Leigh-Mardon Pty Ltd v Titan Corporation and Ors [1996] FCA 980

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No VG 346 of 1993 GENERAL DIVISION B E T W E E N : LEIGH-MARDON PTY LTD Applicant A N D : TITAN CORPORATION LTD and OTHERS Respondents COURT: NORTHROP J PLACE: MELBOURNE DATE: 7 NOVEMBER 1996 REASONS FOR JUDGMENT This is the return of two subpoenas directed to Detective Sergeant Arthur K Brouwer dated 24 October 1996 and 30 October 1996. The first of those two documents is identical with a subpoena which had been dated 1 August 1996, but with the addition of one further name and for practical purposes I will look at the latter two subpoenas only. When the subpoenas were called upon on Monday, there was agreement in relation to a number of the documents set out in the subpoena, but objection was taken to the production of certain other documents. It appears that the two grounds for the objection to the production are public interest immunity, and, secondly, that the subpoenas are oppressive, and an abuse of process of the Court.

Similar issues arose with respect to similar types of subpoenas which were considered by the Court as presently constituted in reasons given on 6 June 1996. There, orders were made directing that certain documents should be produced while others should not. I refer to what was said on that occasion and see no reason to depart from the views there expressed. One difference between those subpoenas and the present is that the persons named in the earlier subpoenas were all persons whose names appeared in particulars in the civil proceedings in which these subpoenas had been issued, whereas in the later subpoenas, the persons are not named in Court documents. There are a number of unusual features arising from the objections being taken. In the first of the subpoenas, there are 12 persons named and apparently there are statements from nine of those 12 persons. Of the nine statements, seven have been produced but objection is taken to produce the other two on grounds which I will detail a bit more in a moment. The two concerned cannot be identified. In the second subpoena there were 11 persons named and there are statements from six of those 11 persons. Two have been produced and four are the subject of the objection. The four concerned cannot be identified. To a large extent, an issue has been raised as to whether there is any legitimate forensic purpose evolved from the obtaining of the statements in the absence of evidence that they are material to the existing legal proceedings. In my opinion there is ample material for the Court to conclude that there is sufficient legitimate forensic purpose in relation to these persons. Briefly the subpoenas themselves make it clear that what are being sought relate to statements, written statements and notes or records of interviews obtained or taken by the Victoria Police from each of the named persons for the purpose of investigating the allegation of overcharging referred to in the second further amended statement of claim. That, of itself, is sufficient, in my opinion, to indicate that what is being sought are statements in relation to the subject matter of the civil proceedings involving the respondents who have issued the subpoenas. A similar limitation was contained in the first two subpoenas in August and this has the effect, in my opinion, of making it very clear that the statements sought to be produced pursuant to the subpoenas may have an effect on the hearing and presentation of the civil proceeding case and it is relevant, as part of the legitimate forensic purpose of the respondents, to obtain inspection of those statements. This is supported further by the fact that the person subpoenaed has in fact produced a number of these statements pursuant to the subpoena. It is difficult to see how the objection could be taken that there is no legitimate forensic purpose in relation to the six statements which are currently in dispute. For reasons already expressed in the earlier reasons for decision, I find that there is a legitimate forensic purpose and this carries with it, in my opinion, an answer to the submissions made on behalf of the person subpoenaed that the subpoenas are oppressive and go beyond the necessity of showing the legitimate forensic purpose. This case is very different from some of the authorities referred to in the course of submissions and in particular the fairly recent English decision of the Court of Appeal in Swinney v Chief Constable of the Northumbria Police (1996) 3 All E R 449. That case is based upon a pleading summons in relation to an alleged cause of action, in circumstances where an informant, but not necessarily an informant in the common sense of the word being a police informer, gave a statement to police on the basis that it was to be treated confidentially. It was left in a car from which it was stolen and as a result came to the hands of a person who was suspected of having committed a killing. Apparently that person made threats against the witness being the informant and the informant was claiming damages for negligence. In the course of giving reasons for judgment, members of the Court of Appeal made comments about the need for preventing persons doing investigations from having to continuously look over their shoulder at other matters. It also goes to the question of oppression where it is said that this is almost like a fishing expedition; a trawling net was one expression used. What are being sought in the present case are statements from named persons in circumstances where, in my opinion, there is the legitimate forensic purpose in the statements being obtained for the purposes of the civil litigation. Accordingly, the submissions made on behalf of persons subpoenaed based on the absence of this ground, in my opinion, have no foundation. The other ground of objection was based upon the public interest immunity. This objection, essentially, is based upon the fact of similar allegations contained in an affidavit sworn by the person conducting the investigations, Mr Brouwer and a superior officer in the police force, Robert John Cockerell. They are based upon the fact that the six persons concerned apparently have expressed a view that they are concerned about the prospect of the information they have provided to the Major Fraud Group for the purpose of criminal investigations being provided to the persons who are the subject of those investigations. There is then set out in the affidavit a paragraph to which objection was taken which was read subject to objection:- "I believe that if the statements obtained from these two named persons (and one could also add the four persons in the other case) are ordered to be produced for the purpose of these proceedings they will withdraw their assistance in the current police investigation." That paragraph was attacked by counsel for the respondents to the civil proceedings on the basis that it is not sufficiently based upon facts to give rise to conclusions drawn from those facts, and that it does not state with clarity and precision the basis for the claim for public interest immunity. It must be remembered that what are involved here are statements by possible witnesses. It has been said that these statements may well be witness statements having regard to the hand-up brief concept in use in Victoria and, in due course, are made available to any person who is charged with the offence and forms part of the evidence at the committal proceedings. It is also suggested that the statements could lead to the disclosure of other lines of investigation that might be undertaken but in my opinion there is no basis for supporting that view from the affidavit material provided. In my opinion, for the reasons given on 6 June 1996, there has not been a sufficient compliance with the principles of law to be adopted in respect of this type of case, to support a finding that there has been established the existence of a public interest immunity sufficient to release the person subpoenaed from producing the documents. A claim is also made that in order to decide this matter properly the Court should look at a confidential exhibit which has not been supplied to the respondents but is a document that the Court should look at in determining whether the six statements over which the issue has been debated do come within the public interest immunity concept or not. It is also said that in any event if that exhibit is not looked at, the Court should look at the statements themselves to determine the question of whether public interest immunity has been established. Reference was made to what was said by Hunt J in the case of Saleam (1989) 16 NSWLR 15 at page 18 where reference was made to the desirability, in many cases, of looking at these documents to enable the Court to make a decision. In my opinion such a course is one of last resort and should not be done as of course. In the present case the material in support of the claim for public interest immunity is not in my opinion sufficient to justify the claim and therefore there is no need for the Court to look at those documents. For these reasons the claim for public interest immunity and grounds based on the abuse of process or oppression fail and the Court directs that the documents be produced to the Court. I propose to make no order as to costs. There is force in what has been put to me, but having regard to the fact that this is a third party, the fact that public interest immunity has been raised, even though it has been rejected, in my opinion, it was appropriate and the fact that this was done at the last or late stage is not sufficient in my view to vary the order that all parties pay their own costs. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R M Northrop. Associate: Date: