AB v NSW Commissioner of Police [2022] NSWSC 429

Supreme Court New South Wales

Medium Neutral Citation: AB v NSW Commissioner of Police [2022] NSWSC 429 Hearing dates: 5 October 2021 Date of orders: 12 April 2022 Decision date: 12 April 2022 Jurisdiction: Common Law Before: Hamill J Decision: (1) Notwithstanding Order 9 made by Lindsay J on 19 January 2021, the Plaintiff is permitted to disclose the material identified in paragraph 4(a) below to the persons or bodies identified in paragraph 4(b) below for the purpose of the Plaintiff seeking redress for the wrongs alleged by the Plaintiff against the Defendants: (a) The following material: (i) the pleadings in these proceedings; (ii) the Affidavit of AB affirmed 2 July 2021, including Confidential Exhibit AB-1; (iii) the six documents produced by the Australian Federal Police in response to the Plaintiff's subpoena to produce, for which both the Plaintiff and the Defendants were granted access on 17 June 2021 (with the Court's leave in respect of the Harman undertaking for this limited purpose); and (iv) the Affidavit of AFP Officer A sworn 14 July 2021, produced in response to the Plaintiff's subpoena to attend to give evidence, and which exhibits the six documents referred to at Order 4(a)(iii) above (with the Court's leave in respect of the Harman undertaking for this limited purpose). (b) The following persons: (i) the Attorney-General of NSW and his staff; (ii) the NSW Minister for Police and his staff; and (iii) the Law Enforcement Conduct Commission ("LECC"). (c) In the following manner: (i) The Plaintiff is to write to the Ministerial Office of the Attorney-General and request the Chief of Staff (or "acting" Chief of Staff, howsoever described) to nominate a person from that Office to whom the documents in Order 4 can be confidentially disclosed and a time and place for such disclosure to occur. A copy of these Orders and Lindsay J's Orders of 19 January 2021 are to be provided with the material to be disclosed. (ii) The Plaintiff is to write to the Ministerial Office of the Police Minister and request the Chief of Staff (or "acting" Chief of Staff, howsoever described) to nominate a person from that Office to whom the documents in Order 4 can be confidentially disclosed and a time and place for such disclosure to occur. A copy of these Orders and Lindsay J's Orders of 19 January 2021 are to be provided with the material to be disclosed. (iii) The Plaintiff is to write to the LECC informing the LECC that the Court has authorised the Plaintiff to disclose documents relating to the Plaintiff's matter to the LECC and requesting the LECC to nominate a person from the LECC to whom the documents in Order 4 can be confidentially disclosed and a time and place for such disclosure to occur. A copy of these orders and Lindsay J's Orders of 19 January 2021 are to be provided with the material to be disclosed. (2) The defendant is to pay the plaintiff's costs of and incidental to the notice of motion. (3) The orders are stayed until 2pm on Thursday 14 April 2022. (4) The judgment is not to be published on Caselaw or otherwise, except for the purpose of the current litigation, before 2pm on Thursday 14 April 2022. (5) Direct the parties to make genuine efforts to reach agreement as to any changes to the form of the orders in (1) above and any redactions to the form of the judgment. Catchwords: CIVIL PROCEDURE – where plaintiff sues defendants for alleged breach of duties to informant and breach of promises and statutory duty – where plaintiff gathers information from Australia Federal Police and former police officers – implied undertakings – release from Harman undertaking – variation of non-publication order – disclosure of materials relating to police informants – "human sources" – relevant considerations – where non-publication order made to protect the safety of the plaintiff – where sources of material do not oppose release from undertaking – where disclosure to be made to Ministers of Crown – opposition to orders – puzzling – safe hands process Legislation Cited: Civil Procedure Act 2005 (NSW), s 71 Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7(a) Witness Protection Act 1995 (NSW) Cases Cited: Australian Trade Commission v McMahon (1997) 73 FCR 211 Complete Technology v Toshiba [1994] FCA 1314; (1994) 124 ALR 493 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1995] HCA 19 Glencore Coal Pty Ltd v Franks [2021] FCAFC 61 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; [1991] FCA 354 Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 Riddick v Thames Board Mills Ltd [1977] QB 881 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; [1992] FCA 720 Category: Principal judgment Parties: AB (a pseudonym) (Plaintiff) New South Wales Commissioner of Police (First Defendant) State of New South Wales (Second Defendant) Representation: Counsel: