Solicitors:
Cole & Butler (Applicants)
Slater & Gordon (Respondent)
File Number(s): 2018/185887
Decision under appeal Court or tribunal: Supreme Court
Jurisdiction: Equity Division
Citation: [2018] NSWSC 898
Date of Decision: 12 June 2018
Before: Lindsay J
File Number(s): 2016/00081312
[2]
[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.]
[3]
headnote
[This headnote is not to be read as part of the judgment]
This matter concerned a subpoena issued in proceedings commenced by Robert Strange in the Supreme Court. The proceedings challenged a transfer of land made by Ian Turnbull to his wife prior to his death. The respondents in those proceedings were the executors of Mr Turnbull's estate and Ms Robeena Turnbull. The subpoena required the Commissioner for Corrective Services to produce recordings of telephone conversations between Mr Turnbull and his wife and son.
The Commissioner produced the information to the Court without objection; however, the respondents objected to Mr Strange having access to the material, and applied for the subpoena to be set aside. At first instance, Lindsay J rejected the application; the respondents sought leave to appeal.
The issues before this Court were whether the subpoena should be set aside on the basis that it required the Commissioner to disclose personal information in breach of s 18 of the Privacy and Personal Information Protection Act 1998 (NSW) (Privacy Act), or alternatively, whether the Court should make orders that access to the material produced under subpoena not be granted to any person.
The Court (Basten JA, Meagher JA and Emmett AJA) dismissed the appeal and held:
Per Basten JA, Meagher JA and Emmett AJA:
The exemption in s 23(5)(c) of the PPIP Act should not be read as limited to disclosure "authorised or required by subpoena" either for law enforcement purposes or for the protection of the public revenue. Neither the text of the sub-section, nor its surrounding context, supported such a reading: [11]; [26]; [45].
There is no basis for reading s 23(6) as constraining the scope of the exemption in s 23(5)(c): [15]-[21]; [27]-[28]; [45].
Per Basten JA, Emmett AJA agreeing:
That disclosure of the information by the Commissioner was not prohibited was further supported by the exemption of the judicial functions of courts from the operation of the Act, under s 6: [13]-[14]; [42].
Pi v State of New South Wales (No 4) [2015] NSWSC 1410, approved.
The parties' assumption that the recorded conversations constituted "personal information" was doubtful. Though the content of a specific telephone conversation might meet the definition of personal information in s 4(1), not all conversations necessarily contain "information or an opinion… about an individual": [5]; [45].
Privacy Commissioner v Telstra Corporation Pty Ltd (2017) 249 FCR 24; [2017] FCAFC 4, referred to.
Per Emmett AJA:
The mere production of the information by the Commissioner to the Court did not constitute disclosure of the information to any person or body; it thus fell outside the ambit of s 18. The grant of access to the material by the court fell within the court's judicial functions, and was accordingly protected by s 6 of the Privacy Act: [40]-[41].
[4]
Judgment
BASTEN JA: Proceedings are currently pending in the Equity Division challenging a transfer of land in 2015 by the late Ian Turnbull to his wife. The plaintiff in those proceedings issued a subpoena to Corrective Services NSW requiring production of recordings of telephone conversations between the deceased (then a prisoner) and his wife and son.
The defendants in the Equity proceedings sought to have the subpoena set aside. The only ground presently relevant was that the subpoena sought the content of the conversations recorded by Corrective Services NSW. That was said to constitute "personal information" protected from disclosure by s 18 of the Privacy and Personal Information Protection Act 1998 (NSW) ("the Privacy Act").
On 12 June 2018 Lindsay J rejected the application to set aside the subpoena on that ground. [1] The defendants now seek leave to appeal from that interlocutory judgment. The application came before this Court, constituted on an urgent basis to deal with both the leave application and, if leave be granted, the appeal. For reasons which follow, leave to appeal should be granted but the appeal dismissed; the conclusion of the primary judge is not attended by error.
[5]
Legislative scheme
Section 18 of the Privacy Act prohibits a "public sector agency" from disclosing "personal information". The term "personal information" is defined in s 4(1) to mean "information or an opinion … about an individual". It was assumed for the purposes of the present application that the content of the recorded conversations constituted "personal information". It was also accepted (and may be assumed) that Corrective Services NSW was a "public sector agency" for the purposes of the Act.
Nevertheless it is appropriate to note that doubts attend the breadth of the first assumption. The phrase "about an individual" provides an essential qualification of the subject matter of the definition, namely "information or an opinion". It may be that the content of a telephone conversation, including statements made by one party, will constitute "opinions" about the other party to the conversation. However, statements by the relevant individual will not constitute opinions about himself or herself, in most circumstances. On the other hand, statements made by the individual may identify "information" about that individual, in that they may reveal that he or she held a particular opinion or knew certain things at a particular time. It is unlikely that the whole of the records apparently sought by the subpoena would constitute "personal information" in relation to the deceased. The importance of giving weight to information or an opinion "about" an individual was explained in relation to the equivalent Commonwealth legislation in Privacy Commissioner v Telstra Corporation Ltd. [2]
It followed from the two assumptions that the prohibition in s 18 of the Privacy Act was engaged; however, the prohibition is subject to exceptions, including those set out in ss 23(5), 24(3) and 25. Only one exception, s 23(5)(c), was relied upon, but because there is an issue as to the operation of subs (6), s 23(5) and (6) should be set out in full.
23 Exemptions relating to law enforcement and related matters
…
(5) A public sector agency (whether or not a law enforcement agency) is not required to comply with section 18 if the disclosure of the information concerned:
(a) is made in connection with proceedings for an offence or for law enforcement purposes (including the exercising of functions under or in connection with the Confiscation of Proceeds of Crime Act 1989 or the Criminal Assets Recovery Act 1990), or
(b) is to a law enforcement agency (or such other person or organisation as may be prescribed by the regulations) for the purposes of ascertaining the whereabouts of an individual who has been reported to a police officer as a missing person, or
(c) is authorised or required by subpoena or by search warrant or other statutory instrument, or
(d) is reasonably necessary:
(i) for the protection of the public revenue, or
(ii) in order to investigate an offence where there are reasonable grounds to believe that an offence may have been committed.
(6) Nothing in subsection (5) requires a public sector agency to disclose personal information to another person or body if the agency is entitled to refuse to disclose the information in the absence of a subpoena, warrant or other lawful requirement.
Read in isolation, s 23(5)(c) disengages the prohibition in s 18, relevantly in relation to answering a subpoena. The apparent purpose of that provision is to allow public sector agencies (including Corrective Services) to comply with court processes (and other legal obligations of disclosure). The effect, with respect to a subpoena, is that the material must be produced, but any disclosure will be under the control of the court from which the subpoena issued.
The applicants resist that conclusion first, by reading down s 23(5)(c), and, secondly, by reliance on subs 23(6).
The submissions commenced with the proposition that the exceptions should be narrowly construed. The applicants relied upon the following passage in the judgment of Sackville J in Taciak v Commissioner of Australian Federal Police: [3]
"The recognition and protection of privacy in the [Telecommunications (Interception) Act 1979 (Cth)], in my view, justifies a restrictive approach to the construction of the statutory exceptions to the prohibitions on the interception of telecommunications and on the use of lawfully obtained intercept information. … But where there is genuine doubt as to whether the statutory language authorises the use of intercept information for a particular purpose, that doubt should be resolved in favour of a narrow, rather than a broad construction of the statutory authorisation."
The doubt was said to arise as to the scope of paragraph (c) in s 23(5) which, although unqualified in its terms, is found within the context of provisions dealing with either law enforcement or protection of the public revenue. Paragraph (c) is consistent with that area of operation in that it refers to requirements of a search warrant. Given that context, the submission continued, the reference to authorisation or requirement "by subpoena … or other statutory instrument" should be read down as limited to the purposes of law enforcement or protection of the revenue.
While the argument is tenable, it does not withstand a careful consideration of the context relied upon. First, the proposed reading would either render paragraph (d) unnecessary, or would read (c) and (d) conjunctively, whereas, consistently with the other paragraphs, they are to be read disjunctively. Secondly, subs (5), unlike subs (1)-(4), is not expressly limited to law enforcement purposes or the protection of the public revenue; it would, for example, mirror subs (4) if it contained only the chapeau and par (d). The other paragraphs are, at least in some respects, an expansion of those two purposes. At its strongest, the submission must be that the exceptions relate to the exercise of government functions and not private purposes, such as civil litigation between non-government parties. On the other hand, the issue of a subpoena, a warrant or a statutory instrument does engage the exercise of a public function by an instrument of the State, whether an arm of the executive government or the judicial branch.
Consistently with the last consideration, s 6 provides:
6 Courts, tribunals and Royal Commissions not affected
(1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions.
(2) Nothing in this Act affects the manner in which a Royal Commission, or any Special Commission of Inquiry, exercises the Commission's functions.
(3) In this section, judicial functions of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes:
(a) in relation to a Magistrate - such of the functions of the Magistrate as relate to the conduct of committal proceedings, and
(b) in relation to a coroner - such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009.
It is consistent with that exclusion from the operation of the Act of courts and tribunals (and other bodies with compulsive powers), that there should be an exception from the prohibition on disclosure where disclosure is required by such a body, as for example by way of subpoena. There is no basis within the scheme of the legislation to limit the powers of a court, tribunal or other authority with power to issue a subpoena, a search warrant or a statutory instrument effective to require disclosure of information, to the exercise of those powers in aid of law enforcement or protection of the public revenue, as opposed to the use of those procedures generally in relation to the administration of justice.
The respondent noted that in Pi v State of New South Wales (No 4) [4] Beech-Jones J rejected a challenge to the validity of a subpoena on the basis that it constituted a breach of the Privacy Act, stating that "s 6 exempts the judicial functions of courts from its operation." It may be that the issue of a subpoena is not a core function of the exercise of judicial power, but it is clearly a function of a court of such a kind as to "relate to" the determination of proceedings before it. No reason was put to this Court to doubt the correctness of the view expressed in Pi.
The second submission concerned the operation of s 23(6). The applicants contended that this provision, too, must be read in its statutory context and must be given some work to do.
As general propositions, both elements of the last submission may be accepted. However, the specific operation of subs (6) is not easy to discern. It contains two limbs: it is in the form of a limitation on the operation of the preceding subsection, where a particular condition is satisfied. Both elements lack clear content. First, subs (5) lifts a prohibition on disclosure in specified circumstances; it does not purport to require an agency to disclose information - such an obligation must be found elsewhere. There are two possibilities, one of which is identified in the condition of engagement of subs (6), namely that the agency is entitled to refuse to disclose the information. In other words, subs (5) does not give rise to an implied obligation to disclose. That reading of subs (6) does not assist the applicants.
The other possibility is that the agency is not entitled to refuse to disclose the information despite the absence of a subpoena, warrant or other lawful requirement. There is a sense in which this is tautological; the agency is not entitled to refuse to disclose if it is subject to some lawful requirement to disclose. If it subject to some lawful requirement to disclose, any implied requirement in subs (5) would be irrelevant.
What then is the purpose of subs (6)? The answer is that it can only have been inserted from an abundance of caution, to ensure that no one sought to give the Privacy Act a broader operation than was intended. (This is a countervailing consideration to the restrictive construction of exceptions proposed in Taciak.) There is support for this view derived from the statutory context. Division 3 of Pt 2 of the Privacy Act commences with s 22, in the following terms:
22 Operation of Division
Nothing in this Division authorises a public sector agency to do any thing that it is otherwise prohibited from doing.
That is a curious provision, given that the purpose of the exemptions is to lift prohibitions which would otherwise operate. Further, s 25 provides:
25 Exemptions where non-compliance is lawfully authorised or required
A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if:
(a) the agency is lawfully authorised or required not to comply with the principle concerned, or
(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).
Reading ss 22, 23(6) and s 25 together, the apparent purpose is to ensure that the Privacy Act does not override other statutory provisions with which it is inconsistent. These provisions are all contained within Division 3, dealing with exemptions.
The applicants' submission in relation to s 23(6) embraced the proposition that the terminology of the condition ("in the absence of a subpoena, warrant or other lawful requirement") was intended to reflect the language of s 23(5)(c). It then operated, the submission proceeded, at least to permit the agency to refuse to disclose the information because it would be entitled to do that absent a subpoena, warrant or other lawful requirement. Accordingly, so the submission suggested, even if the present subpoena fell within subs (5)(c), it did not have the effect suggested by reading subs (5)(c) in isolation, because subs (6) countermanded that result.
For the reasons given above, subs (6) should not be so read; the submission purports to give it a positive operation in circumstances where it is entirely negative, denying an implied obligation. Even if that were wrong, there is no basis for concluding that it was intended to countermand the very provision with respect to which it is said to operate.
This approach is consistent with that adopted by the primary judge. The conclusion was clearly correct. Accordingly, the applicants' submissions must be rejected; leave to appeal should be granted but the appeal dismissed. The applicants must pay the costs of the application in this Court. Orders to that effect were made at the conclusion of the hearing.
MEAGHER JA: What follows are my reasons for joining in the orders made on 25 June 2018 granting leave to appeal but dismissing the appeal with costs.
The issue in the appeal was whether Privacy and Personal Information Protection Act 1998 (NSW), s 18 prohibited the production by Corrective Services NSW of recorded conversations between an inmate and his wife and son pursuant to a subpoena issued in proceedings pending in the Equity Division. That issue turns on the construction and application of ss 23(5), (6). The circumstances leading to the commencement of those proceedings and the issue of that subpoena are described in the judgment of the primary judge (Lindsay J): Strange v Turnbull [2018] NSWSC 898 at [1]-[8].
On a first reading, s 18 contains a qualified prohibition on the disclosure of personal information by a public sector agency; s 23(5) provides a collection of alternative circumstances in which a public sector agency is not required to comply with that prohibition; and s 23(6) clarifies that s 23(5) does not create a requirement to disclose information merely by reason of the absence of any prohibition. Against that construction, and in support of the continued application of the prohibition notwithstanding the issue of a subpoena, the appellants make two arguments.
First, they contend that on its proper construction the exemption in s 23(5)(c) should be read as limited to disclosure "authorised or required by subpoena" that is either for law enforcement purposes or for the protection of the public revenue. That argument should be rejected for the textual and contextual reasons given by Basten JA in [11].
Secondly, the application of s 23(6) to s 23(5)(c) is said to have the consequence that the latter does not require a public sector agency to disclose personal information if that agency would be entitled to refuse disclosure in the absence of any subpoena, warrant or other lawful requirement. In turn, that absence of a requirement to disclose is said to entail that the prohibition on disclosure in s 18 remains in force.
This argument posits a discrepancy in s 23 without any support in the language or context. The statement in s 23(6) that s 23(5) does not require disclosure in certain circumstances is not inconsistent with disclosure being permitted or with a lawful requirement for disclosure arising elsewhere. The condition in s 23(6) presupposes the existence of such external requirements to disclose. In this case, the subpoena took effect as an order of the court requiring production: Uniform Civil Procedure Rules 2005 (NSW), r 33.2. It also engaged the exemption from s 18 in s 23(5)(c), which permitted, but otherwise would not have required, the disclosure of any personal information.
EMMETT AJA: By amended statement of claim filed on 14 August 2017, the respondent, Mr Robert Strange, seeks relief under s 37A of the Conveyancing Act 1919 (NSW) in relation to four transfers of separate parcels of real property (the Transfers) made by the late Ian Turnbull (the Transferor), to his wife, Robina Turnbull (the Transferee). The Transferor died after the commencement of the proceedings and the executors of his estate (the Executors) have been substituted for the Transferee as defendants in the proceedings.
Section 37A of the Conveyancing Act relevantly provides that every alienation of property made with intent to defraud creditors is to be voidable at the instance of any person thereby prejudiced. In the proceedings, Mr Strange claims a declaration that each of the Transfers is void, a declaration that the Transferee holds the four parcels pursuant to a remedial constructive trust in favour of the Transferor until such time as they can be reconveyed to the Transferor and an order that the Transferee do all things necessary to reconvey the four parcels to the Transferor.
Mr Strange claims to have been prejudiced by the Transfers in his capacity as plaintiff in proceedings commenced by him in the District Court of New South Wales against the Transferor. In those proceedings, he claims damages for mental harm alleged to have been wrongfully inflicted on him by the Transferor. He makes the following allegations:
In July 2014, Mr Strange, who was a Compliance Officer with the New South Wales Office of Environment and Heritage, together with another Compliance Officer (Mr Turner), drove to a property at Croppa Creek (New South Wales) in order to investigate illegal clearing of vegetation on the property.
The Transferor drove up to their location, alighted from a vehicle carrying a rifle and shot Mr Turner three times with the intention to kill him.
It was objectively likely that Mr Strange would suffer mental harm as an immediate bystander and he did in fact suffer such mental harm.
The transferor acted with contumelious disregard for and reckless indifference to his well-being.
The Transferor was convicted of the murder of Mr Turner and sentenced to a term of imprisonment. While in prison, he died. By his will, he appointed the Executors as the executors of his estate.
By paragraph 2 of a subpoena dated 20 February 2018 (the Subpoena), the Proper Officer, Corrective Services NSW was required to produce "audio and transcript of any recorded conversations" between the Transferor and the Transferee and "audio and transcript of any recorded conversations" between the Transferee and his son, Mr Grant Turnbull during specified periods. By amended notice of motion filed on 2 May 2018, the Executors and the Transferee sought, relevantly, orders that paragraph 2 of the Subpoena be set aside or alternatively that no access to any documents produced to the Court in response to paragraph 2 of the Subpoena be granted to Mr Strange. On 12 June 2018, a judge of the Equity Division (the primary judge) ordered that those prayers for relief in the amended notice of motion be dismissed.
By summons filed on 15 June 2018, the Executors and the Transferee seek leave to appeal from the orders made in the Equity Division. A direction has been given that the application for leave and the appeal, if leave is granted, be heard concurrently. On 25 June 2018, the Court granted leave to appeal, ordered that the appeal be dismissed with costs and reserved reasons. The following are my reasons for joining in those orders.
The basis upon which the Executors and the Transferee sought the relief claimed in the amended notice of motion is to be found in the Privacy and Personal Information Protection Act 1998 (NSW) (the Privacy Act). It is common ground that Corrective Services NSW is a public sector agency for the purposes of the Privacy Act. It was also accepted by Mr Strange, for purposes of the proceedings, that the conversations in question that were the subject of the Subpoena may contain personal information within the meaning of that term as defined for the purposes of the Privacy Act.
Division 1 of Part 2 of the Privacy Act, which consists of ss 8 to 19, provides for "Information protection principles." Section 17 relevantly provides that a public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected. Section 18 relevantly provides that a public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body.
However, Div 3 of Pt 2 of the Privacy Act, which consists of ss 22 to 28, provides specific exemptions from the principles stated in Part 2. First, s 22 provides that nothing in Div 3 authorises a public sector agency to do any thing that it is otherwise prohibited from doing. Relevantly for present purposes, s 23(5)(c) then provides that a public sector agency is not required to comply with s 18 if the disclosure of the information concerned is authorised or required by subpoena, search warrant or other statutory instrument. Section 23(6), however, relevantly provides that nothing in s 23(5) requires a public sector agency to disclose personal information to another person or body if the agency is entitled to refuse to disclose the information in the absence of a subpoena, warrant or other lawful requirement.
[6]
Endnotes
Strange v Turnbull [2018] NSWSC 898.
(2017) 249 FCR 24; [2017] FCAFC 4 at [3] (Dowsett J) and [60]-[65] (Kenny and Edelman JJ).
(1995) 59 FCR 285 at 299C-E.
[2015] NSWSC 1410 at [5].
Taciak v Commissioner of Australian Federal Police 59 FCR 285 at 299D.
[7]
Amendments
20 July 2018 - [7] - delete "the" before "relation".
Fn 5 - amend spelling of citation.
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: 20 July 2018
The Executors and the Transferee contend that Corrective Services was entitled to refuse to disclose the relevant information in the absence of a subpoena and that s 23(6) was therefore engaged so as to prevent disclosure as authorised or required by the Subpoena. They contend that s 23(6) evinces a clear legislative intention that the Privacy Act is not to be circumvented by a subpoena unless the disclosure by subpoena is lawfully authorised by the applicable exceptions and that the recognition and protection of privacy justifies a broad and purposive construction rather than a narrow approach to the construction of the prohibition against disclosure [5] .
The language of the Privacy Act is less than felicitous. However, the contentions advanced on behalf of the Executors and the Transferee must be rejected. If the conversations that were recorded or transcribed contain personal information, s 18 prohibited Corrective Services from disclosing that information to any person or body other than the individual to whom the information relates. While the identity of any individual to whom any relevant information may relate is not known at present, it can be assumed that no such information related to Mr Strange. Therefore, there was a prohibition on Corrective Services disclosing any such information to any person or body.
However, by reason of s 23(5), Corrective Services was not required to comply with the prohibition contained in s 18 if disclosure was authorised or required by the Subpoena. On the other hand, compliance with the Subpoena would not, of itself, necessarily involve any disclosure in contravention of the prohibition contained in s 18. The Subpoena has in fact been complied with by Corrective Services and audio and transcripts of recorded conversations have been produced to the Court. Hence, the amended notice of motion sought, in the alternative, orders that access to the material not be granted to any person.
Compliance with the Subpoena to produce the relevant material to the Court would not, of itself, constitute a contravention of the prohibition contained in s 17 or s 18. That is to say, production of the material to the Court would not entail using any relevant information within the meaning of s 17. Further, producing the material to the Court would not, without anything further, entail disclosing the information to any person or body.
The effect of s 6 of the Privacy Act is that nothing in the Privacy Act affects the manner in which a court exercises such of the functions of the court as relate to the hearing or determination of proceedings before the court. Thus, nothing in s 17 or s 18 of the Privacy Act would stand in the way of a court granting access to material produced in answer to a subpoena issued by that court. Accordingly, whether any relevant information is disclosed to any person or body is a matter for the Court in the exercise of the Court's functions relating to the hearing or determination of proceedings before it, namely, whether any party should have access to the material produced by Corrective Services in answer to the Subpoena. Neither s 17 nor s 18 says anything about the exercise of judicial functions by a court, such as the grant of access to material produced to that court in answer to a subpoena.
Section 23(6) does not bear on the question. Section 23(6) simply makes clear that s 23(5) merely permits, but does not require, disclosure of information in the circumstances identified. That is to say, in so far as s 23(5) provides that a public sector agency is not required to comply with the prohibition contained in s 18 in certain circumstances, there is no obligation on the public sector agency to disclose personal information if it is not obliged to disclose information in the absence of those circumstances.
That is the effect of the conclusion reached by the primary judge in refusing the relevant prayers for relief in the amended notice of motion. His Honour did not err in doing so. On the other hand, the question raised is not unimportant and is a question of principle. In the circumstances, it was appropriate to grant leave to appeal but to dismiss the appeal with costs.
I have now had the opportunity of reading in draft form the reasons of Basten JA for proposing those orders. I agree with his Honour's reasons.