Wilson v State of New South Wales

LEGISLATION CITED: Police Act 1990: s 170 Civil Procedure Act 2005

Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [28] - [29]: Esso Australia Resources Limited v Federal Commissioner of Taxation (1999) 201 CLR 49 National Employers Mutual General Association Limited v Waind and Hill (1978) 1 NSWLR 372 at 378D-E, 383 E-F and 385 F CASES CITED: Mann v Carnell (1999) 201 CLR 1 at 11 Schenck Australia Pty Limited v Australian Coal Technology Pty Limited [2006] NSWCA 211 at [20] - [27] R v Saleam (1989) 16 NSWLR 14 Street v Luna Park Sydney Pty Limited [2006] NSWSC 95 at [11]

PARTIES: David Wilson (Plaintiff) State of New South Wales (Defendant)

COUNSEL: Mr K Oliver (Plaintiff) Mr M Hutchings (Defendant)

SOLICITORS: (Plaintiff) (Defendant)

The interlocutory issue before me for determination today is whether the plaintiff should be allowed to inspect certain documents discovered by the defendant but as to which it claimed privilege.

In the substantive proceedings the plaintiff sues the State as the entity vicariously liable for wrongful acts alleged against certain Sheriff's officers and Police officers in its service. The claim has its origins in episodes that occurred at the plaintiff's premises in February 2004 when the Sheriff's officers attempted to levy execution on the plaintiff's goods for an unpaid fine. Altercations occurred following which the plaintiff was later arrested and charged with criminal offences. These charges were subsequently dismissed in the Local Court.

In his pleading the plaintiff claims damages relying on a variety of causes of action, for example, trespass, assault, wrongful arrest, false imprisonment, malicious prosecution, trespass to goods and detinue. At this interlocutory stage it would be inappropriate to form any view as to the merits of these claims and the allegations are to be considered with full weight for the purpose of determining the present application.

Co-laterally with these civil proceedings, complaints were made as to the conduct of the officers involved that became the subject of various investigations and other inquiries by a number of authorities, including the New South Wales Ombudsman, of a disciplinary nature. The present application relates to certain of the documents brought into existence as a result of these complaints and their consequences, as to which the defendant resists an order for inspection relying on s 170 of the Police Act 1990, s 56 of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005.

A contested application made by the plaintiff for discovery was heard and determined by Walmsley J on 31 January 2008. I was provided with a copy of his Reasons. His Honour ordered the defendant to give discovery of certain disputed categories of documents arising out of the complaints, but left open for subsequent consideration various issues surrounding production and inspection of the documents discovered, including any claim for privilege and any discretionary considerations that might arise, having regard to the Civil Procedure Act 2005, in particular s 56.

Pursuant to the orders of Walmsley J, the defendant prepared a list of documents in which it discovered a significant number of documents.

As to a large proportion of those documents, no objection is made to their production and inspection by the plaintiff. There is, however, another group of documents (referred to collectively as the Category 2 Documents) as to which the defendant resists production and inspection.

The plaintiff brought this application by way of a notice of motion seeking an order enabling him to inspect those Category 2 Documents.

The defendant's primary position is that the Category 2 Documents are privileged and not liable to be produced and inspected by the plaintiff. For this contention it relies on s 170(1) of the Police Act 1990, which provides relevantly that documents brought into existence for the purpose of a complaint concerning the conduct of police officers, are not 'admissible in evidence' in any other proceedings (such as the present proceedings).

In R v Saleam (1989) 16 NSWLR 14, the Court of Appeal rejected a submission in relation to a similar predecessor provision to the effect that it not only precluded the admission of such documents in evidence but also conferred privilege on the information in the documents so as to preclude their disclosure at an interlocutory stage to the other party. Hunt J, who delivered the court's judgment, went on to say (at p 21G): "In my view if the legislature had intended (the section) to have such an extraordinary wide operation, it would have made such a provision expressly. There are precedents for it doing so: see for example s 25(3) of the Legal Aid Commission Act 1979, which provides that the commission 'is not required to divulge to any person or court any information or document...relating to the administration of legal aid'... But the legislature has not made such a provision here".

Counsel for the plaintiff pointed to other more recent examples of drafting which expressly preclude pre-trial production of documents as opposed to their admissibility at trial: See, for example, s 165 of the Police Act 1990.

Hunt J in the decision in R v Saleam went on to say (at 162B): "The circumstance that a document is inadmissible in evidence in any particular proceedings, does not mean that a party to those proceedings may not have access to it for legitimate forensic purposes. In McAuliffe v McAuliffe (1973) 4 ACTR 9 at 12 - 13, Blackburn J refused access to documents produced on subpoena on the basis that they were not by themselves admissible in evidence. That decision was expressly held by the Court of Appeal to be unsound and not to be followed: Waind & Hill (at 381). Subject to the existence of a legitimate forensic purpose, a party is entitled to see documents produced on subpoena, not only to see whether they can themselves prove relevant facts but also to see whether they disclose information which may be established in some other admissible form".

The defendant submitted that the principle in R v Saleam does not apply to s 170 of the Police Act 1990.

It was submitted firstly that s 170 should not be read so restrictively in the environment of civil litigation post the Civil Procedure Act 2005 and in this respect R v Saleam was a decision in criminal proceedings, in 1989, but in 2008 the section is to be construed having regard to the current environment relating to civil litigation, manifested by a legislative attention to limit the length of trials, the processes involved and the cost of litigation generally.

