District Court New South Wales Medium Neutral Citation: Reddy v State of NSW; Tan v State of NSW [2021] NSWDC 25 Hearing dates: 20 July 2020 Date of orders: 19 February 2021 Decision date: 19 February 2021 Jurisdiction: Civil Before: Judge Levy SC Decision: See paragraphs [105] to [108] for orders Catchwords: PRACTICE & PROCEDURE – contested notices of motion for discovery and setting aside a subpoena Legislation Cited: Civil Procedure Act 2005 (NSW), s 56,s 58 Crown Proceedings Act 1988 (NSW), s 5 Law Enforcement (Powers and Responsibilities) Act 2002 Law Reform (Vicarious Liability) Act 1983 (NSW), s 8 Uniform Civil Procedure Rules 2005 (NSW), r 21.7 Cases Cited: Anderson v District Court of New South Wales (1992) 27 NSWLR 701 Commissioner of Police v Hughes [2009] NSWCA 306 Daniels v Fielding (1846) 16 M & W 200; 153 ER 1159 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hyder v Commonwealth of Australia [2012] NSWCA 336 ICAP Australia Pty Ltd v BCG Partners (Australia) Pty Ltd [2009] NSWCA 307 Nowlan v Marsland Transport Pty Ltd (2001) NSWLR 116; [2001] NSWCA 346 Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 White v Overland [2001] FCA 1333 Category: Procedural rulings Parties: Nathan Keith Reddy (Plaintiff 1) Anthony Tan (Plaintiff 2) State of NSW (Defendant) Representation: Counsel: Mr P Barham (Plaintiffs) Mr D Hume (Defendant) Solicitors: Tohi Lawyers (Plaintiff 1) Law Australia (Plaintiff 2) Crown Solicitor (Defendant) File Number(s): 2016/124795 2017/372602 Publication restriction: None Judgment 1. Four notices of motion requiring interlocutory determination have arisen in two related tort claims against the State of New South Wales. The applications respectively involve disputes concerning discovery, production of documents on subpoena, and a claim of privilege from production. The two cases will ultimately be heard together. Background events and causes of action 1. The underlying events occurred on 9 January 2019 and culminated in unsuccessful criminal prosecutions against the plaintiffs, Mr Anthony Tan and Mr Nathan Reddy. Mr Tan had been charged with murder, and Mr Reddy been charged with being an accessory after the fact to murder. There was a committal hearing and each plaintiff was committed to stand trial in the Supreme Court. 2. In these proceedings, each plaintiff claims damages for alleged misfeasance by a number of named police officers. The plaintiffs' claimed causes of action are identified as alleged wrongful arrest, false imprisonment and malicious prosecution. The essential basis of the claims is the allegation that three police officers had kept relevant material from disclosure to the Director of Public Prosecutions. When that material came to light during the criminal trial, nolle prosequis were issued in each case and the prosecutions were then terminated. 3. The State of New South Wales is named as the defendant, pursuant to s 5 of the Crown Proceedings Act 1988 (NSW), and s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW). The Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") applies to these proceedings. 4. These cases raise numerous issues of fact and mixed questions of fact and law. At the present interlocutory stage, the proceedings have not yet advanced to a point where the pivotal issues can be determinatively refined in the minimalist and efficient manner referred to in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35, at [70]. It is clear that the plaintiffs have been seeking to narrow the ultimate issues for trial: s 56 of the Civil Procedure Act 2005 (NSW). 5. In the interest of narrowing the many issues apparently in dispute in the proceedings, a series of case management directions hearings became necessary because as the respective cases evolved, they were no longer amenable to standard pathways of case management. Overview of issues 1. The plaintiffs' pleadings are necessarily extensive. The defences filed essentially plead denials. It appears that the pleadings may well be the subject of further refinement before the trial. 2. The matters at issue in these interlocutory applications concern the contents of 10 boxes of documents and some other material which has been stored electronically. For the purpose of determining the present interlocutory disputes it is unnecessary to describe the issues or the factual background to the proceedings in further detail other than to state that ultimately, the expectation of the Court is that the parties should seek to narrow the extent of the facts and issues in dispute. 3. On the pivotal question of the lawfulness of the arrest of Mr Reddy, the plaintiff identifies eleven issues. On the question of the lawfulness of the arrest of Mr Tan, the plaintiff identifies twelve issues. On the question of whether Mr Reddy and Mr Tan were maliciously prosecuted, the plaintiffs have jointly identified 18 issues, with some sub-issues. On the question of whether there has been misfeasance of public office, the plaintiffs have jointly identified seven issues: MFI "1". Procedural context 1. The procedural disputes in question arose in 2019 in advance of a 4 week hearing fixture that was due to commence on 16 March 2020. On the application of the plaintiffs, that trial fixture was vacated in the interests of justice between the parties because the unresolved interlocutory disputes impacted upon readiness for trial and the likely length of the trial. 2. In that context, the defendant has maintained its resistance to the plaintiffs' claims of entitlement to access certain classes of documents the plaintiffs claim to be vital to the just resolution of the proceedings where, in effect, to succeed in their claims of malicious prosecution, the plaintiffs are required to prove a negative proposition as to the state of knowledge and intentions of a prosecutor. 3. The timetabling of the subsequent progress in seeking a resolution of disputed interlocutory matters was overtaken by a confluence of factors which included workload issues affecting legal personnel employed by the State of NSW, including the availability of police officers, COVID-19 related events, and the inherent complexity of the preparatory steps that the State of NSW was required to undertake in response to the extensive procedural and preparation demands of the proceedings. 4. With the aim of containing the scope of a hearing of the proceedings within reasonable bounds, the parties were required to prepare and serve witness statements on issues upon which they bore the onus of proof. Whilst that process was beneficial, timetable slippage subsequently ensued on account of a number of factors, including the magnitude of the tasks required of the Crown and its employees concerning the management of documents, manpower issues, police availability, including rostering issues. In that mix, COVID-19 issues also affected progress, including the timing of the delivery of these reasons. 5. By the time the motions were finally argued, four volumes of witness statements and exhibits were served by the State of NSW. The plaintiffs consider that process, as it evolved, has been successful in narrowing the issues and in reducing the estimated likely hearing time, to the extent of about a month of viva voce court time probably having been saved as a result. 6. That said, as will shortly be identified, the process by which relevant documents in question have been identified and assembled, will require further preparatory attention as a result of matters which have emerged in evidence at the final hearing of the motions. First notice of motion filed on 31 July 2019 1. The first motion was filed on 31 July 2019 by the State of NSW on behalf of the Commissioner of Police, seeking an order setting aside a subpoena issued on 31 May 2019 at the request of the plaintiff in Mr Tan's proceedings, requiring the Commissioner of Police to produce to the Court an extensive series of documents described in detail in 44 paragraphs within the schedule to that subpoena. 2. Whilst some of those categories of documents have now become the subject of agreement, the relevance of the material and the obligation to produce a significant number of documents within that expansive array of documents called for by the subpoena continues to be the subject of dispute by the State of NSW. Plainly, the outcome of that dispute will be influential to the resolution of other matters in dispute. Second notice of motion filed on 13 August 2019 1. The second motion was filed on 13 August 2019 by Mr Tan in his proceedings. That motion sought orders pursuant to UCPR r 21.7 to permit the use in his proceedings, of materials discovered in other proceedings that would otherwise be impermissible where documents have been produced to the Court: Harman v Secretary of State for the Home Department [1983] 1 AC 208 at 308. In this notice of motion the plaintiff Mr Tan also seeks further discovery from the defendant and other orders relating to the setting aside of a notice to produce dated 19 June 2019, enforcement of a request for particulars requested on 16 May 2019 and 15 July 2019, and an extension of time in which to serve expert evidence. Third notice of motion filed on 28 August 2019 1. The third motion was filed on 28 August 2019 by Mr Reddy in his proceedings, seeking similar orders to those sought by Mr Tan in the second motion, as well as seeking to set aside a notice to produce that was issued by the defendant on 19 June 2019, and also seeking an order requiring the defendant to provide further and better particulars that were requested by the plaintiffs on 22 July 2019. Fourth notice of motion filed on 30 June 2020 1. The fourth notice of motion was filed on 30 June 2020 by the Commissioner of Police. The terms of that motion were amended in Court on 17 July 2020. In support of that motion, an affidavit sworn on 16 June 2020 by Assistant Police Commissioner Cooke was read without objection. In that regard, an order was sought by the Commissioner of Police concerning the safety of a named person who for that reason has not been named in the transcript. 2. Ultimately, there was no contest on the fourth notice of motion, and the orders sought by the Commissioner of Police were made by consent. The documents which based that order were returned into the custody of the Commissioner of Police for safekeeping to preserve confidentiality but subject to the undertaking given in Court to return the documents to the Court forthwith on request, if so required. Issues that remain for interlocutory determination 1. Initially, the issues requiring determination in these notices were conveniently identified as follows: 1. The plaintiffs seek an order for the lifting of the Harman undertaking in respect of materials compulsorily produced in favour of the plaintiffs in each proceedings: Tan motion prayers 1 and 2; Reddy motion prayer 1 : The District Court Harman application; 2. The plaintiffs seek an order lifting the Harman undertaking in respect of materials compulsorily produced in two Supreme Court proceedings: Tan motion prayer 3; Reddy motion prayer 1 : The Supreme Court Harman application; 3. The plaintiffs seek an order for the filing and the service of an itemised list of documents responsive to a subpoena: Tan motion prayer 4; Reddy motion prayer 1 : The subpoena application; 4. The plaintiffs seek an order for discovery in respect of 44 categories: Tan motion prayer 5; Reddy motion prayer 2 : The discovery application; 5. The plaintiffs seek an order setting aside the notice to produce issued to each plaintiff on 19 June 2019: Tan motion prayer 6; Reddy motion prayer 3 : The notice to produce application; 6. The plaintiffs seek an order requiring the provision of certain further and better particulars of the defence filed: Tan motion prayers 7 and 8; Reddy motion prayer 3 : The particulars application; 7. The plaintiffs seek an order extending the time for service of expert evidence: Tan motion prayer 9. No such order is sought in the Reddy motion : The expert evidence application. 1. The fourth motion no longer requires consideration for the reasons identified at paragraphs [20] and [21] above. Submissions of the parties 1. Pursuant to a case management direction given by the Judicial Registrar the parties have prepared extensive written submissions and extensive submissions in reply. Those submissions have been taken into account in the specific areas of dispute identified in these reasons. 2. When the motions were called on for hearing it was apparent that the one day estimate the parties requested the Court to allocate for the hearing of the motions was inadequate, causing a clash with other listing arrangements. This led to a discussion of alternative procedural pathways for confining the areas of dispute requiring resolution both at the interlocutory stage and at an ultimate trial: s 56 of the Civil Procedure Act 2005 (NSW). Evidence 1. The evidence in the first three motions was in affidavit form, as follows: 1. Affidavit affirmed by Margaret Bateman, solicitor, on 31 July 2019, filed on behalf of the State of NSW (defendant) in Mr Tan's proceedings; 2. Affidavit affirmed by Lucy Nguyen, solicitor, on 13 August 2019, filed on behalf of Mr Tan in his proceedings; 3. Affidavit affirmed by Jessica Tohi, solicitor, on 26 August 2019, on behalf of Mr Reddy in his proceedings; 4. Affidavit sworn by Zofia Weremczuk, solicitor, on 3 September 2019, on behalf of the State of NSW; 5. Affidavit sworn by Zofia Weremczuk, solicitor, on 6 September 2019, on behalf of the State of NSW; 6. Affidavit affirmed by Jessica Tohi, solicitor, on 27 September 2019. The affidavit principally comprised submissions on behalf of the plaintiffs; 7. Affidavit of Anthony Tan, sworn 14 November 2019 in his proceedings. 1. Apart from Ms Weremczuk, none of the other deponents of affidavits were required for cross-examination. The evidence on the respective motions was read in respect of each of the proceedings. 2. The other documentary evidence tendered comprised Exhibit "A" which was accompanied by a bundle of relevant correspondence that does not require separate elaboration. 3. At the final hearing of the respective notices of motion the plaintiffs required the defendant's solicitor, Ms Weremczuk, for cross-examination on the content of her affidavits. No credit issues arose in that questioning. The focus of the matters traversed in the evidence of Ms Weremczuk concerned the process by which documents sought by the plaintiffs had been assembled and accessed for the purpose of these applications. 4. The evidence of Ms Weremczuk revealed that the defendant's extensive witness statements were prepared in a process whereby the defendant's solicitors did not need to look at the contents of what was referred to as comprising 10 boxes of materials. The explanation given for that course was twofold. First, the signatories of those statements had provided the information for their statements, and secondly, the documents were the subject of a subpoena for which there was an outstanding application for that subpoena to be set aside. That application by the defendant for the plaintiffs' subpoena to be set aside is central to the progress of the plaintiffs' claims. 5. As will become clear, following the outcome of these interlocutory proceedings, as appears from the evidence of Ms Weremczuk, the documents in question may need to be examined by the defendant's solicitors and the defendant's witness statements may need to be revisited to examine whether or not some augmentation of detail may be required. 6. It emerged from the evidence of Ms Weremczuk that the documents sought by the plaintiffs have been identified, sifted and sorted by several police officers assigned to that task. Those officers were not involved in the underlying investigation and prosecution of the plaintiffs. They are not the officers whose conduct is the subject of the claims by the plaintiffs. The result of the process of the assembly of the documents has been that the accumulated material, including hard copy documents, electronic records of numerous telephone intercepts and transcript thereof, has been stored in the identified archive boxes which the solicitor for the defendant has refrained from examining pending the outcome of these motions. 7. An apparent difficulty with the approach taken by the defendant to the assembly of the materials and documents described above, identified as involving thousands of pages, is that the police officers who were assigned to sift, sort and assemble those records, were not involved in the underlying events. There is no evidence called from those police officers as to the criteria, method or system they had adopted for identifying relevant documents. That process has the potential to introduce an element of opacity into already complex proceedings. Consideration and determination of the identified interlocutory issues 1. My reasons for determination of the interlocutory issues identified at paragraph [22] above now follow. Issue (1) – The District Court Harman application 1. There is no longer an issue as to the entitlement of the solicitor for the respective plaintiffs to rely upon materials compulsorily produced in their separate proceedings as those cases will be heard together. That particular Harman undertaking was therefore not the subject of the final written submissions because the implied Harman undertaking can be taken to have been lifted in respect of documents produced in the District Court: Harman v Secretary of State for the Home Department [1983] 1 AC 280. Issue (2) – The Supreme Court Harman application 1. The parties have ultimately agreed that the District Court is not the appropriate forum for seeking relief from the Harman undertaking in relation to documents that have been produced to the Supreme Court in proceedings in that Court, where that Court has exclusive jurisdiction on that question. Issue (3) – The subpoena application 1. The application by the State of NSW to set aside the subpoena issued on behalf of Mr Tan and Mr Reddy remains the subject of substantial dispute. Sensibly the parties ultimately acknowledged, in effect, that if the plaintiffs' application to enforce the disputed subpoena is successful, then the more onerous requirement for discovery will become otiose. 2. The plaintiffs seek service of complete versions of the exhibits to the statements prepared by police officers. Those statements can be conveniently identified as MJK-1, MJK-2 and AB-1. They also seek a range of police investigation documents as set out in the subpoena. These will shortly be identified and addressed. 3. From the descriptions concerning the documents, in totality they may reasonably be assumed to relate to the prosecution of the plaintiffs. The materials are partly in hard copy form and partly in electronic form. The plaintiffs argue that absent a claim of public interest immunity, the documents, in whatever form, should be produced. 4. The plaintiffs contend that what constituted reasonable grounds for forming a prosecutorial suspicion or belief which led to the prosecutions must be judged against "what was known or reasonably capable of being known at the relevant time": Hyder v Commonwealth of Australia [2012] NSWCA 336, at [15], following Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612, at [40]. The determination of that question must be determined objectively: Anderson v District Court of New South Wales (1992) 27 NSWLR 701, at 714. 5. The plaintiffs therefore contend, correctly, that the question of whether or not the documents should be produced is to be determined according to whether there is a legitimate forensic purpose behind the request for access to them. The consequential question to be addressed is whether it is "on the cards" that the documents have a sufficient apparent connection that will, without speculation, materially assist in determining the questions in dispute to justify the production or inspection of those documents so as to indicate that the process is not a "fishing" expedition: Commissioner of Police v Hughes [2009] NSWCA 306, at [74]; ICAP Australia Pty Ltd v BCG Partners (Australia) Pty Ltd [2009] NSWCA 307, at [9]. 6. Where documents exist, and a sufficient nexus is established, they should be produced for inspection. In my assessment, in this case it is difficult for the State of NSW to maintain its submitted position that it is speculative to assert that documents exist. Someone with knowledge of the legal issues in the litigation ought to be able to undertake an inspection to determine whether or not the particular documents sought by the plaintiffs are relevant or arguably irrelevant. That process has not occurred. 7. That said, in circumstances where the documents have been assembled and boxed in response to the subpoena and where the solicitor for the State of NSW has refrained from examining them, the context permits the reasonable inference that someone in the defendant's camp considered them to be prima facie on the cards relevant to the cases the plaintiffs seek to make so as to justify production of the documents. The fact that the assembled documents are voluminous does not of itself indicate that the task of further examination and inspection is oppressive, although the task may well be onerous. 8. In my view, in a case involving documents that are capable of being categorised into the classes identified in the subpoena, it is not oppressive or excessively burdensome for a party to examine and organise them, especially in a complex case where most serious criminal charges were brought against the plaintiffs. 9. In my view, in this complex case, I consider as inapt the approach taken by the State of NSW in seeking to characterise as oppressive or unduly burdensome the plaintiffs' quest for documents "relating to" or "in relation to" the factual events in question. 10. In my view, in this case, the expressions "relating to" or "in relation to" sufficiently indicate that the material being sought is on the cards relevant to the issues pleaded by the plaintiffs in their underlying cases. I do not accept the defendant's semantic argument to the contrary. I consider the position to be most aptly expressed in the following terms as extracted from the plaintiffs' submissions: "23. Technically the plaintiffs need to prove that there was not reasonable and probable cause for bringing the prosecution, rather than for the defendant prove that there was reasonable and probable cause, but for the purpose of convenience, the balance of these submissions will refer to that issue as the "reasonable cause issue". The reasonable cause issue encompasses the rejection of Meatuai as a suspect and then being propounded as the central plank of the Crown case. 24. Dealt with on a category by category basis below, what appears below is necessarily repetitive. However, in a general sense all of the documents which are sought are relevant to the questions of: a. the strength of the evidence which pointed to Meatuai being the shooter of the deceased such that he became aware that police were looking for him and provided a statement, b. that subsequent to that statement warrants were obtained to obtain evidence - presumably about him; c. how the target of the investigation changed such that Reddy and Tan then became suspects and Meatuai became a witness for the prosecution; d. reasonable and probable cause for that prosecution of the plaintiffs in light of the state of the evidence generally but especially in light of the Bristow Note; and e. malice on the part of the prosecutors. 25. It is not "speculation" (cf DWS [32]) that the documents would shed light on, or have apparent relevance or materially assist the case. Further, in respect of all documents sought, their production will prevent surprise at the trial, and possible adjournment, in a situation where the prosecutor's suspicions and belief can be based on material which is not in the brief." 1. In modern litigation involving model litigants where the State of NSW is one, ambush at trial is an unacceptable course: Nowlan v Marsland Transport Pty Ltd (2001) NSWLR 116; [2001] NSWCA 346, at [26], [28]; White v Overland [2001] FCA 1333, at [4]. 2. For convenient reference, the 44 paragraphs of the schedule to the subpoena sought to be enforced by the plaintiffs is reproduced in full in the Appendix Appendix (149684, to these reasons. References to dates of birth and telephone numbers in the original schedule have been redacted in the Appendix. 3. The defendant's objections to the subpoena and the plaintiffs' responses are embodied in correspondence and submissions. The essential elements of those matters will be referred to in my reasons for determination that will shortly follow concerning particular paragraphs of the subpoena. 4. At this point it is convenient to refer to repeated objections the defendant has raised concerning what the defendant asserts to be unclear or problematic drafting of aspects of the subpoena in question. I do not accept that submission. The terms of the 44 paragraphs of the plaintiffs' subpoena are sufficiently clear to enable the defendant to identify, understand and comply with the task of producing documents and materials required in compliance with the subpoena. 5. In the paragraphs that follow, under identified brief sub-headings, I identify my reasons for determining the outcome concerning individual disputed items, either by way of noting the matters that are no longer in dispute or identifying the reasons for decision on matters in dispute. Paragraphs 1 & 2 – Briefs of evidence 1. The defendant no longer objects to producing the briefs of evidence. Paragraph 3 – Criminal records of named persons 1. The plaintiffs seek the criminal records and COPS event details for eight named persons and for a business name, claiming that this material would have been considered by prosecutors when assessing the credibility and reliability of testimony of Crown witnesses. The plaintiffs argue that there was a duty on the Crown to disclose the criminal records of civilian witnesses. The defendant argues the quest for these documents lacks legitimate forensic purpose and constitutes fishing. I do not accept that submission. In a criminal prosecution for murder, and for being an accessory after the fact of murder, in my view the material sought is on the cards relevant and should be produced. Paragraph 4 – COPS event entries and related records concerning a burnt-out vehicle 1. A vehicle was driven from the scene of the crime by a named person. That vehicle was later found to have been incinerated. That latter event, an obvious criminal activity, was investigated by police. The exclusion of a person concerned as a perpetrator of the underlying crime was a process that was on the cards relevant to the decision to prosecute the plaintiffs. The quest for the identified records relating to this aspect of the police investigation is in my view on the cards relevant to the plaintiffs' cases and the material sought should therefore be produced in answer to the subpoena. Paragraphs 5 & 6 – COPS event entries and related records concerning telephone intercepts 1. The identified COPS event entries and related records would most likely have been available to the prosecutors and the content of those materials would be very likely to shed light upon the direction and the targets of the police investigation. As such they are on the cards relevant to the case the plaintiffs seek to make concerning the decision to prosecute them. The request is not fishing. The material should be produced in answer to the subpoena. Paragraph 7 – Records of identified conversations 1. The defendant submits the plaintiffs' quest for the range of documents that touch upon conversations police officers had with 12 named persons should not be produced. Such documents are commonly seen in police investigations of a crime. They are on the cards relevant to the decision to consider the credibility of a named prosecution witness and would provide insight into the credibility assessments made by the prosecutors, a relevant state of mind issue. The request is expressed in plain terms. The material should be produced in answer to the subpoena. Paragraph 8 – Records concerning investigation into death of Edin Smajovic 1. The defendant seeks to make a distinction between the investigations which led to a relevant state of mind of named police officers and the subsequent and relevant state of mind of the prosecutors. I do not accept the objection as the prosecutors had the described material available to them when the prosecutions were launched and therefore the materials seem on the cards to be relevant to the decision to institute and maintain the prosecution. The material should be produced in answer to the subpoena. Paragraph 9 – Gunshot residue testing 1. No objection has been identified. The material should be produced in answer to the subpoena. Paragraphs 10, 11, 12, 13, 14, 15 – Documents, notes, running sheets, statements, covertly obtained evidence, affidavits for same, images, recordings and related statements 1. The defendant's resistance to production of these categories of documents is based on a claimed problematic drafting of the subpoena. I consider that complaint to be ill-founded. The defendant also focusses upon the plaintiffs' onus of proof for the elements of the tort of malicious prosecution. 2. The series of documents in question here concerns the potential involvement of a person other than the plaintiffs in the death of Edin Smajovic and it is very likely from the described categories within these components of the subpoena that this information would have been made available to the prosecutors. 3. At some point that other person had been suspected of being the shooter and this was investigated. That person was a prosecution witness. Plainly, the prosecutors had to make an assessment of the credibility of that person as a witness. I accept the plaintiffs' submissions that the detail in the range of material sought in these components of the subpoena is on the cards relevant to the case they seek to make. The material should be produced in answer to the subpoena. Paragraph 16 – Interview documents and statements from named persons 1. The defendant's resistance to this aspect of the plaintiffs' request for production is in part based on a claim of a drafting problem which I do not accept. The terms of this aspect of the subpoena are sufficiently adequate and clear. I do not accept the defendant's complaint that this aspect of the subpoena involves fishing in relation to the documents sought concerning the six named witnesses. The material in question seems on the cards relevant to the task of the prosecutors in assessing the credibility of proposed Crown witnesses and therefore touches upon the prosecutors' state of mind. The material should be produced in answer to the subpoena. Paragraphs 17 & 19 – Ballistics issues 1. The defendant's resistance to the production of these documents is based on claimed problematic drafting issues. The defendant also claims this component of the plaintiffs' request involves fishing and a mistaken view of the locus of the onus of proof. 2. I do not accept either of those objections. The terms of the subpoena are sufficiently clear to require a responsive answer. The request is not fishing as ballistics evidence is on the cards relevant to the viability of the theory of the prosecution case and as such, it is open to the plaintiffs to seek access to the material available to the prosecutors on ballistic testing issues which dearly relate to the prosecutorial decision to institute and maintain the prosecutions. The request for production does not involve a claimed misperception as to the locus of the onus of proof. Instead, it is clearly relevant to the analytic approach and state of mind of the prosecutors, and does not constitute fishing. The material should be produced in answer to the subpoena. Paragraph 18 – Gunshot residue analysis issues 1. I do not accept the defendant's claim of problematic drafting issues concerning this component of the subpoena. The material relating to the ballistics analysis for a known and identified event is sufficiently identified. That material is plainly within the array of material that would most likely have been considered by prosecutors when deciding to institute and maintain proceedings. It is therefore on the cards relevant to the state of mind of the prosecutors. It is not a fishing request. I accept the plaintiffs' submission that the material is on the cards relevant to the bona fides of the alleged belief or suspicion on the part of the prosecutors concerning the guilt of the plaintiffs, and therefore the question of whether there was an absence of reasonable cause for the prosecution. The material should be produced in answer to the subpoena. Paragraph 20 – Reports and materials considered for determining charges 1. I do not accept the defendant's claim of a problematic drafting issue with this component of the plaintiffs' subpoena. The documents sought relate to identified charges. They are plainly on the cards relevant to the decision to prosecute and they are therefore relevant to the state of mind of the prosecutors. The material should be produced in answer to the subpoena. Paragraph 21 – Incident and investigation reports 1. I do not accept the defendant's claim of a problematic drafting issue with this component of the subpoena. The complaint of alleged fishing in relation to prosecution knowledge about a particular note is in my view unfounded. The note is relevant and its availability to prosecutors indicates that the quest for it to be produced involves a legitimate forensic purpose, namely the state of mind of the prosecutors concerning the credibility of named police witnesses. The material sought is on the cards relevant to that question. The material should be produced in answer to the subpoena. Paragraph 22 – Diary notes 1. The plaintiffs have withdrawn their request for the production of the material the subject of this component of the subpoena. Paragraph 23 – Crime scene recordings and images 1. The defendant has now conceded the materials the subject of this component of the subpoena should be produced. Paragraphs 24 & 25 – Transcripts of recorded telephone intercepts 1. There is no issue over the production of these documents. Paragraph 26 – Audio recording of 000 call and statement concerning the investigation of the death of Edin Smajovic 1. It is on the cards that the statements made by Mr Tan in his 000 call were most likely in the possession of prosecutors when assessing whether to institute and maintain proceedings against Mr Tan. This raises a prosecutorial state of mind question which renders this material relevant to the decision to prosecute. The material should be produced in answer to the subpoena. Paragraphs 27 & 28 – Audio recording of 000 call and Analysis Certificate 1. No objections have been raised concerning the production of this material. Paragraph 29 – Statement by Sergeant Scott Lynch with accompanying materials 1. An investigation statement prepared by a senior police officer appears on the cards relevant to the issues in the case concerning what the prosecutors most likely had before them for their consideration. The material should be produced in answer to the subpoena. Paragraph 30 – Ballistics report 1. A ballistics report seems prima facie to be relevant and within the ambit of the material that was considered by prosecutors when determining whether or not to institute and maintain the prosecutions against the plaintiffs. The material should be produced in answer to the subpoena. Paragraphs 31 & 32 1. These aspects of the subpoena have been withdrawn by the plaintiffs Paragraphs 33 & 34 – CCTV footage 1. The defendant claims the terms of these paragraphs of the subpoena are vague. I do not accept that submission. The footage is identified in the subpoena as having been taken from the Tyrepower and Campbelltown Hospital premises on the day in question. It is very likely that the prosecutors would have considered this material when determining whether to prosecute. A prosecutorial state of mind issue therefore arises. The material should be produced in answer to the subpoena. Paragraph 35 – Documents supporting an arrest warrant for Mr Tan 1. The plaintiff points to the relevance of this item as relating to the state of mind of the officer who swore the affidavit that based the arrest warrant of Mr Tan. Consequently, it seems likely that the prosecutors would have considered that basal material as part of the chain of evidence when considering whether there was reasonable cause to prosecute. The material should be produced in answer to the subpoena. Paragraphs 36 & 38 – Material provided by Detective Senior Constable Bristow to DPP 1. The defendant contends these paragraphs of the subpoena are "overbroad" and constitute fishing. I do not accept that submission. It is relevant for the plaintiffs to show what the DPP was given in the events that led to the prosecutions. It seems likely that such material, which was produced by a key prosecution investigator and witness, would have most likely been placed before the prosecutors. This element of the subpoena seems to be on the cards relevant to the existence of reasonable cause and to the credibility of testimony. The non-timely disclosure of the note in question made by Detective Bristow is a central plank in the case for the plaintiffs. It is difficult to understand the basis of the defendant's resistance to the production of this material. The material should be produced in answer to the subpoena. Paragraph 37 – Subpoenas issued at the request of the plaintiffs in the Supreme Court criminal