UTSG Pty Ltd v Gwynvill Properties Pty Ltd

Supreme Court of NSW|2017-04-26|Before: Robb J, Ward CJ

The application

This is an application under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 49.19 for the review of a decision made by Senior Deputy Registrar Brown (the Registrar) on 10 April 2017.
The Registrar's decision was in respect of two notices of motion filed by the plaintiff on 17 February and 21 March 2017, whereby the plaintiff sought orders setting aside two subpoenas that the defendant caused to be served, as well as an order preventing the defendant having access to the court file in separate proceedings in this court (the file), being proceedings No 4335 of 2017, which was a dispute between the directors of the plaintiff and joined a number of corporate entities.
The Registrar found in favour of the defendant on the issue of whether the subpoenas should be set aside, and dismissed those applications by the plaintiff.
Neither party to the present proceedings has sought a review of this aspect of the Registrar's decision.
Relevantly to the application for review, the Registrar made the following order: 3. The application to prevent the Defendant's access to the Court file number 2017/4335 is upheld except for the originating process (the summons filed 5 January 2017)…
The Registrar ordered both parties to pay their own costs of the notices of motion.
By notice of motion filed on 12 April 2017, which is now before the court for decision, the defendant sought the following relief: 1. Order 4 made by Senior Deputy Registrar Brown on 10 April 2017 be reviewed pursuant to UCPR 49.19, except to the extent that Registrar produced, from proceedings bearing case number 2017/4335, the summons filed 5 January 2017 only. 2. The Registrar produce to the parties in these proceedings, pursuant to UCPR 33.13, the Court's file in proceedings bearing case number 2017/4335 in its entirety. 3. Grant leave to the parties in these proceedings, to the extent necessary, to use in these proceedings, all documents filed in proceedings bearing case number 2017/4335. 4. This motion be heard with the defendant's motion filed 16 January 2017 for security for costs, which is specially fixed for hearing before Ward CJ in Eq on 26 April 2017. 5. Costs.

The hearing

For administrative reasons, the defendant's notice of motion seeking security for costs was listed to be heard by me rather than the Chief Judge on 26 April 2017.
On 13 April 2017, the proceedings came on before me for pre-trial directions. The parties joined in requesting me to vacate the hearing of the notice of motion for security for costs, and to list the defendant's notice of motion for review of the decision of the Registrar for hearing on 26 April 2017. As that application was by consent, I acceded to it.
At the hearing on 13 April 2017, I was advised that the defendant had become aware of another proceeding, No 359443 of 2013, as to which the defendant proposed to make a similar application for access to the contents of that file (the second file) as the defendant had made in respect of the file the subject of the Registrar's decision.
As I understood the observations made by the legal representatives for each party on that occasion, there was a suggestion that the court might jointly be asked by the parties to resolve the question of whether the defendant should be given leave to have access to the second file, without the need for that issue to be dealt with by a registrar, and that the application could be dealt with on 26 April 2017 at the same time as the defendant's application for review of the Registrar's decision. However, the solicitor who appeared for the plaintiff at that time did not indicate an agreement to that course on the half of the plaintiff.
I will return to this issue below, as the defendant submitted when the matter was before the court on 26 April 2017 that the court should make an order giving the defendant access to all of the documents in the second file.
On 26 April 2017, the solicitor who appeared for the plaintiff on the earlier occasion appeared before the court and sought, and was given leave to file in court a notice of ceasing to act. The solicitor then left the court, with the court's leave, and the plaintiff was not represented at the hearing of the defendant's 12 April 2017 notice of motion.

The principal proceedings

By way of background, the plaintiff's proceedings were started by statement of claim filed on 8 April 2016 in the Real Property List of this court. It is sufficient to note that the plaintiff was the tenant and the defendant the landlord of premises located at 40 Park Street Sydney. On about 17 November 2015, the defendant purported to exercise a right of re-entry and took possession of the premises. In its statement of claim, the plaintiff sought a declaration that the re-entry by the defendant into the premises was unlawful, as well as damages.

Basis of the application

It will be convenient to outline the circumstances that underlay the defendant's desire to have access to the court's file that is the subject of the Registrar's decision.
The defendant's notice of motion filed on 16 January 2017 simply seeks an order that the plaintiff provide security for the costs incurred by the defendant in these proceedings in such amount as the court deems fit.
The notice of motion did not refer to UCPR r 42.21, s 1355 of the Corporations Act 2001 (Cth), or the court's inherent power, as being the source of the court's jurisdiction to order the provision of security for costs by the plaintiff, and in fact the notice of motion did not make any reference to the source of the court's power. In particular, the notice of motion did not refer to the basis of the court's jurisdiction to order the provision of security for costs that is found in UCPR r 42.21(1)(d), being "that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so".
During the course of the hearing, counsel for the defendant made it clear that the defendant's omission to refer to the source of the court's power to order security for costs in the notice of motion was not an oversight, as the defendant wishes to contend for a basis for the making of the order for security for costs which did not necessarily require that the defendant establish that there was reason to believe that the plaintiff would be unable to pay the costs of the defendant if ordered to do so that was based upon evidence of existing impecuniosity of the plaintiff.
It emerged that the defendant's position is essentially as follows. The defendant has obtained evidence that the plaintiff owed rent to the present landlord of the premises as at 16 December 2016 of $103,628.09. Of that amount, $34,542.70 was current, and $69,085.39 was one month overdue, according to the tax invoice issued to the plaintiff by the agent for the property. The defendant provided evidence that on the morning of the hearing a subpoena to the landlord for an up-to-date rent statement was returnable. However, when the subpoena was called, the solicitor for the plaintiff, who filed a notice of ceasing to act on the morning of the hearing, advised the court that he would be withdrawing, and the registrar who dealt with the matter declined to make any order for access and adjourned the return of the subpoena for two weeks. Consequently, the defendant was not in a position to put further evidence before the court on the issue of the extent to which the plaintiff was in arrears of rent. (I should mention that the reason why the defendant is no longer the landlord, as advised by counsel for the defendant, is that the property containing the premises has been resumed by the State government since the occurrence of the events the subject of the statement of claim).
The defendant wishes to make a case that the original tenant under the lease that the defendant purported to terminate was a company related to the plaintiff, called UTSG Consortium Pty Ltd (UTSG Consortium). The principal of the plaintiff, Roselyn Singh, was also a principal of UTSG Consortium. From about 1 March 2013, Ms Singh engaged builders to fit out the premises for its intended use as a medical practice. An issue in the principal proceedings is whether the lease was validly transferred by UTSG Consortium to the plaintiff. It appears that UTSG Consortium purported to do so, and afterwards it was placed in liquidation by the court on the ground of insolvency.
The defendant seeks to prove that the circumstances in which the lease was transferred from UTSG Consortium to the plaintiff, and the subsequent winding up of UTSG in insolvency, constituted what is commonly called Phoenix activity. The result is that no dividends will be paid to creditors of UTSG Consortium, and in particular the company that carried out the fit-out work of the premises will not be paid the price of the work to which it is entitled.
Shortly put, the defendant wishes to support its claim for an order requiring the plaintiff to provide security for its costs on two related grounds, each of which will involve the defendant establishing that the court should infer from the evidence that Ms Singh has engaged in serious Phoenix activity once, that she has a propensity to do so, and may avoid the plaintiff paying any costs that the court orders it to pay to the defendant by repeating the Phoenix activity in relation to the plaintiff. The defendant seeks to put that argument as a stand-alone ground for the court to order security for costs, and also to rely upon it as a ground in conjunction with such evidence as the defendant is able to put before the court to establish the likely impecuniosity of the plaintiff.
Without conceding that it could not establish the impecuniosity of the plaintiff in the conventional way, the defendant acknowledged that there were forensic difficulties in establishing conventional impecuniosity, because, counsel for the defendant asserted, the documentary information that was available, including apparently from accountants, for and against the proposition that the plaintiff's solvency was in doubt, had not been adopted by the plaintiff in the conventional way, and was apparently in other respects questionable.
The defendant did not put before the Registrar the defendant's substantive evidence in support of its notice of motion for security for costs. The defendant's counsel advised the court during argument that the plaintiff had failed to respond to directions made by the court as to the time for filing the plaintiff's evidence in response to the defendant's evidence on the security for costs issue, and that the plaintiff had only served that evidence on a date in April of this year, which was not identified by the defendant. As I have noted above, the Registrar's reasons for judgment were delivered on 10 April 2017. The hearing before the Registrar occurred on 4 April 2017. It appears that the practical consequence was that the defendant was not able to make any use of the evidence upon which the plaintiff intended to rely for the purpose of supporting its application for access to the contents of the court's file that was before the Registrar.
The position is the same on the application for review of the Registrar's decision that is now before the court. The court has not received submissions on the significance of the evidence on the security for costs notice of motion, and in particular it cannot distil from the evidence what the actual issues on that application may be.
The defendant also seeks access to the documents in the court's file, because it wishes to be able to use those documents to undermine the evidence given by, and the credibility of Ms Singh, by showing that Ms Singh frequently used aliases, and by revealing conduct which the defendant says may be repeated with the intention of frustrating any costs order in favour of the defendant.

The Registrar's reasons

The issue of whether the defendant should be granted access to the court's file is primarily dealt with at [45] to [49] of the Registrar's reasons for decision. The Registrar noted at [45] that the defendant seeks access to the file, which involves proceedings between the two directors of the plaintiff and joins various entities, which appear to be entities related to the directors of the plaintiff. The Registrar then, at [47], referred to the court's policy in relation to access to court files as being contained in Practice Note SC Gen 2 (Practice Note). The Registrar extracted pars 6, 7, and 14 to 17 of the Practice Note.
The Registrar then said: 48. As I said previously the proceedings were not finally determined by the Court as they were discontinued. The arrangements made, or resolution entered into, between the parties is not on the Court record and there is no evidence that any of the affidavits filed in the proceedings were read in open Court or admitted into evidence. No exceptional circumstances have been promulgated by the Defendant for access to the Court file. I note that the form referred to in paragraph 17 of the Practice Note was not filed. On the basis of the above I grant access to the summons but decline access to any other documents in the file. Conclusion *49... The application to access the court [file] is refused in accordance with Practice Note SC Gen 2, except for the summons filed 5 January 2017. Leave is not granted to the Defendant, in the present proceedings, to use the Affidavit of Dr Baig, sworn 5 January 2017 and filed in proceedings 2017 /4335.
The reference to leave not being granted to the defendant to use the affidavit of Dr Baig is explained at [5] of the Registrar's reasons. Apparently, the affidavit of Dr Baig was filed in the proceedings the subject of the court file and obtained by the defendant by chance, in answer to a subpoena served by the defendant on Transport NSW in the present proceedings. The Registrar noted the principle in Harman v Secretary of State for the Home Department [1983] 1 AC 280, and that the correct procedure for obtaining leave of the court to admit evidence from another proceeding is to file a notice of motion in the original proceedings seeking leave to rely on that evidence in the current proceedings: see [9]. The defendant had not sought that leave, and accordingly the Registrar agreed with the plaintiff and refused leave to the defendant to use the affidavit of Dr Baig in these proceedings.
The defendant's position on the application for a review of the Registrar's decision was essentially as follows. First, the Registrar had made an error by determining that the application before her should be dealt with by applying the Practice Note. Instead, the defendants submitted, it had properly caused the court's file to be brought before the court in accordance with UCPR r 33.13. The defendant then said, that being the case, the proper approach for the court was to decide whether the defendant should be given access to the documents on the file by applying the same principles as it would apply to any other documents that had been produced to the court in answer to a subpoena. The defendant said that all that it had to demonstrate is that it had a proper forensic purpose in seeking to have access to the documents on the court's file. The defendant continued by submitting that it is not necessary for the defendant to be able to identify any of the documents on the court's file, or to be able to show in any specific way how those documents might be relevant or useful on its application for an order for security for costs. All the defendant needs to show is that it is "on the cards" that there might be something in the file of relevance to some proper forensic purpose of the defendant, and that in that event the court will give access to the defendant to the whole file. The defendant qualified this submission by saying that, because the file to which it seeks access is the court's own file, the court should inspect the documents on the file, before it grants the application for access.

Principles relevant to review

The review is governed by UCPR r 49.19, which is in the following terms: 49.19 Review of registrar's directions, certificates, orders, decisions and other acts If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit.
A comprehensive summary of the principles that are to be applied by the court has been set out by Hallen J in Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935, which I respectfully adopt: 39. Relevant principles drawn from authorities relating to the nature of a review are: (a) The review power conferred is not an appeal and, accordingly, is not subject to the limitations that apply to proceedings by way of appeal: Tomko v Palasty (No 2) [2007] NSWCA 369 ; (2007) 71 NSWLR 61 at [6], [10], [50], [52]; Al-Shennag v Statewide Roads Pty Ltd [2009] NSWSC 210 per Hall J at [44]-[46]; it is "not restricted" to a reconsideration of the primary material before the Registrar: Lollback v Brakepower Pty Ltd [2010] NSWSC 1457 at [10]. (b) It is unnecessary for the applicant for review to demonstrate any material error of fact, or principle, in the order under review. On the review, the court may exercise its powers regardless of error. However, review, in the relevant sense, involves discretionary intervention: Tomko v Palasty (No 2) at [52]; Lollback v Brakepower Pty Ltd at [13]; the discretion extends to a discretion whether, and if so, how, to intervene. (c) The conduct of the review is at large and in the discretion of the Court. Notwithstanding the foregoing, the review is not accurately described as a hearing de novo: Perpetual Ltd v Barghachoun [2010] NSWSC 108 at [3], although it involves many of the features of a hearing de novo. (d) There is an onus on a person seeking to have a court set aside, or vary, a registrar's decision to make out a case that the court conducting the review, in the interests of justice, should exercise its discretion to do so: Tomko v Palasty (No 2) per Hodgson JA at [7]. In other words, there must be a basis shown for setting aside, or varying, the decision or orders of the registrar. (e) Although on review, the Court should consider the matter afresh, it does not follow that the reasoning of the registrar should be ignored, or that variations in the material presented to her, or him, and the evidence that was adduced are irrelevant. The starting point is, therefore, the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. The court will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946 at [24]-[26]. The real question is whether there are any grounds, or any reasons, which would warrant a review of the orders that have been made by the registrar: Al-Shennag v Statewide Roads Pty Ltd at [47]. (f) What will be required to make out a case for intervention will vary depending upon the nature of the registrar's decision under review: Groeneveld v Wollongong City Council [2009] NSWLEC 149 (2009) 168 LGERA 260, per Preston CJ at [12]. However, the court should inform itself of the material before the registrar at the time when he, or she, made the decision, should consider the reasons for the decision, and then should make its own decision based on the material before it after having the benefit of the submissions of each party. (g) It is proper for the Court to exhibit a natural inhibition against the unrestrained substitution of the reviewing Court's views for those of the registrar: Westpac Banking Corp v Abemond Pty Ltd; Westpac Banking Corp v Cameron (NSWSC, 3 November 1994, unreported). (h) When it comes to matters of practice and procedure, there should be a natural inhibition against overturning a registrar's decision: Wentworth v Graham [2002] NSWSC 397; (2002) 55 NSWLR 638 at 640-641. However, where substantive error is established, then the Court would consider reviewing the registrar's decision and would make such other order as it is authorised to make: Al-Shennag v Statewide Roads Pty Ltd at [46]. (i) In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a Court may be more willing to intervene. It may permit further evidence to be led that does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v R [1936] HCA 40 ; (1936) 55 CLR 499 error is shown, again if it is satisfied that the interests of justice require this: Tomko v Palasty (No 2) at [5]-[9], [50], and [52]. (j) If fresh, or additional, evidence, is produced, it may be received by the court and taken into account (Fenwick v Wambo Coal Pty Ltd [2011] NSWSC 176, per White J, at [46]), or the court may refer the matter back to the Registrar for consideration as a fresh application: Portal Software v Bodsworth [2005] NSWSC 1115 at [17]. The court may be more inclined to intervene on a review based on fresh evidence, changed circumstances, or where error is demonstrated in the decision under review: Tomko v Palasty (No 2) at [52]. (k) The decision of the registrar stands until it is set aside: Lawteal Pty Ltd v Ofo [2005] NSWSC 984, per Malpass AsJ at [19]. (l) The registrar must give sufficient reasons for his, or her, decision: Thompson v New South Wales Land and Housing Corporation [2008] NSWSC 74 per Malpass AsJ at [9]-[16].
This statement of principle was adopted by Kunc J in Re Estate of Falco; Falco v Lambert (No 3) [2015] NSWSC 1343 at [43]. A similar summary of the principles applicable to the review by the court of a determination by a registrar was given by Lindsay J in Re Estate of Gowing; Application for Executor's Commission [2014] NSWSC 247 at [100] to [107].
Both Kunc J at [44] and Lindsay J at [108] emphasised the need for the court to have regard on a review to the guiding principles set out in Part 6 Division 1 of the Civil Procedure Act 2005 (NSW).

Consideration

The defendant's first submission was that the Registrar was in error in applying the Practice Note. It submitted that the relevant provision to be applied was UCPR r 33.13, the title to which is "Documents and things in the custody of the court". As the file the subject of the Registrar's decision relates to proceedings in this court, the relevant part of the rule is: (1) A party who seeks production of a document or thing in the custody of the court or of another court may inform the registrar in writing accordingly, identifying the documents or thing. (2) If the document or thing is in the custody of the court, the registrar must produce the document or thing: (a) in court or to any person authorised to take evidence in the proceeding, as required by the party, or (b) as the court directs. This rule does not require the registrar to produce the document or the to the party who seeks production of it. Unless the court directs otherwise, the registrar must produce the document or thing in court (as the alternative referred to in sub-rule (2) (A) is not material in the present case.
The rule says nothing about the basis upon which the court will allow the party who seeks production of the document or thing to have access to it. The rule is in reality a process by which a party to proceedings who wishes to make an application for a document or thing in the custody of this court or some other court to have that document or thing produced to the court in which the proceedings are being conducted. It establishes an orderly means for documents and things in the custody of this court to be produced before the judge hearing proceedings in this court, and obviates the possibility or need of one court issuing a subpoena for the production of documents or things in the custody of another court.
UCPR r 33.13 leaves open the question of when the court to which the document or thing is produced should give access to that document or thing to the party who has caused it to be produced under the rule.
It will be necessary to interpret the Practice Note to determine whether, according to its terms, it applies to an application by a party to proceedings in this court in the position of the defendant to have access to documents in a file of the court that has been produced under r 33.13.
Paragraph 2 states that the Practice Note applies to each of the Divisions of the Supreme Court, so the Practice Note will apply to this application unless it is not capable of doing so on its proper interpretation.
The purpose of the Practice Note is stated in par 4 in the following terms: 4. The purpose of this Practice Note is to prescribe the procedures surrounding the provision of access to court files.
This statement of purpose is entirely general in its expression, and so is capable of applying to all circumstances in which access is sought to court files.
The fact that par 5 prevents a person searching in a registry for or inspecting any document or thing in any proceedings except with the leave of the court, which on its face applies only to documents in a registry, does not necessarily confine the generality of the operation of the Practice Note.
Importantly, par 6 provides: 6. Access to material in any proceedings is restricted to parties, except with the leave of the Court.
Paragraph 7 sets out the principles that will normally apply to applications by "non-parties" for access to material in any proceedings. It provides: 7. Access will normally be granted to non-parties in respect of: pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential; documents that record what was said or done in open court; material that that was admitted into evidence; and information that would have been heard or seen by any person present in court, unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist.
Paragraph 6 is also stated in general terms, as being applicable to material in any proceedings. That would apply to any documents in any court file kept by the court in relation to proceedings in the court. Access is "restricted to parties". In my view the reference to "parties" is intended to be restricted to parties to the proceedings in respect of which the material referred to comes into the custody of the court. It does not encompass persons in the position of the defendant, who happen to be parties to entirely unrelated proceedings in the court.
The defendant put an argument as to why it was encompassed within the reference to "parties" for the purposes of par 6, and why it was not a non-party for the purposes of par 7, that was based on the terms of par 17. That paragraph provides: 17. Application by a person, who was not a party to proceedings, for access to material held by the Court in the proceedings shall be made in the attached form to the registrar of the appropriate Division, who will refer doubtful cases to the Chief Justice or to a Judge nominated by the Chief Justice. The registrar or Judge may notify interested parties before dealing with the application. The applicant must demonstrate that access should be granted in respect of the particular documents the subject of the application and state why the applicant desires access…
The defendant's submission was that the reference in par 17 to "a person, who is not a party to proceedings" had the effect of showing that the whole of the Practice Note was meant to apply only to persons who were not parties to any proceedings in the court, and for that purpose it did not matter whether the persons were parties to the proceedings that led to the document or thing coming into the custody of the court, or some other proceedings.
I do not accept this argument. Plainly, where the court has custody of a document or thing as a result of one proceeding, persons who wish to gain access to that document or thing may happen to be a party to other proceedings in the court, or they may be third parties who are not engaged in any proceedings. If the former, the court will be able to deal with an application by a party to one proceeding to a document or thing in the custody of the court as a result of another proceeding, after the document or thing has been brought into court by operation of UCPR r 33.13. However, if a person who is not a party to some proceedings in the court has some interest in a document or thing in the custody of the court, as a practical matter some arrangement must be put in place to enable the person in a practical way to make an application for access to the document or thing. To avoid unnecessary formality, par 17 provides for a process in that situation, consisting of the making of an application using the attached form. The paragraph then sets out a relatively uncomplicated process to enable the court to deal with the application.
In my view the Registrar was not in error when she in her reasons decided the fate of the defendant's notice of motion by applying the Practice Note.
I am fortified in this conclusion having regard to the observation made by Hayne, Heydon and Crennan JJ in Hearne v Street (2008) 235 CLR 125 at [98] 155, where there Honours observed: It may be noted that the general law protection is often buttressed by protection from the rules of court. Thus until 15 August 2005, the New South Wales Supreme Court Court Rules 1970, Pt 65, r 7, prevented strangers to litigation from having access to documents or things on the court file without the leave of the Court… From 1 March 2006, Practice Note SC Gen 2 prescribed procedures in relation to access to Supreme Court files …
When their Honours referred to "strangers to litigation" they were in my view clearly referring to all persons who were not parties to the particular proceedings by which the court acquired custody of the document or thing. The defendant cannot say that it was not relevantly a stranger to litigation, because of the happenstance that it is a party to entirely unrelated proceedings in the court.
Even if it were correct to say, as does the defendant, that the Practice Note does not govern the circumstances in which the court will give the defendant access to the file the subject of the Registrar's decision, it would still be necessary to address the question: what are the principles that are to govern the application for access?
The defendant submitted that the relevant principle is that stated by Simpson J, with the agreement of Spigelman CJ and Studdert J in R v Saleam [1999] NSWCCA 86 in the following terms: [10] The applicant has identified with some particularity the documents he seeks to have produced by the Commissioner of Police. All are documents, files or records he claims were constructed and maintained by the Special Branch (now disbanded) of the NSW Police Service. Any documents in existence that would match the description he gives would relate to himself, his former wife, the alleged victim of the offence, his alleged co-conspirator, and to relations and dealings between those individuals and officers of the Special Branch. The files he seeks relating to the named individuals are not limited to records covering any particular period; other documents he seeks are limited to periods in 1989 and 1990. The applicant claims that it is "on the cards" that there would emerge from these documents material that falls within the category of fresh evidence admissible on his applications (and appeals, if leave is granted) of such a nature that there is a significant possibility that he would have been acquitted of the charge of conspiracy had the evidence been available at the trial (R v Gallagher (1986) 160 CLR 392; R v Mickelberg (1989) 167 CLR 259 at 301-302); or would have been successful in his application for a stay. The "on the cards" test was formulated by Gibbs CJ in Alister v R (1984) 154 CLR 404 at 414 in relation to an appeal against conviction for murder on the ground that access to certain documents produced in answer to a subpoena had been denied on the basis of public interest immunity. [11] The principles governing applications of this kind are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was.
As Simpson J noted at [10], the "on the cards" test was formulated by Gibbs CJ in Alister v R (1984) 154 CLR 404 at 414.
The principles stated by Simpson J are intended to govern the circumstances where there is an objection on some ground by the recipient of a subpoena to the requirement that the recipient actually produce to the court the documents specified in the subpoena. Where the recipient claims a right not to have to produce the documents at all, the question arises as to when, in the particular context in which the subpoena has been issued, it will be proper for the court to require the documents to be produced for the purpose of inspection by the court, in order to enable the court to decide whether there is some paramount right or interest that may defeat the right claimed by the recipient of the subpoena as the ground for not producing the documents at all. In this context, the court will require the recipient to produce the documents for inspection by the court if it is "on the cards" that the documents covered by the subpoena will contain documents which will materially assist the case of the party seeking access.
