WEEKS -v- NATIONWIDE NEWS PTY LTD [No 3] [2019] WASC 268 (25 July 2019)

I have enclosed the documents that answer items 1 to 4 of the Subpoena. There is an itemised list of these documents attached to this letter.

There is one document that is captured by items 1 to 4 of the Subpoena that the Commissioner objects to producing on the basis of legal professional privilege. The issuing party has informed this Office that at this stage it will not contest that objection.

Therefore, with the agreement of the issuing party, that document has not been included in the enclosed bundle of documents.

In relation to item 5 of the subpoena, I am instructed that:

• All records held by the Commissioner relating to Mr Weeks in his capacity as Director General of the Department of Aboriginal Affairs for the period between 1 January 2011 and 31 December 2016 have been provided in response to an earlier subpoena issued by the Supreme Court at the request of the issuing party in June 2018. These documents were produced to the Supreme Court on 23 July 2018.
• The Public Sector Commissioner does not have in its possession any material matching the description of 'complaints made by staff of the Department of Aboriginal Affairs to the Human Resources Department [between 1 January 2011 and 31 December 2016]'.

The issuing party has indicated that it will not press for production of the material captured by item 5 of the subpoena that has already been produced to the Court on 23 July 2018.

Therefore, that material has not been included in the enclosed bundle of documents.

1. The court may set aside a subpoena to produce documents pursuant to O 36B r 8A of the Rules of the Supreme Court 1971 (WA) or in the exercise of the court's inherent jurisdiction. The court will set aside a subpoena that is an abuse of process. A subpoena will be an abuse of process if it serves no legitimate forensic purpose.
2. Both parties referred to the principles to be applied in determining whether a subpoena is for a legitimate forensic purpose which are set out in Stanley v Layne Christensen Co.[1] The Full Court said that the court will consider whether the documents give rise to a line of inquiry, whether the documents are required for a fair disposal of the action, whether the documents allow the parties to appraise the strengths and weaknesses of their and their opponent's case, and whether all relevant documents should be made available to the parties. A document may materially assist the defence even if it is not admissible in the proceeding. A legitimate forensic purpose will be established if a document gives rise to a line of inquiry which is relevant to the issues before the trier of fact.
3. The issues to be tried in relation to the defence of justification are limited by the particulars of justification.
4. The issuing party must identify expressly and with precision the legitimate forensic purpose for which they seek access to the documents. The issuing party must then satisfy the court that it is 'on the cards' that the documents would materially assist the issuing party in their defence.[2]
5. The expression 'on the cards' is derived from the judgment of Gibbs CJ in Alister v R.[3] Some cases have criticised the expression 'on the cards' as imprecise and prefer a test of whether it is 'reasonably possible' that the document will materially assist the defence case.[4] In Holloway v State of Victoria (Department of Justice),[5] Cavanough J reviewed the history of decisions in this area and concluded that judges should continue to follow the classic formulation of the test.
6. Counsel for the plaintiff, Mr Bennett, submitted that the subpoena is a fishing expedition to examine part of the documents of the DAA, at a time when the plaintiff was DirectorGeneral of the DAA, for the purpose of trying to find something there.
7. A subpoena to produce documents will be set aside if it is 'fishing', that is, the subpoena is served not for the purpose of requiring production of documents which the person subpoenaed is reasonably expected to hold, and which are likely to advance the issuing party's case, but with the purpose of seeing what documents the party subpoenaed may have, and whether they may give the issuing party a case or defence.
8. In Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd,[6] Owen J said:

A 'fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere 'fishing expedition'.

1. It is not necessary that the issuing party know of the contents or existence of the documents sought. A party is not necessarily 'fishing' for documents in this sense if they require those documents solely for use in crossexamination. The prohibition against 'fishing' does not require that the issuing party already has relevant evidence in its possession, only that there exists a pleading which raises issues to which the evidence sought by the subpoena would be relevant. In Liristis v Gadelrabb[7] Brereton J observed:

I do not understand it ever to have been a proper objection to a subpoena that it seeks documents relating only to credit. Indeed, one of the fundamental distinctions between the processes of subpoenas for production and discovery is that subpoenas, unlike discovery, may be used to obtain documents relevant only to questions of credit, for the purposes of assisting crossexamination as to credit. It is true that in Fried v National Australia Bank [2000] FCA 911; (2000) 175 ALR 194, Weinberg J in the Federal Court of Australia said that it was inappropriate to permit a subpoena to stand which does little more than to trawl for documents that may be used to impugn the credit of a particular witness. I do not disagree with that observation, but that is not to say that it is inappropriate to permit a subpoena to stand that seeks documents that may be used to impugn the credit of a particular witness, as distinct from merely trawling for such documents. The concept of 'trawling' in this context is the same as that of 'fishing'. It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is 'on the cards' that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena.

1. In Liristis v Gadelrabb there was evidence and 'ample reason to suppose' that there may be criminal records relevant to dishonesty and/or perjury by the plaintiff, but no evidence nor any reason to suppose that there might be any regarding his father.[8] So, there was a legitimate forensic purpose for seeking the son's records, but the part of the subpoena referring to the father was 'nothing more than a fishing expedition to see whether any such documents are in existence'.[9] The subpoena was set aside.
2. Senior counsel for the defendants, Mr Blackburn SC, identified the legitimate forensic purpose for which the defendants seek access is that the documents are likely to relate to one or more of the matters set out in the particulars of justification. Mr Blackburn said that it is 'on the cards' that the documents will materially assist the defendants in their defence in the sense that there is a likelihood that they will do so. In the circumstances of this case, Mr Blackburn accepted that the defendants must establish a likelihood that the documents will refer to the plaintiff in relation to one or more of the matters set out in the particulars.

1. At par 8 of their defence the defendants give particulars of justification. The particulars state that the plaintiff during his tenure as DirectorGeneral of the DAA engaged in the conduct in the 14 paragraphs there set out. By amended further and better particulars dated 1 April 2019 the defendants gave some further particulars of that conduct.
2. Paragraphs (a) - (f) of the particulars of justification relate to feedback forms completed by senior women in the DAA who attended a seminar organised by the Public Service Commission in which the women were asked to provide their opinions about senior management of the DAA. The particulars proceed as follows. The feedback forms were provided to the DAA and came to the attention of the plaintiff. On or about 23 October 2014 the plaintiff was at a meeting of a number of senior staff of the DAA, including Mr Loftus. The plaintiff referred to what one of the women had said about him on a feedback form and said, among other things, 'we'll just make her cry'. The plaintiff then instructed his personal assistant to review DAA records to attempt to determine which staff member had provided the negative feedback form.
3. Particular (g) is that the plaintiff acted in a mistrustful and contemptuous manner towards the Department of Premier and Cabinet (DPC) in that, amongst other things, he referred to the Deputy Director General of the DPC before at least one member of his senior staff, Mr Loftus, as a 'lying cunt'. The defendants say that occurred in late 2014 or early 2015.
4. Particular (h) is that the plaintiff promoted a junior lawyer in the DAA to the position of general counsel over one of the more senior lawyers in the DAA, and when the lawyer attempted to provide legal advice in her new role, the plaintiff sent her an email which said that she was not there to give him 'fucking legal advice' but was there to 'do his fucking legal work for him'. In their further and better particulars the defendants say that the email was sent in late 2014 or early 2015 and make further assertions about irregularities or improprieties in the appointment of the lawyer. The particulars contain no reference to Mr Loftus.
5. Particulars (i) and (j) refer to the plaintiff putting himself in a conflict of interest by allowing his wife, who worked as a nurse at a nearby hospital, to occupy a parking spot in the carpark in the DAA's office building. In their further and better particulars the defendants say the conduct occurred in 2014. The particulars contain no reference to Mr Loftus.
6. Particulars (k) and (l) refer to the plaintiff promoting an employee favoured by him, Mr James Strickland, to a position which had a higher salary. In their further and better particulars the defendants say that the conduct occurred in or around September 2014. The particulars contain no reference to Mr Loftus.
7. Particular (m) is that the plaintiff allowed directors of the DAA to be engaged on fixed term contracts in breach of the Enterprise Bargaining Agreement in place between the DAA and the Community and Public Sector Union. In their further and better particulars the defendants make further assertions about irregularities or improprieties in the appointments. The particular makes no reference to Mr Loftus.
8. Particular (n) is that in response to an employee of the DAA, Mr Loftus, bringing an Industrial Relations Committee claim arising from the plaintiff refusing to extend Mr Loftus' contract, the plaintiff took action resulting in the branch of the DAA which Mr Loftus' role fell under being abolished. Counsel for the defendants informed the court that Mr Loftus' employment contract ceased in March 2016.

1. The Public Interest Disclosures Act 2003 (WA) (PID Act) facilitates a disclosure of public interest information involving misconduct, offences, misuse of public resources or risks to public health or safety. The Act protects informants who make public interest disclosures to proper authorities. A proper authority must investigate disclosures and take appropriate action to prevent the continuance or recurrence of matters which are the subject of a public interest disclosure, and if necessary take disciplinary action against the person responsible.
2. Section 16(1) of the PID Act prohibits a person from making a disclosure (an identifying disclosure) of information that might identify or tend to identify an informant who has made a public interest disclosure. There are some specific exceptions, including if the disclosure was made in accordance with an order of a court.
3. Section 16(3) prohibits a person disclosing information that might identify or tend to identify anyone as a person in respect of whom a disclosure of public interest information has been made (identifying information). There are some specific exceptions, including if the disclosure is made in accordance with an order of a court.

1. The documents the subject of the subpoena (excluding the documents at item 5) all relate to 'the Investigation', that is the investigation in response to the public interest disclosure lodged with the Public Sector Commission on 22 August 2014 by Mr Loftus.
2. There is no material before the court about any public interest disclosure made by Mr Loftus to the Public Sector Commission or any other public interest disclosure. The only material before the court about the public interest disclosure by Mr Loftus is the statement in the subpoena of the documents required to be produced and that the Commissioner has produced to the court documents in response to the subpoena. The material before the court discloses nothing about the Investigation except that it was in response to a public interest disclosure, the disclosure was lodged with the Public Sector Commission on 22 August 2014 and it was lodged by Mr Loftus.
3. It is mere conjecture that the public interest disclosure relates to the conduct of the plaintiff, let alone the specific instances of conduct set out in the defendants' particulars of justification.
4. There are three references to Mr Loftus in the particulars of justification. In particular (d) it is said that Mr Loftus was one of the senior staff present at a meeting on 23 October 2014 when the plaintiff waved around one of the feedback forms and made derogatory comments about its author. Neither that event nor the other events referred to in particulars (a) - (f), which concern the feedback forms and the plaintiff's actions in relation to them, can be the subject of the public interest disclosure made on 22 August 2014 and the Investigation because those events occurred more than two months after the public interest disclosure was lodged with the Public Sector Commission.
5. Mr Loftus is referred to in particular (g) where it is said that the plaintiff referred to the Deputy Director General of the DPC before at least one member of the senior staff, Mr Loftus, in the offensive terms there set out. There is no reason to suppose that the matters referred to in particular (g) form part of the public interest information disclosure lodged on 22 August 2014. It is mere conjecture.
6. Particular (n) concerns the plaintiff's action after Mr Loftus brought an Industrial Relations Committee claim arising from the plaintiff refusing to extend Mr Loftus' contract. Senior counsel for the defendants informed the court that Mr Loftus' employment ceased in around March 2016. It is at the very least highly improbable that Mr Loftus brought his industrial relations claim before 22 August 2014 and hence that the plaintiff's conduct in response to Mr Loftus' claim could be the subject of Mr Loftus' public interest disclosure lodged on 22 August 2014.
7. The remaining particulars (h), (i), (j), (k), (l) and (m) make no reference to Mr Loftus. There is no reason to suppose that the matters referred to in those particulars form part of the information the subject of the public interest disclosure made by Mr Loftus on 22 August 2014. That they did is mere conjecture.

1. It is not on the cards that the documents sought by the subpoena relate to the plaintiff, let alone the matters pleaded in the particulars of justification. It is not on the cards that the documents sought will assist the defendants' case. It is not sufficient that there is a chance that something useful might turn up in the documents. The subpoena has no legitimate forensic purpose.

1. The plaintiff asserted that the subpoena is an 'identifying disclosure' within the meaning of that term in s 16(1) of the PID Act in that it discloses the identity of a person, Mr Loftus, who has made a disclosure of public interest information under the Act. The plaintiff says that identifying disclosures are prohibited under the Act. I find it unnecessary to address that issue.
2. The plaintiff further says that any express suggestion that the person in respect of whom Mr Loftus made his disclosure was the plaintiff would constitute 'identifying information' within the meaning of that term in s 16(3) of the PID Act. It is unnecessary to address that issue. The defendants have not stated that the plaintiff is the person in respect of whom Mr Loftus made the disclosure and there is no material before the court saying that he is, implying that he is or from which it may be inferred that he is.

1. The defendants invited the court to view the documents produced in answer to the subpoena to assess their legitimate forensic purpose.
2. Where it is alleged that the issue of a subpoena is not for a legitimate forensic purpose, the court may, but is not obliged to, inspect the documents brought to court in compliance with a subpoena. Where, however, objection is taken on the ground of relevance or 'fishing', the court will consider the objection without inspecting the documents.[10] It is not enough for the party issuing the subpoena to raise a speculative possibility that the documents sought would assist the resolution of the dispute. It must be more than an outside chance that something useful might turn up in the documents.

1. The subpoena should be set aside on the ground that it serves no legitimate forensic purpose.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate/Orderly to the Honourable Justice Le Miere

[1] Stanley v Layne Christensen Co [2004] WASCA 50.

[2] R v Saleam (1989) 16 NSWLR 14.

[3] Alister v R [1984] HCA 85; (1984) 154 CLR 404, 414.

[4] Eg, State of Victoria (Department of Justice) v Lane [2012] VSC 328 [18].

[5] Holloway v State of Victoria (Department of Justice) [2015] VSC 526 [80].

[6] Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250, 254.

[7] Liristis v Gadelrabb [2009] NSWSC 441 (Liristis) [5].

[10] Hunt v Judge Russell (1995) 63 SASR 402, 408 - 409 (Perry J); Andrew Garrett Wine Resorts v National Australia Bank Ltd (No 6) [2005] SASC 292 [36] (Gray J).