GRGIC vy AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED [NO 2] SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL KirBY P 17 May 1993 [1993] NSWCA 125 PRACTICE & PROCEDURE — subpoena — access to police brief — transcript of intercepted telephone conversation — notification to parties to conversation — waiver of opportunity to be heard — access to transcript allowed. Kirby P. The background to this case is set out in the reasons which I gave for the orders which I made on 5 April 1993. Pursuant to those orders, notice was given to the two persons named — Mrs Aida Grgic and Mr Francesco Sierra. Notice was also given to Mr Anthony Grgic. He is in custody serving a sentence of imprisonment which arises out of events which are in contest before the Court. Mr Anthony Grgic has, by letter which has been placed before me, indicated that he has no objection to the publication to the parties, and the Court, of information contained in police briefs of proceedings against himself, his wife and Mr Sierra. The police briefs contain the transcript of conversations of telephonic interceptions of conversations between Mr and Mrs Anthony Grgic. It was my concern to ensure that the subject of the interception should have the opportunity of placing any submissions before the Court before the intercepted conversations were more widely disclosed. That concern caused me to make the orders set out in my reasons of 5 April 1993. In respect of Mrs Grgic and Mr Sierra the position iscomplicated. Although letters were sent to them, proof of which was placed before me this morning, there has been no response. They did not appear when the proceedings were called on before the Court. According to a suggestion which I made the solicitor for Australia and New Zealand Banking Group attempted to telephone Mr Sierra and Mrs Grgic. He made no contact with Mr Sierra nor personal contact with Mrs Grgic. However, he spoke, according to an affidavit which has been read before me, to a Mr Frydman, who was the solicitor for Mrs Grgic in the proceedings in the Local Court in Bankstown in May 1983, when she, like her husband had earlier been, was committed for trial for a criminal offence. The solicitor stated that it was his understanding that Mrs Grgic had no objection to the recording, that is to say, the transcript of the recording, being made available to the Court and the parties. It was now a matter of public record. It was said to have been used in the 'District Court proceedings'. I take the 'District Court' to mean the Local Court at Bankstown for the proceedings against Mr Anthony Grgic upon which he was convicted and sentenced. I therefore see no reason why the transcript should not now be made available to the parties, a full opportunity having been afforded to the participants to place before the Court any submissions that they might wish. That leaves Mr Sierra out of account. However, he was not a party to the conversations. Accordingly, I think he has been given sufficient opportunity to place any submissions he wished before the Court. He has not availedhimself of that opportunity. I see no reason why the progress of the appeal should be held UNREPORTED JUDGMENTS up especially as the two parties vitally concerned are not opposed to the transcript of their conversation being made available. The hearing should not be further delayed. The orders which I therefore make are: 1. The parties to the appeal may, by their solicitor, have access to the documents in the sealed envelope which is in the possession of the Court, and, subject to order 2, that access may be had in the presence of an officer of the Registrar of the Court of Appeal or of my Associate; Release the documents to the solicitor for the appellant upon his undertaking to photocopy the transcript of the conversations the subject of the police interception and to make available copy of that transcript to the solicitor for the Australia and New Zealand Banking Group Limited and return the transcript otherwise intact to my Associate within 24 hours of provision of the transcript to him or her; . Order that the appellant, within 4 weeks of this date, file and serve affidavits deposing to any fresh evidence which the appellant will seek to lead before the Court of Appeal on an application to enlarge the record; Order that the opponent, the respondent to the appeal, within two weeks thereafter file and serve any affidavit upon which it seeks to rely inrespect of any enlargement of the record before the Court of Appeal; . Direct that the proceedings be called over before the Registrar of the Court of Appeal on 7th July 1993 for the purpose of fixing the hearing date pursuant to the order earlier made by me for the expedition of the hearing of the appeal; Order that the proceedings be returned before the Court for mention and report upon the application for enlargement of the record, such return to take place on Monday 5 July 1993 in motions; and Order that the costs of the proceedings before the Court today be costs in the appeal. Orders accordingly. Counsel for the claimant: L J Ellison Solicitors for the claimant: Gary Penhall Counsel for the opponent: B A J Coles QC Solicitors for the opponent: W A Dowe Xenos and Vardas