proceedings 1. There is no issue raised concerning an objection to this material being produced. Paragraphs 39, 40, 41, 42 – Mobile telephone records 1. There is no issue raised concerning an objection to this material being produced. Paragraph 43 – Audio calls and transcripts of calls to Crime Stoppers 1. The defendant submitted that this component of the plaintiffs' subpoena constituted fishing in that there is nothing to identify who determined Mobeen Ali to be a credible witness. It would be surprising that the prosecutors would not have made that assessment and that the documents which concerned that witness were not before the prosecutors when making that decision. The material should be produced in answer to the subpoena. Paragraph 44 – Visual recordings and transcript of a "walk through interview" of David Meatuai with Detective Senior Constable Bristow 1. There is no objection to the production of the material which is the subject of this paragraph of the subpoena. Issue (4) – The discovery application 1. The pursuit of discovery by the plaintiffs must be viewed in the context of the co-existent request by the plaintiffs for production of documents that are the subject of the concurrent subpoena application. The documents the subject of the subpoena comprise some 44 categories as considered in the preceding paragraphs. 2. The onerous task falling upon legal practitioners having to attend to the procedure of formal discovery is well-recognised. Since the documents sought to be discovered are also the subject of the subpoena, the adoption of the less onerous course of dealing with the questions raised by the subpoena indicates that the co-existing application for discovery is no longer relevant once the subpoena issues have been resolved as outlined in the preceding paragraphs. Issue (5) – The notice to produce application 1. On 19 June 2019 the defendant served a notice to each plaintiff to produce the briefs of evidence which have been served upon them in the underlying criminal prosecutions. The plaintiffs submit that such notice to produce is unreasonable, oppressive, and is lacking in legitimate forensic purpose. I accept that submission. The State of NSW could be in no doubt as to what was contained in the served briefs of evidence. 2. Absent agreed or admitted facts, it would be remarkable if those briefs of evidence or agreed copies of them were not tendered in evidence at the hearing. The evidentiary burden will fall upon the plaintiffs in that regard. It would also be remarkable that the defendant has not retained its own copies of such briefs. A difference in the content of the copies would appear to be highly improbable. 3. At this interlocutory stage of the proceedings the issue of such notices to produce are not necessary. The defendant's interests would be adequately addressed by an appropriately framed notice to admit facts and authenticity of documents if there was a bona fide dispute on the content of the briefs of evidence. 4. I conclude that the respective notices to produce the briefs of evidence should be set aside. Issue (6) – The particulars application 1. The dispute over the plaintiffs' request for the defendant to provide particulars of its defence to the plaintiffs' claims of malicious prosecution arises because of an intrinsic feature concerning the burden of proof of that specific tort and because of the brevity of the pleaded defence. 2. The plaintiffs' amended statement of claim filed on 9 August 2018 is a document comprising 87 pages. Although it is compendious in my view it clearly, extensively and adequately pleads the claims of wrongful arrest, false imprisonment and malicious prosecution. 3. The plaintiffs' claim of malicious prosecution, which raises questions concerning the sequential conduct of named police officers, is pleaded in considerable detail in a logical format. The plaintiffs' pleadings are the subject of detailed particulars as is required by the Uniform Civil Procedure Rules. The elements pleaded at paragraphs 27.189 – 27.220 and at paragraph 27.221 and following, relate to a claim of alleged improper withholding of relevant evidence by police officers when compiling the brief of evidence for the prosecution of the plaintiffs, and in maintaining the prosecution of the plaintiffs where an allegedly false and misleading fact sheet had been relied upon, which is claimed to have created a false case against the plaintiffs. These matters are questions of fact to be determined at a trial. 4. In the defences filed by the State of NSW on 1 April 2019, the defendant denied the extensive factual content of paragraph 27 of the plaintiffs' amended statement of claim. That defence did not plead to the plaintiffs' particulars of alleged "lack of reasonable probable cause" for prosecution, claiming that the plaintiffs had not pleaded material facts supporting the claimed cause of action of malicious prosecution. 5. I do not accept the correctness of the defendant's assertion that the plaintiffs have not appropriately pleaded material facts supporting the claimed cause of action. Unsurprisingly, the plaintiffs now seek the enforcement of answers to a request for particulars of the defendant's defence of denial. 6. Ultimately, it transpired that the defendant's stated position on the pleadings was based on the proposition that in the plaintiffs' claims of malicious prosecution, they must prove a negative, namely absence of reasonable and probable cause for the case brought against them. On the basis of that particular feature, the defendant submitted the semantic argument that the State of NSW does not need to establish what it "did upon instituting and maintaining the proceedings", asserting that it was not clear as to what it means to "do" something in instituting or maintaining proceedings. 7. I do not accept that submission because the concept of doing something includes active steps, such as representing and relying upon asserted facts, as well as the more passive act of suppressing or not disclosing material, which is in part what the plaintiffs assert had occurred in the prosecutions. In this context, I do not accept the aptness of the defendant's semantic approach. The plaintiffs' case on this point invokes the maxim suppressio veri, the concealment of the truth by misrepresentation due to omission of key facts. This is capable of supporting an allegation of malice which is an element of the claims made by the plaintiffs: Daniels v Fielding (1846) 16 M & W 200, at p 206; 153 ER 1159, at p 1162. 8. The plaintiffs' amended statement of claim, at paragraph 27.189 and following, particularly at paragraph 27.198, asserts that Detective Senior Constable Bristow did not include an important piece of documentary evidence comprising his own note when compiling the brief of evidence for the prosecutions. Paragraph 26 of the defence denies that assertion without pleading to the plaintiffs' pleadings of alleged lack of reasonable cause. This will obviously be a focal point for the ultimate trial of these cases. In my view, this is a matter on which particulars are required. 9. In my view, the defendant's approach on the question of particulars is contrary to the obligation to properly identify the true matters in dispute in accordance with the dictates of justice for the just, quick and cheap determination of matters that are disputed in the proceedings: s 56 and s 58 of the Civil Procedure Act. 10. In my view, guided by the need to give effect to the overriding purpose of facilitating a just, quick and cheap resolution of the real issues in the proceedings according to the dictates of justice as required by s 56 and s 58(1) and (2) of the Civil Procedure Act 2005, I consider that the plaintiffs' quest for particulars is reasonable in the circumstances and it should prevail over the defendant's objections. 11. In coming to that view, I considered that persuasive factors existed which tipped the balance towards that position. One such factor is the resources question, the likely length and complexity of the trial of the proceedings, the number of police witnesses to be called, the character and the detail of that evidence, and the fundamentally polarised positions of the parties on important matters of factual dispute. Another such factor is the degree of potential injustice that the plaintiffs would be likely to suffer if denied the ordinary forensic advantage of having due notice of particularised facts to enable the testing of evidence of police officers in the factual circumstances of this case. Such factors outweigh and contraindicate an ambush approach. The parties should approach the hearing of this complex case with their respective cards on the table, as identified in Nowlan v Marsland Transport Pty Ltd (2001) NSWLR 116, at [26], [28]; [2001] NSWCA 346 and White v Overland [2001] FCA 1333, at [4]. 12. In resisting the plaintiffs' request for particulars the defendant points to the plaintiffs having to prove a negative proposition in order to succeed in their claims of malicious prosecution. In effect, the defendant also asserts that to provide the particulars sought would require the defendant to go into evidence on an issue where the plaintiff has the onus of proof. 13. That submission should not be accepted because there is a material difference between signalling through particulars the factual basis of an arguably available defence which could be relied upon in the event of a shift in the evidential burden during the course of evidence at a trial and the more active step of actually calling evidence in the defence case. All that the plaintiffs seek here are particulars that flag the factual basis of the defence that might ultimately be relied upon. That quest should be seen as being uncontroversial and the defence should not be the subject of an ambush. 14. Accordingly, I consider the plaintiffs have made good their request for the contested particulars of the defence to be provided to them. Issue (7) – The expert evidence application 1. The dispute as to the extension of time for the service of expert ballistics and prosecutorial evidence no longer requires determination as this issue has been overtaken by events, as was intimated by the parties at the hearing. Disposition and costs 1. The parties have each had partial success in these interlocutory disputes. To a material extent, this has occurred because of the co-operative efforts of the respective legal representatives. In those circumstances I consider the most appropriate order for costs in respect of each of the notices of motion that were contested is that those costs be costs in the respective causes. Orders 1. On the first notice of motion which was filed by the defendant State of NSW filed on 31 July 2019, I make the following orders: 1. The defendant's notice of motion seeking to set aside the plaintiff's subpoena filed on 31 May 2019 is dismissed; 2. The costs of the motion are to be costs in the cause; 3. Liberty to apply on 7 days notice if further or other orders are required. 1. On the second notice of motion which was filed on behalf of Mr Tan on 13 August 2019, I make the following orders: 1. The plaintiffs may rely upon documents produced in the District Court in other proceedings to the extent this Court has jurisdiction over those documents; 2. In light of orders made at paragraph 105(1) above, I decline to make an order that the defendant give discovery to the plaintiffs; 3. Within 28 days the defendant is to provide answers to the plaintiffs' letters of requests dated 15 May 2019 and 15 July 2019 for further and better particulars of the defence filed by the defendant; 4. The costs of the motion are to be costs in the cause; 5. Liberty to apply on 7 days notice if further or other orders are required. 1. On the third notice of motion which was filed on behalf of Mr Reddy on 28 August 2019, I make the following orders: 1. The defendant's notice to produce dated 19 June 2019 is set aside; 2. Within 28 days the defendant is to provide answers to the plaintiffs' letter of request dated 22 June 2019 seeking further and better particulars; 3. The costs of the motion are to be costs in the cause; 4. Liberty to apply on 7 days notice if further or other orders are required. 1. For the reasons identified at paragraphs [20] and [21] above, on the fourth motion which was filed in Court on behalf of the Commissioner of Police on 30 June 2020, no further orders are required, including orders as to costs. ********** Amendments 25 February 2021 - Appendix attached 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: 25 February 2021