Woolworths Limited v Lawson

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

2084/02 WOOLWORTHS LIMITED v THERESA LAWSON JUDGMENT 1 HIS HONOUR: This is an application by Woolworths Limited in some litigation which it has brought against Ms Lawson. Ms Lawson is a former employee of Woolworths who Woolworths has dismissed and accused of misappropriating money. 2 The principal litigation concerns a claim which Woolworths brings against Ms Lawson to get back the money it says she has misappropriated. 3 In the course of those proceedings Woolworths has issued subpoenas to some nineteen different entities. Some are financial institutions, some are entities which operate places where gaming can be conducted. All of those entities have produced documents pursuant to subpoenas, which in some way bear upon the tracing of money said to have been taken by Ms Lawson from Woolworths. 4 One of the recipients of the subpoena is Star City Pty Limited, the operator of the Sydney Casino. 5 All of the recipients of the subpoenas except Star City have consented to the documents which they have produced being made available both to Woolworths' insurers, and also to the police. Woolworths wishes to make available the documents produced by Star City to its insurers to assist the insurers in the quantification of loss for the purpose of a claim which Woolworths has made. Woolworths also wishes to make the documents available to the police, in connection with charges against Ms Lawson. 6 Star City opposes the making available of the documents to its insurers, and the police. Star City points to requirements of s 148(3) and (4) of the Casino Control Act 1992, so far as the disclosure of the information to the insurers is concerned. Those provisions are part of a regime which aims to impose a high level of confidentiality on operations of the Casino. Section 148 provides: "(1) A person who acquires information in the exercise of functions under this Act must not, directly or indirectly, make a record of the information or divulge the information to another person, except in the exercise of functions under this Act. Maximum penalty: 50 penalty units. (2) Despite subsection (1), information may be divulged: (a) to a particular person or persons, if the Authority certifies that it is necessary in the public interest that the information be divulged to the person or persons, or (b) to a prescribed person or prescribed authority, or (c) to a person who is expressly or impliedly authorised to obtain it by the person to whom the information relates. (2A) Information to which section 143C applies may not be divulged under subsection (2) except with the consent of the Commissioner of Police. (3) A person cannot be required:

(a) to produce in any court any document or other thing that has come into the person's possession, custody or control by reason of, or in the course of, the exercise of the person's functions under this Act, or (b) to divulge to any court any information that has come to the person's notice in the exercise of the person's functions under this Act. (4) Despite subsection (3), a person may be required to produce a document or other thing in a court or to divulge information to a court if: (a) the Authority certifies that it is necessary in the public interest to do so, or (b) a person to whom the information relates (or to whom the information contained in the document or thing relates) has expressly authorised it to be divulged to or produced in the court. (5) An authority or person to whom information is divulged under subsection (2), and a person or employee under the control of that authority or person, are, in respect of that information, subject to the same rights, privileges and duties under this section as they would be if that authority, person or employee were a person exercising functions under this Act and had acquired the information in the exercise of those functions. (6) This section does not apply to the divulging of information to, or the production of any document or other thing to, any of the following: (a) the New South Wales Crime Commission, (b) the Independent Commission Against Corruption, (c) the National Crime Authority, (d) the Police Service or the police force of another State or a Territory, (e) the Australian Federal Police, (f) any other person or body prescribed for the purposes of this subsection. (7) This section does not prevent a person being given access to a document in accordance with the Freedom of Information Act 1989 , unless the document: (a) contains matter the disclosure of which could reasonably be expected to do any of the following: (i) prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, (ii) enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, (iii) prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or (b) is a document the disclosure of which would disclose any of the following information: (i) information concerning the business, commercial, professional or financial affairs of an applicant for a casino licence or a licence under Part 4, (ii) information obtained in the course of an investigation of an application for such a licence, (iii) information concerning the system of internal controls and administrative and accounting procedures for a casino. (8) In this section: "court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions. "produce" includes permit access to." 7 The general principle under which documents are produced to the court on subpoena is that the documents are required to be used for the purpose of the proceedings and only for those purposes. There is an implied undertaking to that effect given by everyone who is granted access to subpoenaed documents - see Ampolex v Perpetual Trustee Company (Canberra) Limited (1995) 18 ACSR 218 at 221-222. The usual undertaking will be departed from in circumstances where there are special circumstances making it desirable to make the subpoenaed material available for purposes other than the conduct of litigation. In Capital Television Group Limited v Northern Rivers Television Pty Limited Bainton J said in an unreported judgment given on 4 September 1995: "… the required enquiry, when application is made to be relieved of an implied (or for that matter an express) undertaking to the Court is whether or not the needs of justice are better served by relieving from or by maintaining the undertaking. It is a balancing exercise". 8 Section 148 does not in terms prohibit the making of the order which is now sought. As has been correctly pointed out by counsel for the plaintiff, s 148(3) operates at the time of production of documents, not at any later time. The documents have already been produced to the court, so s 148(3) does not in terms apply. However, that is not, in my view, a complete knock-out point. It would not be an appropriate exercise of the court's discretion to subvert the policy of a statute even if there was no direct prohibition in the statute on the court taking a particular step. 9 In the present case, it seems to me that the balancing exercise which Bainton J said was the appropriate way to go about granting of access requires one to consider the particular nature of the material which has been produced, and the policy underlying both the enactment of s 148, and the implied undertaking. The material is material which details the spending which Ms Lawson has engaged in at the Casino. No submission was put to me to the effect that the material is material which, if released, could compromise the security of operations of the Casino, or compromise the public interest that there is in gambling at the Casino being conducted with the highest level of probity. No submission was put that the Casino has a legitimate interest of any description whatever in the information not being disclosed, save only that it had to comply with s 148. While the material might include some confidential information of Ms Lawson, she consents to it being released in the way sought. It has not been submitted that the material is, or might be, confidential to anyone else. 10 Under those circumstances, it seems to me that it is appropriate to grant the access which is sought. In coming to that view, I have also taken into account that the access is sought upon terms that prior to the provision of the documents to the insurers, the person who is to receive the documents is to file in court an undertaking as to confidentiality in the form which is attached to the notice of motion. That undertaking is that the person will not use the information except for the purpose of substantiating the claim made by Woolworths under its insurance policy. 11 For those reasons I would make an order permitting the access to the documents be given to the insurers. I should say that each of the factors I have referred to is one which I have regarded as important in deciding it is appropriate to permit access. 12 So far as access to the police is concerned, s 149 of the Casino Control Act sets out a regime under which the Casino Control Authority may give a written direction to a casino operator to provide information obtained by the operator concerning, amongst other things, activity that takes place in the casino. The Authority is then able to make that information available to certain specified law enforcement agencies. However it is not to be inferred that s 149 provides the only means by which the police can come into possession of documents emanating from the Casino. The police could also receive documents under s 148(2), or s 148(6). 13 A similar balancing exercise needs to be conducted concerning the making available of the information produced by the casino on subpoena to the police, as was conducted concerning the making of that information available to the insurers. For similar reasons, I would grant that application. While no undertaking is proffered about the use to which the police may put the information, they are already subject to some constraints about the use to which they put information gained in the course of their duties, and in any event s 148(6) would permit the police to obtain the documents direct from the casino. 14 I therefore make orders in accordance with paragraphs 2 and 3 of the amended notice of motion filed in court. 15 Star City seeks its costs of the motion. It points out that the confidentiality undertaking, which was part of my reasons for making the orders for access to the insurers, was first offered only this morning, when a notice of motion in an amended form was filed in court. 16 I do not regard that late offering of the undertaking as particularly important to how the costs of the motion should fall as, notwithstanding it having been offered this morning, Star City maintained its opposition to the orders sought. 17 Ms McDonald, solicitor for Star City, also submits that Star City has acted reasonably in opposing the orders. I accept that this is so, but that is not the criterion upon which orders for costs are made. 18 The appropriate order is that there be no order as to costs. **********

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