues between these litigants
· it has not been demonstrated that it is "on the cards" that access to the documents would materially assist the defendants in their defence
· a legitimate forensic purpose has not been expressly identified and no concrete ground has been established to take access beyond a mere "fishing expedition".
Accordingly, the application succeeds and access is denied to the documents produced by the two subpoenaed parties."
13 I will deal with the latter two bullet points where the Assistant Registrar gives his reasons for refusing to grant access first. With the benefit of the additional evidence, if I decide that the latter two bullet points are wrong, I will inspect the subpoenaed documents so as to limit access to relevant portions of those criminal records if any. Apparently, the normal procedure is that the Police produce a complete criminal record, so some entries may not be relevant and prejudicial to the plaintiff. This information should not be provided. Thus a filter is necessary before access will be given.
14 The parties referred to R v Saleam (1989) 16 NSWLR 14 where Hunt J (with whom Carruthers and Grove JJ agreed) stated:
"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 an 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. The problems which arise when counsel is unable to formulate such a submission with clarity are well exemplified by the decisions in Maddison v Goldrick [1976] 1 NSWLR 651 at 666 and in R v McPhail (Court of Criminal Appeal, 15 December 1988, unreported at 25-28).
In my view, the criterion finally suggested by Gibbs CJ in Alister v The Queen as that which has to be satisfied before a court should inspect documents in relation to which a claim for public interest immunity had been made is appropriate to be applied also when the trial judge has to determine whether access should be granted to documents subpoenaed from the police in relation to which objection has been taken that no legitimate forensic purpose exists for their production. He must be satisfied that it is "on the cards" that the documents would materially assist the accused in his defence.
Before granting access when such an objection has been taken, the judge should usually inspect the documents (or those which the Crown may suggest are sufficiently representative) for himself, as it is unfortunately not unknown for the objection taken to be misconceived: see also the remarks of Brennan J in Alister's case (at 455, 456). If no public interest immunity or other privilege is claimed (and upheld), and if a legitimate forensic purpose for their production has been demonstrated, the judge should not withhold the documents which will in fact assist the accused in his defence. Provided that a legitimate forensic purpose has been demonstrated, it should be for the accused (or, in appropriate cases, for his legal advisers only) to satisfy himself on that score after his own inspection of the documents."
15 R v Saleam relates to a criminal trial but the approach is applicable to civil proceedings - see also The Commissioner for Railways v Small (1938) 38 SR 564; Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667; Air Canada v Secretary for State for Trade [1983] 2 AC 394 and Alister v The Queen (1984) 154 CLR 404.
16 The plaintiff was a director of Swissnet Pty Limited between 2 November 1995 and 15 November 1996. He also traded as Swissnet around this period of time. The defendants say that there is a legitimate forensic purpose in seeking access to Police records relating to the plaintiff. There are records which have been obtained from the Federal Office of Road Safety Canberra (Ex A) which culminate in a note dated 21 January 1998 that states that an investigation is in process on a possible breach of Commonwealth legislation requirements in respect of the seven Porsche vehicles.
17 The documents produced by FORS revealed the following. Annexure A (pp 1 and 2) contains a file note which states:
"From 1 July 1992 the Australian Government introduced a special duty of $12,000 per vehicle on all used or second hand passenger motor vehicles imported in high volume. This duty is collected by the Australian Customs Service under the authority of the Customs Tariff Act 1987.
The introduction of this duty effectively stopped high volume import of used vehicles.
It should be noted that this duty applies only to passenger cars (ADR category MA) and not to other categories of light and heavy used vehicles.
The vehicles covered under the Swissnet approval are category MA and will attract the duty if imported as used passenger cars. However, there is some speculation that there may be an attempt to avoid payment of the duty by importing vehicles in parts and reassembling them in Australia."
18 In a letter dated 18 June 1997 (Annexure B p 3) Swissnet Pty Ltd asserted "We currently have six Porsche 911 motor vehicles in our possession which were expressly imported for testing purposes." An internal FORS email dated 1 July 1997 (Annexure A p 4) contained a contemporaneous note of what the plaintiff said over the telephone, namely:
"…that he did not bring them [a reference to the six Porsches] in as evaluation vehicles. They were brought in as 'parts or something like that'. He said he had the VIN numbers there."
19 Hence, Swissnet has provided two conflicting explanations, namely that the Porsches were imported for testing purposes or for parts.
20 After exchange of correspondence between Swissnet and FORS a document dated 21 January 1998 by FORS and headed "Swissnet Approval" (Annexure H p 16) included the following bullet point:
"As an investigation is in process on a possible breach of Commonwealth legislative requirements in respect of this matter, it would be inappropriate for me to comment further.
…
Swissnet claim to have ready for sale 7 imported used Porsches, but FORS, who issue import approval for all used vehicles, have no record of Swissnet importing these vehicles. Swissnet have been requested on a number of occasions to provide details of these vehicles but to date have failed to do so.
FORS is due to meet with Customs to examine if there has been a breach of Commonwealth legislation in regard to the import of these vehicles.
…
An investigation is in process on a possible breach of Commonwealth legislative requirements in respect of the 7 Porsche vehicles."
21 In a letter dated 9 April 1998 Anthony Jones of Legende Corporation wrote to FORS this time purporting to represent Ms K Kripp of 1/32 Trafalgar Street, Brighton Le Sands, 2216 and Mr V Intini of 1/32 Green Vale Road, Green Point 2251, suggesting that those persons had purchased 911 series motor vehicles, each with a stated Vehicle Identification Number (VIN), from Swissnet Pty Ltd and requesting permission to register those vehicles (Annexure 1 pp 19-21). Previously on 16 January 1998 Anthony Jones wrote to the Department of Transport (Commonwealth) as a representative of Swissnet Pty Limited.
22 In a letter dated May 1998 the Commonwealth Department of Transport stated that telephone directory and electoral roll searches "failed to show a listing for either person" (Annexure J p 22). It continued "If these individuals are resident overseas or are not Australian citizens or permanent residents they would have no basis on which to apply to import the vehicles." On page 2 (Annexure J p 23) the letter continued:
"During our conversation you advised that the vehicles which Mr Intini and Ms Kripp have purchased from Swissnet are not in Australia. FORS has checked the Vehicle Identification Numbers provided by Mr Jones and confirms that they have not received an application for import approval in relation to either vehicle."
23 In a letter dated 12 May 1998 (Annexure K p 24) the National Road Transport Commission was warned that there may be an attempt to register Porsche 911 coupes with the VINs referred to in the letter from Mr Jones (Annexure I p 19-21).
24 A fax from FORS to the Australian Federal Police dated 12 May 1996 (Annexure L p 25) read:
"We have been notified that Porsche 911 Coupes with VINs WPOZZZ91ZKS120433 & WPOZZZ96ZRS532061 are available in Australia for registration. The initial checks have indicated that these vehicles are not Australian delivery vehicles and also our office does not hold import approval records for these vehicles. We are interested in tracing country of origin of above vehicles and would like to investigate as to how these vehicles were brought into Australia. It would be appreciated if you could use your links with police organisations overseas to help us establish whether these vehicles are of interest to your overseas counterparts."
25 The 12 May 1998 letter from FORS to Anthony Jones of Legende Corporation (Annexure M p 26) notes that the letterhead of Legende Corporation does not contain any address and suggests that Legende Corporation is not a registered business name. The second page of that letter (p 27) observes:
"To date, despite a number of requests Swissnet has supplied no evidence that these vehicles were lawfully imported."
26 And page 4 of the letter states:
"If Swissnet does not supply written evidence that these vehicles were lawfully imported (ie a copy of vehicle and importation details) or a written notice of objection within 21 days, FORS's inspectors will visit the Swissnet premises located at 635 Princes Highway, Kogarah (or the address you notify as the address at which the vehicles are currently situated) at a date to be advised."
27 A letter from Protech Developments Pty Ltd (Annexure N p 31) suggested that Swissnet may be endeavouring to use an Australian delivery Porsche (ie a Porsche car first sold in Australia) to satisfy the vehicle safety test required by Australian Design Rule (ADR) 69/00 which test Swissnet was required to satisfy in order to become entitled to sell imported used Porsche cars (ie Porsche cars first sold outside Australia).
28 A FORS file note (Annexure O p 32) suggests that the engine number on a vehicle "sold to Swissnet by one of the dealerships of Porsche" namely the engine numbered 62P51238 "matched with the one for the test vehicle as listed in Swissnet's ADR 89 evidence submitted to our office".
29 By letter dated 28 January 1999 (Annexure P p 33) FORS notified Swissnet that:
"I now have reason to believe that the vehicle used in that test may have been, essentially, an Australian specification Porsche 911 which has already been supplied to the Australian market, rather than a Swissnet 911 series vehicle."
30 From the issues raised in the defence and outlined earlier in this judgment, the defendant submitted that there were legitimate forensic purposes in seeking access to these documents namely that there may have been proceedings taken which relate to whether the plaintiff avoided import duty; secondly, imported parts rather than the whole vehicle; thirdly, imported vehicles illegally; and fourthly improperly registered vehicles or made false representations. From the documents produced by FORS it is on the cards that the Federal Police may have prosecuted the plaintiff in relation to the illegal importation of Porsches between 1994 and 2000. This being so, I will view the Federal Police records to ascertain whether access should be granted to any portion of them. I have viewed these records. There are no convictions recorded relating to importation of motor vehicles, nor their improper registration nor avoiding import duty or importing parts rather than the whole vehicle in the criminal records produced by the Federal Police. I have also checked the New South Wales Police records and there are no relevant entries. Hence access is not granted to the parties to documents produced by the Australian Federal Police and the New South Wales Police service. For different reasons, I have reached the same decision as Assistant Registrar Howe. I affirm the orders made by Assistant Registrar Howe dated 11 March 2002. Costs of the review are reserved.
31 I make the following orders: