GRGIC v AUSTRALIA and NEW ZEALAND BANKING GROUP LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 5 April 1993, 5 April 1993 [1993] NSWCA 126 PRACTICE and PROCEDURE — subpoenas — access to documents produced by — observance of privacy of individuals — police produce police briefs of prosecution of persons allegedly involved in forgery of transfer of title — persons convicted of or facing criminal charges — one brief contains transcript of personal conversation between husband and wife secured by warrant issued to police under Listening Devices Act 1984 s16 — application by parties in absence of husband and wife for access to file containing transcript of conversation. Held: (per Kirby P) (1) It is the duty of the Court to be alert to the privacy interests of persons not present in Court and to protect such interests before permitting access to documents produced to the Court under compulsory process such as subpoena; (2) Access by the parties, as requested, to the transcript of the personal conversation between the husband and wife, without first affording them the opportunity to make submissions to the Court, would be in breach of basic privacy principles; (3) Accordingly, access would be denied until notice was given to the participants in the conversation and they were afforded the opportunity of making submissions to the Court; (4) Meanwhile, the documents would be kept in a sealed envelope not to be accessed without order of a judge. Listening Devices Act 1984, s16. Supreme Court Act 1970, s46(1), s51. Privacy Act 1988 (Cth), s14 (Privacy Principles). ORDERS 1. Stand over the further hearing of the motion for directions, anterior to the appeal, until Monday 17 May 1993; 2. Order that the solicitor for Mr Franco Grgic give notice to the solicitor or solicitors for Mr Antonio Grgic, Mrs Aida Grgic and Mr Francesco Sierra, if known, or to such persons personally within eight days of this date of the listing of the matter for directions before the Court on 17 May 1993 for the purpose of affording such persons the opportunity of making any representations to the Court which they may consider appropriate concerning access by the present parties to the transcript of conversations recorded pursuant to the warrant issued under the Listening Devices Act; 3. [For further orders see transcript]. Kirby P This is a continuation of a very long saga. I am dealing with the matter under the powers conferred on me by the Supreme Court Act 1970, s46(1). The saga began at a trial before Lusher AJ. It is unnecessary to recount the details of what happened. Those details are set out, so far as is relevant to the motions before me, in the reasons of Mahoney JA dated 19 October 1992 and the reasons of Priestley JA dated 8 March 1993. In short, Mr Frano Grgic (the appellant), claims that he lost and important property interest in land by reason of a forgery of his name on the title document by his son in concert with others. He wishes to produce fresh evidence before the Court to establish that fact. Lusher AJ rejected his case founded upon that allegation at trial. Hence the appeal to this Court. 2 UNREPORTED JUDGMENTS Since the original trial before Lusher AJ, Mr Grgic's son, Mr Anthony Grgic, has pleaded guilty to an offence arising out of the alleged forgery. He has been sentenced and is currently serving a period of imprisonment. Mr Anthony Grgic's wife, Aida, faces court upon related charges on 6 May 1993. Mr Francesco Sierra, a Justice of the Peace, is also alleged to have been involved in the forgery. He has been charged. At this stage the outcome or likely progress of the criminal proceedings against him are not known. When the matter was before Priestley JA, his Honour indicated that upon this day there were three matters that should be considered: 1. Whether the matter was appropriate to be set down for hearing as an appeal; 2. Whether affidavits on behalf of the appellant indicating the fresh evidence upon which he was relying should be filed according to a timetable; and 3. Whether a stay of execution of the judgment should be removed. The parties before me today, in the light of the progress being reported in the concurrent criminal proceedings, have, very properly in my view, made no application for the removal of the stay of execution of the judgment. On the other hand, it is obviously desirable, both for the parties and the Court, that this matter should be brought on for hearing without undue delay. When the matter was called before me, a police officer produced to the Court, pursuant to a subpoena issued on behalf of the appellant, three sets of documents. The police officer raised no objection to access being given to both parties in respect of any of the documents. Of two of them, it is unnecessary to make extended comment. Those documents relate to police briefs. I see no reason why access should not be granted to both parties. They may have that access, the documents remaining in the custody of the Court. The third batch of documents presents the particular problem. Although also contained in a police brief, it includes a transcript of personal conversations between Mr Anthony Grgic and his wife, Aida, which were obtained by the police pursuant to a warrant issued under the Listening Devices Act 1984, s16. In my opinion, basic privacy principles require that, before access should be given to the parties before me to the transcript of that conversation, Mr and Mrs Grgic should be first afforded the opportunity to make any representations which they wish to make to the Court concerning any reasons why access should be denied to the parties now before the Court to the transcript, either in whole or in part. Compare Privacy Principle 10 in Privacy Act 1988 (Cth) sl4. See also Organisation for Economic Co operation and Development (OECD) Guidelines on Information Privacy ("Use Limitation Principle") in Australian Law Reform Commission Privacy (ALRC 22) 1983, 2ff. It is the duty of the Court on its own initiative and irrespective of the parties before it to be alert to such privacy interests in permitting access by strangers to documents produced to the Court under compulsory process. Cf Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWLR 648 (SC) 649. The transcript referred to is a 72 page document contained in the police brief. I have directed that those pages be clipped. Access to them will not at this stage be granted. Instead access will be given to Mr and Mrs Grgic to afford them the opportunity of putting any submission which they wish to place before the Court in respect of such access. Meantime the documents will be held by the Court in a sealed envelope not to be opened without authority of a Judge of Appeal. I consider that it is also appropriate that Mr Sierra should also be informed of the proceedings before the Court and allowed to be heard, if he wishes to be heard, in respect of such access. he ought not to be given access to the transcript URJ GRGIC v AUSTRALIA and NEW ZEALAND BANKING GROUP LTD (Kirby P) 3 of the conversation because he took no part in it. It is however, at least possible that he was referred to and implicated in the conversation. The question of whether he should have access to the transcript and if so, on what terms, will remain to be determined by the Court after having first heard from the participants in the conversation, if that be their wish and also having heard any application which Mr Sierra or his representative makes. The foregoing procedure can be adopted without any relative disadvantage to the parties before the Court today because it was, in effect, common ground that the Court should wait until an interval of time to see what steps were taken in the prosecution of Mrs Aida Grgic and Mr Francesco Sierra before listing the appeal for hearing. There are two other outstanding matters. The first of these is a decision on whether the whole or part of disputed factual matters raised by way of fresh evidence should be remitted to a single judge of the Common Law Division in accordance with s51 of the Supreme Court Act 1970. Such a course would seem to be a sensible and efficient way to use the scarce time of the Court of Appeal. However, it is inappropriate to make any decision on the matter at this stage until affidavits are, in due course, filed for the appellant upon which the extent of such additional evidence can be judged and a decision on a possible remittal considered by the Court. The second outstanding matter relates to a Notice of Contention which has been filed by the Bank. It raises what I will call loosely a defence based upon indefeasibility of tide. It was suggested plaintively that the Court should bring on the point raised by this Notice of Contention, to be heard at an early stage. On one view, if the defence is good, the opportunity to right the wrong done to Mr Frano Grgic may not ultimately be availed of by him. I express no concluded opinion on that possibility. I am told that no rights of interested innocent third parties have intervened to disturb the personal equities of the parties before the Court. It is, therefore, possible that, in the appeal, the Court could fashion orders as it did in Mercantile Mutual Insurance Co Ltd v Gosper (1991) 25 NSWLR 32 (CA), to correct the register of land titles. However, whether this will be done will depend upon a full consideration of the matters raised in the Notice of Contention. It would be inefficient to sever those matters from the rest of the litigation. It is preferable that the whole of this unfortunate story should come on for hearing in the Court of Appeal when it is ready and when all matters in contention between the parties at that time can be disposed of. It is at least possible that, in the event that the Bank has access to the fresh evidence and is satisfied as to the genuineness of the contents, the matters raised in the Notice of Contention will provide no ultimate barrier to the Court's correction of an injustice to Mr Frano Grgic if that is what has occurred. It is also possible that the Bank might, in such circumstances, consent to the amendment of the tide to the land in the light of all the facts which have come to light since the matter was tried before Lusher AJ. In saying that, I indicate no prejudgment. I simply reflect what has been very properly put before me by the representatives of the parties. The result of the foregoing is that the following orders should be made: 1. Stand over the further hearing of the motion for directions, anterior to the appeal, until Monday, 17 May 1993; 2. Order that the solicitor for Mr Frano Grgic give notice to the solicitor or solicitors for Mr Anthony Grgic, Mrs Aida Grgic and Mr Francesco Sierra, if known, or to such persons personally within eight days of 4 UNREPORTED JUDGMENTS this date of the listing of the matter for directions before the Court on 17 May 1993 for the purpose of affording such persons the opportunity of making any representations to the Court which they may consider appropriate concerning access by the present parties to the transcript of conversations recorded pursuant to the warrant issued under the Listening Devices Act; 3. Order the further consideration of the application to set the appeal down for hearing and to fix a timetable for the filing of affidavits and to consider the remittal to the Common Law Division of any questions which may be appropriate as a result of the outcome of the hearing on 17 May 1993. It will be expected that at that hearing the parties will place before the Court as full a report as possible concerning the outcome of the criminal proceedings pending against Mrs Aida Grgic and Mr Francesco Sierra; 4. Costs of the motion to be costs in the appeal; and 5. Grant access to both parties to the documents produced to the Court on subpoena save for the transcript of conversation secured pursuant to the warrant under the Listening Devices Act. "MR MCKENZIE: This may be an administrative matter. But it would be convenient, particularly with the Easter break coming up, if my instructing solicitor were given access to uplift the documents and photocopy them. I understand there is a photocopy facility here? HIS HONOUR: Yes. Is there any reason why that should not be done? MR XENOS: No, your Honour. HIS HONOUR: You can unclip the documents... MR MCKENZIE: There might be a difficulty in that. There was a record of interview with the lady and she was asked to listen to the tape and pieces were put to her. I think that should come within prohibition. HIS HONOUR: It is very proper for you to bring that to my knowledge. I think I should simply direct that all of that material be simply clipped and not be made available to the parties. MR MCKENZIE: It may be better if the whole of the brief were put in that position. MR XENOS: I take it that is one third of the three documents which make up the appellant's brief? HIS HONOUR: Yes. All of that material, in the light of what I have now been told, will be handed back to the court officer and kept in an envelope, not to be opened without an order of the Court or a Judge of Appeal. MR XENOS: Perhaps my learned friend's instructing solicitor might be permitted to take photocopies with copies to be sent to me within fourteen days? HIS HONOUR: Yes, that may be done." 1. Stand over the further hearing of the motion for directions, anterior to the appeal, until Monday 17 May 1993; 2. Order that the solicitor for Mr Franco Grgic give notice to the solicitor or solicitors for Mr Antonio Grgic, Mrs Aida Grgic and Mr Francesco Sierra, if known, or to such persons personally within eight days of this date of the listing of the matter for directions before the Court on 17 May 1993 for the purpose of affording such persons the opportunity of making any representations to the Court which they may consider appropriate concerning access by the present parties to the transcript of conversations recorded pursuant to the warrant issued under the Listening Devices Act; 3. [For further orders see transcript]. URJ GRGIC v AUSTRALIA and NEW ZEALAND BANKING GROUP LTD (Kirby P) 5 Counsel for the Claimant: JR McKenzie Solicitors for the Claimant: Garry Penhall Counsel for the Opponent: J Xenos (Solicitor) Solicitors for the Opponent: Dowe Xenos