Supreme Court New South Wales Medium Neutral Citation: SG v New South Wales Crime Commission (No 8) [2023] NSWSC 811 Hearing dates: 3 September 2021, 19 July, 21 December 2022, on the papers Decision date: 11 July 2023 Jurisdiction: Common Law Before: Rothman J Decision: Objection to production upheld in accordance with the Schedule to the reasons for judgment and declined in accordance with that same Schedule. Catchwords: CIVIL PROCEDURE – production of documents – secrecy provisions in Crime Commission Act 2012 (NSW) – alteration to provisions – determination of requirement to produce in relation to each document in accordance with the legislation that came into effect on 1 February 2023 Legislation Cited: Crime Commission Act 2012 (NSW), s 80 Cases Cited: Newman v Whittington [2022] NSWSC 1725 Prestney v Corporation of Tolchester (1883) 24 Ch D 376 SG v New South Wales Crime Commission [2016] NSWSC 1615 SG v New South Wales Crime Commission (No 2) [2016] NSWSC 600 SG v New South Wales Crime Commission (No 4) [2021] NSWSC 92 Wilkshire and Coffey v Commonwealth of Australia (1976) 9 ALR 325 Category: Procedural rulings Parties: SG (Plaintiff) New South Wales Crime Commission (Defendant) New South Wales Crime Commission in relation to the Public Interest Immunity issue (Applicant) Representation: Counsel: C P O'Neill (Plaintiff) M Hutchings (Defendant) R Bhalla (Applicant) Solicitors: Laxon Lex Lawyers (Plaintiff) Crown Solicitor's Office (Defendant / Applicant) File Number(s): 2015/194130 Publication restriction: Publication restriction as to evidence or any material that would identify any individual mentioned in the proceedings, other than legal practitioners. Judgment 1. HIS HONOUR: The substantive proceedings in this matter involve the plaintiff, SG (the identity of whom is the subject of suppression orders) claiming payment for information that he provided to the New South Wales Crime Commission (hereinafter "the Commission") in his role as a source/informer. The allegation is that information was provided by SG in accordance with the arrangement with the Commission, and the Commission has not paid for that information. 2. There is no controversy that payment was not made for the relevant period. Further, SG complains that the Commission breached the obligation for confidentiality imposed upon the Commission under the arrangement with SG. 3. In the substantive proceedings, the Commission argues that the arrangement is not a contract, does not bind the Commission, and cannot be enforced. It alleges that there was no intention to form contractual relations. Further, it denies any breach of confidentiality and entitlement to payment if there were a binding contract. 4. In reply, SG claims under the doctrine of quantum meruit and/or equitable or statutory relief to the extent that there is not a binding contract. 5. As a consequence of the issues arising in the substantive proceedings, SG has sought a number of documents, defined by class, which are adjectivally relevant to the formation of the contract between SG and the Commission; payments made to SG by the Commission in return for information provided (both the fact of them and the amounts of them); amounts paid for similar information to other paid informants/sources; and other like information. The Commission has resisted production of the documents. 6. The Commission has raised as an objection to the production of documents the principles of public interest immunity; objections as to privilege and issues of form and breadth of the request; and, relevantly for the current judgment, the secrecy provisions under s 80 of the Crime Commission Act 2012 (NSW) (hereinafter "the Act"). The issues relating to public interest immunity, adjectival relevance, and other issues have been resolved in previous interlocutory judgments. 7. The issue of the proper interpretation of s 80 of the Act was the subject of judgment on 4 February 2021, having been argued on 7 and 14 December 2020. The Commission had previously suggested that the claim to enforce any contract of employment or contract for the provision of services involved illegality, at least to the extent that it relied on information obtained from the Commission by the applicant or an identified former employee or officer of the Commission, and/or was contrary to public policy and the proceeding should be dismissed. It also submitted that the provisions of s 80 of the Act (as it then existed) were such that the proceedings taken by SG were an abuse of process and should be dismissed. [1] 8. Once the Court dismissed the application by the Commission to dismiss the proceedings on the various bases earlier described, including on the basis of s 80 of the Act, the Commission then relied upon s 80 of the Act in two separate ways: first, in objecting to the proceedings generally; and, secondly, in objecting to the production of documents sought by or on behalf of SG. In relation to the proceedings generally, it was submitted that the information already obtained by SG had been obtained "illegally", by which term the Commission was referring to a breach of s 80 of the Act. The Commission submitted that none of the material obtained from a particular witness, being a previous officer of the Commission, could be relied upon by SG in the proceedings. 9. Secondly, the Commission relied upon the terms of s 80 of the Act to submit that the Court was prevented from requiring the Commission (or the Australian Federal Police who received material from the Commission) from producing to the Court documents or information, or divulging or communicating to the Court that which has come into the possession of the Commission, its officers, or the AFP as a result of the performance by the Commission of its functions under the Act. 10. The Court, in its judgments previously issued, [2] construed the terms of s 80 of the Act to what was variously described as the "special functions" of the Commission or not relating to its corporate functions. Previously, the Court said: "[76] As noted already and determined by the Court, as presently constituted, in the first judgment, properly understood and construed, the terms of s 80 and the limitations on a court's capacity to require production or the divulging of information relate to the special functions of the Commission, not to its corporate functions. As a consequence, unless such information expressly or inferentially relates to the special functions and investigative powers of the Commission, correspondence setting out the terms of engagement of the plaintiff, if there be any, or the work to be performed, would not be subject to limitation. [77] Having made that comment, it is clear that, when one is dealing with the engagement of a source, there may be significant matters that relate to the special functions of the Commission that would be disclosed as a consequence of the divulging of work performed or to be performed, including, possibly, the modus operandi of the Commission. However, no evidence before the Court discloses any such information or any real possibility of the disclosure of any such information. As was sought to be made clear in the first judgment, such a conclusion may be reached by reference to a particular class of documentation, on the face of that description, or, otherwise, may require the Court to inspect the documentation for the purpose of determining whether s 80 of the Act applies. [78] That involves a quandary. It is not, however, without a solution. In the absence of evidence which, on its face, discloses material of the kind to which s 80 of the Act applies, there is no limitation on the Court in requiring production to the Court. [79] Once production has occurred, then the Court may, for the first time, have evidence that there is material in the documentation, the disclosure of which and/or the compulsory production of which would be inconsistent with the terms of s 80 of the Act. Since the Act defines the term 'produce' to include permitting access to or inspecting, the Court would, having received the evidence, be in a position to be able to determine that access or inspection not be permitted as a consequence of the terms of s 80 of the Act. The Court, presently, is not at that point." [3] 1. As a consequence of the reasons for judgment issued on 4 February 2021, the Commission examined the documents fitting within the class of documents which were the subject of request for production and proposed redactions or objections on the basis of the construction proposed. There are 17 volumes of documents, as well as two bundles of exhibited material accompanying Affidavits, which are before the Court. 2. The proceedings returned to the Court on 19 July 2022 on which date the issues were argued by the parties (although the plaintiff and his legal team have not seen or had access to the documents) and the Court reserved judgment. The Court proceeded to analyse the objections on the basis of those notified by the Commission and in accordance with the construction of s 80 of the Act outlined by the Court, as presently constituted. 3. On 16 December 2022, pursuant to a request by the Commission, the proceedings were listed for directions. At that time, the Court was informed that s 80 of the Act had been amended to take account of the construction of the provision by the Court to which these reasons have previously referred. The Court was informed that the new provision would operate on and from 1 February 2023. 4. As at December, the Court had almost completed the analysis of the documents contained in the 17 volumes and was faced with two possibilities. The first was to issue the judgment in relation to the documents prior to 1 February 2023 and disregard the amendment that was to take effect on that date. The second course of action was to re-examine the documents in light of the amendment to s 80 of the Act and make orders accordingly. 5. As tempting as it was to issue orders on the basis of the unamended provision, most of which had been completed, the obvious difficulty with such a course was that if there were an appeal from any order issued by the Court, the Court of Appeal would, assuming leave to appeal were granted, apply the law as it existed at the time of the appeal, not at the time of the application or original orders and be unable to require production other than in accordance with the Current Provisions. 6. Further, and probably more importantly, even if judgment and orders issued prior to 1 February 2023, there was nothing that would stop the Commission from re-agitating objection to the production on the basis of the amended provision, given that the orders would have been interlocutory and the circumstances giving rise to the orders would have altered. 7. Indeed, on one view of relevant authority, where the circumstances have changed and give rise to different rights, there may be a duty on a court to amend interlocutory orders already issued. As stated, this will occur either when circumstances have changed from that which existed at the time that original orders issued, or the earlier orders create an unnecessary inconvenience or injury to one or more of the parties. [4] Legislative Changes 1. The relevant terms of the Crime Commission Act (2012 - 2022) (hereinafter the "Previous Provisions") were: "80 Secrecy [Maximum Penalties] (1) This section applies to a person— (a) who is or was an executive officer, and (b) who is or was a member of the staff of the Commission, and (c) (Repealed) (d) who is or was an Australian legal practitioner appointed to assist the Commission or who is or was a person who assists, or performs services for or on behalf of, such an Australian legal practitioner in the exercise of the Australian legal practitioner's functions as counsel to the Commission, and (e) who is or was a member of a task force assisting the Commission in accordance with an arrangement under s 58, and (f) to whom information is given by the Commission or by a person referred to in paragraph (a), (b), (c), (d) or (e) after expressly informing the person that the information is to be treated by the person as confidential. (1A) This section applies to a person conducting a review under s 78B in relation to the person's functions under that section. (2) A person to whom this section applies must not, directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person's functions under this Act— (a) make a record of any information, or (b) divulge or communicate to any person any information, being information acquired by the person because of, or in the course of, the exercise of functions under this Act. Maximum penalty—50 penalty units or imprisonment for 12 months, or both. (3) A person to whom this section applies 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 because of, or in the course of, the exercise of the person's functions under this Act, or (b) to divulge or communicate to any court any matter or thing that has come to the person's notice in the exercise of the person's functions under this Act. (4) Despite this section, a person to whom this section applies may divulge any such information— (a) for the purposes of and in accordance with this Act, or (b) for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of its functions, or (c) in accordance with a direction of the Commissioner or Management Committee, if the Commissioner or Chairperson of the Management Committee certifies that it is necessary for the information to be divulged in the public interest, or (c1) in accordance with a requirement made by or under the Law Enforcement Conduct Commission Act 2016, or (d) to any prescribed authority or person, or (e) if the disclosure is made to a registered medical practitioner or registered psychologist for the purposes of that health practitioner providing medical or psychiatric care, treatment or counselling (including but not limited to psychological counselling) to a person to whom this section applies. (5) An authority or person to whom information is divulged under subs (4), and any person or employee under the control of that authority or person, is, in respect of that information, subject to the same rights, privileges, obligations and liabilities under subss (2) and (3) as if he or she were a person to whom this section applies and had acquired the information in the exercise of functions under this Act. (6) 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 or inspection of." [5] 1. As earlier stated, the Act was amended relevantly to operate on and from 1 February 2023 and the current terms (in these reasons referred to as "the Current Provisions") are: "80 Secrecy (1) A relevant person must not, directly or indirectly, make a record of, or disclose, including to a court, information acquired because of, or in connection with, the Commission's activities unless the information relates only to the Commission acting solely in its corporate capacity. Maximum penalty—50 penalty units or imprisonment for 12 months, or both. (2) The Commission is not taken to act solely in its corporate capacity only because the Commission— (a) enters into a contract or agreement for the purpose of acquiring— (i) intelligence, or (ii) other information for an investigation, or (b) acquires or uses technology for the purpose of the Commission's investigative functions. (3) A relevant person must not be required— (a) to produce in a court a document or other thing that has come into the person's possession, custody or control because of, or during, the exercise of the person's functions under this Act, or (b) to disclose to a court a matter or thing that has come to the person's attention in the exercise of the person's functions under this Act. (4) Proceedings for an offence under this section may be commenced within, but not later than, 3 years after the date on which the offence is alleged to have been committed. (5) In this section— 'court' includes a tribunal, authority or person having power to require the production of documents or the answering of questions. 'disclose' includes communicate. 'produce' includes permit access to or inspection of. 'relevant person' means the following— (a) an executive officer, (b) a member of staff of the Commission, (c) a person involved in an investigation or in the exercise of the Commission's functions under this Act, (d) an Australian legal practitioner who assists, or performs services for or on behalf of, the Commission, (e) a member of a task force assisting the Commission in accordance with an arrangement under section 58, (f) an authority or a person to whom information is disclosed under s 80AA, and a person or employee under the control of the authority or person, (g) a person conducting a review under s 78B in relation to the person's functions under the section, (h) a person who was previously a person referred to in paragraphs (a)–(g). s 80: Am 2013 No 35, Sch 2 [2]; 2016 No 61, Schs 6.6 [16]–[18], 7.1 [2]. Subst 2022 No 55, Sch 2[12]. 80AA Secrecy—defences (1) A relevant person does not commit an offence under s 80 if the record or disclosure is made or done— (a) for the purposes of, and in accordance with, this Act or otherwise in connection with the exercise of the person's functions under this Act, or (b) for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of the Commission's functions, or (c) in accordance with a direction of the Commissioner or Management Committee, if the Commissioner or Chairperson of the Management Committee certifies it is necessary, in the public interest, for the information to be disclosed, or (d) in accordance with a requirement under the Law Enforcement Conduct Commission Act 2016. (2) A relevant person does not commit an offence under s 80 if the disclosure is— (a) to an authority or a person prescribed by the regulations, or (b) to a medical practitioner or psychologist for the purposes of the health practitioner providing medical or psychiatric care, treatment or counselling, including psychological counselling, to the person. (3) In this section— 'disclose' includes communicate. 