That was a bold submission and not one that espoused any principle of statutory construction of which I am aware.

In my view, the fact that these proceedings are civil does not enable me to distinguish the clear statement of principle in R v Saleam. I consider the legislative intent of s 170 to be very clear. It renders the disputed Category 2 Documents inadmissible but does not prevent their production to and inspection by the plaintiff.

The defendant's second submission was that the word 'privilege', which appears in the heading to s 170, must be given some work to do. However, in my view, leaving aside the fact that the section considered in R v Saleam also contained the word 'privilege', albeit in a side note, and that did not affect the court's decision in that case, such purported use of a heading to aid the construction of the section is not permissible: see s 35(4) of the Interpretation Act.

The defendant's next contention was that the disputed Category 2 Documents are not relevant to any issue in the proceedings. I thought that was also a bold submission. I think they are clearly relevant. It is implicit in the judgment of Walmsley J that he also thought they were relevant. Why else would he require discovery of documents that were not relevant to issues in the substantive proceedings?

Next, the defendant contended that the plaintiff had not established a legitimate forensic purpose to justify production of the Category 2 Documents. I disagree. I can readily see any number of legitimate forensic purposes.

Firstly, it seems probable to me that they will reveal additional facts not in possession of the plaintiff that will assist in the prosecution of his case. That is a not unimportant consideration, for example, in a claim for malicious prosecution where the proof of a negative is required.

Secondly, the documents will inevitably give rise to avenues for further investigation and the identification of additional potential witnesses.

Thirdly, they will in all likelihood assist the plaintiff in the cross-examination of any defence witnesses: see Street v Luna Park Sydney Pty Limited [2006] NSWSC 95 at [11]; Mann v Carnell (1999) 201 CLR 1 at 11; Esso Australia Resources Limited v Federal Commissioner of Taxation (1999) 201 CLR 49; National Employers Mutual General Association Limited v Waind and Hill (1978) 1 NSWLR 372 at 378D-E, 383 E-F and 385 F.

The defendant's final contention was that the court should, in the exercise of its discretion, refuse inspection because so to do would run contrary to the overriding purpose enunciated in s 56 of the Civil Procedure Act 2005, to the effect that the procedures of the court should be conducted so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (My first response to that submission is that these documents do in fact go to the real issues and it is not to be suggested that they relate in some way to peripheral or inconsequential issues).

The defendant also referred to the statements that fell recently from the Chief Justice in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [28] - [29]:

"28. The respondent invoked the authority of Queensland v J L Holdings Pty Limited [1997] HCA 1 in support of its ability to amend, even for the fifth time. Case management practices in all Australian courts have changed significantly in the decades since that judgment. Although it remains binding authority with respect to the applicable common law principles, circumstances of the case were significantly different from those in the present case and do not dictate its outcome. In any event such principles can be, and have been, modified by statute both directly and via the statutory authority for Rules of Court.

29. In this state, J L Holdings must now be understood as operating subject to the statutory duty imposed upon the courts by s 56(2) of the Civil Procedure Act 2005, which requires the court in mandatory terms - 'must seek' - to give effect to the overriding purpose - to 'facilitate the just, quick and cheap resolution of the real issues in the proceedings' - when exercising any power under the Act or Rules. That duty constitutes a significant qualification of the power to grant leave to amend a pleading under s 64 of the Civil Procedure Act. "

It was submitted that the plaintiff, in seeking to inspect the disputed Category 2 Documents, was attempting to embark upon 'a fishing expedition'.

But the remarks of the Chief Justice were not made in eschewal of s 58 of the Act and the requirement for the court to act in accordance with the dictates of justice. Those dictates not only require me to have regard to the object of the just determination of the proceedings (s 57(1)), but also enable me to have regard, amongst other things, to the nature of the proceedings involved and the degree of difficulty or complexity to which the issues give rise (s 58(2)(b)(i)), and to the degree of injustice that would be suffered by the respective parties as a consequence of any order I might make (s 58(2)(b)(vi)).

All of that is consistent with the various statements of principle to the effect that there is a balancing exercise to be undertaken in a matter of this sort: see for example Schenck Australia Pty Limited v Australian Coal Technology Pty Limited [2006] NSWCA 211 at [20] - [27].

In undertaking that balancing exercise, I take into account the matters to which I have already adverted, together with the defendant's concession that no question of oppression arises in the sense that it would be unduly inconvenient or expensive for the defendant to produce these documents. The best the State could do was to suggest that the trial might be prolonged if the plaintiff were to be given access to the documents. On the other hand the denial of access to the plaintiff of a potentially rich source of evidence that might help his case, and indeed shorten the trial, is not to be ignored. I hesitate to suggest that the material could in fact result in the legal advisors to the plaintiff reaching a view that certain aspects of his case could lack merit or might not be worthy of pursuing because if that were the case one assumes the level of resistance displayed by the State to the production of these documents would be somewhat less energetic.

I did consider, and I raised with counsel, the possibility of carving out some particular documents from the Category 2 Documents, on a discretionary basis. However, in the light of the conclusions I have reached, I no longer entertain that possibility as an appropriate course.

For all these reasons I determine that the orders sought in the motion should be made (and the Category 2 Documents should be produced for inspection by the plaintiff).

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.