The principles considered by Simpson J are of no direct application in the present case, as the file that was the subject of the Registrar's decision is already before the court, and it is not the subject of any claim that the documents in the file need not be produced to the court at all. R v Saleam is of no assistance in the present case, as it says nothing about the principles that govern the circumstances in which the court will permit the use of documents that are not permitted to be used without leave by reason of the application of the Harman restriction.
In my view the principle governing when the court will allow a party access to, and to use, documents that are protected by the Harman restriction are sufficiently stated by Flick J in Ashby v Slipper (No 2) [2016] FCA 550, as follows: [10] When exercising the jurisdiction to release a party from the "implied undertaking", it has been said that a Court may do so only where "special circumstances" exist. The dispensing power "is not freely exercised": Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 37 per Brennan J. The need for "special circumstances" recognises the balance between reasons for imposing the constraint on material secured for use in proceedings and the reasons why a party may seek to free itself from that constraint. There must be a reason to release a party from the constraint initially imposed which seeks to balance - or at least take into account - the reasons for imposing the constraint in the first place. Reasons for initially imposing the constraint include a recognition that the Court's compulsory processes of obtaining information may have been employed to secure that information - in some cases from third parties - in order to facilitate the administration of justice between the parties to litigation. Reasons for relaxing the constraint frequently involve considerations going beyond the immediate interests of the parties to particular litigation (and those whose otherwise confidential materials have been subpoenaed) and involve the wider public interest, including the public interest in the administration of justice and the administration of the law more generally. In the present case, these considerations include the enforcement or administration of the criminal law. [11] More recently, in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 at 289 to 290 Branson, Sundberg and Allsop JJ expressed the principles to be applied as follows: [31] In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show "special circumstances": see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of "special circumstances" does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were: • the nature of the document; • the circumstances under which the document came into existence; • the attitude of the author of the document and any prejudice the author may sustain; • whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain; • the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information); • the circumstances in which the document came in to the hands of the applicant; and • most importantly of all, the likely contribution of the document to achieving justice in the other proceeding. This list of "considerations" is, obviously enough, not exhaustive: Plate Glass Holdings Pty Ltd v Fraser Gordon Investments Pty Ltd [2012] FCA 1487 at [27] per Flick J.
It will be noticed that the court will only release a party from the Harman restriction where "special circumstances" exist. Flick J set out some considerations relevant to the question of when "special circumstances" have been demonstrated. The Practice Note does not use the expression "special circumstances" in par 7. Rather, it uses the expression "exceptional circumstances". In my view it is unlikely that it was intended when the Practice Note was promulgated that the expression "exceptional circumstances", as used in par 7, was to have a materially different meaning than the expression "special circumstances", when used in the authorities to discuss the general position in cases where a party seeks the leave of the court to be excused from the Harman restriction.
Indeed, in my view, albeit only as a practice note, the Practice Note was intended to regulate the manner in which the court would generally permit conduct that would otherwise be a departure from the Harman restriction, where the context involves an application for access to material that has come into the custody of the court by reason of some proceedings.
It may be that par 7 of the Practice Note will at least in some cases simplify the task of the judge or registrar in dealing with applications by persons who are not parties to the original proceedings to decide whether documents in the court's file should be provided to applicants. Ultimately, it may be that the outcome is no different, but if a judge or registrar simply had to apply the principles concerning when leave should be given to relax the Harman restriction, it would be necessary for the judicial officer to review all of the documents in the file, and to make judgments about which documents fell within the restriction as described by Hayne, Heydon and Crennan JJ in Hearne v Street at [96]. In the case of some documents it may be necessary for the judicial officer to make judgments as to whether the document was produced under compulsion, and that question may not always be straightforward. Paragraph 7 of the Practice Note lists the types of documents for which access will "normally" be granted, and denies access to other material unless the judicial officer is satisfied that exceptional circumstances exist. The procedure remains flexible, but the last-mentioned requirement will place a practical burden on the applicant to identify documents or categories of documents, and then make a positive case either as to why the documents should not be considered to fall within the Harman restriction, or that there is some exceptional reason why access should be given even if they do.
Whatever might be necessary to satisfy the requirement that there be either special or exceptional circumstances to justify the court authorising a departure from the Harman restriction, a claim that it is "on the cards" that the court file may contain documents that will be of some forensic benefit to a party to completely unrelated proceedings will not ordinarily be sufficient.
I do not understand the defendant on the present application to have made any submissions to support a claim that any documents in the file ought to be provided to it because there are exceptional or special circumstances. The defendant only submitted that the file may contain documents that will provide some assistance to the defendant in establishing that Ms Singh had engaged in Phoenix activity in relation to the assignor of the lease to the plaintiff in these proceedings, that the documents may controvert the evidence given by Ms Singh on the substantive claim in these proceedings, and may assist the defendant in discrediting her evidence. The Registrar did not record any submission made on behalf of the defendant that was to a different effect than that which I have just recorded.
I have read the evidence that was before the Registrar, and I note that on the issue of whether the defendant should be given access to documents in the court file, the only evidence appears to be a summons and an affidavit of Dr Mirza Salman Baig, the plaintiff in the proceedings, in support of the summons. The summons seeks an order for rectification of the share register of the companies listed in the schedule to the summons, a declaration that certain transfers of shares were void, specific performance of a certain memorandum of understanding, damages, and also an order that any compensation to be paid by Transport NSW relating to the compulsory acquisition of the leasehold interest in the premises be paid into court, and dealt with in accordance with the order of the court. It appears that the proceedings in substance concerned a shareholder dispute between Dr Baig and Ms Singh. As the Registrar recorded, it appears that the proceedings were settled before trial.
On the hearing of the notice of motion before me, the defendant read a further affidavit of its solicitor, Mr Thomas Howard, affirmed 19 April 2017. That affidavit annexed five documents that the defendant had obtained upon inspection of one of the subpoenas that the Registrar declined to set aside. The documents were all records or communications of the liquidators of UTSG Consortium. The documents contained certain information and assertions concerning facts that may be of use to the defendant on its application for security for costs. The defendant pointed in particular to an assertion made in a letter from the liquidators to Ms Singh that she had used six aliases.
I do not see how this additional evidence changes the position adopted by the Registrar, and it was not relied upon by the defendant as showing any exceptional or special circumstances for allowing the defendant access to the file, or leave to use the affidavit of Dr Baig.
No reason has been given by the defendant as to why there are exceptional or special circumstances that would justify the defendant being given access to the file, or leave to use the affidavit of Dr Baig that came into the defendant's possession as a result of a subpoena answered by Transport NSW, and no sufficient reason has appeared to me from my examination of the summons or the affidavit.
Consequently, I dismiss the defendant's notice of motion filed on 12 April 2017, and order the defendant to pay the plaintiff's costs of the notice of motion.
I add that I have not considered the defendant's claim for access to all of the documents in the second file. That claim was not formally before the court, and it is not appropriate that it be dealt with without the plaintiff having an opportunity to respond to the defendant's claim. It is likely, however, that the defendant's claim in relation to the second file will meet the same fate as its claim in relation to the first.

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: 23 May 2017

(2009) 168 LGERA 260

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