'relevant person' has the same meaning as in s 80." [6] 1. As can be seen from the foregoing extracts, prior to the amendments promulgating the Current Provisions — and subject to the construction indicated by the Court previously and to which reference has already been made — the Previous Provisions, after defining the persons to whom it referred, prohibited direct or indirect recording, divulging or communicating "to any person any information … acquired by the person because of or in the course of the exercise of functions" under the Act. Breach of that provision was a criminal offence. Further, the Previous Provisions prohibited any requirement on such a person producing to a court any document that had come into the person's possession because of the person's exercise of functions under the Act. 2. The Current Provisions also prohibit the recording and/or disclosure of information acquired because of or in connection with the Commission's activities but exempts information that relates "only to the Commission acting solely in its corporate capacity". Again, a breach of that prohibition is a criminal offence. 3. The Current Provisions also prohibit the person being required to produce a document in court. The terms of s 80(3) of the Act, unlike the terms of s 80(1) of the Act, are not expressly limited to documents or other things that do not relate "only to the Commission acting solely in its corporate capacity". In the circumstances, there are a number of possible results of that omission. 4. Plainly, the legislature was mindful of the Court's construction of the Previous Provisions and the construction is, or seems to be, the catalyst for the amendment to s 80. Consequently, there are a number of possibilities. First, the legislature has simply forgotten to limit s 80(3) of the Act in the same manner. Secondly, the legislature may be content to allow the Court to require production of documents in accordance with the previous construction. There is a third and possibly fourth construction. 5. The third possible construction is that the reference to "document or thing" in s 80(3) of the Act is a reference to a document or thing containing information prohibited from disclosure by s 80(1) of the Act. The fourth construction, seemingly the least likely, is that the legislature has deliberately differentiated between conduct which gives rise to a criminal offence, described in s 80(1) of the Act, and the capacity of the Court to require production of documents, the latter being a broader prohibition. 6. The fourth mentioned construction is least likely because it would result in the absurd situation that a person could disclose information solely relating to the Commission's corporate functions with impunity but could not be required to produce such information or a document containing such information to a court. 7. Rather, it seems that the legislature has, quite deliberately, confined the secrecy provisions, breach of which gives rise to a criminal offence, to information that is not solely relating to the Commission's corporate activity and a purposive construction of s 80(3) of the Act would confine the document or thing so as to exclude documents solely relating to the Commission's corporate activities. The term corporate capacity is defined to exclude certain activities prescribed by s 80(2) of the Act. 8. Given the terms of the construction applied to the Previous Provisions, the issue arises as to the extent of the difference between the terms of s 80(1) in its current form and the terms of the Previous Provisions as construed by the Court. It would seem that the difference is that the exception in the current provision is confined to information and/or documents of the Commission "acting solely in its corporate capacity" and, in that respect, the term "solely" is significant and may be the only difference, if there be a difference. 9. It is not clear from the construction provided to the Previous Provisions whether information that related partly to the Commission acting in its corporate capacity and the Commission acting otherwise was considered. Given the terms of the earlier construction, to which reference has been made, it would seem that information that divulged functions or material that related otherwise than to the Commission's corporate capacity would be caught by the provisions of s 80 and, if that were the case, the amendment makes little or no difference to the construction otherwise provided. 10. Care must be taken in dealing with the provisions of s 80 and, in particular, to the fact that the terms of s 80(3) which prohibit production for court relates to a document or "thing", whereas the conduct that is described as criminal relates to "information". Information may be disclosed by reading it or in a manner other than not producing a document or thing. And, as prescribed by s 80(5), disclosure includes communication. Disclosure is referred to in ss 80(3)(b) and 80(1) of the Act. 11. The prohibition in s 80(3) is a prohibition on a person being required to produce or to disclose. It does not prohibit a person from producing or disclosing voluntarily. The prohibition on voluntary disclosure is that which is contained within the terms of s 80(1) of the Act. 12. In some respects, the legislative prohibition on disclosure by a relevant person and the limitation relating "only to the Commission acting solely in its corporate capacity" may result in some documents being able to be produced or information disclosed that would not be able to be disclosed if the Previous Provisions were applied in accordance with the previously applied construction. This is best explained by way of example. 