New South Wales Supreme Court CITATION : Perkovic v SRA of NSW [2001] NSWSC 591 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20303/01 HEARING DATE(S) : 28/05/01 JUDGMENT DATE : 4 June 2001 PARTIES : Damir Perkovic v The State Rail Authority of New South Wales JUDGMENT OF : O'Keefe J Mr I Wales SC; Mr R Moyle - plaintiff COUNSEL : Mr J Dodd - defendant Mr P Singleton - For Ministry of Justice WA Lough & Wells Wollongong - For plaintiff Dibbs Crowther & Osborne SOLICITORS : Sydney - For defendant I V Knight NSW Crown Solicitor As Agent for Western Australian Crown Solicitor - For Ministry of Justice WA CATCHWORDS : Subpoena - Objection to production of documents - Test - Run-of-the mill cases - Routine documents - Public interest immunity - Practice - Procedure - Inspection of documents by judge Waind v Hill and National Employers Mutual General Association Ltd (1978) 1 NSWLR 372 Air Canada v Secretary of Trade (1983) 2 AC 394 Alister v Regina (1983-1984) 154 CLR 404 at 414 and 456 Burmah Oil Co Ltd v Governor and Company of the Bank of England (1980) AC 1090 CASES CITED : Glasgow Corporation v Central Land Board (1956) SC (HL) 1 Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 Commissoner for Railways v Small (1938) 38 SR 564 Sankey v Whitlam (1978) 142 CLR 1 at 38-39 Conway v Rimmer (1968) AC 910 at 987 R v Saleam (1989) 16 NSWLR 14 DECISION : Production of documents ordered. IN THE SUPREME COURT OF NEW SOUTH WALES WOLLONGONG COMMON LAW DIVISION CORAM : O'KEEFE J MONDAY, 4 JUNE 2001 20303/01 - DAMIR PERKOVIC v THE STATE RAIL AUTHORITY OF NEW SOUTH WALES JUDGMENT - on defendant's subpoena to the WA Ministry of Justice. 1 HIS HONOUR: Damir Perkovic (the plaintiff) has sued his employer, the State Rail Authority of New South Wales, for damages for injuries alleged to have been caused as a result of negligence on its part. 2 The plaintiff claims that as a consequence of such negligence he fell and sustained a head injury, which, although apparently not very serious in a physical sense, gave rise to a psychiatric disorder which has changed him fundamentally in a personal sense, rendering him unemployable and causing the management of his affairs to be placed in the hands of the Protective Commissioner. 3 There is a fundamental dispute between the plaintiff and the SRA as to the nature of the psychiatric disorder from which the plaintiff suffers. The plaintiff's case is that it is a post concussional personality disorder of an obsessive/compulsive type which is not a psychosis. 4 On the other hand the medical advisors of the SRA have arrived at a diagnosis of schizophrenia or schizophreno form psychosis. If the disorder from which the plaintiff suffers is a psychosis, then it is argued that such a disorder is likely to be genetic in origin and unrelated to the head injury sustained by the plaintiff. As a consequence it is appropriate to have regard to the psychiatric history of the plaintiff's family. 5 In this regard the SRA wishes to examine records relating to the plaintiff's brother, Zelco Perkovic, who is in gaol in Albany, Western Australia as a result of his conviction for murder in or about 1984. Records relating to Zelco Perkovic, have been subpoenaed by the SRA. 6 When the case was called on for hearing counsel for the defendant sought production of documents which had been sought from the Executive Officer of the Ministry of Justice of Western Australia. The subpoena required production of the following documents: "Your complete file regarding Zelco Perkovic incarcerated in Albany Regional Prison, including but not restricted to copies of all medical documents, determination by the Offenders Review Board and Serious Offenders Review Board, parole documents, prison transfer documents, psychological and psychiatric assessments, social workers' reports for the period 1 January 1984 to date." 7 Counsel retained on behalf of the Ministry of Justice Western Australia (the Ministry) under whose control the relevant prison comes, has objected to production and inspection of such documents on two grounds. The second ground, namely that the subpoena was too wide and such as to constitute a "fishing expedition" has already been dealt with in a judgment given on 28 May 2001. 8 Consideration of the first ground of objection was adjourned to ascertain what further evidence touching upon the question of ordering production of the documents sought in the subpoena would emerge in the course of the hearing. The trial of the action has now reached the stage at which it is necessary to determine the question raised by the first ground of objection. 9 The procedure involved in a party bringing documents into Court pursuant to a subpoena for production and the use of such documents thereafter involves three steps or stages. 10 The first is requiring obedience to the subpoena, that is the entity the subject of the subpoena bringing the documents into court. The second is the decision by the court as to whether or not permission should be given to any party or parties to inspect the documents. The third is concerned with the admission of the documents or some of them into evidence. 11 The first step involves the court determining any objections to the subpoena or to the production of documents pursuant to the subpoena. The entity the subject of the subpoena may seek to set it aside or may object to the production of documents on certain grounds, one of which is public interest immunity, another of which is legal professional privilege. 12 The second step arises only after it has been determined that the subpoena is valid and that the documents brought to court are within the control of the Court. Once this has been determined the Court has a discretion to permit inspection of the documents. The test to be applied for the exercise of the discretion involved in this step is that the documents are apparently relevant to the issues before the court. 13 The third step depends upon the application of the appropriate rules of admissibility of evidence (Waind v Hill and National Employers Mutual General Association Ltd (1978) 1 NSWLR 372). SUBMISSIONS BY THE MINISTRY 14 It is in respect of the first step or stage that counsel for the Ministry has raised objection. He has submitted that in a civil case the test to be satisfied before the court will require the production of documents under a subpoena is that: "There must be some concrete ground for belief which takes the case beyond a mere fishing expedition." 15 This test is derived from the speech of Lord Wilberforce in Air Canada v Secretary of Trade (1983) 2 AC 394 which was referred to by Gibbs CJ and Brennan J in Alister v R (1983-1984) 154 CLR 404 at 414 and 456. DISCUSSION 16 In Air Canada the plaintiffs, a group of international airlines, sought declarations that the Secretary of State and the British Airports Authority (BAA) had acted unlawfully in increasing the charges imposed in respect of the use of airport facilities and that such increased charges were excessive and illegal. 17 In order to investigate the dominant purpose of the Secretary of State in giving the instructions which led to the increases in question the plaintiffs sought the production of a number of documents from the government. The Secretary of State claimed public interest immunity in respect of such documents which were divided into two categories, A and B. 18 Category A related to high level ministerial papers concerning the formulation of government policy. Category B consisted of interdepartmental communications (not being routine documents) between senior civil servants relating to the formulation of one or more aspects of the policy described in the documents in category A. The primary judge ordered production of category A documents for his inspection but stayed the order and refrained from inspecting the documents pending an appeal. 19 The House of Lords was divided on the circumstances in which a judge should look at the documents the subject of a claim for public interest immunity. Lords Fraser, Wilberforce and Edmund-Davies favoured the view that the judge should not inspect the documents until he was satisfied that the documents contained material which would give substantial support to the contention of the party seeking disclosure on an issue which arose in the case. 20 Lords Scarman and Templeman favoured a less restrictive approach, namely that the judge ought not inspect the documents unless he was satisfied they would assist any of the parties to the proceedings and were necessary for fairly disposing of the matter. 21 The statement in the speech of Lord Wilberforce in Air Canada on which counsel for the Ministry relies in formulating his submission as to the test to be applied in respect of the first stage of dealing with the subpoena, namely, "some concrete ground for belief which takes the case beyond a mere fishing expedition" occurs in that part of His Lordship's speech which is concerned with an examination of a number of formulations in preceding cases which dealt with the degree of likelihood of providing support for the plaintiff's case which there needs to be. Burmah Oil Co Ltd v Governor and Company of the Bank of England (1980) AC 1090 are at the forefront of such cases. "Likely" and "reasonable probability" are two of such formulations. 22 From his examination Lord Wilberforce concluded that what is required is something that is "beyond speculation". He then paraphrased this concept in the above quotation relied upon by counsel for the Ministry. 23 In my opinion a fair reading of the relevant portion of Lord Wilberforce's speech shows that it must be understood in the light of the basis of the claim for non production, namely public interest immunity, and of the general principle that the production sought should not be a mere fishing expedition, nor rely upon speculation. 24 No like formulation is to be found in the speech of Lord Fraser, however he does refer to the dictum of Lord Keith of Kinkell in Burmah Oil to the effect that where the Court feels it cannot properly decide upon which side the balance falls it may inspect the documents privately. He also refers to Lord Scarman's approach in that case, namely that in deciding whether to inspect the documents or not it is appropriate to consider the issues in the case and the relevance of the documents the disclosure of which is sought (at 105). Lord Fraser said: "... I do not think it would be possible to state a test in a form which could be applied in all cases. Circumstances vary greatly... the most that can usefully be said is that, in order to persuade the Court even to inspect documents for which public interest immunity is claimed, the party seeking disclosure ought to satisfy the Court that the documents are very likely to contain material which would give substantial support to his contention on an issue which arises in the case and that without them he might be 'deprived of the means of... proper presentation' of his case: see Glasgow Corporation v Central Land Board (1956) SC (HL) 1, 18 per Lord Radcliffe." 25 From the speech of Lord Fraser, it emerges that there is no form of test which is universally applicable, even in cases where there is a claim for public interest immunity. 26 In his speech in Air Canada Lord Edmund-Davies referred (at 441) with approval to the approach adopted by Lord Radcliffe in Glasgow Corporation v Central Land Board (supra) namely: "... a litigant who has a case to maintain should not be deprived of the means of its proper presentation by anything less than a weighty public reason." (supra at 20) and added : "... any document which it is reasonable to suppose contains information which may enable the party either to advance his own case or to damage that of his adversary, if it is a document which may fairly lead him to a train of enquiry which may have either of those two consequences, must be disclosed." (supra at 441) 27 He then propounded the test to be applied in the ordinary or "run-of-the-mill" cases as follows: "It follows, that at every stage of interlocutory proceedings for discovery the test to be applied is: will the material sought be such as is likely to advance the seeker's case either affirmatively or indirectly by weakening the case of his opponent." (supra at 441) This test is less restrictive, more liberal, than that of Lord Wilberforce. 28 Lord Edmund-Davies made a distinction between run-of-the-mill cases and the case then before the House of Lords observing that the case then before the House fell into: "... the special category where a party resists disclosing admittedly relevant material on the ground that the documents are of a class that the production of which would be injurious to the public interest." (supra at 441 - 442) 29 This approach of Lord Edmund-Davies to production of documents, where public interest immunity is claimed, is also less restrictive, more liberal, than that of Lord Wilberforce. 30 Lord Scarman did not embrace the test propounded by Lord Wilberforce either. Like Lord Fraser he distinguished between different classes of cases. He said: "It may well be that where there is no claim of confidentiality or public interest immunity or any objection on the ground of privilege, the courts follow a relaxed practice allowing production on the basis of relevance. This is sensible bearing in mind the extended meaning given to relevance in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 ." (supra at 444) 31 However, where confidentiality is claimed "the court should not order production unless it thought it necessary." (supra at 444) 32 Lord Scarman's formulation of the correct approach to the production of documents under subpoena was to reject that the sole criterion for determining whether to require production is whether the parties seeking production can establish the likelihood that the documents will assist his case or damage that of his opponent. Dealing with the ordinary case he said that: "Discovery ... assists parties and the Court to discover the truth. By so doing, it not only helps towards a just determination but also saves costs ... Usually, but not always, the critical factor will be whether the parties seeking production has shown the documents will help him but it may be necessary for a fair determination or for saving of costs, even if it does not." (supra at 445 to 446) In the ordinary case such a test is not as restrictive as that proposed by the Ministry. 33 Where objection is made to the production of documents on the ground of public interest immunity he was of the view that the situation is less liberal: "... unless the Court is satisfied on the material presented to it that the documents are likely to be necessary for fairly disposing of the case, it will not inspect for the simple reason that unless the likelihood exists there is nothing to set against the public interest immunity from production." (supra at 445) 34 Lord Templeman agreed with Lord Fraser rather than with Lord Wilberforce in relation to the production of documents. He also agreed with Lord Scarman concerning the inspection of documents by the court. He said: "... the Court should inspect the documents if the court considers the disclosure of the documents may materially assist any of the parties to the proceedings." (supra at 449) 35 The approach by Lord Wilberforce relied upon by the Ministry should, in my opinion, be viewed as not in accordance with the more liberal approaches taken by the other Law Lords and in any event should be understood in the context of the case in which it was propounded, in particular the fact that the claim for production of the documents was resisted on the ground of public interest immunity, or as Lord Fraser put it,: "when their production has been objected to on behalf of the Crown on the ground that they fall within a class of documents the production of which would be injurious to the public interest."(supra at 429) 36 In Air Canada the appropriate certificates had been given by the Permanent Secretary of the Department of Trade to support an objection on behalf of the Secretary of State. The ground of objection in relation to documents within Category A was that: "They are all documents falling within the class of documents relating to the formulation of Government policy. Such policy was decided at a high level, involving as it did matters of major economic importance to the United Kingdom. The documents in question cannot properly be described as routine documents ...." (supra at 431)(bold added) 37 The claim in the present case has not been supported by any ministerial or equivalent certificate nor by any submission suggesting that the documents are the subject of public interest immunity nor is there any suggestion that the documents are other than routine documents. They are an ordinary departmental file relating to a particular prisoner who is but one of many in the Western Australian prison system. 38 From the speeches in Air Canada I am of the opinion that the test adopted in England for production of documents and for this inspection by the judge in public interest immunity cases is more stringent than in the ordinary or run-of-the-mill case where there is no such claim made. In run-of-the-mill or ordinary cases in which there is no objection to production on the ground of public interest immunity the more appropriate test is that propounded by Lord Radcliffe in Glasgow Corporation v Central Land Board (supra) as adopted in Air Canada by Lord Edmund-Davies and supported in particular by the approach taken by Lord Scarman. 39 Counsel for the Ministry submitted that Alister v Regina (supra) supports his submission and supports as the law in Australia the approach taken by Lord Wilberforce. 40 A number of things should be said about Alister. It differs from the present case in two fundamental respects. First, it is a criminal case. Second, it involved an objection to the production of a class of documents on the ground of public interest immunity. Gibbs CJ made it clear that although a fishing expedition should never be allowed there is no need for the establishment of any concrete belief in relation to the documents, whose production is sought. Rather it may be enough if it appears "on the cards" that the documents may materially assist the defence in a criminal case. (supra at 414) 41 Murphy J expressed the view that he was persuaded that even in a criminal case involving a claim to public interest immunity, the trial judge should inspect the subpoenaed documents to ascertain if they contained anything that tended to show the case against the accused was in any way flawed. (at 431). 42 Although Wilson and Dawson JJ dissented as to the outcome, they gave reasons which are consistent with the reasons of the majority and adopted the position taken by Gibbs ACJ (as he then was) in Sankey v Whitlam (1978) 142 CLR 1 at 38-39, namely: "It is in all cases the duty of the court not the privilege of the executive government to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence." (supra at 434) 43 I should interpolate that in the present case it has not been suggested, nor is there any evidence to support a contention, that there is any public interest in the documents in question not being produced. The objection that is made is based on a technical approach extracted from the speech of Lord Wilberforce referred to above. 44 Wilson and Dawson JJ also made it clear that the right of the court to inspect documents is always present. In stressing this they adopted the approach taken by Lord Fraser in Air Canada as supported by Lord Edmund-Davies in that same case. Those references have already been included in this judgment. 45 The principal judgment in Alister relied upon by counsel for the Ministry is that of Brennan J. The thrust of his judgment is that a more liberal approach should be taken in criminal cases than that advocated by Lord Wilberforce in Air Canada. Furthermore, a careful reading of the judgment of Brennan J does not to my mind establish an endorsement by him of the test adopted by Lord Wilberforce in cases which there is no claim of public interest immunity made. Rather what Brennan J is saying is that taking such a test as the high water mark of the situation in a civil case in which there has been a claim of public interest immunity, where the case criminal in nature, there should be a much more relaxed or liberal approach taken to the production of documents. The reason for that relaxation or liberality is that there is a significant public interest in ensuring the fairness of criminal trials, particularly important criminal trials, such as was the case in Alister and as was the case in Sankey v Whitlam (supra). In this regard Brennan J said: "It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty". 46 The present case is far removed from the type of case that Brennan J was adverting to when he juxtaposed the approach to be taken in a criminal case in Australia where public interest immunity is claimed and that taken in the civil case of Air Canada in England where such a claim was made. 47 Brennan J also adopted the statement by Lord Edmund-Davies in Burmah Oil relating to the right of the court to inspect documents that had been subject of a claim for public interest immunity. (at 453, 454) 48 Accepting the test to be applied in a civil case may be less liberal than that to be applied in a criminal case and that the rule in relation to production stated in Burmah Oil Co v Bank of England Ltd (supra) and Air Canada v Secretary of State for Trade relates to objection to a class of documents objected to on the ground of public interest immunity, it should still be noted that both cases accept that the judge has the power to call for and look at the documents if he is persuaded that inspection would be likely to satisfy him that he ought to order production. The greater the public interest in the preservation of confidentiality attaching to the document the less likely will it be that such power will be exercised. Whether it is exercised or not will depend upon a balancing of the conflicting public interests. 49 When an examination is made of civil cases in relation to the power of a judge to inspect the documents the subject of objection on other than public interest immunity grounds, it is not suggested that it should be as circumscribed in its exercise as is the case where such a claim is made. For example, in Burmah Oil (supra) Lord Edmund-Davies adopted what was said by Lord Pearce in Conway v Rimmer (1968) AC 910 at 987 that: "A judge conducting the balancing exercise needs to know... whether the documents in question are of much or little weight in the litigation, whether their absence will result in a complete or partial denial of justice to one or other of the parties or perhaps to both and what is the importance of the particular litigation to the parties and the public..." "A judge may feel that he cannot profitably embark on such a balancing exercise without himself seeing the disputed documents. May he take a peep?" (supra at 1129) 50 This question was answered in the affirmative, although it was recognised that it may not always be necessary to do so. 51 It is the duty of the court to decide whether documents will be produced or not. The court must ensure that in the performance of its functions parties are not unnecessarily denied access to relevant evidence. Sankey v Whitlam (1978) 142 CLR 1 at 38-39; see also Alister v R (supra at 437-438) per Wilson and Dawson JJ. The statement of the law by Lord Edmund-Davies in relation to inspection of the documents by the court was referred to with approval by Brennan J in Alister (supra at 454) He also said that it is frequently necessary for a judge to inspect documents for which immunity is claimed in order to perform the function of determining where the greater public interest lies. That approach applies a fortiori where resistance to production is not based on public interest immunity. Furthermore, the right of the judge to inspect the documents which are the subject of objection for production was clearly recognised by Murphy J, in Alister v R (supra at 431) and by Wilson and Dawson JJ (supra at 434) 52 The argument on behalf of the Ministry is that the defendant cannot show that the subpoena would yield any documentary evidence or information to further its case. As I have already demonstrated this is not the test and it is not necessary for that to be shown. He further submitted that the decision of the Court of Appeal in Waind v Hill (supra) must now be read down in the light of the decisions in Air Canada and Alister. I do not agree. 53 As I have already said, Air Canada is very different from the present case. It involved a claim for public interest immunity in relation to a category of the documents which has traditionally been regarded as least likely to be required to be produced. Alister is also different. It was a criminal case involved a claim of public interest immunity also in relation to a class of documents. In both cases the documents were not run-of-the-mill, nor for that matter were the cases. The present case is in marked contrast; so to are the documents. The case is one for damages between private parties. It does not involve any claim against a government. The SRA is a statutory corporation, although it performs functions which in the past were not uncommonly performed by governments in this country. The documents are routine or run-of-the-mill documents relating to one of many prisoners held in the prison systems of Australia. No claim for public interest immunity has been raised. The evidence supports a conclusion that the documents may assist the defendant either by supporting its case that the plaintiff is suffering from a psychosis which is genetically based, or by breaking down or weakening the case of the plaintiff that he is not suffering from a psychosis, rather that he is suffering from a mere personality disorder. Furthermore, in Alister Brennan J expressly refers to Waind v Hill (supra) with approval as he does to the Commissioner for Railways v Small (1938) 38 SR 564 and adopts the approval in Burma Oil v Bank of England (supra) of the statement by Lord Pearce in Conway v Rimmer (supra)concerning a judge looking at the disputed documents. He accepted that it is: "frequently necessary for a judge to inspect the documents for which immunity is claimed, in order to perform his function of determining where the greater public interest lies. (supra at 453) 54 Given that such an approach for inspection of the documents by the judge has been taken where public interest immunity has been raised, it is in my opinion even more appropriate for a judge to look at documents in determining where the public interest lies in a case where no claim for public interest immunity has been made. 55 In this context it should also be noted that in R v Saleam (1989) 16 NSWLR 14 Hunt J, with whom Carruthers and Grove J agreed, said in relation to a claim of public interest immunity that: "… before granting access when such an objection has been taken the judge should usually inspect the documents ... for himself." (supra at 16) 56 It should also be remembered that in Conway v Rimmer (supra) the House of Lords dealt with a claim of public interest immunity in an action for malicious prosecution by a former police officer against his former superior. In ordering the production of the documents their Lordships said it was necessary to balance the harm that could be done to public service by the disclosure of certain documents on the one hand and the harm that would be done to the administration of justice by the withholding of them on the other. In determining where the balance lay Lord Pearce said that the judge must consider: "whether the documents in question are of much or little weight in the litigation, whether their absence will result in a complete or partial denial of justice to one or other of the parties or perhaps to both, and what is the importance of particular litigation to the parties and the public. All these matters should be considered if the courts are to decide where the public interest lies." (supra at 987) 57 The answer to this question by Lord Reid in Conway v Rimmer (supra) was that he could see nothing wrong with the judge seeing the documents, so long as the documents were not shown to the parties. 58 The approach taken by Lords Reid, Pearce and Edmund-Davies in Conway v Rimmer (supra) was referred to with approval by Brennan J in Alister. The present case is, as I have said, an ordinary case. The issue of damages to which the subpoena is directed does not involve any matter of state security, national security, formulation of government policy or like considerations. The documents are routine administrative reports like those relating to thousands of people in the various prison systems within Australia. The matter to which the subpoena is directed is already the subject of evidence. What the subpoena is seeking is further support for a case already made. It is not seeking to ascertain whether there is a case at all. It is certainly not a fishing expedition. The adoption of a relaxed approach propounded by Lord Scarman in Air Canada is appropriate and is not forbidden by Alister. This conclusion supports ordering production of the documents. 59 However, it is a case in which, for more abundant caution, it is appropriate to exercise the power referred to in Alister, Conway v Rimmer (supra), Burmah Oil, Air Canada and Regina v Saleam (supra). I have inspected the documents privately and from that inspection it is clear beyond argument that such documents are not merely relevant but are likely to be of significant assistance to the defendant's case in relation to the diagnosis of the plaintiff's disorder. 60 Accordingly, I order production of the documents and subject to any further objection to access being granted to any particular document or documents I propose to allow the parties to have access to such documents. ********** Last Modified: 07/19/2001 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.