13. If the Commission, acting solely in its corporate capacity and for its corporate purposes, produced a Profit and Loss Statement, the document could be disclosed without offending s 80(1) of the Act and the information in it could be disclosed without a crime having been committed. Yet, the Profit and Loss Statement may contain a line entry relating to expenditure on an investigation which disclosed the identity of a source or the location of surveillance devices. 14. Notwithstanding the disclosure of that information, the information in the Profit and Loss Statement and the Profit and Loss Statement itself would, on the hypothetical example given, relate only to the Commission acting solely in its corporate capacity. Such a Profit and Loss Statement could be required by a court to be produced. 15. One must be aware that there may be other reasons that production of the information on that Profit and Loss Statement could be subject to successful objection, for example, under the doctrine of public interest immunity. 16. As already stated, previous judgments of the Court, as presently constituted, have dealt with objections to production on the basis of public interest immunity. As a consequence, issues associated with the disclosure of, for example, the name of a source or the location of current surveillance devices or the methodology of the Commission have been considered and the objections upheld, in part, and declined, in part. No information contained in the documents is of a kind that reveals protected information under public interest immunity. 17. The Court must apply the provisions of the Act as effective from 1 February 2023 and, in so doing, will accept any objection taken on the basis that the document contains information that is not only related solely to the Commission's corporate capacity. 18. Objections such as those now being dealt with create significant difficulty. First, there is a fundamental unfairness associated with the proposition that the plaintiff does not see the material and does not have the ability to test any claim made by the Commission. That is an unfairness that is deliberately created by the legislature. 19. Secondly, the Commission's exercise of the right to object to the production of a document is a matter within the Commission's discretion. The Commission can choose not to object to a document, even though it contains material not solely related to the Commission's corporate capacity. 20. In choosing not to object to such a document, the Commission is put at a significant advantage, as compared to the plaintiff. Thus for example, in the material that is the subject of objection on the basis of s 80 of the Act, one document may have been the subject of objection and, it would seem, would favour the case mounted by the plaintiff; while a second copy of the same document, which contains exactly the same material but is subject to significant proposed redaction on the basis of s 80, does not favour the case of the plaintiff either because it is neutral or may give rise to an inference against the case of the plaintiff. 21. The material in each document is exactly the same. This gives rise to an inference that the exercise of the Commission's discretion in determining which documents shall be the subject of objection to being produced, pursuant to s 80 of the Act, has been done otherwise than bona fide. To illustrate the point, one may compare documents at 2298-2299 and 2315-2316. 22. There are also many instances where a document is reproduced a number of times, and the different versions of that document each bear different patterns of redaction pursuant to s 80, without any apparent reason for the discrepancy (for example, the document at page 2347 and the document at page 2349). 23. Nevertheless, the Court is constrained by the terms of the legislation and must permit production of those documents that are not the subject of objection and, to the extent that they are prohibited by s 80 of the Act, prohibit production of those documents that are protected. This is the basis upon which the Court has determined the objections that have been made to the documents. 24. Applying the foregoing approach, I have, in the schedule to these reasons, set out the documents and the result of the objection to production. The Court has been greatly assisted by the provision of the proposed redactions in a mark-up over the original documents together with a schedule of redactions, which have been generated by the Commission. Those documents also incorporate redactions which were proposed on other bases and with which the Court has already dealt. 25. Where a redaction has already been upheld or ruled upon, I have not taken that into account and have instead provided a ruling on each proposed s 80 redaction afresh. Furthermore, where the schedule of redactions has indicated that a s 80 claim was made in relation to a page or document, but the document provided did not bear a proposed redaction, I have taken the claim at its highest and presumed that the entire document is claimed under s 80 of the Act. 26. The Court orders that those documents marked to the effect that the objection is denied be produced in the form redacted as a consequence of the upholding of other objections. ********** 230711 - SCHEDULE - SG v NSWCC (15-194130) (1215305, pdf) 230711 - SCHEDULE - SG v NSWCC (15-194130) (120744, docx) Endnotes 1. SG v New South Wales Crime Commission [2016] NSWSC 1615, at [32]. 2. SG v New South Wales Crime Commission [2016] NSWSC 1615; SG v New South Wales Crime Commission (No 2) [2016] NSWSC 600 and SG v New South Wales Crime Commission (No 4) [2021] NSWSC 92. 3. Ibid. 4. Prestney v Corporation of Tolchester (1883) 24 Ch D 376 at 384-385 (Cotton LJ); Wilkshire and Coffey v Commonwealth of Australia (1976) 9 ALR 325 at 331-332 (NT Supreme Court, Muirhead, J); Newman v Whittington [2022] NSWSC 1725. 5. Crime Commission Act 2012 (NSW), as at 2022, s 80. 6. Crime Commission Act 2012 (NSW), ss 80 and 80AA. 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: 11 July 2023